APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
514 N.E.2d 12, 160 Ill. App. 3d 341, 112 Ill. Dec. 616
August 27, 1987; Modified on denial of rehearing October 6, 1987.
Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding. 1987.IL.1249
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
Appeal is taken from an order of the circuit court of Champaign County entering judgment in favor of the plaintiff, the Fountain Head Drainage District (District), and denying the motion for summary judgment of the defendant city of Champaign (city). Relying principally upon section 12-3 of the Illinois Drainage Code (Code) (Ill. Rev. Stat. 1985, ch. 42, par. 12-3), the court's judgment order requires that the city seek and obtain the consent of the District before it may erect or replace any structure spanning District ditches within Champaign city limits. The judgment order further provides it is permissible for the District to condition such consent upon a court-approved agreement, which may include among its terms a "hold harmless" provision executed by the city in favor of the District. The city must also bear all costs associated with going into court to gain approval of the agreement. In the event accord cannot be reached, the city is ordered by the court to remove two footbridges already constructed.
Because we construe no statutory authority which would require a city to execute a hold harmless provision upon the reconstruction or rebuilding of an existing bridge, that being in conflict with the acknowledged duty of a municipality to maintain its public thoroughfares, we reverse. A strict interpretation of the relevant statutes likewise causes us to conclude a district may not withhold its approval to new construction by exacting certain court-approved conditions unrelated to the natural drainage flow in the area.
The focus of this controversy is on two existing footbridges constructed over drainage ditches within the city of Champaign. On May 29, 1986, the District filed suit for a mandatory injunction that the city remove both footbridges or, alternatively, for a declaratory judgment that the city must first obtain the District's consent to erect footbridges across any ditch.
The facts from the complaint and exhibits in the record are both basic and undisputed. The District is a quasi-municipal corporation empowered with the authority to maintain, repair and protect a drainage system within Champaign County. On October 17, 1983, Daniel S. Winkler, an engineer for the city, sent the District commissioners a "Pedestrian Bridge Replacement" plan for a footbridge over the Copper Slough Ditch just west of Duncan Road in Champaign (the Duncan Road bridge). That design plan was expressly approved by District commissioners at their meeting of November 17, 1983. The minutes of that meeting reflected District engineers recommended acceptance because the new bridge would actually improve the flow of water through the area. However, ultimate approval by the commissioners was made subject to receipt of a "hold harmless" agreement and payment of all court costs by the city.
Various correspondences between the city and the District reflect the city's dissatisfaction with the proposed agreement terms, especially as it viewed the hold harmless provision and payment of court costs. The agreement as drafted mandated payment by the city of all fees and costs, not to exceed $500, incurred while acquiring court approval.
On June 26, 1984, acting without ratification of an agreement, the city completed reconstruction of the Duncan Road footbridge. On March 3, 1986, the city also constructed and installed a new pedestrian footbridge spanning the Copper Slough Ditch near Springfield Avenue (the Springfield Avenue bridge). There was no prior approval or agreement for this second project.
The District then filed its complaint seeking a mandatory injunction or a declaratory judgment. The trial court in its memorandum opinion entered December 4, 1986, relied upon the interplay of sections 12-3 and 12-4 of the Code. (Ill. Rev. Stat. 1985, ch. 42, pars. 12-3, 12-4.) Specifically, the court found no exception or limitation to the language of section 12-3 which states permanent structures, including bridges, shall not be placed by a landowner on the District right-of-way without first obtaining the express consent of District commissioners. (Ill. Rev. Stat. 1985, ch. 42, par. 12-3.) Requiring the imposition of a condition to approval, the court wrote, is "certainly within the realm of good judgment with regard to district business."
Subsequently on January 27, 1987, a written judgment order was entered that: (1) section 12-3 of the Code requires any landowner, including the city, to obtain the consent of District commissioners prior to placing a permanent structure over the drainage district right-of-way; (2) the District may as a basis for granting permission impose conditions such as those set forth in the contested agreement; and (3) in the event the District ...