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Hild v. Avland Development Co.

OPINION FILED FEBRUARY 24, 1977.

RAY HILD ET AL., PLAINTIFFS-APPELLEES,

v.

AVLAND DEVELOPMENT COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Tazewell County; the Hon. JAMES D. HEIPLE, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a decree of the Circuit Court of Tazewell County which entered judgment in favor of the plaintiffs, Ray Hild and Edward Tyrrell, and against the defendant, Avland Development Company, for damages in the sum of $4,427.12 and for other mandatory relief.

The factual situation which ultimately resulted in litigation between the plaintiffs and the defendant and which led to this appeal is as follows.

In 1959 Ben Knapp owned more than 300 acres of farm and pasture land near the city of Mackinaw in Tazewell County, Illinois. Plaintiff Ray Hild owned a 200-acre farm adjoining the land of Ben Knapp on the North, and plaintiff Edward Tyrrell owned a farm adjoining the land of Ben Knapp to the West.

During 1967-68 Ben Knapp received a permit to build a dam on his property from the Department of Waterways. The dam was constructed and an 80-acre lake was formed. On November 20, 1969, Ben Knapp and his wife conveyed the lake and surrounding acreage to the Avland Development Company which used the land for the sale of recreational homesites.

The lands upon which the lake was formed were of such nature that they allowed seepage onto the lands of Hild and Tyrrell. In July 1969 Tyrrell noticed seepage. Sometime during the fall of 1969 Tyrrell discussed this with Knapp, who unsuccessfully attempted to obtain an easement on the Tyrrell land. During the spring of 1969 Hild observed water seeping from the lower end of an eight-acre parcel and running in a stream from there. In an attempt to halt or reduce this seepage or percolation Hild attempted unsuccessfully to pump out the water which covered the eight-acre tract. He then installed a culvert through which water was still running during the period of July 18, 1973, and September 1, 1973. Avland attempted to reduce the seepage or percolation by applying Bentonite to the north shore of the lake. This sealant reduced the seepage to one-fourth of its volume. Estimates for the cost of correcting the seepage are approximately $250,000.

Avland paid Knapp and his wife $650,000 for the property upon which the lake was located. Knapp and Avland entered into an agreement dated November 24, 1969, which recognized that there was leakage and provided for indemnification to Avland and for damage caused to the surrounding property by the leakage. Between November 1969 and April 2, 1971, when suit was filed, Avland developed the property as recreational lots at a cost in excess of $646,000. Two hundred and four lots were sold and a homeowners association formed.

On January 21, 1975, Avland's attorney withdrew its appearance and substitute counsel entered its appearance. Avland asked leave, which was denied, to file a counterclaim against Knapp. Avland then filed a motion for judgment on the pleadings, which was denied. Following the testimony of Hild and Tyrrell, Avland sought to amend its answer to include the defense of laches. This was also denied.

At the time of trial other litigation was pending against Knapp in which Avland was seeking indemnification for costs and expenses in correcting the seepage and protection against the future claims of adjoining property owners. A motion in limine was filed to prevent defendant's use of an affidavit from that lawsuit as an admission. This was denied.

After a trial on the merits the court found that Ben Knapp had constructed a dam whereby a large lake was created and that the accumulation of water in the lake caused waters from the lake to percolate onto the lands of Ray Hild and Edward Tyrrell. The court also found that the lands on which the lake was formed were of such a nature as to permit percolation of water from the lake onto the lands of Hild and Tyrrell. The court further found that Hild and Tyrrell suffered damage to their crops and incurred expenses in attempting to rid their lands of the percolated waters.

As a result of these findings the trial court awarded money damages to Hild and Tyrrell, and also enjoined Avland Development Company, as owner and possessor of the dam and lake, from permitting water from the lake to percolate onto the lands of Hild and Tyrrell. Avland Development Company was directed to stop the percolation by September 12, 1976, by either sealing the area of the lake through which the percolation was occurring or by lowering the level of the lake below the area through which the percolation could occur or by draining the lake and returning the area to its original condition of drainage or by other means available to Avland Development Company.

The first point raised on appeal is that the complaint fails to state a cause of action against the defendant, Avland Development Company — first, because no facts were alleged or proved to establish an actionable non-trespassory invasion of either plaintiff's land and, second, because the plaintiffs had an adequate remedy at law. The record presented upon appeal contains no challenge to the sufficiency of the complaint prior to the motion for judgment on the pleadings filed March 13, 1965, nearly four years after the complaint was filed and 3 1/2 years after the answer was filed. At trial the plaintiffs presented their evidence. Then, in a motion for judgment at the close of plaintiffs' evidence, the defendant again challenged the sufficiency of the complaint. This challenge was repeated at the close of all evidence and in the post-trial motion. The last three challenges consisted merely of the statement that the complaint failed to state a cause of action.

• 1 Section 45(1) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 45(1)) clearly states:

"All objections to pleadings shall be raised by motion * * * [which] * * * shall point out specifically the defects complained of * * *."

The purpose of this section is to give the complainant an opportunity to respond to the objection and to cure the defect in the trial court. If the motion does not point out specifically the objections complained of the objections are not preserved for review. Berry v. G.D. Searle & Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550.

• 2, 3 In suggesting that plaintiffs had an adequate remedy at law defendant attempted to challenge the sufficiency of the pleadings by use of a motion for judgment on the pleadings rather than by a motion to dismiss pursuant to section 45 of the Civil Practice Act. The Illinois rule has long been that if a defendant answers the complaint and does not plead, either in the answer or by motion filed prior to the answer, that the plaintiff has an adequate remedy at law, the defendant submits himself to the jurisdiction of a court of equity unless that court is without jurisdiction over the subject matter of the lawsuit. (McIntyre v. McIntyre (1919), 287 Ill. 544, 122 N.E. 824; Buchli v. Caldwell (1932), 267 Ill. App. 38.) Once a defendant has ...


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