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09/28/88 Harold W. Brinkley Et Al., v. Herman Brinkley Et Al.

September 28, 1988

HAROLD W. BRINKLEY ET AL., PLAINTIFFS-APPELLANTS

v.

HERMAN BRINKLEY ET AL., DEFENDANTS-APPELLEES (GEORGE GOODWIN ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES; BRINKLEY



Before concluding our Discussion, there is one further matter which we must address. Harold Brinkley and Brinkley Enterprises have moved this court to strike the brief filed by Herman Brinkley, Dale Holscher, Oil Field Lease Management, Inc., George Goodwin and C. Andrew Goodwin because it improperly cites Cannady v. Cornwell, No. 4 -- 85 -- 0144, an order entered by the Fourth District Appellate Court pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23). Rule 23 expressly provides that orders issued pursuant to that rule are not precedential and may be invoked only to support contentions such as double jeopardy, res judicata, collateral estoppel, or law of the case, none of which are applicable here. Accordingly, we agree that Cannady should not have been cited. We note, however, that Cannady was invoked by the trial court in its judgment and was discussed by Harold Brinkley and Brinkley Enterprises in their own brief. The reference by the Goodwins, Herman Brinkley, and the others to this case was obviously included simply in order to respond to these previous citations. Under these circumstances, we think it would be wholly unjust to order that their brief be stricken in its entirety. In our view, the purposes of Rule 23 will be amply satisfied simply by ordering that the particular references to Cannady be stricken. The motion filed by Harold Brinkley and Brinkley Enterprises is therefore denied in part and granted in part.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Enterprises, Inc., Defendant and

Counterplaintiff-Appellant)

529 N.E.2d 70, 174 Ill. App. 3d 705, 124 Ill. Dec. 353 1988.IL.1468

Appeal from the Circuit Court of Crawford County; the Hon. Henry Lewis, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. CALVO and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiffs, Harold W. Brinkley and Brinkley Enterprises, Inc., appeal from a judgment entered in two consolidated cases by the circuit court of Crawford County. At issue in those cases was whether plaintiffs had the right to install and use a natural gas pipeline under a certain dirt road located in Montgomery Township, Crawford County. Plaintiffs argued that they had such a right because (1) the road in question had become a public highway by prescription pursuant to section 2-202 of the Illinois Highway Code (Ill. Rev. Stat. 1985, ch. 121, par. 2-202) and (2) the Montgomery Township road commissioner had granted them a right-of-way under that highway for the pipeline. Following a bench trial, the circuit court rejected plaintiffs' claim. Specifically, it determined that the elements necessary to establish the existence of a public highway by prescriptive right had not been proved and that the right-of-way which plaintiffs had obtained from the township was therefore "for naught." Accordingly, the circuit court denied relief to plaintiffs in cause No. 86-CH-3. In cause No. 85-L-27, it ordered, inter alia, that Harold Brinkley and Brinkley Enterprises remove their gas pipeline and restore the land to the condition it was in prior to the pipeline's installation. We affirm the judgment in cause No. 86-CH-3. In cause No. 85-L-27, we affirm in part, vacate in part, and remand.

The record before us indicates that plaintiff Harold Brinkley is in the business of drilling and operating natural gas wells. He engages in this business through a company he owns known as Brinkley Enterprises, Inc., which is also a plaintiff in these proceedings. According to the evidence, plaintiff owned and operated two producing gas wells on what is known as the Sprague Lease in Montgomery Township, Crawford County. In order to sell the gas from these wells, plaintiffs needed to run a pipeline from the wells to a compressor and then on to a natural gas plant owned by Texas Gas. The most direct route for this pipeline ran across land owned by two brothers, George Goodwin and C. Andrew Goodwin. Although an alternate route was available, it was more circuitous, and laying pipe along it would have been far more expensive.

Located on the Goodwins' land were additional natural gas wells which drew from the same gas reservoir as those on the Sprague Lease. The interests in the Goodwin wells were not, however, owned by plaintiffs, but rather by Harold Brinkley's brother, Herman, and the Goodwins. The relationship between these factions was less than cordial. When Harold Brinkley approached one of the Goodwins about the possibility of obtaining an easement across their land for the pipeline he needed to the Texas Gas plant, he was quoted a price which he apparently regarded as extortionate: $5,000 and a 1/32 working interest in the Sprague Lease wells. Harold's rejection of this offer was adamant and profane.

Unable to obtain permission to lay his pipeline, at least not on terms which he found acceptable, Harold sought an alternative means of access across the Goodwins' property. Harold was aware that an old dirt road extended north along the eastern portion of that property. Someone apparently decided that if the road were part of the township's road system, Harold could obtain an easement along it from township authorities. The problem was that there was no recorded documentation that any part of the Goodwins' land had ever been dedicated to the township for use as a road. A theory was therefore developed that the road had become a public highway by prescription under section 2-202 of the Illinois Highway Code (Ill. Rev. Stat. 1985, ch. 121, par. 2-202). Wendell Reinbold, then road commissioner for Montgomery Township, was willing to adhere to this theory, and the road became known as Township Road 318A. On behalf of the township, Reinbold then sold Harold the easement he needed. The consideration was $1. Whether Harold was ever required to actually pay the dollar is disputed.

After George Goodwin learned that Harold Brinkley intended to lay a gas pipeline under the road, he sent a letter, dated April 16, 1985, advising Harold to stay off his property. George cautioned Harold that he would regard the installation of the pipeline as a trespass and that if the pipe were installed, he would have no choice "but to take action [for] relief." When Harold proceeded with his plans to lay the pipeline, George contacted his attorney and erected a fence across the roadway. In the fall of 1985, George Goodwin removed the fence after being requested to do so by Ronald Ducharme, the township road commissioner who succeeded Wendell Reinbold, but on October 21, 1985, the Goodwins filed suit against Brinkley Enterprises. That suit, designated as cause No. 85 -- L -- 27, alleged that by installing and operating the gas pipeline on the Goodwins' land, Brinkley Enterprises was committing a continuing trespass which unlawfully deprived the Goodwins of the "full use and quiet enjoyment" of their property. For their relief, the Goodwins asked that an injunctive be issued requiring Brinkley Enterprises to remove the gas pipeline and to repair the damage caused by that removal. The Goodwins also prayed for money damages in a sum in excess of $15,000.

The Goodwins' opposition to the pipeline manifested itself through more than litigation. On October 1, 1985, George Goodwin and Dale Holscher, field supervisor for Oil Field Lease Management, Inc., cut the pipeline using a backhoe. The line, which was severed at three points, was subsequently repaired by Harold Brinkley, only to be broken again on December 7, 1985. In the meantime, the Goodwins sold a portion of their land to Herman Brinkley. The roadway, and thus Harold's pipeline, crossed this tract. On December 31, 1985, four days after the deed on the tract was recorded, Herman had Dale Holscher return to the site. ...


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