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06/28/89 Joseph Tamalunis Et Al., v. the City of Georgetown

June 28, 1989





542 N.E.2d 402, 185 Ill. App. 3d 173, 134 Ill. Dec. 223 1989.IL.1008

Appeal from the Circuit Court of Vermilion County; the Hon. Rita B. Garman, Judge, presiding.


PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.


This appeal involves a nuisance action brought by the plaintiffs against the City of Georgetown (City) for the discharge of untreated sewage from a sewer overflow located at Seminary Street in Georgetown into a stream running across plaintiffs' property. The jury awarded plaintiffs $150,000 in compensatory damages for the nuisance and a permanent injunction was entered against the continued discharge of the sewage. The injunction was stayed pending this appeal.

The City presents six issues for our consideration: (1) whether the court erred in granting plaintiffs' motion for summary judgment on count I; (2) whether the court lacked subject-matter jurisdiction to decide

We affirm in part and reverse in part.

This case began on May 5, 1983, when plaintiffs filed a complaint against the City and various city officials for the continual discharge of untreated sewage onto their property. In count I, plaintiffs sought a declaratory judgment as to the ownership of the real estate over which a stream, known as Seminary Creek, runs. The sewage is discharged into this stream from the overflow located at Seminary Street. In count II, the plaintiffs sought compensatory and punitive damages for the City's discharges of untreated sewage, industrial waste, and other pollutants onto their property from the overflow. In count III, the plaintiffs requested a permanent injunction against the discharge of this sewage and an order requiring the City to remove any sewage and pollution on plaintiffs' property and to restore their property to its natural environment.

Plaintiffs' property, also known as lot 24, includes 10 acres and was purchased in 1960. It is bounded on the west by Seminary Street. The City owns and operates a combined sewage-storm water sewage system which serves approximately 4,213 residents in the City. Two-thirds of the sewer system is serviced by a 54-inch sewer tile, or main outlet sewer, which terminates at Seminary Street on the western edge of plaintiffs' property. At Seminary Street, the 54-inch sewer tile reduces to a 15-inch sewer tile, which runs underground through plaintiffs' property to a sewage treatment plant near Ellis Branch, located approximately 1,500 feet from the easterly boundary of plaintiffs' property.

The sewer system was constructed in 1913. The 15-inch sewer tile, or outlet sanitary sewer, was designed to carry untreated sewage from the main outlet sewer underground to a septic tank located at Ellis Branch. The septic tank was later replaced by a sewage treatment plant in 1961-62. At the Seminary Street overflow, which runs under Seminary Street, where the 15-inch tile receives the sewage, any storm water in the sewer system flows into Seminary Creek, which runs across plaintiffs' land in an easterly direction toward Ellis Branch.

In count I, plaintiffs sought a declaratory judgment as to the ownership of the real estate over which Seminary Creek runs. Plaintiffs contended the City acquired only an easement in this property in a condemnation action in 1913, where plaintiffs' predecessor in title to lot 24, Charles Madden, was paid $200 for lands taken to construct the sewer system. The City claimed fee simple title was acquired to the subject real estate, which is 20 feet wide, being 10 feet measured at right angles to either side of the center of Seminary Creek.

In count II, plaintiffs contended the 15-inch underground sewer tile was not large enough to handle all of the sewage and therefore, the excess sewage flowed onto plaintiff's property and into Seminary Creek. Plaintiffs further contended in their complaint that they repeatedly complained to City officials about the discharges; that the Illinois Environmental Protection Agency filed a complaint in 1978 against the City for violations of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1001 et seq.), and that the Pollution Control Board ordered the discharges of untreated sewage abated in 1979 but the City continued to discharge sewage onto plaintiffs' property.

The City answered the complaint on May 31, 1983. In the answer, the City denied liability for the discharge of sewage, admitted the violations of the Act and the findings of the PCB in 1979, asserted title to the 20-foot-wide strip by virtue of the 1913 condemnation action, and further asserted that the 1913 damages paid to plaintiffs' predecessor in title were adequate compensation for the plaintiffs. The City did not include any other affirmative defenses in the answer.

