Appeal from the Circuit Court of Kane County; the Hon. John A.
Krause, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 12, 1982.
Plaintiff, Consolidated Cable Utilities, Inc., brought this action seeking both a declaratory judgment pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) and injunctive relief. The circuit court of Kane County granted the relief sought by Consolidated, giving it access to install cable for television on certain backyard easements. Only defendants Commonwealth Edison Co. (Edison), Northern Illinois Gas Company (NI Gas) and Illinois Bell Telephone Co. (Bell) appeal.
In 1969 Consolidated was granted the franchise to provide cable television service to private customers in both Elgin and Aurora. The franchise ordinances require that Consolidated charge a uniform fee of each user, and in Aurora, provide service where there are at least 50 homes per cable mile; in Elgin, where there are at least 30 homes per cable mile.
Often the cable installation is made by utilizing and leasing poles above ground from public utilities, but certain subdivisions of Aurora and Elgin require, by ordinance, that such services be placed underground. There are 12 such subdivisions involved in this case where Consolidated seeks to install its cable underground on backyard easements.
In late 1979 and early 1980 Consolidated made some effort to obtain homeowner approval for backyard easement access. They hired college students who went door-to-door in an effort to obtain such approval. Eighty to 85% gave their approval for Consolidated's use of the easements. Other than this Consolidated has not involved the homeowners in this suit.
On September 29, 1980, Consolidated filed suit for declaratory judgment and mandatory injunction against the city of Aurora and the city of Elgin, as well as the three utilities. Consolidated's complaint sets forth the Elgin and Aurora grants of authority; the specific subdivisions where the easements are located; and its request for use of the easements.
Edison's motion to strike and dismiss, as well as those filed by NI Gas and Bell, were denied. Edison's motion set forth several contentions, including the contention that Consolidated was improperly trying to expand by implication the easements in question, so as to include unnamed parties; that the owners of the land on which the easements were located should be joined as parties; and that Consolidated was improperly attempting to exercise the power of eminent domain. All three utilities made application to this court for interlocutory appeal pursuant to Supreme Court Rule 308 (73 Ill.2d R. 308). The applications were denied.
At trial over 90 plats of survey were tendered by Consolidated and admitted as evidence. These consisted of the plats of the subdivisions that Consolidated sought to enter. Unfortunately, the easements are not described on the plats of survey in any uniform manner. The descriptions range from those that list the specific utilities and location of the easements to those that give no indication of an easement interest. Three of the plats named Consolidated as an easement holder. NI Gas concedes that it does not generally have its pipes in the backyard easements that are in issue here.
The trial court found that (1) Consolidated was a public utility within the contemplation of the plats in question; (2) that the enumerated plats reserve to the municipalities the right to license Consolidated, and the landowners are not indispensable parties; (3) that an actual controversy exists, that declaratory relief is appropriate; and (4) Consolidated need not go before the Illinois Commerce Commission. The relief granted gave Consolidated the right to use the majority of the easements, and stated that defendants were enjoined from interfering with the installation of the facilities.
On appeal, NI Gas raises five contentions of error: (1) that necessary or indispensable parties (landowners) were not joined; (2) that Consolidated failed to exhaust alternate remedies, so declaratory judgment is an improper remedy; (3) that Consolidated is not a public utility under the Plat Act (Ill. Rev. Stat. 1979, ch. 109, par 1 et seq.); (4) that the terms of the easements prohibit utilization of them by Consolidated; and (5) that Consolidated must go before the Illinois Commerce Commission before seeking relief in the courts>.
Edison makes identical contentions, but adds the argument that there was no actual controversy between the parties, as would be required for declaratory relief.
Bell's contentions on appeal differ because it entered into a written stipulation with Consolidated before trial. The agreement recited Bell's uninterest in whether or not Consolidated has a right to use the easements. Because Bell had already agreed not to interfere with Consolidated's installation of facilities, it contends on appeal that the injunction was erroneously entered by the trial court against it. Bell also contends that it has been enjoined from conduct that it never pursued.
First, we address the contention that the trial court erred, as a matter of law, in deciding that the landowners were not indispensable parties. NI Gas contends that the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26) requires dismissal of this case because Consolidated had ...