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03/16/87 Thomas Dietz, and All v. Bell Telephone Company

March 16, 1987

THOMAS DIETZ, AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS

v.

ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

507 N.E.2d 24, 154 Ill. App. 3d 554, 107 Ill. Dec. 360 1987.IL.310

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The plaintiff, Thomas Dietz, filed a class action complaint in the circuit court of Cook County seeking to hold the defendant, Illinois Bell Telephone Company , liable for trespasses to land allegedly committed by Continental Cablevision of Cook County, Inc. (Continental) and other cable television companies. The CATV companies, it was asserted, used IBT's telephone poles and conduits while placing their cables on or over plaintiff's land and the land of other class members without permission of the plaintiff and the class members. IBT filed a motion to strike and dismiss the plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) contending that the complaint failed to state a cause of action. Following a hearing, the trial Judge granted IBT's motion, ruling that the facts alleged in the plaintiff's complaint did not make IBT an aider or abettor to the alleged tortious conduct of Continental

or any other CATV company. The Judge gave the plaintiff 28 days in which to file an amended complaint. However, after the plaintiff informed the court of his election to stand on his complaint, the court dismissed the complaint with prejudice. Plaintiff appealed.

The issue presented by this appeal is whether the trial court erred when it dismissed the plaintiff's complaint for failure to state a cause of action.

In his one-count complaint, the plaintiff alleged that he owned and resided upon certain real estate in Elmhurst, Illinois, and that no easement had been granted to permit entry or use of the premises by any CATV company. It was further alleged that IBT had entered into licensing agreements with numerous CATV companies permitting the companies to use IBT's telephone poles and conduits to install their cables in exchange

for certain fees that were to be paid to IBT. The plaintiff attached to the complaint one such license agreement between IBT and Continental.

The licensing agreement provided that Continental could use IBT's facilities to erect and maintain a CATV system in Du Page County, Illinois. Continental was to pay an annual fee to IBT based upon the number of telephone poles and feet of conduit Continental used, i.e., $4.43 per pole and $3.32 per foot of conduit. Furthermore, the agreement between IBT and Continental specifically provided:

"[Continental] shall be responsible for obtaining from the appropriate public and/or private authority any required authorization to construct, operate and/or maintain its communications facilities on public and private property at the location of [IBT's] poles and conduit system which [Continental] uses. reserves the right to terminate an existing license or refuse to grant a new license where such evidence is unsatisfactory."

The plaintiff asserted in his complaint that Continental had committed a trespass by stringing its cables across plaintiff's land without his permission. He also alleged that Continental and other CATV companies similarly placed their cables on or over other class members' lands without permission. The plaintiff stated in the complaint that he had notified IBT that Continental was trespassing on his land. He further asserted that IBT knew the CATV companies were entering the class members' land without permission to install their cables and that IBT had failed to remove the cables tortiously placed upon the class members' lands by the CATV companies.

The plaintiff also contends that IBT had known with substantial certainty, as a result of its agreeing to allow the CATV companies to use its poles, that the CATV companies would trespass onto the class members' lands. Furthermore, IBT had substantially assisted the CATV companies in the commission of the trespasses, and continued to assist the CATV companies after learning of their trespasses, and that, therefore, IBT had ...


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