Plaintiffs filed a motion for summary judgment on counts I and III and on the issue of liability alleged in count II. On November 28, 1984, plaintiffs' motion was granted as to count I. The trial court concluded that the City acquired an easement for the underground sewer in the 1913 condemnation action. This easement extended to the surface, 10 feet at right angles to each other on either side of the creek, for the purpose of constructing, repairing, and cleaning or maintaining the underground sewer line. The November 1984 order did not include a finding under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

A jury trial on count II was conducted in April 1985. On April 18, 1985, the jury found for the plaintiffs and awarded $127,750 in compensatory damages and $255,500 in punitive damages. In its post-trial motion, filed on May 15, 1985, the City requested that the verdict be set aside, the judgment be vacated, and a new trial granted. The City claimed that the errors in the introduction of evidence, jury instructions, and conduct of plaintiffs' trial counsel led to the grossly excessive verdict for the plaintiffs. The City also claimed the court erred in characterizing the nuisance as a temporary rather than a permanent nuisance.

On June 25, 1985, the trial court set aside the punitive damage award, after concluding that the City was not liable, as a matter of law, for the punitive damages. On January 14, 1986, the trial court also set aside the award of compensatory damages, finding any evidence or Discussion regarding punitive damages could have influenced the award for compensatory damages. A new trial on the issue of damages was ordered on January 14, 1986.

Plaintiffs appealed the vacation of both damage awards and order for a new trial to this court. The City raised no issues in the first appeal. The orders of the trial court on January 14, 1986, were affirmed by this court. Tamalunis v. City of Georgetown (1987), 150 Ill. App. 3d 1162 (unpublished order under Supreme Court Rule 23).

Prior to the second trial, the City filed on November 4, 1987, a motion to dismiss counts II and III for want of subject-matter jurisdiction. The City alleged the PCB was the sole entity, by virtue of the Act, with jurisdiction over actions regarding the discharge of sewage. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1001 et seq.) The motion to dismiss was denied on December 30, 1987.

On January 28, 1988, the City filed a motion for reconsideration of its post-trial motion filed May 5, 1985, and a motion for leave to file an amended answer to count II. The proposed amended answer included five affirmative defenses to the City's liability as alleged in count II. These defenses included: (1) governmental immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.) (Governmental Immunity Act); (2) the 1913 condemnation action was res judicata to all claims raised by the plaintiffs; (3) the failure of a municipality to enact an ordinance, the only legal method whereby the City could repair the sewer system, was not actionable under the Governmental Immunity Act; (4) the City was operating the sewer system in compliance with a National Pollutant Discharge Elimination System permit issued by the Illinois EPA and, therefore, the plaintiffs had no cause of action; and (5) a stipulation entered in litigation in 1939 between the City and the Gosses, other predecessors in title to the plaintiffs, imposed a burden in the nature of an easement on plaintiffs' property, which runs with the land. The court denied the City's motions on March 21, 1988.

Prior to trial, both parties filed motions in limine regarding the nature of the nuisance. The City requested that the evidence be limited to damages for a permanent nuisance, damages being measured by the diminution in the fair market value of the property as a result of the nuisance. The plaintiffs requested evidence be limited to damages for a temporary nuisance, where damages are measured by the deprivation of the use, enjoyment, and comforts of the property and the discomfort, aggravation, and annoyance suffered by the property owner. The court denied the City's motion on July 14, 1988, and ordered a trial on the temporary nuisance theory. The court also ruled that the second trial would cover only the time period from May 5, 1978, to May 5, 1983. On July 22, 1988, the individual defendants were dismissed from this action.

The second jury trial began on July 25, 1988. Joseph Tamalunis testified that every time at least .2 of an inch of rain fell or when the sewer system was deliberately blocked at some point, raw sewage flowed onto his property from the overflow. The raw sewage included human excrement, toilet paper, sanitary napkins, and condoms. Joseph also described how the sewer system works and identified nine photographs, later admitted into evidence, which depicted the inside of the outlet sewer at Seminary Street. In dry weather, the 15-inch sewer tile is 90% full. A 24-inch sewer tile serving the north part of Georgetown, added to the system after the original system was constructed, joins the 15-inch tile near the overflow and empties onto Joseph's property at the overflow. Joseph also testified that the odor of sewage from the creek is powerful and often prevents him from doing any yard work when the wind blows from the north.

Marvin Fitzwater, a neighbor of the plaintiffs, also testified, over objection, regarding Seminary Creek and the fact that the water used to be clear and clean and fish were found in the creek as well. By his testimony, it was established that the period when the creek was clean was before 1962. He stated that between 1978 ...

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