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03/12/97 L.J. KEEFE COMPANY v. CHICAGO AND

March 12, 1997

L.J. KEEFE COMPANY, INC., PLAINTIFF-APPELLANT,
v.
CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY, COMMONWEALTH EDISON COMPANY, ALL UNKNOWN CLAIMANTS AND OWNERS, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT. COOK COUNTY. No. 93 CH 7567. THE HONORABLE, NORMAN SANDS, JUDGE PRESIDING.

Released for Publication April 24, 1997.

Presiding Justice Cousins delivered the opinion of the court. Gordon and Leavitt, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Plaintiff, L.J. Keefe Co., Inc. (Keefe), brought an action against Chicago and Northwestern Transportation Company (C&NW) and Commonwealth Edison Company (Commonwealth Edison) alleging a mechanics' lien against the real property of defendant Chicago and Northwestern Railway Company located at Illinois Route 14 and Rohlwing Road, Palatine, Illinois. Defendants denied that plaintiff was entitled to claim a mechanics' lien. Both plaintiff and defendants filed cross-motions for summary judgment. The trial court granted defendants' motion and plaintiff appealed.

BACKGROUND

C&NW is the owner of the railway tracks and of the real estate underlying the tracks at Illinois Route 14 (Northwest Highway) and Rohlwing Road in Palatine. On or about January 14, 1960, C&NW and Commonwealth Edison entered into a certain master license with C&NW as licensor and Commonwealth Edison as licensee. The agreement provided, in pertinent part, that Commonwealth Edison was "licensed to construct, install and maintain and use poles, wires, cables, conduits or other transmission facilities together with necessary appurtenances for the sole purpose of transmitting electric current along and across the right of way and the property of the Railway Company [C&NW]."

In 1990, pursuant to the master license, Commonwealth Edison was licensed to install 100 feet of 24-inch steel casing containing six 5-inch plastic ducts and a 12KV circuit crossing under the railroad's tracks and right-of-way.

Commonwealth Edison retained Guerra Construction Company (Guerra) to perform various work in order to complete the installation work at the project. Guerra, in turn, retained plaintiff to perform various tunnelling work such as the installation of steel casing and pipe grouting. Plaintiff completed its portion of the work at the project on August 31, 1991.

Plaintiff contended that the value of the work that it furnished at the project was $105,044 and that this price was agreed to by Guerra. Plaintiff further contended that it has only received payment in the amount of $46,580.86, leaving an outstanding balance of 58,643.14 due. Consequently, plaintiff filed suit seeking damages in the amount of $60,408.50.

On November 27, 1991, plaintiff served a subcontractor notice of claim for lien upon C&NW and Commonwealth Edison. On December 26, 1991, plaintiff filed its subcontractor's notice and claim for lien with the Cook County recorder of deeds. Both parties thereafter moved for summary judgment.

On September 13, 1995, the trial court granted defendants' motion for summary judgment. No court reporter was present at the hearing and the court declined to make specific findings of fact. However, according to the parties' joint bystander report, the only basis for the court's decision was that Keefe had not satisfied the requirements of section 1 of the Illinois Mechanics Lien Act, (70 ILCS 60/1 (West 1992)).

We affirm.

ANALYS ...


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