APPEAL from the Circuit Court of Ogle County; the Hon. JOHN
MOORE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The plaintiff Terry Petry appeals from a summary judgment which dismissed his fourth amended complaint. While the judgment did not dispose of the litigation as to all defendants it was made final pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 304(a)). The plaintiff contends that the controlling issue is whether the defendants to this appeal were engaged in a joint enterprise with the Macklins, the defendants as to whom the complaint is still pending in the trial court and that this involves unresolved questions of fact, making summary judgment inappropriate.
The complaint as amended essentially alleged that plaintiff suffered damage to farm crops because the Macklins, who operated a quarry on property which adjoined that of plaintiff negligently or willfully damaged a drain tile at a point which interfered with drainage to plaintiff's farm. (See Ill. Rev. Stat. 1973, ch. 42, par. 12-7.) *fn1 It was stated that legal title to the land on which the quarry was located was in the defendant Lloyd Ringle, as trustee under Trust #101. Defendants Seth Atwood Trust #1, Barbara Mae Atwood Trust #1, Judith Atwood Wright, James Trowbridge Atwood, and Jill Atwood Moorehead, were joined as beneficiaries of Trust #101. (The Chicago Title & Trust Company as trustee under Trust #46042 was also named as a defendant but was dismissed.) The complaint further alleged:
"All activities mentioned herein were done by the Defendants, Macklin Brothers, Inc., and Robert Macklin and Dale Macklin, while operating said quarry on a commission basis as lesee [sic] or in a joint venture with all other Defendants named herein."
The motion of all of the defendants with the exception of Ringle, as trustee under Trust #101, was granted and the complaint was dismissed as to those defendants. No appeal was taken from that judgment. Therefore only the order dismissing the complaint against Ringle, as trustee under Trust #101, is reviewed.
The motion for summary judgment on behalf of Ringle was supported by affidavits of various of the defendants, trustees, trust officers, as well as by the discovery depositions of the Macklins and of Ringle. The affidavits of the various beneficiaries, owners and trust officers were all to the effect that no authority was given to the Macklins to cut the tile and that they had no control over the operation of the quarry in any way.
Robert Macklin, the president of Macklin Brothers testified in his discovery deposition that he was personally in charge of the employees of the corporation at the quarry. He said that he personally cut the tile on the east side between the quarry and the sand pit pond while operating a backhoe in connection with the repair of a catch basin. He testified that the break was repaired with the help of Cooprider Tile Company. He said that prior to excavating he had no conversation with any other contractor about the repair of the catch basin and the excavation of the tile area. He did not contact Ringle or obtain permission from him to excavate around the catch basin area. His purpose was to improve the flow of water from the pond. He testified that in addition to connecting with a tile which goes onto plaintiff's property the pond drains into a tile on defendants' property. He also testified that the portion of the tile which drains into the defendants' tile was repaired jointly with the Atwood Vacuum Machine Company, one of the beneficial owners of the defendants' land, also using the Cooprider Tile Company as a contractor.
Robert Macklin further testified that Ringle, the Atwood Vacuum Machine Company or any of the other beneficial owners never came to the quarry on a daily or weekly basis or ever told him how to run the quarry operation.
Dale Macklin testified in his deposition that they operated the quarry pursuant to a lease entered into in 1958 or 1959, the copy of which had been lost.
Lloyd C. Ringle in his deposition stated that he represented the various Atwood interests including the trust in which they were beneficiaries in connection with the negotiations with the Macklins which resulted in a letter agreement in 1958 or 1959 under which the Macklins were to operate the quarry. In Ringle's affidavit attached to the motion for summary judgment he stated that he is the trustee of Trust #101 and holds legal title to the quarry property having done so since 1963. He also stated that in 1958 the Macklins, as partners, entered into a written agreement, long since lost, with the owners of the land to operate a quarry on 80 acres of land known as the Rochelle Quarry. Ringle stated that under the terms of the written agreement the Macklin brothers were allowed to operate the quarry and were to pay the owners of the land 7 1/2¢ per ton for stone quarried and 5¢ per ton for dirt quarried. He further stated in his affidavit that he did not authorize the cutting of any drainage tile, did not cut any drainage tile, and did not have knowledge that any drainage tile was going to be cut at the Rochelle Quarry. He further stated that he has not and does not supervise, authorize or control any of the quarry operations performed by the Macklin brothers at the quarry.
In a counteraffidavit the plaintiff Terry Petry stated:
"That to the best of his knowledge and belief, the public operation known as the Rochelle Quarry, or the Macklin Bros. Quarry, is operated on a commissioned or joint venture basis as alleged in the complaint herein filed as amended."
Defendant argues that on this record there is no remaining genuine issue of material fact and that therefore the summary judgment was properly entered. We agree.
• 1 The essential elements of a joint venture have been stated in Carroll v. Caldwell, 12 ...