Before discussing the issues, a recitation of the facts is necessary. In December 1972, the Millers owned 80 acres of property in Madison County, Illinois. In January 1973, plaintiffs formalized a contract for sale with the Millers to purchase 8.06 acres of the Millers' property. When the plaintiffs bought the land, there existed a man-made lake which was primarily on the Millers' property but which extended onto the plaintiffs' property. This lake was created in 1930 when the Civilian Conservation Corps built an earthen dam which allowed water to collect to form the lake. The portion of the lake on the plaintiffs' property was approximately 35 to 40 feet in width and 125 feet long, was a depth of approximately four to six feet, and came to within 50 feet of plaintiffs' home. Up until 1979, the lake level fluctuated in height only by a matter of inches.
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
521 N.E.2d 565, 167 Ill. App. 3d 397, 118 Ill. Dec. 283 1988.IL.393
Appeal from the Circuit Court of Madison County; the Hon. Jonathan Isbell, Judge, presiding.
JUSTICE LEWIS delivered the opinion of the court. KARNS and CALVO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
This cause comes before us on appeal from a judgment entered on June 26, 1986, in Madison County finding defendants William and Dorothy Catalano, hereinafter referred to as defendants, liable for damages, both actual and punitive, in an action for private nuisance. Defendants also appeal an injunction order entered in this case on October 1, 1986. Plaintiffs Luther and Charleen Statler, hereinafter referred to as plaintiffs, cross-appeal the injunction order.
Plaintiffs' original complaint was filed on November 29, 1979. This complaint was amended several times but the third amended complaint filed on February 19, 1985, presented the cause of action which was resolved by the jury and the circuit court. Plaintiffs' third amended complaint alleged that defendants intentionally deposited rubbish on defendants' property, but along the boundary line between plaintiffs' property and defendants' property, and alleged that defendants intentionally lowered the lake level contained on plaintiffs' property, which actions deprived plaintiffs of the peaceful use and enjoyment of their property. For this harm, plaintiffs sought actual damages. Because plaintiffs also considered defendants' conduct to be malicious, they further sought punitive damages. Plaintiffs' amended complaint also included a count which asked the court to enter an injunction order requiring defendants to be enjoined from altering the lake level, to be enjoined from constructing barriers in the lake bed, to be ordered to restore the spillway and earthen dam, to be ordered to restore the lake to its previous condition and to be ordered to permit plaintiffs access to and use of the entire lake. After a jury trial on the cause of action, the jury awarded the plaintiffs $55,841 in actual damages and $42,250 in punitive damages. The circuit court considered plaintiffs' request for injunctive relief and issued an injunction order.
On appeal, defendants raise the following issues: that the case was tried and that evidence was presented on nonpleaded theories of law; that the jury was misled by the instructions; that the damages, both actual and punitive, were excessive and based on improper elements; and that the circuit court's injunction order was improper. Because the circuit court's injunction order failed to include plaintiffs' claimed right to use and to have access to the entire lake, plaintiffs cross-appeal the injunction order.
The contract for sale signed by the Millers and the plaintiffs contained the following provisions: "Lake privileges are granted to buyer and immediate family and if boats are used no gas motors allowed"; and "Buyer has permission to draw water from lake for own use." The deed to the 8.06 acres was also executed in January 1973 and duly recorded, but the sales contract was never recorded. The deed contained no language regarding lake privileges. The purchase price of the plaintiffs' property was $27,500. The Millers retained possession of the remaining 72 acres of land, which bordered the plaintiffs' property on the east and south.
Before moving onto their property in May 1973, the plaintiffs renovated an existing clubhouse located on their property to make it into a home. The plaintiffs improved this structure by building several rooms, by adding a garage, and by constructing a deck. They also renovated the inside of the clubhouse. A couple of years previous to trial of this cause, the plaintiffs added a solar heating room to their home. Throughout the years of their occupancy the plaintiffs had landscaped their property.
