APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
524 N.E.2d 230, 170 Ill. App. 3d 244, 120 Ill. Dec. 465 1988.IL.794
Appeal from the Circuit Court of Du Page County; the Hon. John J. Teschner, Judge, presiding.
JUSTICE INGLIS delivered the opinion of the court. HOPF and DUNN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS
Plaintiff, Briarcliffe Lakeside Townhouse Owners Association (association), brought this action for declaratory and equitable relief seeking to compel defendant, City of Wheaton, to repair erosion damage on two lakes in a development known as Briarcliffe Lakeside Unit No. 1 (Briarcliffe Lakeside). The association's amended complaint alleges that the lakes are part of an easement granted to the city allowing the city to conduct and store storm water through, across, and upon Briarcliffe Lakeside. Counts I, II, and III allege that the city has a legal duty to maintain the lakes as part of the easement. In the alternative, count IV seeks reformation of the easement so as to impose such a duty on the city. Finally, count V alleges that the city has breached a statutory duty to levy and collect special taxes to finance maintenance of the lakes. The trial court granted the city's motion for summary judgment on counts I, II, and III, and denied the association's cross-motion for summary judgment. The court subsequently denied the association's motion for reconsideration and granted the city's motion to dismiss counts IV and V. The association appeals. We affirm.
Briarcliffe Lakeside is a planned unit development consisting of a community of townhouses constructed in the early 1970's and located within the city. Prior to its development, the area encompassing Briarcliffe Lakeside was part of the southeast drainage basin flood control system, a natural drainage system serving a portion of southeast Wheaton. As part of the development the city required the developer to construct a storm water retention and detention system for the property. The developer constructed two wet bottom lakes on the property to act as retention ponds and designated them as lakes Nos. 1 and 2. The developer bore the full expense of the construction and constructed the lakes under the direction and supervision of the city. Because lakes Nos. 1 and 2 would provide storm water storage as part of the southeast drainage basin flood control system, the city further required the developer to grant an easement to the city to ensure that the flow of storm water would be left open and free flowing and that there would be continued storage of storm water in lakes Nos. 1 and 2 up to the natural high watermark. The easement provision, which is the subject of this appeal, is set forth on the final plat recorded with the Du Page County recorder's office and provides:
"An easement is hereby granted to the City of Wheaton to operate and maintain as a part of the Southeast Drainage Basin Flood Control System described as that part of Out Lot 1 containing Lake No. 1 and Lake No. 2 within the elevation contour 750.00 U.S.G.S. datum and abutting on Lorraine Road and Buena Vista Drive as hereon drawn and as more fully described in the Declaration of Covenants, Conditions, and Restrictions placed or to be placed upon the premises."
The declaration of covenants referred to in the easement provision creates the association and sets forth the association's responsibilities, including maintenance of all common areas in the development. Lakes Nos. 1 and 2 are part of the common areas of Briarcliffe Lakeside.
Over a period of time, the property surrounding lakes Nos. 1 and 2 has deteriorated through bank and shore erosion. The cause of the damage, not directly at issue on appeal, appears from the record to be controverted. The association asserts that the erosion is the result of fluctuating water levels within the lakes, while the city asserts that the damage is the result of sump pump discharges from the townhouses and the steep slope of the banks. In any event, the city has refused all requests by the association to repair the damage, stating that it has no duty to do so under the easement. The association brought the instant action in response. Counts I, II, and III of the association's amended complaint allege that the city has a duty to maintain the lakes pursuant to its easement and seeks declaratory and injunctive relief. Count IV, based in reformation, alleges in the alternative that the easement does "not reflect the true intention of the parties, because of mutual mistake," and seeks reformation of the easement to impose a duty on the city to repair the erosion damage. Finally, count V alleges that the city, through the use of its easement, is providing property owners in the area with a special service and is therefore in breach of its statutory duty to create a special service area and levy taxes to repair property harmed by the provision of that special service. The city filed its answer to counts I, II, and III, and motion to dismiss counts IV and V. The city subsequently filed a motion for summary judgment on counts I, II, and III. The association filed a cross-motion for summary
The association first contends that the trial court erred in granting the city's motion for summary judgment and denying the association's motion for summary judgment on counts I, II, and III of the amended complaint. We disagree.
In reviewing the trial court's entry of a summary judgment, a reviewing court must first determine whether the trial court correctly ruled that no genuine issue of material fact has been raised. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 21.) If no such issue has been raised, the court must determine whether the judgment was correctly entered for the moving party as a matter of law. (91 Ill. App. 3d at 21.) The reviewing court is not limited to the precise reasons expressed by the trial court in entering the summary judgment. 91 Ill. App. 3d at 21.
The central issue before the court regarding counts I, II, and III of the amended complaint is the construction and effect of the city's easement. The association alleges that the city's duty to repair the bank erosion on lakes Nos. 1 and 2 arises from the city's easement "to operate and maintain Lake 1 and Lake 2." (Emphasis added.) No issue of fact is raised. The construction and legal effect of an instrument is a question of law. (Northern Illinois Medical Center v. Home State Bank (1985), 136 Ill. App. 3d 129, 142.) Further, an instrument creating an easement is construed in accordance with the intention of the parties. (Coomer, 91 Ill. App. 3d at 23.) In ascertaining the intention of the parties, the court should look at the words of the instrument and the circumstances contemporaneous to the transaction. (91 Ill. App. 3d at 23.) Such circumstances may include the state of the thing conveyed, the object to be obtained, and the practical construction given by the parties through their conduct. 91 Ill. App. 3d at 23.
Here, the instrument conveying the easement to the city is in the form of a final plat for the development filed for record in the Du Page County recorder's office on June 29, 1972, and recorded as document No. R72 -- 36805. Paragraph four of the section of the plat captioned "City of Wheaton Utility Easement Provisions" grants the city an easement to operate and maintain lakes Nos. 1 and 2 as part of the southeast drainage basin flood control system. As a general rule the owner of an easement has not only the right but also the duty to keep the easement in repair. (Flower v. Valentine (1985), 135 Ill. App. 3d 1034, 1039.) However, as noted by the city in the instant case, the common law rule imposing the duty to maintain ...