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Ill. Bell Telephone Co. v. Lewis

OPINION FILED JUNE 27, 1983.

ILLINOIS BELL TELEPHONE COMPANY, PETITIONER-APPELLANT,

v.

KITTY LEWIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Menard County; the Hon. Fred W. Reither, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 9, 1983.

The question: When a telephone company condemns private property, must it follow the provisions of the Telegraph and Telephone Act or must it follow the provisions of the Public Utilities Act?

Illinois Bell answers: Telegraph and Telephone Act.

Lewis responds: Public Utilities Act.

We hold: Both.

These same parties were before this court in the previous case of Lewis v. Illinois Bell Telephone Co. (1981), 98 Ill. App.3d 1047, 425 N.E.2d 55. In Lewis, we set out the facts that led to that appeal:

"Plaintiff [Lewis] owned the fee simple title to the premises which were a strip of land 55 feet wide and 3,960 [feet] long and constituted the westerly portion of a larger tract. The strip had been dedicated as an easement for highway purposes some years earlier by the plaintiff and a rural public highway existed thereon.

Defendant [Illinois Bell] entered into negotiations with the plaintiff for permission to lay underground telephone cable in the highway easement but these negotiations came to naught. Notwithstanding, defendant proceeded to lay the cable in the easement commencing in May 1980, and ending about July 1980. The forcible entry and detainer suit followed in November 1980." (98 Ill. App.3d 1047, 1048, 425 N.E.2d 55, 56.)

The circuit court entered judgment awarding possession of the premises to Lewis. Illinois Bell appealed. We affirmed. We held that Illinois Bell could only take private property by exercising its eminent domain authority. We also stated that the specific enabling legislation which provided Illinois Bell with the power of eminent domain is:

"the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.) and the delegation of that power to telephone companies under section 4 of `An Act relating to the powers, duties and property of telephone companies' [the Telegraph and Telephone Act] (Ill. Rev. Stat. 1979, ch. 134, par. 20)." (98 Ill. App.3d 1047, 1050, 425 N.E.2d 55, 58.)

We then remanded the cause back to the circuit court with directions to:

"enter a supplementary order requiring the defendant [Illinois Bell] * * * either (1) to agree with the plaintiff [Lewis] upon the amount of compensation to be paid and pay it, or (2) to commence a proceeding in eminent domain to acquire the easements in question * * *." 98 Ill. App.3d 1047, 1052, 425 N.E.2d 55, 59.

Upon remand, the parties entered into negotiations. They proved fruitless. Illinois Bell then filed a petition for condemnation. Lewis filed a traverse and motion to dismiss the petition. At the hearing on the motion to dismiss, Illinois Bell argued that it had complied with all of the conditions precedent to exercising its eminent domain authority pursuant to the provisions of the Telegraph and Telephone Act. Lewis argued that pursuant to the provisions of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 1 et seq.), a hearing before the Illinois Commerce Commission is a condition ...


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