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April 26, 1983


The opinion of the court was delivered by: Moran, District Judge.


Plaintiff Anne Tomkins brings this action under 42 U.S.C. § 1983, 1985 and 1986 against the Village of Tinley Park ("Village"), the Metropolitan Sanitary District of Greater Chicago ("Sanitary District"), and three individuals, Michael Soraghan, Sandra Soraghan, and Dean Hanson, to redress alleged violations of her Fifth and Fourteenth Amendment rights. Additionally, plaintiff alleges a count of trespass under Illinois tort law. The Village and the individual defendants have moved to dismiss Counts I, III and IV for failure to state a claim upon which relief may be granted, and Count II for lack of subject matter jurisdiction. For the reasons stated below, Counts III and IV are dismissed, but the motion to dismiss Counts I and II is denied.

Accepting plaintiff's allegations as true for purposes of these motions, Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir. 1978), the following facts emerge as the basis of this lawsuit. Plaintiff and the Soraghans are neighbors in the Village. When originally installed by the Village, the sewer system under their properties was improperly constructed. Consequently, during the summer of 1980, the Soraghans' building service sewer, which connects the Soraghans' residential sewer to the Village's sewer, became obstructed. Numerous efforts to clear this sewer proved unsuccessful. The condition progressively worsened and by the early part of November 1980 the Soraghans were unable to use their toilet and laundry facilities. To remedy this undesirable situation, on November 18 or 19, 1980, the individual defendants entered upon plaintiff's property and installed a connecting pipe between the Soraghans' residential sewer and plaintiff's building service sewer. This connection was made with the prior knowledge and consent of the Village, but without plaintiff's permission. Furthermore, the Village dispatched police officers to watch and protect the individual defendant's activities. Moreover, plaintiff asserts that the Village has the custom or policy of approving and condoning trespasses on private property when sewer problems exist, and permitting the installation of sewers without regard to the property rights of individual homeowners.

Claiming that defendants' activities caused her numerous injuries, including depreciation of her property, damage to her fence and landscaping, and an inability to sell her property, plaintiff alleges in Count I that defendants deprived her of property for public use without just compensation. In Count II plaintiff avers that defendants' activities constitute a trespass under state law upon her property. Count III contains allegations that defendants conspired to deprive plaintiff of her constitutional rights. Finally, Count IV charges the Village and Sanitary District with neglecting to prevent the conspiracy alleged in Count III.


Plaintiff brings this count pursuant to 42 U.S.C. § 1983, alleging a violation of her Fourteenth Amendment right prohibiting taking without just compensation. Initially, then, it must be determined whether plaintiff's allegations state a claim under 42 U.S.C. § 1983.*fn1 To state a claim under § 1983 plaintiff must allege both that defendants acted under color of state law and that they deprived her of a right secured by the Constitution or laws of the United States. Gomez v. Taylor, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The individual defendants contend that neither prong of this test is satisfied; the Village argues that even if state action exists plaintiff was not deprived of any constitutional right.

Generally, private parties do not act under color of state law. In certain situations, however, private parties expose themselves to liability under § 1983. For example, private individuals assisting a state agency in carrying out an unlawful action, or engaging in prohibited conduct with nonimmune state officials, act under color of state law for § 1983 purposes. Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975); Holmes v. Silver Cross Hospital of Joliet, 340 F. Supp. 125 (N.D.Ill. 1972). Were it otherwise, state officials could insulate themselves from § 1983 suits by entrusting certain duties to private individuals. See Braden v. University of Pittsburgh, 477 F.2d 1, 7 (3d Cir. 1973).

Determining precisely what conduct by a private party constitutes "state action" has proven to be a difficult task. The Supreme Court has repeatedly recognized that private individuals who wilfully participate in joint activity with the state, or its agents, act under color of state law. Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142 (1970); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966). The degree of joint activity must sufficiently demonstrate "some nexus between the conduct complained of and the state, state official or some state entity." Musso v. Suriano, 586 F.2d 59, 64 (7th Cir. 1978). See also Sparkman v. McFarlin, 601 F.2d 261 (7th Cir. 1979) (en banc).

This required nexus may be demonstrated in any of three ways. First, plaintiff may show that the state affirmatively supported, encouraged or compelled the actionable conduct of the private party. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Musso v. Suriano, supra. Second, plaintiff may claim that the private individual was performing a function traditionally and exclusively performed by the sovereign. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Anastasia v. Cosmopolitan National Bank of Chicago, 527 F.2d 150 (7th Cir. 1975). Finally, plaintiff may allege that the private actor, as a result of his conduct, became an instrumentality of state power. Burton v. Wilmington Park Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Sparkman v. McFarlin, supra (Sprecher, J., concurring).

