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General American Realty Co. v. Greene





APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. SCOTILLO, Judge, presiding.


Rehearing denied August 4, 1982.

Defendants, Carolyn S. Greene, C. Greene Equipment Co. and Melrose Park National Bank, as trustee, appeal from an order denying their motion for summary judgment and from an order granting the motion for summary judgment of plaintiffs General American Realty Co., Inc. (General American), and Citizens Bank and Trust Company, as trustee (Citizens), and awarding injunctive relief pursuant to counts I, II and III of the fourth amended complaint. The issues raised on appeal include questions of jurisdiction; plaintiffs' damages; the presence or absence of material facts with respect to the granting of summary judgment; and whether certain contractual restrictions terminated with the delivery of the deed. For the following reasons we reverse that part of the trial court's order pertaining to defendants' alleged encroachment upon an underground water service line easement utilized for a master sprinkler system protecting plaintiffs' and other nearby business properties (sprinkler waterline easement), and affirm the balance of the order.

In 1962 defendants, who bought, refurbished and resold machinery and equipment, leased from Citizens the subject property, which was then improved with a building denominated "Building A," and a yard. On November 1, 1965, Citizens agreed to sell the subject property to Carolyn S. Greene, under an installment contract called "Articles of Agreement for Trustees' Deed" (Articles), composed of lots 4, 5, 6, 7 and 16 in Richardson Industrial Park, Melrose Park, Illinois (Greene Property). The agreement expressly provided that the conveyance shall be subject to, among other things, building lines, utility zoning regulations, easements of record and building restrictions, as well as a public easement over the westerly 12' of the premises for ingress and egress to water, sewer, electric and telephone lines beneath or above the surface. The purchaser was required to pay her pro rata cost of making and maintaining roadway improvements and agreed to refrain from using the unenclosed vacant portion of the property for storage of personal property so that no such storage property could be viewed from surrounding premises. A 5' utility easement runs north and south through the approximate center of the Greene Property.

In 1967, defendants erected an addition to their property, shown as "Building C" on the plat of survey, with the approval of General American's president. The structure lies directly above a portion of the underground sprinkler waterline easement running north and south through the Greene Property, just east of the 5' utility easement. On June 5, 1969, defendant executed an agreement granting Citizens, its successors and assigns, an easement and right to go upon the premises for purposes of repairing and maintaining the underground sprinkler waterline and above surface sprinkler equipment, among other things.

After various disputes between them, on March 10, 1975, the parties executed a document labeled "Supplemental Articles of Agreement" (Supplemental Articles) wherein defendants acknowledged the existence of the subject easements and agreed to certain other conditions, which will be described and discussed later. Both the Articles and the Supplemental Articles were recorded in the office of the recorder of deeds of Cook County. Subsequently, the Greene Property was conveyed to defendant Melrose Bank as trustee by Citizens through a series of warranty deeds and nominee deeds in trust recorded in the office of the recorder of deeds of Cook County on May 4, 1976.

In June 1977, defendants began erecting a 32' x 48' building on lot 4 of the Greene Property, "Building B", directly over part of the 5' utility easement. Soon after construction of this building began, plaintiffs notified defendants that the building was being constructed over the 5' utility easement and demanded that the obstruction be removed. The construction continued and plaintiffs filed their first complaint in August 1977. At a deposition hearing, John Greene, office manager of C. Greene Equipment Co., testified that he picked the location of the building knowing that a utility easement ran through the property at that point. At no time prior to the commencement of construction did he request permission to build or for a release of the utility easement from plaintiffs. He informed the builder, Eck & Sons, that there was a utility easement that went through the proposed site, but that he was going to get releases for it. In September and October of 1977, defendants obtained releases of all right, title and interest in the 5' utility easement from various public utility companies, but not from Citizens.


