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08/04/89 Stanley D. Parr Et Al., D v. Michael Neal

August 4, 1989





542 N.E.2d 1257, 187 Ill. App. 3d 58, 134 Ill. Dec. 750 1989.IL.1205

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


JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.


On June 2, 1986, plaintiffs Stanley D. Parr and Gracie Parr, doing business as Redwood Motor Inn, filed a complaint in the circuit court of Vermilion County against defendants Michael Neal, warden of the Danville Correctional Center, and Michael Lane, Director, Department of Corrections, State of Illinois. Plaintiffs alleged defendants had authorized, constructed, and operated a firing range at the Danville Correctional Center (Correctional Center) which was adjacent to property owned by plaintiffs. This property was used by plaintiffs in the operation of a motel. Plaintiffs contended the operation of the range constituted a nuisance and requested the defendants be enjoined from further operation of the range. The case was subsequently tried at bench upon a second-amended complaint alleging the firing range was a danger to personal safety and a private nuisance.

On August 10, 1988, the circuit court entered an order permanently enjoining defendants "from firing weapons on the aforesaid range at its present location." (Emphasis added.) On September 9, 1988, defendants filed a motion for reconsideration and clarification. The motion alleged that (1) the relief was "not so confined as to achieve its purpose at the least burden to the defendants"; and (2) the order did not clearly "establish whether any firing range may be utilized in the present location." After a hearing on the motion, the circuit court entered a further order on October 20, 1988, denying reconsideration of its prior order but clarifying that order by stating that order "permanently enjoined the present use of the weapons firing range." (Emphasis added.)

Defendants have appealed maintaining, much as they did upon request for rehearing, that the order enjoining the use of the range was "impermissibly overbroad." They rely upon the following language of the fifth district:

"The restraint imposed by an injunction should not be more extensive than is reasonably required to protect the interests of the party in whose favor it is granted, and should not be so broad as to prevent defendant from exercising his rights." (People ex rel. Traiteur v. Abbott (1975), 27 Ill. App. 3d 277, 282-83, 327 N.E.2d 130, 134.)

Defendants do not seriously dispute that the allowance of some injunctive relief by the circuit court was sufficiently supported by the evidence. For reasons we subsequently explain, we conclude the award by the trial court of the injunction, in its full force, was not contrary to the manifest weight of the evidence and must be affirmed.

On appeal, defendants still express concern as to the meaning of the injunction. They express concern as to whether they can make continued use of a classroom which is located on the range facility. When the latest order in regard to enjoining "the present use" of the range is considered within the context of the earlier order prohibiting the firing of weapons at the "present location" and, in view of the evidence, we deem it clear the court did not enjoin use of the classroom as long as weapons are not fired from it.

We interpret the order of the court to be that the Department of Corrections cannot use the firing range for the firing of weapons unless the injunction is subsequently modified. The circuit court has continuing power to modify this injunction upon a showing of a sufficient change in the structure of the range to alleviate the dangers which now exist. (Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc. (1941), 312 U.S. 287, 85 L. Ed. 836, 61 S. Ct. 552; Material Service Corp. v. Issacs (1962), 25 Ill. 2d 137, 183 N.E.2d 164.) We express no opinion as to what change in circumstances would be necessary to support or to require such a modification.

The evidence of the layout of the firing range was undisputed. The range was some 100 yards in length running from the west, where most firing took place, to the east where the farther targets were located. The range was on the south border of the Correctional Center and bordered plaintiffs' property, a 40-acre tract, on the south of the Correctional Center. The closest point of the range to the motel was approximately 900 feet, but the motel's sewer plant was 800 feet from the range, and a water well was 600 feet away. Considerable other development existed in the area of the Correctional Center, but none was as close to the range as plaintiffs' motel.

At the east end of the range was a berm 40 feet in height. Affixed to the berm at a height of about 12 feet from the bottom was a timber "eyebrow" extending perpendicular to the slope of the berm to form "an upward bullet trap" for bullets aimed at targets below. A fence made from railroad ties and having a height of seven or eight feet surrounded the range. The ...

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