Before proceeding to the merits of this case, we note that defendant has filed a motion to strike certain portions of plaintiffs' reply brief which reargue plaintiffs' objections to a previous motion to supplement the record on appeal. We ordered that defendant's motion be taken with the case. We will disregard all statements not properly a part of a reply brief.
APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
534 N.E.2d 634, 178 Ill. App. 3d 999, 128 Ill. Dec. 452 1989.IL.146
Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. McLAREN and LINDBERG, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
Plaintiffs, Marco and Patricia Muscarello, appeal from an order of the circuit court of Kane County granting defendants' motion for summary judgment. On appeal, plaintiffs contend that the trial court erred in granting summary judgment to defendants because there was no evidence that the previous owner of the property consented to the construction of a sewer on the property. We affirm.
During the first half of 1973, a storm sewer was constructed between Hampshire Manor Subdivision Unit No. 1 (Unit No. 1) and a pond on an adjacent tract of land known as the Burnidge farm. This storm sewer was constructed by Phillips Construction Company , which was the developer of Unit No. 1. The principal owner of PCC was Philip Rose, who was also the contract purchaser of the Burnidge farm. This contract did not permit the building of such a sewer.
In August 1973, Rose assigned his contract rights to Marco Muscarello, and in June 1977, plaintiffs acquired title to the property in joint tenancy. In November 1977, Marco discovered what he considered to be an excess amount of water in the pond on his property. Upon inspection, Marco discovered the storm sewer line running from Unit No. 1 to the pond on his property.
Plaintiffs filed a three-count complaint in 1986, alleging that the Village of Hampshire approved of the construction of the sewer line contrary to normal drainage flow. The complaint asked for injunctive relief, damages for trespass, and a writ of mandamus to force Hampshire to institute eminent domain proceedings on the property. Defendant moved for summary judgment, arguing that plaintiffs' predecessor in interest acquiesced in the construction of the sewer, and therefore, plaintiffs are estopped from suing Hampshire. The trial court found that the storm sewer was a "mutual benefit drain" under the Illinois Drainage Code (the Code) (Ill. Rev. Stat. 1985, ch. 42, par. 2-8) and that Burnidge had acquiesced in the sewer's construction, thereby creating a permanent easement on plaintiffs' property. This appeal ensued.
It is well established that the moving party is not entitled to summary judgment unless he has an absolute right to it as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005.) Summary judgment is a drastic remedy which should be granted only when the movant's right is free from doubt. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 215.) After reviewing the record, we conclude that summary judgment was proper in this case.
"When a ditch, covered drain or levee is, or has been, constructed by mutual license, consent or agreement, either separately or jointly, by the owners of adjoining lands so as to make a continuous line across the lands of such owners, . . . such ditch, covered drain or levee shall be deemed to be a drain or levee for the mutual benefit of all lands connected to, or protected by, it. The mutual license, consent or agreement required in this section need not be in writing, but may be established by parol or inferred from the acquiescence of the parties." Ill. Rev. Stat. 1985, ch. 42, par. 2-8.
The sewer in the present case was built across adjoining lands. Unit No. 1 had been conveyed to Rose and was being developed by Rose's construction company. Rose also was the contract purchaser of the Burnidge farm. A contract purchaser of property is the equitable owner of that property. In re Estate of Martinek (1986), 140 Ill. App. 3d 621, 628.
For a drain to be a mutual benefit drain under the Code, the drain must be constructed "in a continuous line over adjoining land of different owners." (Savoie v. Town of Bourbonnais (1950), 339 Ill. App. 551, 560.) The Code defines owner as: "[An] owner of an undivided interest, a life tenant, a remainderman and a trustee under an active trust but does not include a mortgagee, a trustee under a trust ...