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12/29/87 Gerald Dovin Et Al., v. Winfield Township Et Al.

December 29, 1987

GERALD DOVIN ET AL., PLAINTIFFS-APPELLEES

v.

WINFIELD TOWNSHIP ET AL., DEFENDANTS-APPELLANTS (WINFIELD TOWNSHIP ET AL., CROSS-CLAIM PLAINTIFFS AND CROSS-APPELLANTS; LOCKERT'S LAND IMPROVEMENT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Company et al., Cross-claim Defendants

and Cross-Appellees)

517 N.E.2d 1119, 164 Ill. App. 3d 326, 115 Ill. Dec. 433 1987.IL.1930

Appeal from the Circuit Court of Du Page County; the Hon. Helen C. Kinney, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiffs, individual homeowners, sued defendants Winfield Township and two of its officials (Winfield), Rempe-Sharpe & Associates and two of its officers (Rempe-Sharpe), and Lockert's Land Improvement Company (Lockert's), alleging that improvements to a drainage system made by defendants caused the flooding of plaintiffs' property. Plaintiffs alleged trespass, nuisance, and negligence. Winfield filed a cross-claim for contribution or indemnity against defendants Rempe-Sharpe and Lockert's. All claims against Lockert's were settled prior to trial and it is not a party to these appeals. The indemnity count in the cross-claim was dismissed and the cross-claim was tried on the contribution issue. During the trial, the trial court dismissed the negligence counts at the close of evidence. The remaining counts went to the jury, which returned a verdict on both trespass and nuisance against defendants. The jury also returned a verdict on the contribution count, proportioning damages against Rempe-Sharpe at 55% and Winfield at 45%. Winfield and Rempe-Sharpe filed post-trial motions for judgments notwithstanding the verdict or for a new trial on the trespass and nuisance claims. Winfield also filed a post-trial motion seeking judgment notwithstanding the verdict, reduction of the percentage of fault or a new trial on the contribution count against Rempe-Sharpe. All post-trial motions were denied. Both Winfield and Rempe-Sharpe have appealed, and their appeals have been consolidated. We reverse in part and affirm in part.

The improved drainage system runs along Grove Street in West Chicago, Illinois. Grove Street is an east-west street. The west end of the street intersects with Route 59, a four-lane north-south highway. The east end of the street dead-ends at property owned by Campbell Soup. In between Route 59 and where Grove Street dead-ends, Grove is intersected by Ridgeland Avenue, another residential street. Plaintiffs are all property owners whose land abuts the Campbell Soup property near the east end of Grove Street.

In 1976, Route 59 was widened from a two-lane to a four-lane road. Thereafter defendant, Arthur J. Lootens, the Winfield Township road commissioner, received complaints from homeowners on the west end of Grove Street about flooding of their property. At that time, a portion of Grove Street was unimproved street in that it did not run all the way from Route 59 to its dead end at the Campbell Soup property. Just west of Ridgeland, what is now improved Grove Street, there was almost no ditch at all, and the area was covered with "undergrowth, scrub trees, [and] bushes." Lootens approached Charles Kaelin, supervisor of Winfield Township, about this problem. Kaelin went out to the site and observed standing water on the property of the first two homes on the north side of Grove Street, just east of Route 59. After Lootens and Kaelin discussed the problem, Kaelin retained Rempe-Sharpe to make drainage improvements on Grove Street. Rempe-Sharpe designed the Grove Street project, supervised the construction, and completed the project in the fall of 1977.

Construction of the Grove Street project involved excavating a ditch on the north side of Grove Street and installing new culverts beneath the driveways. The pipes were increased in size from 12 x 15 inches to 22 x 36 inches. The Grove Street project improvements were installed in the same place as the existing structures. The project extended the existing structure and started west of the first residence east of Route 59. Grove Street was also improved by continuing it through to connect with Ridgeland Avenue.

About midway through the project, Rempe-Sharpe and Winfield met with the representatives of the Campbell Soup Company. Campbell Soup was concerned that the project would increase the amount of water deposited on its property. In response to these concerns, Rempe-Sharpe installed restrictors narrowing the diameter of the culverts. The restrictors were installed in October or November 1977 and reduced the opening to 18 inches. The purpose of the restrictors was to make drainage approximately as it had been before.

