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07/23/87 William F. Kurtz Et Al., v. the County of Logan

July 23, 1987

WILLIAM F. KURTZ ET AL., PLAINTIFFS-APPELLANTS

v.

THE COUNTY OF LOGAN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

511 N.E.2d 252, 158 Ill. App. 3d 715, 110 Ill. Dec. 417 1987.IL.1056

Appeal from the Circuit Court of Logan County; the Hon. Robert L. Thornton, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. GREEN, J., concurs. JUSTICE LUND, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

In the circuit court of Logan County plaintiffs, William F. Kurtz, Alice M. Kurtz, Norman C. Anderson and Clara B. Anderson, filed a complaint against defendant, the County of Logan, alleging damage to real property. The trial court granted a motion for summary judgment for the defendant on the grounds that the cause of action was barred by the applicable statute of limitations. (Ill. Rev. Stat. 1981, ch. 110, par. 13-205.) Plaintiffs have appealed and we reverse., Plaintiffs are the owners of real property located next to a Logan County highway known as Primm Road. Plaintiffs are engaged in farming this property.

On December 28, 1973, defendant offered to purchase 2.21 acres of plaintiffs' property for the purpose of replacing a bridge and repairing and straightening Primm Road. A contract was eventually entered into between plaintiffs and defendant whereby defendant acquired the necessary acreage. Actual bridge and road construction was completed in 1976.

In April of 1977 plaintiffs began to notice that during and after hard rains their farmland adjacent to defendant's recent construction would flood. The flooding prevented the planting of crops on portions of plaintiffs' property. No flooding had occurred prior to defendant's construction work but it has occurred every spring since 1977.

On April 18, 1983, plaintiffs filed suit against defendant alleging damage to their farm property. Defendant filed several motions to dismiss the complaint on statute of limitations grounds and plaintiffs twice amended their complaint.

Defendant finally answered the plaintiffs' second amended complaint and on March 6, 1986, filed a motion for summary judgment alleging that section 13-205 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-205) barred the cause of action because it was not filed within five years from the date that it accrued. Plaintiffs filed a reply to the motion, arguing that section 13-205 did not act as a bar against an action such as theirs filed more than five years from the time it had first accrued where the injury was continuing and ongoing.

The trial court granted defendant's motion for summary judgment holding that plaintiffs knew or should have known of any injury to their land in April 1977 and thus were barred by section 13 -- 205 from filing their complaint in April of 1983. After plaintiffs' motion to reconsider was denied, they filed a timely notice of appeal.

In applying the discovery rule to the facts of this case, the trial court has misapprehended the time that injury occurred to the plaintiffs. The injury to plaintiffs, while occurring after the construction work of defendant, was not the immediate and direct result of the construction, but was consequential and resulted from recurrent and intermittent overflows of their land.

The difference between the two causes of injury and their effect on the plaintiffs' right to bring suit for their damages is discussed in Anderson v. Sutter (1983), 119 Ill. App. 3d 1070, 458 N.E.2d 39. Where the injury was not the necessary, immediate and direct result of the construction undertaken, but results from recurrent and intermittent overflows caused either by negligent use or operation of the structure or by natural phenomena, then the limitations period runs from the last overflow and only damages sustained prior to commencing suit are compensable. (Jones v. Sanitary District (1911), 252 Ill. 591, 97 N.E. 210.) On the other hand, where injury occurs as the result of the construction or the proper operation of a permanent structure, then the injury is considered permanent and the limitations period would run from the date of completion of the structure (Vette v. Sanitary District (1913), 260 Ill. 432, 103 N.E. 241) or from the time when plaintiffs knew or should have known of their injury and its cause. See Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

Both Jones v. Sanitary District (1911), 252 Ill. 591, 97 N.E. 210, and Vette v. Sanitary District (1913), 260 Ill. 432, 103 N.E. 241, dealt with flood damage to farmland downstream from the Chicago sanitary district drainage system. In Jones the injury occurred to the farmland on an intermittent basis when the locks were operated improperly or heavy rainfall increased the flow downstream. In Vette, the mere creation of the drainage system, properly operated, caused valuable timberland to be inundated. The Anderson court noted it is important to closely examine the complaint in a case such as this one because it must be determined whether lands have been continuously flooded and the construction itself caused injury as in Vette or whether flooding was intermittent and caused by negligent operation of the structure or acts of nature as in Jones. (Anderson v. Sutter (1983), 119 Ill. App. 3d 1070, 1076, 458 N.E.2d 39, 44.) A close reading of the complaint in the instant case indicates damages occur to the plaintiffs' land only when a heavy rain falls, especially during the spring of the year. This factual ...


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