Defendants contend that because the Illinois Commerce Commission (Commission) was given general supervision of all public utilities for which the easement was reserved, the trial court lacked jurisdiction to award injunctive relief with regard thereto without initial Commission action, relying upon the companion doctrines of exhaustion of remedies and primary jurisdiction. Both doctrines are concerned with developing proper relationships between the courts> and administrative agencies charged with particular regulatory duties. (United States v. Western Pacific R.R. Co. (1956), 352 U.S. 59, 1 L.Ed.2d 126, 77 S.Ct. 161.) Under the exhaustion doctrine, a party aggrieved by administrative action ordinarily cannot seek review in the courts> without first pursuing all administrative remedies available to him. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 357-58, 326 N.E.2d 737.) Although the reasons for this rule have been variously stated, it is intended to allow administrative agencies to correct their own errors, clarify their policies, and reconcile conflicts before resort to judicial relief may be pursued. (Kenilworth Insurance Co. v. Mauck (1977), 50 Ill. App.3d 823, 365 N.E.2d 1051.) Exhaustion, however, is not required if the administrative remedy is inadequate (Steward v. Allstate Insurance Co. (1980), 92 Ill. App.3d 637, 641, 415 N.E.2d 1206), or where the agency lacks jurisdiction. (Miller v. Department of Public Aid (1979), 69 Ill. App.3d 477, 480, 387 N.E.2d 810.) The doctrine of primary jurisdiction applies where a claim is originally cognizable in courts>, but where enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. United States v. Western Pacific R.R. Co. (1956), 352 U.S. 59, 63-64, 1 L.Ed.2d 126, 132, 77 S.Ct. 161, 165; Chicago & Eastern Illinois R.R. Co. v. Martin Bros. Container & Timber Products Corp. (1980), 87 Ill. App.3d 327, 334, 408 N.E.2d 1031.

• 1 Defendants contend that the instant controversy was subject to the jurisdiction and review of the Commission, citing sections, e.g., 8a, 10-15, 27(c), 32 and 68 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, pars. 8a, 10.15, 27(c), 32 and 72), emphasizing in particular that the easement releases executed by the public utility companies were subject to administrative review. Defendants' reliance on these releases is misplaced; their existence does not affect plaintiffs' rights as owners of the dominant estate or their authority to enforce those rights in courts>. The easement could only be released by owners of the dominant estate for whose benefit the easement was created. See Beloit Foundry Co. v. Ryan (1963), 28 Ill.2d 379, 390, 192 N.E.2d 384.

• 2 None of the statutory provisions or cases cited by defendants (e.g., Cable Television Co. v. Illinois Commerce Com. (1980), 82 Ill. App.3d 814, 403 N.E.2d 287; Friederich v. Illinois-American Water Co. (1981), 94 Ill. App.3d 172, 418 N.E.2d 836) suggest that the Commission has jurisdiction over a dispute between private parties concerning the terms of an easement created pursuant to contract, and purported violations thereof. Since the Commission lacks subject matter jurisdiction over the controversy, the companion doctrines of exhaustion and primary jurisdiction are without application. (Miller v. Department of Public Aid (1979), 69 Ill. App.3d 477, 480; see People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill.2d 479, 485-86, 427 N.E.2d 1226.) Further, this is not a dispute raising issues outside the conventional experience of judges or requiring the exercise of specialized administrative discretion (Steward v. Allstate Insurance Co. (1980), 92 Ill. App.3d 637, 642), nor is there an adequate administrative remedy available to plaintiffs. Defendants' suggestion that the Commission may be able to order the utilities to retract the releases or to establish a new utility easement or plan to insure future utility service misses the mark. A retraction of the easement waivers by the utilities could not affect plaintiffs' interest in the easement. The trial court properly exercised jurisdiction over the controversy.


The trial court found that defendants obstructed and encroached upon the 5' utility easement by placing and storing inventory, equipment and other material on the easement and by constructing "Building B" on and over the easement. Defendants and their successors and assigns were ordered to: permanently remove all material which in any way encroached upon or obstructed access to use, repair or maintenance of this easement; refrain from obstructing the utility easement; and, to permanently remove all portions of "Building B" constructed over the easement. The finding is amply supported by the record. In paragraph 3 of the Supplemental Articles, defendants agreed that the utility easement should not be used for the storage of any inventory, the operation of the business, or in any way cause any use which would obstruct easy and immediate access to the easement. Defendants chose the construction site for "Building B" knowing that a utility easement existed underneath it. Earl and John Greene conceded in effect that inventory and machinery also have been stored upon this easement from time to time.

• 3 Defendants maintain that plaintiffs were not entitled to injunctive relief for the encroachment on the utility easement because they failed to demonstrate factually that their use and enjoyment has been or soon will be impaired. Defendants observe that there is almost no evidence in the record as to the extent of defendants' injury due to any obstruction of their future need of the easement. The absence of facts on this issue is immaterial. An award of injunctive relief under the circumstances presented does not require proof of substantial injury from the encroachment. (Hartman v. Wells (1912), 257 Ill. 167, 100 N.E. 500; Cordogan v. Union National Bank (1978), 64 Ill. App.3d 248, 253, 380 N.E.2d 1194.) A court of equity may properly compel removal of an encroaching building in accordance with the express terms of the easement regardless of the relative hardship involved where, as here, such encroachment was deliberate. (Ariola v. Nigro (1959), 16 Ill.2d 46, 51-52, 156 N.E.2d 536; Keesen v. Zarattini ...

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