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06/29/88 Robert P. Rosenthal, v. the City of Crystal Lake

June 29, 1988

ROBERT P. ROSENTHAL, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

THE CITY OF CRYSTAL LAKE, DEFENDANT-APPELLANT AND CROSS-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

525 N.E.2d 1176, 171 Ill. App. 3d 428, 121 Ill. Dec. 869 1988.IL.1018

Appeal from the Circuit Court of McHenry County; the Hon. Roland A. Herrmann, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. INGLIS and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

In July 1974, plaintiff acquired title to three lots in Crystal Lake under the terms of his father's will. Plaintiff's father had apparently acquired title to the property in the early 1930's. Plaintiff's complaint alleged that in 1985, he first became aware of defendant's storm sewer which bisects the lots in a north-south direction at a depth of 7 1/2 feet. Upon learning of the sewer's presence, plaintiff demanded that defendant remove it, but defendant refused. Plaintiff then filed the instant complaint.

The storm sewer in question is part of a drainage district which, according to defendant, services thousands of residents and the city's business district. Defendant has maintained that the sewer was installed in 1927 with the consent of the property owner at the time. In support of this claim, defendant relies on newspaper articles describing the city park district's approval of a contract for construction of a storm sewer in the vicinity in that year, minutes of a July 1927 city council meeting, and deposition testimony by a current city employee. Defendant has produced no evidence, however, of an agreement with the record owner allowing placement of the sewer, no easement or right-of-way, and no evidence of condemnation proceedings pertaining to the property in question. Defendant also maintains that, according to the deposition testimony of plaintiff's son, plaintiff may have been aware of the sewer's presence as early as 1978.

The trial court initially granted summary judgment only on plaintiff's trespass, ejectment and injunction claims. Later, the court modified its order to grant summary judgment on plaintiff's claim for a writ of mandamus, and also ordered that plaintiff be awarded costs and fees incurred in the mandamus action. That order was subsequently modified, however, so as to deny for the present plaintiff's costs and fees.

Defendant first argues that the trial court erred in granting summary judgment on plaintiff's ejectment claim. Defendant's argument is twofold. First, defendant contends that ejectment is only proper when a defendant enters property after the plaintiff has acquired an interest in the property. Second, defendant argues that plaintiff here has not shown that the sewer is unlawfully on plaintiff's property.

For its first contention, defendant relies on the language of the Ejectment Act (Act) (Ill. Rev. Stat. 1985, ch. 110, par. 6-101 et seq.). Section 6-109 of the Act provides as follows:

"It shall be sufficient for the plaintiff to allege in the complaint that (on some day therein to be specified, and which shall be after his or her title accrued), he or she was possessed of the premises involved (describing them as hereinafter provided), and, being so possessed thereof, that the defendant afterwards (on some day to be stated) entered into such premises, and that he or she unlawfully withholds from the plaintiff the possession thereof, to his or her damage any nominal sum the plaintiff deems proper to state." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 6-109.)

From this language, defendant concludes that the complained-of entry must have occurred after plaintiff's title accrued. Defendant also finds support for his argument in sections 6-137 and 6-138 of the Act (Ill. Rev. Stat. 1985, ch. 110, pars. 6-137, 6-138), which describe a plaintiff's damages as the amount of mesne profits received by a defendant since the time of entry.

Plaintiff responds that he need only demonstrate a valid subsisting interest in the property at the time the action commenced. Plaintiff also relies on the language of the Ejectment Act. Section 6 -- 104 of the Act provides:

"No person shall recover in ejectment unless he or she has, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 6-104.

A similar ownership requirement is set forth in section 6 -- 119 of the Act:

"It is not necessary for the plaintiff to prove an actual entry under title, nor the actual receipt of any of the profits of the premises demanded; but it shall be sufficient for the plaintiff to prove a right to the possession of such premises at the time of the commencement of the action, as heir, legatee, ...


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