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Admiral Builders Corp. v. Robert Hall Village

OPINION FILED OCTOBER 20, 1981.

ADMIRAL BUILDERS CORP., PLAINTIFF-APPELLANT,

v.

ROBERT HALL VILLAGE ET AL., DEFENDANTS. — (HANDELS-EN PRODUCTIEMAATSCHAPPIJ DE SHOUW B.V., DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT GREEN, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

This is an appeal from a summary judgment entered by the circuit court of Cook County in favor of the defendant, Handels-en Productiemaatschappij de Shouw B.V. (Handels), and against the plaintiff, Admiral Builders Corporation (Admiral), in an action alleging the creation and maintenance of a continuing nuisance and encroachment upon land owned by Admiral.

Admiral and Handels are adjoining landowners, Handels having purchased its property on July 27, 1978, from the Hanover Hoffman Corporation. In 1974 Admiral had filed a suit against Hanover Hoffman Corporation and Hanover Development Corporation (collectively referred to as Hanover) alleging that Hanover was responsible for the creation of a continuing nuisance and encroachment upon Admiral's property. Admiral did not file a lis pendens notice of its action against Hanover. In September 1979 Admiral sought to join Handels as a party defendant to its suit against Hanover. Handels asserts that as of the time it purchased the property in question from Hanover, it had no knowledge of Admiral's pending suit against Hanover.

The following issues are presented: (1) whether Admiral's failure to file lis pendens notice (Ill. Rev. Stat. 1973, ch. 22, par. 53, subsequently transferred to Ill. Rev. Stat. 1979, ch. 110, par. 405) precludes it from joining Handels as a party defendant in an action for nuisance; (2) whether Admiral's cause of action against Handels is barred under the doctrine of equitable estoppel; and (3) whether Admiral's cause of action against Handels is barred under the doctrine of laches.

For the reasons hereinafter set forth, we reverse and remand.

Admiral owns a parcel of land in Hoffman Estates, Illinois. The East Branch of Poplar Creek flows in a southerly direction near the east boundary of Admiral's land. In 1972 Hanover purchased land adjacent to the east boundary of Admiral's property, and the following year Hanover began construction of a shopping center on its land.

In the course of construction Hanover graded its property. Prior to such grading, the land on both sides of Poplar Creek sloped gently upwards from the river bed. When the river was at low ebb it flowed within its natural banks, which were entirely within the boundaries of Admiral's property. During periods of heavy rain or melting snow, the river swelled, flooding both Admiral's property and the western boundary of Hanover's property.

In grading the site destined for the shopping center, Hanover removed dirt from the eastern edge of its property and deposited that dirt along the western edge of its property and along the eastern boundary of Admiral's property. The natural flood plain was thus altered. Hanover also paved portions of the shopping center site, which Admiral alleged caused rainwater to flow across Hanover's property and into the river at a faster rate than had previously occurred.

Admiral complains that its property is inundated during heavy rainstorms and floods to a greater extent than occurred prior to the construction of the shopping center. Admiral also alleges that the storm water retention system installed for the shopping center does not adequately contain floodwaters from the river nor retard the increased flow of rainwater from the development site to the river. Admiral asserts further that flooding conditions on its eastern boundary are aggravated by the erosion of the dirt fill that had been placed by Hanover on the western side of Hanover's property. The dirt obstructs the flow of water into the river, causing damage to vegetation at the east boundary of Admiral's property.

As previously noted, Admiral in 1974 filed suit against Hanover, Hanover's civil engineer, Brian Mays Engineering Company and Hanover's principal tenant, Robert Hall Village, seeking compensatory damages, punitive damages and injunctive relief from the continuous injury to Admiral's property. Admiral requested that the defendants be ordered to remove the dirt which had been placed on Admiral's property, to restore the flood plain to its natural state, and to install an adequate stormwater retention system.

In 1975 Hanover conveyed the shopping center property in trust to LaSalle National Bank. On July 27, 1978, during pendency of Admiral's suit against Hanover, the trustee sold the Hanover property to Handels. The sales contract provided a warranty by Hanover that the shopping center property was not subject to any pending legal actions.

Following the sale of the property to Handels, the shopping center was leased back by Handels to Hanover, which presently manages the property. Admiral alleged that as of the date on which Handels purchased the property, "the nuisance and encroachment" on Admiral's property had not been abated. Handels contends that it had no actual knowledge of the existence of the nuisance action against Hanover.

On May 29, 1979, the trial court dismissed Admiral's action against Hanover for want of prosecution. Within a few days thereafter, upon Admiral's motion, the dismissal order was vacated.

Admiral contends that it was not until August 23, 1979, that it became aware that on July 27, 1978, Handels had purchased the shopping center. Upon making this discovery, Admiral moved for leave of court to join Handels as a party defendant to its action against Hanover. Handels was served with an amended complaint on September 10, 1979. The amended complaint repeated the allegations of the original complaint and requested the same relief earlier ...


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