APPEAL from the Circuit Court of Menard County; the Hon. LYLE
E. LIPE, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
This case concerns the right to possession of an area extending from north to south of approximately one-half mile in length and three feet underground where defendant, Illinois Bell Telephone Company, had laid a cable to be used for the transmission of messages for its customers and those of two other utilities. The cable was laid under a ditch which was some five to 10 feet east of the east edge of the paved portion of a highway. The fee interest in the east half of the paved portion of the highway, the ditch area and the adjoining land to the east, was in plaintiff as trustee. Many years prior to the laying of the cable, plaintiff's predecessors had granted the State of Illinois an easement for highway purposes over the area covered by the highway and the ditch. An easement for the laying of a telephone cable in an area near defendant's cable had earlier been granted to another utility but no easement had been granted to defendant.
On September 14, 1981, plaintiff brought suit in the circuit court of Menard County in forcible entry and detainer (Ill. Rev. Stat. 1979, ch. 57, par. 1 et seq.) against defendant seeking possession of the area where the cable had been placed. On November 6, 1981, the court entered judgment for plaintiff. The judgment awarded plaintiff possession but its effect was stayed for 60 days. The judgment further provided that it would be vacated if within that time either the parties agreed as to the compensation to be paid plaintiff for an easement or defendant initiated proceedings to take the easement by eminent domain. Defendant has appealed. We affirm.
An understanding of the case before us requires knowledge of section 9-113 of the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, par. 9-113) which provides that "[n]o ditches, drains, track, rails, poles, wires, pipe line or other equipment * * * shall be located, placed or constructed upon or along" any road or highway of a governmental unit, other than a road or highway within a municipality, without the written consent of "the appropriate highway authority." The section further provides that upon receiving the foregoing authority:
"The petitioner shall pay to the owners of property abutting upon the affected highways established as though by common law plat all damages the owners may sustain by reason of such use of the highway, such damages to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain." Ill. Rev. Stat. 1979, ch. 121, par. 9-113.
The evidence at trial showed that defendant had obtained consent of the State of Illinois to lay its cables under the ditch. The evidence also showed that the parties had been unable to agree as to compensation to be paid to plaintiff. Apparently defendant installed the cable on the assumption that section 9-113 gave it authority to do so whenever consent of the State was obtained and that compensation due the plaintiff, if any, would be determined later.
The facts of this case are almost exactly the same as those in Lewis v. Illinois Bell Telephone Co. (1981), 98 Ill. App.3d 1047, 425 N.E.2d 55. That case involved a similar dispute which arose when, after being unable to agree with another owner of the adjacent land and of the fee subject to a highway easement, defendant obtained consent of the State to lay another segment of the same telephone cable line involved in the present case under the highway easement and proceeded to do so without the fee owner's consent. The fee owner then obtained a judgment in forcible entry and detainer against the defendant. On appeal, we affirmed. We held that section 9-113 was not a delegation of the power of eminent domain to those required to obtain consent under section 9-113 but a limitation on their power of eminent domain. We stated that the entity seeking to further encumber land subject to an easement for highway or road purposes is required not only to obtain the consent of the governmental unit having the easement but also to bring an action in eminent domain against the fee owner. Although affirming, we directed the trial court to enter a supplementary order requiring that the stay previously granted by the trial court pending the appeal be extended and the defendant be required, within 60 days, either to agree with plaintiff as to compensation or to initiate proceedings in eminent domain to obtain the easement being used. The trial court order in the case on review was patterned after the order we directed in that case.
• 1 Despite the factual similarity between the foregoing case and the instant one, defendant maintains the precedent is not controlling for two reasons. First, defendant correctly asserts that in order to prove a cause of action in forcible entry and detainer as pleaded by plaintiff, he was required to prove that he was in possession of the real estate interest, in which possession was sought, at the time of the claimed forcible entry by the defendant. (Ill. Rev. Stat. 1979, ch. 57, par. 2; Thompson v. Sornberger (1871), 59 Ill. 326; Davis v. Robinson (1939), 302 Ill. App. 365, 23 N.E.2d 816.) That issue was not raised in Lewis I but has been raised here, and defendant asserts that the possession in plaintiff prior to the forcible entry was not proved. Secondly, defendant relies upon dictum in Cammers v. Marion Cablevision (1976), 64 Ill.2d 97, 354 N.E.2d 353, to the effect that underground installations which, as those here, benefit the public and do not impair the use of the highway, are part of the highway easement and not an additional burden on the fee. The statement in Cammers distinguished underground installations from above ground installations which admittedly were an additional burden of the fee and entitled the entity owning the fee and adjacent land to compensation for the additional burden. The question of whether underground installations such as that involved here fall within the highway easement was apparently not raised in Lewis I either because the opinion indicated the defendant agreed that some compensation was due the plaintiff.
We address the second issue first because, if the placement of the cables underground was a part of the use of the highway easement, then plaintiff would not have been in possession of the property interest involved when defendant installed the cables.
Illinois precedent for defendant's theory begins with Barrows v. City of Sycamore (1894), 150 Ill. 588, 37 N.E. 1096. There, a city erected a water tower in the center of a city street. An adjoining owner's complaint for damages resulting from the presence of the water tower was held to have been properly dismissed as to most counts. The supreme court stated that the placement of the tower in the street was in violation of the trust under which the city held the fee title to the area of the streets but held that the obstruction of the street created no right to damages in a particular individual. The court found that one count seeking damages for obstruction of light to the plaintiff's lot did state a cause of action.
In Chicago Title & Trust Co. v. Village of Burr Ridge (1976), 41 Ill. App.3d 112, 354 N.E.2d 61, the appellate court affirmed a circuit court judgment dismissing a suit brought by an adjoining landowner who owned the fee interest in the area covered by a street, seeking to enjoin a city from constructing a water main under the street. The land had been annexed to the city after the highway easement had been given by the adjoining owner's predecessor in title. The appellate court recognized a distinction between the use of streets in incorporated municipalities for sewers, gas, and water pipes and similar use of the roads and highways. The court then said:
"But it is generally assumed that underground installations which are for the benefit of the public at large and which do not impair the use of the highway have been regarded as falling within the highway easement. Barrows v. City of Sycamore (1894), 15
Ill. 588, 593; Cammers v. Marion Cablevision [(1976)], 64 Ill.2d 97." 41 Ill. App.3d 112, 114, 354 N.E.2d 61, 62.
We do not interpret anything stated in Barrows to indicate that underground installations for public use which do not impair the highway easement are a part of the highway easement. Certainly such a conclusion was no part of the decision. There the use in issue was an above-ground structure, and the city held not merely an easement but a fee interest in the street, albeit one which was subject to a trust. Subsequent to Barrows, in Springer v. City of Chicago (1923), 308 Ill. 356, 139 N.E. 414, the supreme court held that the fee owners of a lot which extended into a street were entitled to compensation from a city that placed a ...