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June 21, 1994


Appeal from the Circuit Court of the 9th Judicial Circuit, Knox County, Illinois. No. 93-MR-38. Honorable David R. Hultgren, Judge Presiding.

As Corrected June 23, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

This is an appeal by the defendant, Francis Griffin, arising from an action brought against him in his official capacity as Knox County Engineer and Superintendent of Highways. The circuit court of Knox County awarded the plaintiff, Mid State Coal Company (Mid State), $10,810.34 in damages. Griffin's appeal is limited to the damages award. We affirm.

The record shows that on November 3, 1992, Mid State filed a petition along with co-petitioners, Midland Coal Company and Peabody Coal Company, to temporarily close and reconstruct a portion of Salem Township Public Road No. 351 located in Knox County. (See 605 ILCS 5/326.1 (West 1992).) The coal companies' proposed mining operations entailed temporarily tearing up a portion of the township road. The record also contains a document wherein Midland Coal Company offered to contract with David B. Hurst, the Commissioner of Highways of Salem Township and the defendant, Francis Griffin, the Knox County Engineer, to reconstruct the portion of the township road at the Conclusion of mining operations.

Subsequently, in January of 1993, Mid State filed a plan for road reconstruction (the reconstruction plan) with Hurst and Griffin. On January 22, 1993, Hurst approved the plan. Griffin, however, refused to approve the plan. On January 27, 1993, the record shows Hurst issued two permits to Mid State allowing Mid State 1) to move a Bucyrus-Erie Dragline across the township roadway, and 2) to drive across the roadway over-weight and over-dimension trucks and equipment for the purpose of hauling soil, coal and other materials associated with mining. The permits required Mid State to maintain proper traffic control signs/barriers. Mid State was also required to restore the road and right of way to their original elevation, re-establish the drainage ditches and "rock the road surface." Thereafter, Mid State commenced mining operations across the stretch of road which it had earlier petitioned to temporarily close.

On February 9, 1993, Mid State filed a complaint seeking an order of mandamus directing Griffin to review and approve the reconstruction plan. Griffin filed a motion to dismiss. Mid State filed a motion for summary judgment. Attached to the motion for summary judgment was the affidavit of Hurst who stated that Griffinhad stated in Hurst's presence that there was no engineering objection to the reconstruction plan, and that Griffin refused to sign the plan based on the advice of the Knox County State's Attorney, Raymond Kimbell.

Also attached to the motion was a letter from Kimbell to Griffin, dated November 17, 1992, in which Kimbell stated to Griffin that it would be inappropriate to sign the documents approving the proposed road closing. Kimbell stated, "The reason for this is that the county is in a lawsuit with the very coal company which is asking to close the road and the lawsuit involves the Department of Mines and Minerals permit number 227 which pertains to that road and surrounding property. The county's position as approved by the Knox County Board, is that the county is opposed to any action toward strip mining the property involved in permit 227."

On March 5, 1993, the circuit court entered summary judgment for Mid State. On March 11, 1993, the court issued a written order of mandamus directing Griffin, inter alia, to approve the reconstruction plan.

Thereafter, on March 16, 1993, Mid State filed a motion to modify the judgment to provide that Mid State might recover damages and costs based on evidence to be presented at a future hearing. Following a hearing, the circuit court "clarified" the earlier order stating that Mid State could recover its costs and damages. The court directed Mid State to file a petition for costs and damages.

Hearings were held on Mid State's petition for costs and damages on May 27, 1993 and June 29, 1993. (There is no report of proceedings from the May 27, 1993, hearing. The parties inform us that there was no court reporter present at that hearing. This omission, however, does not prevent us from fully addressing the issue raised by Griffin on appeal.)

During the hearing on June 29, 1993, Griffin questioned Mid State's president, Robert Gilstrap, about whether the company would have incurred any of the damages claimed had the road closing agreement been approved prior to August 13, 1992, the date Permit No. 227 went into effect. Gilstrap responded, "Probably not." Gilstrap stated that mining operations commenced in the Permit No. 227 area on August 13, 1992. At that point, Griffin questioned Gilstrap about two letters between the Department of Mines and Minerals and Midland Coal Company, dated September 7, 1989 and January 2, 1992, respectively, which purportedly contained references to a requirement that road closing agreements had to be secured prior to the commencement of mining operations in the Permit No. 227 area.

Mid State objected to this line of questioning on grounds ofrelevance. In response, Griffin argued the evidence was relevant because he contended Mid State and Midland knew years before the permit was issued that they had to obtain road closing agreements prior to any mining activities in the permit area, and that Mid State waited until nearly three months after mining operations commenced to file the petition to close township road 351. Griffin argued that this delay in filing the petition until after mining operations commenced constituted a failure to mitigate damages and allowed him to raise the defense of ...

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