The opinion of the court was delivered by: Presiding Justice South
Appeal from the Circuit Court of Cook County. Honorable David G. Lichtenstein, Judge Presiding.
This appeal arises out of an action for damages caused by an alleged trespass by defendant, City of Chicago (City), on a tract of land in the Dearborn Park area which was owned and developed by plaintiffs. Plaintiff Bank of Ravenswood is the trustee of the property, while plaintiff Ogden Partners held the beneficial ownership interest in the property. Plaintiffs (collectively referred to as Ogden), appeal from a May 4, 1998, order of the circuit court of Cook County granting defendant's motion for summary judgment on damages and dismissing the action for trespass.
Plaintiffs' complaint sought damages for an alleged trespass arising out of the construction of a subway system under property plaintiffs purchased to develop into a residential townhome community known as "Dearborn Park II." The complaint alleged that the City failed to acquire a permanent easement for the subway to travel under the property and was thus liable for damages incurred, because Ogden had to construct a vibration insulation system (VIS) so that the residents could enjoy the property.
Plaintiffs filed a motion for summary judgment, which Judge Boharic granted, solely on the issue of liability. Defendants filed a motion to reconsider, which the court denied. The case was ultimately transferred to Judge Lichtenstein, where defendant filed a motion for summary judgment on the issue of damages, which was granted and the case dismissed.
In 1982, Dearborn Park Corporation (DPC) owned the property and sought to develop the land for residential purposes. In 1985, in accordance with DPC's development plans for the land, the City agreed to provide the infrastructure (streets, curbs, sidewalks, water service and streetlights) necessary for the community. Around the same time, the City proposed the Howard-Dan Ryan Project, to realign certain rapid transit lines within the City. The effect of this project as it related to Dearborn Park was that a subway tunnel would be constructed nine feet below the property's surface, spanning two city blocks of land.
The City and DPC engaged in communications and negotiations in which DPC would grant the City a permanent easement to construct, reconstruct, repair and maintain the subway tunnel. The parties entered into a right-of-entry agreement permitting the City to begin subway construction on January 9, 1986. The agreement, which was effective for two years, was made with the assumption that the parties would later enter into a permanent easement agreement.
On June 21, 1988, DPC and Ogden executed a sale and purchase agreement on the Dearborn Park property. After plaintiffs took possession of the property, they hired an acoustical consulting firm because they were concerned about the noise and vibration potential of the subway connection running under the homes. On August 12, 1988, the firm was hired to prepare a report. On October 14, 1988, DPC and Ogden closed on the purchase of the property prior to finalizing the permanent easement with the City. On October 21, 1988, the acoustical consulting firm informed plaintiffs that a VIS was necessary and that one should be erected.
On February 22, 1990, Ogden filed a two-count complaint to enjoin trespass and other relief, naming the City and the Chicago Transit Authority as defendants. The suit was partially settled in April of 1991, when plaintiffs granted the City a permanent easement to operate trains in the subway tunnel beneath the property. Regular operation of the trains did not commence until after the easement was granted.
The City filed a motion for judgment on the pleadings on May 7, 1993, arguing that plaintiffs' trespass action was barred because DPC had committed to granting the permanent easement. The City also raised the defenses of consent, estoppel, waiver, and statute of limitations. Plaintiffs filed a motion for summary judgment on the issue of trespass and a motion for judgment on the pleadings. On September 24, 1993, Judge Boharic denied the City's motion and granted plaintiffs' motion for summary judgment on the issue of trespass.
On November 6, 1995, the City filed a motion to reconsider and a motion for summary judgment as to liability for trespass, which Judge Boharic denied.
The case was eventually reassigned to Judge Lichtenstein. On February 24, 1997, the City filed a motion for summary judgment as to damages on plaintiffs' trespass claim, which Judge Lichtenstein granted. In dismissing the case, Judge Lichtenstein stated:
"So he's [Judge Boharic has] basically said, I opine and I remove myself from the controversy. Let a jury of Illinoisans come in and be put to the burden of hearing that which the party plaintiff litigant would have them hear and we'll have another Judge instruct the jury on the law, not the law as that Judge believes the law to exist but the law as I believe the law to exist."
"And then we could always go to the Appellate Court and if I'm wrong, great. Well I'm not having a jury of Illinoisans hear a case where I don't think there's any case to hear. I'm not instructing a jury on Boharic's - the Honorable Boharic's theory of law as opposed to my theory of law."
Plaintiffs argue that Judge Lichtenstein erred when he granted summary judgment for defendant on damages and dismissed the case, contending he exceeded his authority by converting defendant's summary judgment motion on the issue of ...