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Borrowman v. Howland

OPINION FILED NOVEMBER 21, 1983.

GEORGE D. BORROWMAN ET AL., PLAINTIFFS-APPELLEES,

v.

VIRGIL HOWLAND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Calhoun County; the Hon. Alfred L. Pezman, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

This is an action brought by the commissioners of the Sny Island Levee Drainage District (drainage district) in Calhoun County seeking a mandatory injunction to compel the removal of a farm building which allegedly encroaches upon a drainage district easement. Virgil Howland is the contract purchaser of the land on which the building is located, and he erected the building in issue. On January 21, 1983, an order of mandatory injunction issued, directing defendant to remove the structure from the drainage district's easement within six months. Defendant appeals.

Howland disputes the validity of the injunctive order on several theories. First, he asserts that the trial court was without jurisdiction over all necessary parties, because the owners of the land upon which the structure was located were not made parties to the action. Second, defendant contends that the presence of the structure on the land subject to the easement did not constitute an encroachment, since the building did not interfere with the uses for which the easement was created. Third, he argues that the issuance of the mandatory injunction was improper because the plaintiffs would have an adequate remedy at law. Last, Howland maintains that the trial court abused its discretion in issuing the mandatory injunction, because the foreseeable benefits of removing the structure would be greatly outweighed by the cost of its removal.

The complaint alleged that the title owners of the land in question granted an easement to the drainage district on May 24, 1967, and this conveyance was recorded with the Calhoun County recorder on January 29, 1969. It also alleged that Virgil Howland knowingly encroached on this easement beginning in the spring of 1980 when he caused a pole structure to be erected on the land subject to the right-of-way. Attached to the complaint was a copy of the instrument which purportedly created the easement in issue. According to this document the grantors of the easement were Una B. Suhling, Kermit Suhling, Jeanette Suhling, William Haynes and Dorothy Haynes (Suhlings and Hayneses), who apparently are the current titleowners of the land. The area subject to the easement is described as "[a] tract of land 150.0 feet in width being 75.0 feet on each side of the centerline of an existing drainage ditch locally known as `Old Bay Creek Channel.'" The document conveys to the drainage district "the perpetual right to use, operate, repair, and maintain the existing channel with the right to place spoil within the area," and "the perpetual right of ingress and egress over the [area covered by the easement] for the purpose of inspection, patrolling, repairing, using, operating, excavating, placing spoil and maintaining said existing ditch." Reserved to the grantors in the right to "use the area * * * for ordinary farming operations or any other purpose, so long as said usage does not obstruct, damage, or affect the efficiency of the operation or maintenance of said drainage ditch." This agreement was signed by all five grantors and the three drainage district commissioners and provides that it shall be binding upon the successors, heirs, devisees and assigns of the respective parties.

Trial commenced on November 12, 1982. Although Howland did not formally admit any of the allegations of the complaint, certain basic facts were not disputed in the evidence or arguments presented at trial. First, there is no dispute as to the existence of the drainage district's easement nor the validity of the instrument which describes and created the easement. Second, there is no dispute that the building in issue is located on the area covered by the easement. Third, it is uncontroverted that Howland is the contract purchaser of the land, and that the Suhlings and Hayneses hold legal title.

The principal witness for the plaintiffs was the superintendent of the drainage district, William T. Gard. Gard testified that he spoke with defendant around the first of March 1980, and defendant asked him about a "clean out" of Old Bay Creek and Crooked Slue Ditch. During that conversation, Howland requested materials relating to drainage district easements on the land he occupied. Gard recalled that defendant did not state the reasons for this request and defendant made no mention of any construction plans. Gard testified that he gave Howland several documents, including a copy of the document creating the easement in issue.

Gard stated that Howland attended the April 1, 1980, meeting of the drainage district board of commissioners and again inquired into a "clean out" of local channels. Defendant reportedly indicated that he was building a structure on the land he occupied, but he stated it was "some distance away" from Old Bay Creek. That same day Gard and the commissioners visited defendant's farm to investigate. Gard testified that the structure was near completion. It measured approximately 60 feet by 25 feet and was located seven feet from the bank of the channel. By Gard's estimation, the edge of the building measured 38 feet from the center line of the channel and 68 feet from the opposite bank.

Gard testified that in order for the drainage district to maintain the channel it was necessary to bring machinery in adjacent to the bank of the channel. Normally, cleaning operations were undertaken with a bulldozer and a "dragline." He stated that Howland's building would prohibit the operation of such machinery at that location on the bank. Gard stated that the drainage district planned to clean out this particular section of the channel in the "near future." He conceded that the right-of-way had not been used in recent years and that the last time the channel was cleared was in 1967.

In addition to Gard, each of the three individual plaintiffs testified. Their testimony corroborated Gard's account of the events on April 1, 1980. They agreed that Howland's shed was within 10 feet of the creek bank. After viewing the obstruction, the commissioners sent Howland written notice on April 2, 1980, demanding removal of the structure within 10 days. Commissioner John Kinscherff testified specifically about the anticipated difficulties of cleaning the ditch at the location of Howland's structure. He stated that the channel is approximately 50 to 60 feet wide at that point. He indicated that the creek could not be cleared from the opposite bank, because the drainage district's equipment would not stretch across the entire span of the channel.

Virgil Howland testified that he did not hold the deed to the land, but was purchasing the real property from the Suhlings and Hayneses on contract. He stated that he spoke to Gard about drainage district easements on the land in early 1980, before construction began on the building in issue. He recalled that he specifically asked Gard about the measure of the easement adjacent to Old Bay Creek. Gard's reply, according to Howland, was to the effect that it would take a long time to find the answer in the drainage district's voluminous records; yet, Gard volunteered, "I'd say approximately 75 feet." Howland testified that Gard gave him no documents relating to the easement.

Howland stated that he used Gard's estimate when he chose the building site. He testified that he measured 80 feet across the channel and placed a marker. The structure was then built on the far side of the marker. Defendant stated that the building measures 60 feet by 30 feet, with the length of the building lying parallel to the channel. He conceded that it would not be possible to operate a bulldozer behind the shed; however, he suggested there would be no need for such machinery since he had cleared the area prior to construction.

Defendant testified that he knew the drainage district had an easement when he began construction, but he did not know the true dimensions of the easement until the drainage district gave notice of the alleged encroachment. When he obtained the documents detailing the easement, he received them from the county recorder and not from Gard. He further testified that Gard told him the easement measured 75 feet in width rather than 75 feet from the center line of the channel. Howland testified that he had never done a title search on the land, because the vendors promised to deliver a guaranteed title.

In a written order entered on January 21, 1983, Judge Pezman found that Howland's building constituted a serious encroachment on the easement, and that Howland knew or should have known the correct dimensions of the easement. The court issued an order of mandatory injunction directing defendant to remove the offending structure within six months. This appeal followed.

Howland argues first that the judgment is a nullity, because the trial court lacked jurisdiction over all necessary parties. Specifically, he contends that the Suhlings and Hayneses were indispensable parties because they owned the land in question. He reasons that a building when attached to real property becomes part of the real property, and since the Suhlings and Hayneses hold legal title ...


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