Appeal from the Circuit Court of Jackson County; the Hon.
David W. Watt, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Greg and Debbie Mileur, appeal from an order of the circuit court of Jackson County dismissing their complaint with prejudice for failure to state a cause of action. For the reasons which follow, we reverse and remand.
• 1 In determining the sufficiency of a complaint on a motion to dismiss, a court must take as true all facts properly pleaded. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill.2d 502, 505, 485 N.E.2d 372, 374 cert. denied (1986), 475 U.S. 1122, 90 L.Ed.2d 187, 106 S.Ct. 1641.) Plaintiffs' complaint here is in two counts. Count I alleges that plaintiffs own a parcel of land located at 2031 Herbert Street, Murphysboro, which they purchased on September 1, 1983. Immediately west of and adjacent to plaintiffs' land is property owned by defendants, Thomas McBride and Harlin Barnett. Defendants bought that property on December 3, 1982.
Plaintiffs allege that prior to December 3, 1982, the elevation of defendants' property was lower than that of their land. Surface waters which came or fell upon plaintiffs' land would flow through a natural watercourse which ran westerly across plaintiffs' land down to a drainage ditch situated on defendants' property. Upon reaching the ditch, the surface waters would drain northward through the ditch to the south side of Herbert Street, where they would empty onto the street. After defendants purchased their land, however, they allegedly improved it by: (1) laying fill dirt which raised its grade to a level higher than that of plaintiffs' land, completely eliminating the drainage ditch, and (2) constructing a duplex housing unit with gutters which defendants caused to drain directly onto plaintiffs' land.
According to count I of plaintiffs' complaint, these improvements to defendants' property:
"caused surface waters to be diverted from their natural course such that said water does not drain off Plaintiffs' property, but rather, floods Plaintiffs' property in times of heavy rainfall and stands thereon for long periods of time, causing severe damage and loss to Plaintiffs."
Plaintiffs allege that in causing this diversion of surface water through the specified improvements, defendants acted unreasonably and in violation of their duty to use their land so as not to injure their neighbors' property. As a consequence, they claim to have sustained $2,000 in damage to their home, garage and personal property and allege that they are now forced to install sewer lines and inlets at an estimated cost of $1,925. Plaintiffs further claim that defendants' actions were done maliciously and with wanton disregard of plaintiffs' rights, for which they request the additional sum of $8,000 as punitive damages.
Count II of plaintiffs' complaint incorporates by reference the factual allegations of count I, with the exception of those pertinent to their claim for punitive damages, but avers that defendants were negligent. Defendants' negligence is alleged to consist of:
"a. Failing to provide for the proper drainage of surface water from Defendants' property without interfering with Plaintiffs' use of his property.
b. Failing to provide for the drainage of surface water from Defendants' property away from Plaintiffs' property.
c. Raising the grade of Defendants' property excessively in relation to Plaintiffs' property thereby causing an excessive flooding of Plaintiffs' property.
d. Failing to construct a barricade; retaining wall, or other structure to prevent surface water from flooding Plaintiffs' property."
On defendants' motion, the circuit court dismissed both counts of plaintiffs' complaint for failure to state a cause of action. Plaintiffs' motion to reconsider was denied. The only specific finding made by the court in support of its decision related to count II, with respect to which the court held simply that no duty was owed by defendants to plaintiffs. Plaintiffs now appeal.
• 2 No cause of action should be dismissed on the pleadings "unless it clearly appears that no set of facts can be proved which will entitle Plaintiff to recover." (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill.2d 502, 506, 485 N.E.2d 372, 374, cert. denied (1986), 475 U.S. 1122, 90 L.Ed.2d 187, 106 S.Ct. 1641.) Plaintiffs in this case argue that the allegations in their complaint properly state a cause of action for obstruction of an easement ...