At trial, Dr. Harry Wenzel was called to testify as an expert on behalf of plaintiffs. Wenzel testified that after the project, the ditches and culverts were considerably larger than they were originally. Under high flow conditions more water would be stored and more water would eventually pass through the culvert and move down Grove Street toward Campbell Soup's property. The cross-sectional area of the ditch after the project was approximately five to six times as great as the cross-sectional area of the ditch before the project. After the project, the water is in essence stored in the ditch instead of flowing overland on its original drainage path that he had described, and the water could now flow through the culvert under Ridgeland and down Grove toward the east. Prior to the project the water would also have drained that way, but the volume would have been less. Wenzel did not believe that the placement of restrictors at Ridgeland and Grove or further down on Grove Street would change his opinion.

Extensive testimony was also given by plaintiffs concerning flooding which occurred after completion of the Grove Street project. Such testimony will be developed as necessary.

At the close of trial, the jury returned verdicts totaling $35,950 for the plaintiffs and against both Winfield and Rempe-Sharpe. The jury also returned a verdict on Winfield's contribution count against defendant Rempe-Sharpe, assessing Winfield's fault at 45% and Rempe-Sharpe's at 55%. I

Rempe-Sharpe first contends that the jury was not properly instructed on the issue of intentional trespass. Rempe-Sharpe argues that a proper instruction for trespass would have stated:

"That the defendants designed the drainage improvements along Grove Street with the knowledge that the improvements would, to a substantial certainty, result in the diversion of water onto plaintiffs' properties . . .." (Emphasis added.)

In response, plaintiffs contend that the instruction given by the trial court favorably compares to the language approved in Dial v. City of O'Fallon (1980), 81 Ill. 2d 548. We agree.

In Dial, the court adopted Restatement (Second) of Torts. 81 Ill. 2d 548 The court stated:

"According to the Restatement, a person may be liable for an intentional intrusion on land for directly casting an object upon the property of another or for indirectly causing the intrusion if an act is done with knowledge that it will, to a substantial certainty, result in the entry of the foreign matter." 81 Ill. 2d 548, citing Restatement (Second) of Torts § 158, comment i, at 278-79 (1965).

In the present case, the jury was instructed that it must find that "defendant knew or was substantially certain that the Grove Street project would result in the invasion of the plaintiffs' property by altering the flow of water in one or more of the ways stated to you in these instructions." (Emphasis added.)

While defendants' proffered instruction states the law in accordance with Dial, the instruction given by the trial court does not have a substantially different meaning from the language cited in Dial. Consequently, we hold that the trial court did not commit prejudicial error in rejecting defendants' proffered instruction. II

Citing Woods v. Khan (1981), 95 Ill. App. 3d 1087, Rempe-Sharpe next contends that the instruction on the burden of proof on the issue of intentional nuisance was incorrect in that the instruction should have defined "unreasonable interference." In response, plaintiffs contend that the instruction given by the trial court substantially followed Woods.

Although both parties have focused their contentions on the law as it relates to nuisance, the issue of instructions cannot be properly resolved without examining the law that has developed regarding the drainage of surface water.

In dealing with the drainage of surface water, our courts originally applied what is known as the "civil rule." Under this rule, the owner of higher (dominant) land has a natural easement in lower (servient) land to allow the surface water to flow naturally off the dominant estate and onto the servient estate. (Pinkstaff v. Steffy (1905), 216 Ill. 406, 411; Peck v. Herrington (1884), 109 Ill. 611, 619; Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 22.) The justification for this rule is that nature has ordained such drainage, and it is natural Justice that rights of individual owners should follow the laws of nature. (Gormley v. Sanford (1869), 52 Ill. 158, 162.) However, under this rule the owner of the servient estate was not obligated to receive surface water in different quantities or at different times than would naturally come to his land. Mellor v. Pilgrim (1878), 3 Ill. App. 476, 480.

The civil rule has been modified in this State by what has come to be known as the "good husbandry" exception. (Templeton v. Huss (1974), 57 Ill. 2d 134, 138-39.) In the first case to adopt this exception, Hicks v. ...


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