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First Baptist Church of Lombard v. Toll Highway Authority

December 09, 1998


Appeal from the Circuit Court of Du Page County. No. 95--CH--068 Honorable John W. Darrah, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp


This appeal is from a judgment following a bench trial in the circuit court of Du Page County. Defendant, the Toll Highway Authority, raises three issues for our review: (1) whether the lawsuit of plaintiff, First Baptist Church of Lombard, is barred by the statute of limitations; (2) whether the trial court erred in finding defendant responsible for flooding to plaintiff's land; and (3) whether the trial court applied an incorrect measure of damages in this case of continuing trespass. Finding merit only in defendant's third issue, we affirm in part and vacate in part and remand to the circuit court with directions.

The First Baptist Church of Lombard (the Church) owns property located at the intersection of Route 53 and St. Charles Road in Lombard, Du Page County. The land is improved with a church building and parking lot, which have existed on the property since 1960. The property is located in the floodplain of the East Branch of the Du Page River.

In 1987, the Toll Highway Authority (the Tollway) constructed I- 355. A portion of I-355 was constructed in an area located to the west of the Church property and immediately east of the Du Page River.

On August 14, 1987, the Church sustained water damage to its building due to flooding. The Church believed the Tollway's construction of I-355 was the cause of its flooding.

On August 13, 1992, the Church filed an action in the Court of Claims against the Department of Transportation. On January 4, 1995, the Court of Claims found that the Church's action lay against the Tollway rather than the Department of Transportation. The Court of Claims then dismissed the Church's action with prejudice because it lacked jurisdiction over the Tollway.

The Church filed the present action against the Tollway on February 1, 1995, seeking damages and injunctive relief. On September 28, 1995, the Tollway filed a motion to dismiss the Church's complaint pursuant to section 2--619 of the Civil Practice Law. See 735 ILCS 5/2--619 (West 1992). The Tollway contended that, pursuant to section 13--214 of the Code of Civil Procedure (735 ILCS 5/13--214 (West 1992)), the Church's claim against the Tollway was barred by a four-year statute of limitations.

In response to the Tollway's motion to dismiss, the Church claimed it had inadvertently filed its action in the Court of Claims, naming the Department of Transportation as defendant instead of the Tollway. The Church further claimed that a five-year statute of limitations was applicable pursuant to section 13--205 of the Code of Civil Procedure (735 ILCS 5/13--205 (West 1992)) and section 11--13 of the Illinois Drainage Code (70 ILCS 605/11--13 (West 1992)). The Church argued that its claim was not time-barred because it filed its initial complaint in the Court of Claims on August 13, 1992, within five years of the occurrence of August 14, 1987. The Church claimed that naming the Department of Transportation instead of the Tollway was a misnomer of a party, which should not be fatal to its lawsuit.

The Tollway filed a reply memorandum of law in support of its motion to dismiss. The Tollway argued that no misnomer took place and even if the statute of limitations was five years, as claimed by the Church, the action was not instituted by the Church against the Tollway within five years after the cause of action accrued.

In an order dated July 2, 1996, the trial court denied the Tollway's motion to dismiss. The trial court did not provide a written explanation for its denial of the Tollway's motion to dismiss.

At trial, Martha S. McKellar, Robert Keeney, and Thomas Everett, all long-standing members of the Church, testified that, other than a small puddle in the parking lot, the Church property had never flooded prior to 1987. Each member, however, personally witnessed flooding after 1987. In fact, McKellar testified that she observed water flowing from the Tollway property through culverts onto the Church property. Furthermore, Keeney testified that Mr. McCabe, an attorney for the Tollway, admitted that the Tollway knew that the temporary haul road that they built created a flooding problem for the Church and that the Tollway would take care of the problem if the Church filed a claim.

The Church called several expert witnesses to testify on its behalf. James E. Sparesus, an architect and president of Archiplan International, testified that the Tollway road acts as a barrier that stops the water drainage from the Church property and that the swale constructed by the Tollway is lesser pitched than is customary in standard engineering practice, causing the Church's flooding problem. Mr. Sparesus further testified that the construction of the I-355 road has caused the most dramatic reduction in pervious surfaces since 1985. He also testified that some areas on a floodplain at 692 feet might not flood even when the river level exceeds 692 feet.

Irwin Branecki, a consulting civil engineer, testified that, had the Tollway installed the culvert lower and properly graded the swale, it would have helped to alleviate any flooding problem in the Church's parking lot. He also testified that the slope of the swale does not afford the Church property with positive drainage. Mr. Branecki testified that he had studied the existing aerial topography and that before the Tollway road was constructed there was sheet drainage from the Church parking lot to a depression that obviously held a lot of water.

On cross-examination, Mr. Branecki testified that a back pitch on the culvert, as well as the pitch on the swale, becomes irrelevant when the Du Page River overflows. On redirect examination, Mr. Branecki testified that in a very intense storm or when the Du Page River goes out of its banks it is probable that the water would start inundating the Church parking lot. Mr. Branecki again stated that when the Tollway road was built the depression, which had held a great deal of water and stored runoff water from the Church property, was removed. In other words, he stated that before the Tollway road was built there was some place for the water to go.

Brad Keith of Archiplan International, an expert in the field of architecture and land planning, testified that several factors contribute to the Church's flooding problem, including the Tollway's installation of an earthen berm, which prevents the water from naturally flowing from the Church site; a slope to the culvert that does not meet standard engineering practice; a culvert with a back pitch in the wrong direction; and loss of vegetation, all due to the Tollway's construction. On cross-examination, Mr. Keith testified that when the engineer shot a few elevations of the swale to determine the pitch, he found some depressions that were inconsistent with complete positive drainage.

The Tollway called Nick Textor, an expert in the field of hydraulic engineering. Mr. Textor testified that he was involved with the Tollway in the development of I-355. He testified that, because the Tollway property transverses the existing floodplain, remedial measures were required in the form of collecting water runoff from the Tollway property and diverting it into detention ponds. He testified that in constructing the berm, swale, and culvert they tried to maintain the existing drainage ...

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