While the Millers and the plaintiffs were neighbors, the plaintiffs and their children shared and enjoyed the use of the entire lake with the Millers. The plaintiffs used the lake for fishing, for swimming and to irrigate their garden and shrubbery. A dock extended onto the lake from the plaintiffs' property. The plaintiffs had friends over to fish and to swim in the lake or to sit on their deck and enjoy the aesthetic charm of the lake.
In June 1975, the defendants purchased the 72 acres of land from the Millers and moved onto the property. Their son, William Catalano, Jr., moved onto the property after his parents sold him five acres of land and upon which he built a home. This occurred approximately a year and a half after his parents purchased the land. Before their son constructed his house, he approached the plaintiffs about buying their home but the plaintiffs were unwilling to sell. The defendants moved off the property in 1977 or 1978 but moved back when their son exchanged homes with them.
Since the area was zoned for agricultural use, William Catalano, Jr., kept some livestock on the property and cultivated eight acres of alfalfa. The defendants also leased out 25 acres for farming to a nearby farmer. A fence separated the defendants' and the plaintiffs' property to keep the livestock from roaming onto the plaintiffs' land. The lake was used to water the livestock and it was also the main water source for William Catalano, Jr.'s, home. However, the plaintiffs continued to use the lake for swimming and for fishing from 1975 until 1979.
In July 1979, the plaintiffs noticed that the lake level was receding. The plaintiffs inspected the earthen dam and the overflow spillway structure and found that a man-made ditch had been dug below the spillway tube, allowing the lake level to drop. This ditch was approximately 3 1/2 feet deep and approximately 12 to 14 inches wide and ran from the edge of the lake to the spillway box and then ran parallel to the spillway tube. Additionally, the spillway tube, which was constructed of a metal tube surrounded by concrete, had two holes in it which were man-made.
The plaintiffs' daughter was swimming in the lake in July 1980 and she discovered a barbed wire fence had been erected across the lake at the plaintiffs' and defendants' property line. Also at this time, defendant William Catalano and his sons constructed a rock barrier in the lake along the defendants' property line. This rock barrier effectively barred the plaintiffs from the lake and prevented the lake from extending onto plaintiffs' property. The defendants discussed the use of the lake with the Millers in September 1980 and Mr. Miller advised the defendants of the agreement about the lake between the Millers and the plaintiffs. After the construction of the rock barrier, the plaintiffs were unable to use or to enjoy the lake and their property became a mudhole where the lake had formerly been.
Also in the summer of 1980, defendant William Catalano began depositing debris and rubbish on his property along the plaintiffs' south boundary and along the earthen dam, in clear view of the plaintiffs' home. The debris consisted of, but was not limited to, old commodes with plastic flowers in them, used tires, bathtubs, rusted barrels, torn upholstered furniture with the stuffing protruding and broken machinery. While the makeup of the debris collection varied, a considerable amount of debris remained constantly for a period of approximately five years.
In 1981 a picket fence was placed on the top of the rock dam in the lake and "no trespassing" and "private lake" signs were posted on the fence. Also that summer, the plaintiffs had windows in their home and in their garage broken by bullets shot onto their property. Although no one was seen shooting guns at the plaintiffs' home, the trajectory of the bullets indicated that they came from the defendants' property. The chief of the university police of Southern Illinois University came to the plaintiffs' home to see the bullet hole damage. It was at this time that shooting trophies were observed sitting on a picnic table near the property line. The trophies had on them statues of men aiming rifles, and the trophies were placed so that the rifles were aimed at the plaintiffs' home. After sustaining the damage to their windows, the plaintiffs went on an unscheduled vacation.
In addition to the lowering of the lake, to the accumulation of the debris along the property lines, and to the shooting incidents, the record also reveals that the plaintiffs were randomly subjected to bright lights being shone on their property at various times of night and to radios playing loudly all night long.
The explanation offered by defendants at trial for the man-made ditch was that it was dug to determine what repairs were needed for the spillway tube, but no repairs to the spillway tube were ever made. The bright lights which shone onto the plaintiffs' property at night were explained as lights of tractors used in farming. The bullet holes in plaintiffs' windows were attributed to hunters. ...