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06/08/88 Robert C. Knaus Et Al., v. Delvin Dennler Et Al.

June 8, 1988

ROBERT C. KNAUS ET AL., PLAINTIFFS-APPELLANTS

v.

DELVIN DENNLER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

525 N.E.2d 207, 170 Ill. App. 3d 746, 121 Ill. Dec. 401 1988.IL.899

Appeal from the Circuit Court of St. Clair County; the Hon. Dennis J. Jacobsen, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Plaintiffs appeal from a judgment of the circuit court of St. Clair County dismissing their complaint seeking proportionate sharing of expenses between owners of adjoining lakefront properties for the repair of the dam which retains the lake around which the properties are situated.

In March 1982, plaintiffs purchased real property known as Lot 1 of the Fifth Addition to Lakewood Place. The lot purchased by plaintiffs abutted a lake and included approximately one-half to two-thirds of the earthen dam which retained the lake. The remaining portion of the dam was situated on the lakefront property adjoining plaintiffs' property immediately to the south.

In June 1982, plaintiffs discovered one or two small holes developing in the portion of the dam situated on their property. Plaintiffs were aware at the time of purchase that their lot included a portion of the earthen dam, but, according to the record, plaintiffs made no inquiry as to the condition of the dam; nor did the previous owner disclose at any time prior to the closing of the sale that the dam had required repairs for leakage during the seller's ownership.

Prompted by interest in repairing the leaking dam, plaintiffs contacted the United States Department of Agricultural Soil Conservation and an independent excavating contractor. At plaintiffs' request, the excavating contractor visited plaintiffs' property in July 1982 and inspected the dam. Later in July or early in August of 1982, a heavy rain resulted in an enlarging of the holes in the dam. Again the excavating contractor inspected the dam at plaintiffs' request. On August 9 or 12, 1982, plaintiffs arranged a meeting with other owners of property abutting the lake so that a decision could be made as to what procedures should be taken to repair the dam. Although the record is replete with conflicting testimony pertaining to what transpired at the meeting and whether a unanimous decision among lakefront property owners was attained, repairs began at plaintiffs' request on August 18, 1982. A second property owners' meeting followed on August 19, 1982, at which, according to the record, differences of opinion resulted in the meeting becoming "heated."

At the second meeting, the excavator recommended that the entire dam be reconstructed so as to comply with the accepted standards for dam construction and maintenance. The Smedleys, owners of the portion of the dam not owned by the Knauses, objected to their portion of the dam being reconstructed and advised the excavator to stay off their property. The excavating work, reconstructing only the portion of the dam situated on the Knaus property, was completed on September 11, 1982. The total cost for the excavating was $11,920.51. An additional $1,360 was expended for landscaping and repairs necessary to cosmetically finish the reconstructed portion of the dam and restore the asphalt driveway and surrounding area which had suffered superficial damages resulting from the traverse of large trucks transporting excavating equipment to and from the jobsite.

The underlying lawsuit was filed originally on June 6, 1983, seeking to recover from the named defendants proportionate shares of the expenses incurred in reconstructing the dam. While some lakefront property owners had contributed money to help cover the costs, the defendants had refused to do so. On July 7, 1983, plaintiffs' complaint was dismissed on motion of defendant Virginia Woolard, and leave to amend was granted. Plaintiffs' first amended complaint followed on July 28, 1983. On September 28, 1983, the trial court denied defendants' motion to dismiss plaintiffs' first amended complaint as to counts I, II, and III, and allowed the motion as to count IV. In the order entered by the court on September 28, 1983, plaintiffs were allowed to amend count IV by interlineation, and defendants were ordered to file responsive pleadings. In addition to responsive pleadings, defendants Frank and Shirley Smedley filed a counterclaim seeking to recover damages for trespass alleged to have occurred during the reconstruction of the dam.

Following a bench trial on November 14, 15, 28, and 29, 1985, the trial court allowed all parties to file memoranda of law in support of a judgment in their favor, and plaintiffs were allowed to amend counts I, II, and III of their first amended complaint to conform the pleadings to

Plaintiffs filed their post-trial motion on May 13, 1985. The trial court denied plaintiffs' post-trial motion, and plaintiffs appealed to this court. On October 21, 1986, we dismissed plaintiffs' appeal as there was not yet a final and appealable order. On February 9, 1987, the trial court entered judgment on the counterclaim in favor of counterclaimants Frank and Shirley Smedley and awarded counterclaimants $130 plus costs. The judgment of the trial court being final, plaintiffs brought this appeal contending that their complaint stated a valid cause of action and the trial court should have entered judgment in their favor.

In count I of plaintiffs' second amended complaint it was pleaded that the lake and dam in question constituted a part of a mutual drainage system and, therefore, plaintiffs had a common law right to proportionate sharing between members of the mutual drainage system for the costs of repairs. "Drainage system" is defined in the Illinois Drainage Code as "the system by which lands are drained or protected from overflow or both and includes drains, drainage structures, levees and pumping plants." (Ill. Rev. Stat. 1985, ch. 42, par. 1-2(g).) The purpose of the Illinois Drainage Code is to ensure that waters will not accumulate on higher land as a result of the acts or omissions of landowners of lower elevation. (Bellati v. Allspach (1967), 79 Ill. App. 2d 44, 47-48, 222 N.E.2d 909, 911.) In the present case, the dam is a man-made barrier intended to prevent the natural flow of water, thereby creating a lake. Because the lake was created for the benefit of landowners surrounding the lake, and the lake is voluntarily accepted by any party purchasing property which abuts the lake, the protection provided by the Illinois ...


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