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Amer. Nat'l Bk & Tr. Co. v. Carroll





Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy, Judge, presiding.


Defendant, John P. Carroll, a land developer and builder, appeals from preliminary and permanent injunctions entered by the trial court enjoining him from tunnelling under plaintiff Fairfield's land in order to connect into water and sewer lines located therein. The issues presented for review are: (1) whether the trial court erred in its interpretation of an ordinance which, when complied with, entitles the village of Olympia Fields to receive certain property easements, and (2) the propriety of the issuance of preliminary and permanent injunctions. For the reasons hereinafter stated, we affirm.

The property involved in this litigation concerns a 112-acre residential development project, "Trails of Olympia Fields," which was constructed by plaintiff Fairfield Service Corporation (Fairfield) located in the village of Olympia Fields, Illinois. Bordered by Vollmer Road along the north, 203d Street on the south, Governors Highway on the west and Kedzie Avenue on the east, the development is subdivided into three sections. Phase 1 in the southern portion of the development project comprises 77 residential lots. Phase 2, located approximately in the middle third, consists of 81 lots of single-family dwellings. Phase 3 in the northern third is undeveloped commercial property.

In 1978, Fairfield applied and was granted permission by the Metropolitan Sanitary District (MSD) to construct sewers in Phase 1. On the application, Fairfield represented that the village was the owner of the sewer system. Sewer construction in Phase 1 was completed in 1979 and in 1981 construction was completed for Phase 2.

Defendant, doing business as Carroll Builders, owned land adjacent (east) and parallel to Fairfield's project. After constructing his own water and sewer lines, defendant prepared to tap into Fairfield's lines to the west by excavating a tunnel under Kedzie Avenue, which divides the parties' properties. Defendant was about to make the connection in February 1983, but before he entered beneath Fairfield's land, Fairfield filed a motion for a temporary injunction, alleging that it had constructed the water and sewer lines at its expense and that easements had not yet been dedicated to the village to permit entry onto the land or use of the lines.

In rebuttal, defendant argued that it had received permission from the MSD as well as the village to tap into these lines. Both Fairfield and defendant agreed, however, that the principal issue before the court was which party had the right to control the lines in question.

Granting the temporary injunction, the trial court reasoned that it should maintain the status quo in order to permit both sides to prepare for full argument on the merits of this cause, which was scheduled to be heard in April 1983.

In the interim, on March 9, 1983, the village president requested that the village engineer, Edward J. Resner, conduct a "second inspection" of the sewer line in Phase 2 in accordance with village ordinance 17W, section 3(H), which provides that a second inspection of water and sewer lines in a development project be completed prior to the village's acceptance of the lines and concomitant conveyance from the developer to the village of easements for access for maintenance and repair.

Resner complied with this request on the morning of March 14, 1983, and informed the village president that afternoon that he had inspected portions of Fairfield's sewer system. Resner recommended that certain segments of the sewer lines be accepted by the village board, which it did at its board meeting that evening.

The following week, on March 21, 1983, the village attorney wrote a letter to Fairfield's counsel, Cornelius J. Harrington, requesting that in accordance with ordinance 17W, Fairfield immediately convey to the village the necessary easements for the sewer line in Phase 2. This request was denied. On March 28, 1983, the village board passed a resolution accepting the water lines and the Phase 1 development project.

Injunctive proceedings before the trial court commenced April 14, 1983. First, defendant presented a motion to dismiss, asserting that the court did not have equity jurisdiction over this matter because Fairfield had not shown irreparable harm and had an adequate remedy at law (damages). Fairfield's primary motive, defendant alleged, was to destroy defendant's development project by making it impossible for defendant to sell homes in the spring season because he (defendant) would not have access to any water or sewer lines. Also, defendant urged, the water and sewer systems now belong to the village and, further, Fairfield's land development in Phase 2 was already burdened with a utility easement used by Northern Illinois Gas Company.

Following Fairfield's argument in rebuttal that the village board proceedings were a "hurry up operation between [defendant] and the Village Engineer," the court recessed and subsequently issued a ruling denying defendant's motion.

Fairfield then called defendant to testify as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102). Defendant stated that Fairfield's counsel, Cornelius J. Harrington, had briefly informed him in August 1982 that there was "a problem between [defendant] and Fairfield" which had to be resolved. Defendant then read into evidence a letter from Resner, the village engineer who had performed a second inspection of Fairfield's sewer lines in March and who also worked for Wight Engineering Company. Fairfield had hired Wight to work on its project. The letter was addressed to the village commissioner and requested a building permit for defendant, but "subject to [defendant's] satisfactory submission of a sanitary sewer easement on the west side of Kedzie Avenue for the sewer he is connecting into." It went on to state that "the easement should be recorded prior to occupancy of any units."

Defendant further testified that as of October 1982, he had not obtained an easement from anyone. In February 1983, defendant telephoned Resner but did not recall whether Resner had advised defendant to obtain an easement to tap into plaintiff's water and sewer lines. Part of the conversation with Resner did concern Fairfield's "No Trespassing" signs, however. Defendant stated that he had telephoned Resner because defendant believed that he (defendant) had a written permit to tap in. This permit, Fairfield's exhibit 2, was entitled "Metropolitan Sanitary District, Sewage System Permit 82-241."

Testifying further, defendant acknowledged that he never asked Fairfield for an easement and that in spite of the October 1982 letter he dug a pit in February 1983 to connect to plaintiff's water and sewer lines.

Fairfield next examined William V. Briody, who stated that as project director at Fairfield Service Corporation he was responsible for the management of the "Trails of Olympia Fields" development project. His duties included working with engineers, obtaining permits and approvals from the village, the MSD, Cook County and the Illinois Environmental Protection Agency as well as soliciting and awarding bids. Briody explained that for marketing and economic purposes this project was divided into three phases and had been paid for by Fairfield. The engineering firm of Wight and Company had designed the sewer and water lines in Phase 1 which were constructed in 1980. Sewer, water and storm sewer lines in Phase 2 were completed in 1981. There had not as yet been any residential development in Phase 3.

Testifying further, Briody said that it was after the water and sewer lines were constructed that he learned that they had been built in such a manner as to be able to serve areas other than the property owned by Fairfield. Briody also identified Fairfield's exhibit 13, which was its request for final inspection and approval of Phase 2. After identifying several additional exhibits, Briody was examined concerning his letter to Anton Medovich, chief field engineer at Wight and Company, dated August 17, 1982. The letter requested an inspection of Phase 2 but only to "ascertain substantial completion on the part of the Contractor so final payment can be made to him." Briody stated that pursuant to this request he participated in the inspection of the site improvements, including the water and sewer lines.

Briody stated that on February 14, 1983 he noticed that defendant had begun to dig a pit which would enable it to tunnel under Kedzie Avenue in order to tap into Fairfield's water and sewer lines. Briody immediately called Fairfield's attorneys, installed three "No Trespassing" signs and photographed the area. That same day, Briody talked to one of the men on defendant's construction site and informed him that Fairfield had not granted defendant an easement to enter onto the property and that Fairfield would take legal action to prevent defendant from doing so.

Briody testified further that defendant had never asked for permission to tap into Fairfield's lines nor did he receive notice from the village or from Wight and Company that they intended to inspect any portion of the Phase 2 project. Briody was also not informed that there would ...

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