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09/18/97 PEOPLE STATE ILLINOIS EX REL. BRENT

September 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. BRENT MANNING, DIRECTOR, ILLINOIS DEPARTMENT OF CONSERVATION, PLAINTIFF, AND BRENT MANNING, COUNTER-DEFENDANT-APPELLEE,
v.
PATRICK NICKERSON, DEFENDANT AND COUNTER-PLAINTIFF-APPELLANT.



Appeal from the Circuit Court for the 9th Judicial Circuit, McDonough County, Illinois. No. 95--CH--3. Honorable Larry W. Heiser, Judge Presiding.

As Modified on Denial of Rehearing October 29, 1997. Rehearing Denied October 29, 1997. Released for Publication October 29, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Peg Breslin, Justice. Justice Mccuskey delivered the opinion of the court. Lytton, P.j., and Breslin, J., concur.

The opinion of the court was delivered by: Mccuskey

[EDITOR'S NOTE: TEXT WITHIN THESE SYMBOLS [O>

Modified Upon Denial of Rehearing

The Honorable Justice MCCUSKEY delivered the opinion of the court:

The circuit court dismissed the counterclaim filed by the defendant, Patrick Nickerson, against Brent Manning, the Director of the Illinois Department of Conservation (Manning), because it found that the matter fell within the exclusive jurisdiction of the Illinois Court of Claims. After carefully reviewing the record on appeal, we hold that the defendant's counterclaim was properly filed in the circuit court. Accordingly, we reverse and remand for further proceedings.

On April 25, 1995, the plaintiff, Illinois Department of Conservation (IDOC), filed a complaint against the defendant. IDOC alleged that it held title to certain property which was part of the Argyle State Park (the park) and the defendant held title to property adjacent to the park. According to the complaint, the defendant constructed a building and cut down trees on park property. IDOC sought a permanent injunction to compel the defendant to remove the building, to refrain from placing another building on park land and to stop cutting down trees. IDOC also prayed for monetary compensation, including the fair rental value of the occupied land, three times the stumpage value of the trees cut down by the defendant and damages resulting from the construction and removal of the building.

In his second amended counterclaim, filed November 20, 1995, the defendant alleged that the survey used by IDOC was not correct. He claimed that he was the owner of the disputed land. The defendant sought a judicial determination of the boundary line between his property and the park and the ejection of IDOC from his land. The defendant also prayed for monetary compensation for damages he allegedly incurred.

Manning filed a motion to dismiss the defendant's counterclaim based upon the doctrine of sovereign immunity. He contended that the circuit court lacked jurisdiction to decide the issues raised in the counterclaim because the counterclaim sought relief against the State of Illinois. According to Manning, the Court of Claims had exclusive jurisdiction to decide the matters contained in the counterclaim.

Based on Manning's motion, the trial court dismissed the defendant's counterclaim. Later, the court amended its order to make the judgment appealable pursuant to Supreme Court Rule 304(a). 134 Ill. 2d R. 304(a).

The sole issue on appeal is whether the defendant's counterclaim was properly dismissed for lack of jurisdiction in the circuit court.

Article XIII, section 4, of the Illinois Constitution of 1970 abolished the doctrine of sovereign immunity "except as the General Assembly may provide by law." Ill. Const. 1970, art. XIII, ยง 4. [O> The General Assembly thereafter reinstated sovereign immunity with two exceptions. 745 ILCS 5/1 (West 1996). One exception provides that the Court of Claims has exclusive jurisdiction over suits against the States. 705 ILCS 505/8 (West 1996).

Manning's argument that the Court of Claims has exclusive jurisdiction over the issues raised in the defendant's counterclaim would be persuasive if the defendant had been the first to file his complaint in the circuit court. As the pleadings stand, however, it was IDOC that first sought the intervention of the courts. By doing so, IDOC subjected itself to the provisions of the Illinois Code ...


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