The degree of joint activity between the Village and the individual defendants sufficiently establishes a nexus between them for the purposes of surviving a motion to dismiss. The facts pleaded sufficiently allege that the Village "affirmatively supported" the individual defendants' conduct, and this affirmative support was significant "measured either by its contribution to the effectiveness of defendant's conduct, or perhaps by the defiance of conflicting national policy." Lucas v. Wisconsin Electric Power Co., 466 F.2d 638, 656 (7th Cir. 1972) (en banc), cert. denied, 409 U.S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973). Furthermore, the private parties derived "aid, comfort, or incentive" from the affirmative support. Id. at 655. But for the Village's consent and police supervision, it can be reasonably contended that the individual defendants would not have entered upon plaintiff's property and made their sewer connection.*fn2 See United States v. Classic, 313 U.S. 299, 325-26, 61 S.Ct. 1031, 1042-1043, 85 L.Ed. 1368 (1941). Accordingly, this court finds the complaint sufficiently alleges that "some nexus" existed between the individual defendant's sewer connection and the Village, and that the "private" conduct of the Soraghans and Hanson was, therefore, action under color of state law for purposes of § 1983.*fn3

Simply because the sewer connection was made under color of state law, however, does not end our inquiry as to whether plaintiff has successfully stated a claim under § 1983. It must additionally be alleged that defendants' conduct deprived plaintiff of a right secured by the Constitution or laws of the United States. See Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). Plaintiff contends that in making the sewer connection the defendants violated her right to equal protection of the laws and deprived her of property for public use without just compensation. Essentially, plaintiff's claim asserts a violation of her property rights guaranteed by the Fifth and Fourteenth Amendments. This court must, therefore, decide whether the sewer connection amounted to a taking of property under the Fifth Amendment.*fn4

  The Supreme Court has recognized that: [t]he
  question of what constitutes a "taking" for
  purposes of the Fifth Amendment has proved to be
  a problem of considerable difficulty. While this
  Court has recognized that the "Fifth Amendment's
  guarantee . . . [is] designed to bar Government
  from forcing some people alone to bear public
  burdens, which in all fairness and justice,
  should be borne by the public as a whole," this
  Court, quite simply, has been unable to determine
  any "set formula" for determining when "justice
  and fairness" require that economic injuries
  caused by public action be compensated by the
  government, rather than remain disproportionately
  concentrated on a few persons. Indeed, we have
  frequently observed that whether a particular
  restriction will be rendered invalid by the
  government's failure to pay for any losses
  proximately caused by it depends largely "upon
  the particular circumstances [in that] case."

Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 123-24, 98 S.Ct. 2646, 2658-59, 57 L.Ed.2d 631 (1978) (citations omitted).*fn5 Furthermore, the Court has declared that it is "not essential that the entire community nor even any considerable portion, should directly enjoy or participate in an improvement in order to constitute a public use." Rindge Co. v. Los Angeles County, 262 U.S. 700, 707, 43 S.Ct. 689, 692, 67 L.Ed. 1186 (1923). Thus, the mere fact that the sewer connection primarily benefits only the Soraghans does not by itself preclude plaintiff's claim that her property was "taken" for public use.

Although this court's extensive research has been unable to discover any federal cases discussing whether a sewer connection amounts to a taking, several state courts have considered this matter. For example, the Massachusetts Supreme Judicial Court, when faced with a controversy virtually identical to the instant case, held "[t]hat the laying out of sewers is a public purpose which will justify the taking of private property by eminent domain can hardly be doubted." Machado v. Board of Public Works of Arlington, 321 Mass. 101, 104, 71 N.E.2d 886, 888 (1947) (emphasis added).*fn6 Furthermore, the court noted that the taking of an easement in private lands, by eminent domain, to afford one property owner access to a sewer main, was for a "public purpose" despite appearing to solely benefit the private owner. Id. Similarly, in Gunn v. City of Versailles, 330 S.W.2d 257 (Mo. Ct. App. 1959), a city made a sewer connection to a landowner's private sewer without his permission and without any compensation. The court there found that in making the connection the city did not merely do consequential damage to the landowner's property but rather appropriated such property and thus the sewer connection amounted to a "taking" of property without just compensation, in violation of the Fifth Amendment. In several other states courts have recognized that under the Fifth Amendment the taking of an easement in private property for construction and ...

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