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10/07/87 Galen Baker Et Al., v. the City of Belleville

October 7, 1987

GALEN BAKER ET AL., PLAINTIFFS-APPELLEES

v.

THE CITY OF BELLEVILLE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

514 N.E.2d 1204, 162 Ill. App. 3d 197, 113 Ill. Dec. 193 1987.IL.1509

Appeal from the Circuit Court of St. Clair County; the Hon. Sheila O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. KARNS, P.J., and LEWIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Galen and Agnes Baker (the property owners) filed an action in the circuit court of St. Clair County to obtain reimbursement from the city of Belleville (the city) for expenses incurred in repairing the sewer line which connected the plumbing in their home to the sewer trunk line adjacent to their property. On cross-motions for summary judgment filed by the respective parties, the circuit court entered judgment for the property owners and against the city in the amount of $6,119.61, plus costs. The city now appeals. We affirm.

The material facts of this case are not at issue. The parties agree that the property owners own a house on a lot which abuts West Main Street in Belleville. That street was the subject of a statutory dedication pursuant to what is now section 3 of "An Act to revise the law in relation to plats" (Ill. Rev. Stat. 1985, ch. 109, par. 3), and title to it was thus conveyed to the city in fee simple. See Water Products Co. of Illinois, Inc. v. Gabel (1983), 120 Ill. App. 3d 668, 672, 458 N.E.2d 594, 597.

A sewer trunk line belonging to the city's sewerage system runs beneath the center of West Main Street. A sewer lateral line extends under the street from the trunk line to the property owners' lot, where it connects to the plumbing in the property owners' house. This sewer lateral line is used exclusively by the property owners.

Although affidavits submitted by the city engineer and the superintendent of sewers of Belleville on behalf of the city indicate that the sewer lateral line "is not owned, maintained or controlled" by the city, the city concedes that neither party has any knowledge as to who paid for the original construction of the line, no documentary evidence of title or ownership of the line exists, and there is no known record of any easement having been granted to the property owners for maintaining a sewer lateral line under West Main Street. The city further concedes that neither party has knowledge of any previous repairs or maintenance of the line.

In February of 1985, a problem developed with that portion of the sewer lateral line situated under West Main Street. The city granted the property owners a permit to dig under the street to determine the damage and, if necessary, repair it. The property owners discovered that certain tiles in the lateral there were broken and that the lateral was obstructed under the street near the curbline by the property owners' lot. The property owners requested that the city repair the tiles and clear the obstruction, but it refused to do so. The property owners then retained a private contractor, who performed the necessary repairs, removed the obstruction and restored the street to its prior condition at a cost of $6,119.61. When the city rejected the property owners' claim for reimbursement of that sum, the property owners commenced this litigation.

The property owners' cause was called for trial on May 1, 1986, but the city failed to appear. After receiving an affidavit from the property owners setting forth their damages, the circuit court thereupon entered a default judgment in favor of the property owners and against the city. The city then made a timely motion to have the default judgment set aside. That motion was granted. Shortly thereafter, the city filed its motion for summary judgment which was followed, within a matter of days, by a cross-motion for summary judgment by the property owners. As we have previously indicated, the trial court disposed of these motions by granting summary judgment in favor of the property owners and against the city. Upon denial of the city's motion to vacate that judgment, this appeal followed.

The city contends that the trial court erred in holding it liable for expenses incurred by the property owners in repairing the sewer lateral line because the property owners had exclusive use of that line. The city cites miscellaneous foreign authorities in support of its claim. None of those authorities, however, has any direct bearing on the situation now before us. As best we can determine, the city's argument is founded simply upon its conception of how the equities between the parties should be balanced. The city's idea, apparently, is that because only the property owners used this particular lateral line, only the property owners should pay for its repair. One problem with this approach is that it assumes that the property owners and not the city were responsible for the damage which necessitated the repairs. The record will not support such an assumption. All we know for certain is that the problems with the lateral line were found entirely under the city's street. If anything, this would seem to suggest that those problems were actually attributable to the city, not the property owners.

The city argues, in the alternative, that the property owners were under a duty to repair the lateral line by virtue of a municipal ordinance. We disagree. To be sure, a property owner may properly be required by municipal ordinance to pay the expenses of repairing and maintaining service connections to a municipal utility when an applicable State statute so authorizes. (Rosborough v. City of Moline (1961), 30 Ill. App. 2d 167, 184, 174 N.E.2d 16.) Section 11-141-7 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 11-141-7), governing rates and charges for use of municipal sewerage systems, provides such authority here. Section 11-141-1 of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 11-141-1) expressly defines sewerage systems to include sewer lateral lines.

Consistent with its statutory authority, the city has promulgated a detailed ordinance controlling the use of public sewers and establishing charges for such use. That ordinance provides, inter alia, that owners of property abutting a municipal sewer line must, under certain circumstances, install toilet facilities which connect to the public sewer. It further provides that all costs and expenses incidental to such installation and connection are to be borne by the owner, and it sets forth charges to be paid for sewer service by the owner or occupant of the property or user of the system after such installation and connection have been made. Nothing in the ordinance, however, expressly imposes on a property ...


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