APPEAL from the Circuit Court of St. Clair County; the Hon.
THOMAS P. O'DONNELL, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
St. Clair Square, Inc., appeals from an order for injunction of the circuit court of St. Clair County in favor of O'Fallon Development Co., Inc., plaintiff-appellee, enjoining the city of O'Fallon from continuing to display on a water tower owned by the city commercial advertising consisting of commercial emblems representing the St. Clair Square shopping center and the words, "St. Clair Square." The city of O'Fallon, against whom the injunction was to issue, chose not to pursue an appeal. St. Clair Square, Inc., thereupon sought and was granted the right to intervene and brings this appeal.
St. Clair Square is a regional shopping center located at the intersection of Interstate 64 and Route 159 in Fairview Heights. The land comprising the shopping center is owned by St. Clair Square, Inc., and Katheryn Evans. It is upon this land that the water tower in controversy is situated. An emblem representing the shopping center is painted on the east and west sides of the tower and is visible to motorists traveling either direction on Interstate 64; while the words, "St. Clair Square," are painted on the north and south sides of the water tower and can be viewed by drivers on Route 159.
In its amended complaint, O'Fallon Development Co. sought injunctive relief against the city of O'Fallon and St. Clair Square, Inc., to compel the removal of these emblems and writings from the water tower. The complaint alleges that the city of O'Fallon and St. Clair Square, Inc., entered into a contractual relationship whereby the city agreed to supply the water needs of the tenants in the St. Clair Square shopping center and that pursuant to this contractual relationship the city purchased the water tower from St. Clair Square, Inc. It further alleges that subsequent to its acquisition of the water tower the city made no effort to remove the emblems and writings which had been painted on the water tower by St. Clair Square, Inc. Finally, the complaint alleges that the continued display of the emblems and writings constitutes the use of public property for purely private purposes in contravention of section 11-80-8 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-80-8).
The city of O'Fallon and St. Clair Square, Inc., each moved to be dismissed from the complaint and both motions were granted. On appeal, this court reversed the trial court's order dismissing the city, holding that the complaint, as it applied to the city, stated a valid cause of action. We affirmed the dismissal of St. Clair Square, Inc., however, for the reason that the complaint did not seek any relief against St. Clair Square, Inc., since it did not allege that St. Clair Square, Inc., either owned the water tower or could control its use. O'Fallon Development Co. v. City of O'Fallon (5th Dist. 1976), 43 Ill. App.3d 348, 356 N.E.2d 1293.
The matter then proceeded to trial against the city. O'Fallon Development Co. introduced several documents into evidence in order to support its assertion that the city owned the water tower. The first document was a water service agreement between the city and St. Clair Square, Inc., which was entered into on December 27, 1972. Under the contract, the city was to provide water for the tenants of the shopping center. Furthermore, the city was to purchase all on-site improvements relating to the transmission and storage of water. Upon receipt of the purchase price, St. Clair Square, Inc., would convey all right, title and interest in the on-site improvements to the city, as well as perpetual easements and rights of way on the shopping center premises in order for the city to operate and maintain its improvements. The agreement was amended in 1974 to provide that the city furnish the water requirements of tenants in an additional 20 acres which were leased to St. Clair Square, Inc., by Katheryn Evans and made a part of the shopping center. The amendment also fixed the purchase price of the on-site improvements at $399,338.40.
The next exhibit was Ordinance No. 753 which was passed by the O'Fallon City Council and became effective July 15, 1974. Section 1 of the ordinance recited that $200,000 had already been paid to St. Clair Square, Inc., by the city for the on-site improvements, and section 8 of the ordinance authorized the appropriation and payment of the balance due on the on-site improvements, $199,338.40. The final document introduced was an easement deed executed on September 16, 1974, by St. Clair Square, Inc., and Katheryn Evans. It provides in part:
"Grantors hereby grant and convey to Grantee [city of O'Fallon] the exclusive right and easement * * * to operate, maintain, replace, and/or repair the `Equipment' * * *, all of which is hereby transferred to Grantee, in, over, through, under and across that part of the premises hereinafter designated as the `Easement Area' * * *."
Equipment is defined as "all water transmission mains, water service lines, water main conduits, water storage tanks * * *."
Additionally, O'Fallon Development Co. introduced into evidence various newspaper advertisements promoting the products of retail stores doing business in the shopping center. Each advertisement depicts an emblem identical to those painted on the water tower. Jim Leget, general manager of the shopping center, testified that the emblem was used for promotional purposes by merchants in the shopping center. He also stated that lights surround the tower to illuminate it at night.
Testifying as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), Gary Mackey stated that he received no benefit from the city's purchase of the water tower either as an individual or in his capacity as mayor of the city of O'Fallon. He also said that the emblems and writings on the water tower serve no municipal function.
After taking the matter under advisement, the trial court entered an order which would enjoin the city of O'Fallon from continuing to display the emblem and writings on the tower. In conjunction with this order, the following findings of fact were submitted:
"a) That the Defendant, City of O'Fallon, is the owner of all right, title and interest in and to the on-site improvements consisting of water lines and water tanks. * * *
b) That the Defendant, City of O'Fallon, has a proprietary right to said water lines and water tower and the same ...