APPEAL from the Circuit Court of Logan County; the Hon. JOHN
T. McCULLOUGH, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 22, 1978.
Defendant the City of Lincoln appeals from an order of the circuit court of Logan County finding that defendant had no easement rights in, to or across the property of plaintiffs Kenneth and Nelda Seefeldt.
Plaintiffs filed a complaint for injunction against defendants the City of Lincoln and Merrill's Contractors, Inc. Merrill's did not file any responsive pleadings and does not appeal the court's order, therefore, the term "defendant" will be used to refer only to the City of Lincoln. Plaintiffs' complaint, as subsequently amended, stated that defendant claims to be the owner of a sewer allegedly 24 inches in diameter which allegedly crosses plaintiffs' property and that defendant intends to remove the sewer and replace it with a 36-inch diameter sewer in the same location. The complaint also alleged that defendant had no easement of record for the sewer and requested the court to permanently enjoin defendant from directing or contracting anyone to enter on plaintiffs' land to excavate, remove and replace the sewer.
Defendant's answer admitted that the city did not have an easement of record but denied that its actions would constitute a trespass or cause irreparable injury to plaintiffs' property. It also contained additional affirmative allegations which were stricken pursuant to plaintiffs' motion.
Defendant also filed a countercomplaint for declaratory judgment as to the rights of the parties and for a permanent injunction preventing plaintiffs from interfering with the excavation and replacement work. The countercomplaint alleged that the sewer crossing plaintiffs' property was constructed pursuant to an ordinance of the City of Lincoln adopted in 1891 which provided for the construction of a sewer in accordance with a plat made by O. Marble. The ordinance also provided that one-half the cost of the sewer be paid by special assessment of the property "which the same may run through." Defendant alleged (and plaintiffs admitted) that the special assessment was made. The countercomplaint also alleged that the sewer in question had been in existence for 70 years and was broken in places and in a poor state of repair.
By agreement of the parties, the court held a hearing on defendant's countercomplaint.
1 Defendant contends that the trial court erred not only in making the declaration of rights pursuant to the countercomplaint, but also in striking defendant's affirmative defenses to the complaint. Plaintiffs contend that the latter question is not before us on review. We agree. The ruling on a motion to dismiss affirmative defenses is, of course, a ruling of law. Under Supreme Court Rule 366(b)(1)(i) (Ill. Rev. Stat. 1975, ch. 110A, par. 366(b)(1)(i)) our power to review errors of law extends only to those errors affecting the order or judgment appealed. The striking of affirmative defenses on the complaint does not affect the appealed judgment on the countercomplaint.
Defendant contends that it has an easement (a) under the common law doctrine of prescription or (b) by virtue of portions of the Drainage Act of 1889, which now are sections 2-8 to 2-10 of the Illinois Drainage Code (Ill. Rev. Stat. 1975, ch. 42, pars. 2-8 to 2-10).
2, 3 In order to acquire an easement by prescription, the use must be "adverse, exclusive, continuous and uninterrupted, under claim of right, with knowledge of the owner of the land and without his consent, for the statutory limitation period" (Mueller v. Keller (1960), 18 Ill.2d 334, 339-40, 164 N.E.2d 28, 31). The trial court here found that defendant had not proved that there was a claim of right with the knowledge of the owners. Because the sewer was underground and not visible, it cannot in itself be notice to the landowner of its existence or notice of adverse claim or use by the city. Murtha v. O'Heron (1913), 178 Ill. App. 347, 354.
Defendant argues that plaintiffs and their predecessors in title had notice of the sewer by virtue of (1) the 1891 ordinance providing for the construction of a sewer connecting the sewers under 7th and 8th Streets, (2) the special assessment roll of 1891 which assessed property owners to cover the construction costs, and (3) the location of manhole covers in the alley behind and in the street in front of plaintiffs' property.
Defendant's arguments are not persuasive. Defendant did not present any evidence that the sewer described in the ordinance was the one crossing plaintiffs' property. The ordinance did not specifically describe the location of the sewer and there was no evidence that the plat to be prepared by O. Marble was ever filed. In addition, the length and diameter of the sewer in question differs from that described in the ordinance.
Defendant argues that the special assessment roll was a public record within plaintiffs' chain of title and thus was constructive notice to all subsequent purchasers, including plaintiffs, of the existence of the sewer. There is some question, though, whether the special assessment was within plaintiffs' chain of title. In Capper v. Poulsen (1926), 321 Ill. 480, 482, 152 N.E. 587, 588, chain of title was defined as "the successive conveyances commencing with the patent from the government or some other source and including the conveyance to the one claiming title. (Emphasis added.)" The court stated, "The law charges purchasers with notice of only those conveyances in the direct line of the title they are buying," and that the appellees in that case "were chargeable with notice of what appeared in the records concerning the title to these premises, but they were not chargeable with notice of facts shown by records not in their chain of title." Clearly, the special assessment was not a conveyance and any lien it may have created would have been discharged upon payment. More importantly, there was no evidence presented to show that the property now owned by plaintiffs was ever subject to a special assessment pursuant to the 1891 ordinance. The order confirming special assessment referred to in the countercomplaint was not attached as an exhibit nor was it introduced in evidence. Plaintiffs admitted only that a special assessment was made, not that their property had been subject to such an assessment.
With respect to defendant's argument concerning the location of the manhole covers, the trial court found that they could "hardly be considered to be reasonable notice to plaintiffs of the existence of the sewer." We do not determine this ...