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01/14/98 JIM K. HILLIGOSS v. ILLINI CABLEVISION

January 14, 1998

JIM K. HILLIGOSS, PLAINTIFF-APPELLANT,
v.
ILLINI CABLEVISION OF ILLINOIS, INC., DEFENDANT-APPELLEE.



Appeal from Circuit Court of Douglas County. No. 96CH8. Honorable Dan L. Flannell, Judge Presiding.

Honorable John T. McCullough, J., Honorable James A. Knecht, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice McCULLOUGH delivered the opinion of the court.

The opinion of the court was delivered by: Mccullough

The Honorable Justice McCULLOUGH delivered the opinion of the court:

In this case, the information highway intersects long-standing principles relating to ownership of real estate, and the question is which takes precedent. Plaintiff Jim K. Hilligoss appeals the dismissal of his complaint against defendant Illini Cablevision of Illinois, Inc. Plaintiff's complaint filed July 29, 1996, alleged three counts: count I sought a preliminary injunction and a mandatory injunction prohibiting defendant from installing its cable over plaintiff's property and requiring its removal; count II sought a declaratory judgment that defendant had no right to trespass on plaintiff's property and that the cable should be removed; and count III was an action of forcible entry and detainer alleging defendant had wrongfully withheld and continued to wrongfully withhold possession of property owned by plaintiff. The complaint alleged that in November 1995 defendant installed the cable on plaintiff's property. Defendant's combined motion to dismiss was brought pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 1994)). In granting the motion to dismiss, the trial court did not address the section 2-615 portion of the motion.

The issues are whether, as a matter of law, (1) defendant was conclusively shown to be a franchisee with Douglas County; (2) section 621(a)(2) of the federal Cable Communications Policy Act of 1984 (Cable Act) (47 U.S.C. § 541(a)(2) (1994)) allowed the installation of defendant's cable across plaintiff's property; and (3) defendant's failure to provide plaintiff with timely notice pursuant to section 5-1096 of the Counties Code (55 ILCS 5/5-1096 (West 1994)) was a bar to the use of existing easements and rights-of-way. We reverse and remand for further proceedings.

The section 2-619 portion of the motion to dismiss attacked all three counts of the complaint. Noting plaintiff sought to enjoin defendant's installation of cable television lines, defendant referred to section 621(a)(2) of the Cable Act, which provided as follows:

"(2) Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure-

(A) that the safety, functioning, and appearance of the property and the convenience and safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system;

(B) that the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator or subscriber, or a combination of both; and

(C) that the owner of the property be justly compensated by the cable operator for any damages caused by the installation, construction, operation, or removal of such facilities by the cable operator." 47 U.S.C. § 541(a)(2) (1994).

Defendant asserted that, based on this provision of the Cable Act, plaintiff may not make private agreements or otherwise limit rights-of-way in order to thwart a cable franchisee's access to rights-of-way or easements. Attached as exhibit A was a dedication of right-of-way for a public road signed by plaintiff on February 29, 1996. Exhibit B was a copy of an easement granted to GTE North, Inc., for installing telephone equipment in an easement across the subject property by G. Dean Hilligoss on October 30, 1995. Exhibit C was an affidavit of Del Lingafelter, defendant's chief engineer and project manager for laying the cable, stating the cable was installed pursuant to franchise agreements with the City of Tuscola and Douglas County, referred to as exhibits A and B in the affidavit, and that all cable or other equipment installed by defendant was installed in the right-of-way or easement. Although the affidavit referred to exhibits, they were not attached to the motion to dismiss.

The motion to dismiss then referred to the following portions of section 5-1096 of the Counties Code:

"(c) In any instance in which the owner of a residential building or the owner of improved or unimproved real estate intends to require the payment of just compensation in excess of $1 in exchange for permitting the installation of cable television facilities in and upon such building, or upon, beneath or over such real estate, the owner shall serve written notice thereof upon the cable television franchisee. Any such notice shall be served within 20 days of the date on which such owner is notified of the cable television franchisee's intention to construct or install cable television facilities in and upon such building, or upon, beneath or over such real estate. Unless timely notice as herein provided is given by the owner to the cable television franchisee, it will be conclusively presumed that the owner of any such building or real estate does not claim or intend to require a payment of more than $1 in exchange and as just compensation for permitting the installation of cable television facilities within and upon such building, or upon, beneath or over such real estate. In any instance in which a cable television franchisee intends to install cable television facilities as herein provided, written notice of such intention shall be sent by the cable television franchisee to the property owner or to such person, association or managing agent as shall have been appointed or otherwise designated to manage or operate the property. Such notice shall include the address of the property, the name of the cable television franchisee, and information as to the time within which the owner may give notice, demand payment as just compensation and initiate legal proceedings as provided in this subparagraph (c) and subparagraph (d).

***

(e) Neither the giving of a notice by the owner under subparagraph (c), nor the assertion of a specific claim, nor the initiation of legal action to enforce such claim, as provided under subparagraph (d), shall delay or impair the right of the cable television franchisee to construct or install cable television facilities and maintain cable television services within or upon any building described in subparagraph (a) or upon, beneath or over real estate described in subparagraph (b)." 55 ILCS 5/5-1096(c),(e) (West 1994).

Exhibit D was a letter to plaintiff dated June 26, 1996, from Lorna K. Geiler on the letterhead of her law office providing plaintiff notice of defendant's intention to continue to install cable television ...


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