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01/22/87 Ernest L. Flick Et Al., v. John D. Kramer

January 22, 1987

ERNEST L. FLICK ET AL., PLAINTIFFS-APPELLEES

v.

JOHN D. KRAMER, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

503 N.E.2d 811, 151 Ill. App. 3d 836, 104 Ill. Dec. 949 1987.IL.44

Appeal from the Circuit Court of Ogle County; the Hon. John L. Moore, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiffs, Ernest L. Flick, Martha Flick, and J. & L. Oil, Inc., filed a verified complaint for mandamus against defendant, the Secretary of the Department of Transportation (hereinafter DOT), in order to compel defendant to bring an eminent domain proceeding to acquire certain land, allegedly owned by the Flicks. The land was entered upon by the State in the course of a highway improvement project. Defendant appeals from the granting of plaintiffs' motion for summary judgment and the denial of its motion for reconsideration, contending that the trial court erred in not determining who owned the land before granting summary judgment.

Plaintiffs alleged in their complaint for mandamus that in the course of a project to improve Illinois Route 64 in Oregon, Illinois, contractors of the Division of Highways encroached upon the Flicks' land some 33 feet and removed fixtures, buildings, concrete, and improvements which belong to the Flicks' lessee, plaintiff J. & L. Oil, Inc. The complaint gave descriptions of the land alleged to be owned in fee simple by the Flicks. Plaintiffs' deed to the land presents some ambiguities in the legal description of the property. Plaintiffs' deed describes their property "thence South . . . 182-1/2 feet more or less, to the Southline of said Government Lot 2." However, while plaintiffs lay claim to the full 182 1/2 feet set forth in the deed, it is actually only 150 feet to the southern boundary of government lot 2 -- 32 1/2 feet less than plaintiffs purport to own. For approximately the past 50 years, plaintiffs contend they have considered the full 182 1/2 feet to be their property, fully occupying all of it and paying taxes on that amount of footage.

Plaintiffs filed a motion for summary judgment alleging that there was no issue as to the ownership of the land. Plaintiffs' motion was supported by the affidavits of Ernest L. Flick and his lessee, Gene L. Wright, and by other documents showing property boundaries. Defendant then filed an amendment answer which denied the Flicks' claim of ownership of the land in dispute and asserted that the State owns that land up to the south boundary of government lot 2. Defendant filed a response in opposition to plaintiffs' motion for summary judgment, alleging that the Flicks do not own the disputed land referred to in the complaint, that in 1974 DOT filed a petition for condemnation of the land at issue, and that a final judgment was entered in that action. Defendant attached a 1971 survey which shows that part of the condemned land is that which is claimed by the Flicks.

The court found in its summary judgment order that there was no genuine issue as to any material fact because no issue as to the Flicks' ownership was raised by any counteraffidavit or verified pleading and that any such issue may be determined in an eminent domain proceeding. The court found that "although defendant's response to the motion for summary judgment exhibits an assertion of ownership in the Department for highway purposes, the Court finds that such assertion is not now material to the issues of the Complaint for Mandamus." The court ordered that an eminent domain proceeding be instituted.

Defendant filed a motion for reconsideration to which was attached an affidavit of an employee of the Bureau of Land Acquisition. Attached to the affidavit was a plat drawn by the employee of the land at issue and documents relied upon by the employee in his Conclusion, inter alia, that a right-of-way was dedicated for the highway 79.9 feet or more from the highway's centerline, indicating a point within the land claimed to be owned by the Flicks. Defendant also filed the affidavit of a civil engineer employed by DOT who had examined the final judgment order in the 1974 condemnation proceeding and had found that the land described in that order included the land in issue. Further, defendant filed the affidavit of an employee of the Bureau of Land Acquisition and a letter to Ernest Flick from the Bureau stating that the south line of government lot 2 and the north right-of-way line are the same, indicating that the right-of-way line extends into the land claimed to be owned by the Flicks.

Defendant appeals from the granting of plaintiffs' motion for summary judgment contending that mandamus may not issue unless there is a finding that the Flicks own the land sought to be condemned and additionally that the circuit court acted without jurisdiction alleging that this action properly should have been commenced in the Court of Claims.

The doctrine of sovereign immunity was abolished in the Illinois Constitution of 1970 "[e]xcept as the General Assembly may provide by law." (Ill. Const. 1970, art. XIII, sec. 4.) The legislature has acted to continue sovereign immunity as follows:

"Except as provided in AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named', filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court." (Ill. Rev. Stat. 1983, ch. 127, par. 801.)

The Court of Claims Act sets forth certain actions under its exclusive jurisdiction that can be maintained against the State. ...


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