Appeal from the Circuit Court of Winnebago County. No. 97-CH-91
Geiger and Galasso, JJ., concur.
The opinion of the court was delivered by: Presiding Justice Bowman
Honorable J. Todd Kennedy, Judge, Presiding
Plaintiff, Jonathan Spafford Whitlock, as land trustee, holds the title to property directly south of property on which defendant, Hilander Foods, Inc., has long operated a grocery store. Recently, defendant built an addition to the store. The south retaining wall of the addition is on defendant's property, but the underground footings of the wall encroach on plaintiff's property. Plaintiff sued for a mandatory injunction compelling defendant to remove the encroachment and for other relief. The trial court granted defendant summary judgment (see 735 ILCS 5/2--1005(c) (West 1998)), holding that, (1) as a matter of law, plaintiff was guilty of laches; and (2) on the merits, plaintiff could not make out a sufficient case for a mandatory injunction. Plaintiff appeals. We reverse and remand the cause.
The facts require recitation in some detail. On March 11, 1997, plaintiff filed a complaint alleging the following facts. Plaintiff is the trustee of land (the Spafford property or plaintiff's property) adjacent to the land defendant leases. Defendant operates a supermarket on its land. In September 1996, defendant started building an addition to its store. The south retaining wall of the addition borders the north line of plaintiff's property. Although plaintiff allowed defendant to use his property during the construction, defendant made several unauthorized incursions. In particular, the footings for the south retaining wall encroached about 1.7 feet onto plaintiff's property. When plaintiff complained, defendant assured him that it would agree to compensate him for the encroachment. However, defendant had refused to do so. Plaintiff asked the court to order the removal of the footings, to enjoin defendant from constructing or maintaining improvements on plaintiff's property, and to require defendant to pay for past encroachments.
Defendant's answer admitted that the footings were on plaintiff's land, but it denied that plaintiff had objected to the encroachment. Defendant also asserted the defenses of laches, waiver, and estoppel, alleging that plaintiff had known of defendant's plans and did not object as the construction was taking place. Also, according to defendant, the new footings simply took the place of ones that had been there for the old south wall for 40 years without protest. Defendant claimed that plaintiff sought to interfere with the construction only after it had been completed at a cost of about $1.5 million; that plaintiff's six-month delay in filing suit was unreasonable; and that plaintiff's conduct in that interim was inconsistent with his demand for injunctive relief.
Defendant also filed a third-party complaint against a variety of contractors. All of these, except Scandroli Construction Company, were eventually dismissed from the suit before the final judgment on appeal here.
In ruling on defendant's request for summary judgment, the trial court considered the depositions of plaintiff, his wife, Nancy Whitlock, and defendant's treasurer, Joseph Castrogiovanni. Also before the court was correspondence between John Kinley, plaintiff's attorney, and Robert Gosdick, defendant's attorney.
At his deposition, plaintiff testified as follows. He is a beneficiary of the trust that owns the Spafford property, where he has lived since 1989. In February 1996, at the first of two zoning hearings where defendant sought a variance for the project, Gosdick and Joseph Castrogiovanni told plaintiff that defendant wished to build up to the boundary line but that the addition would not affect plaintiff's property at all. Having received this assurance, plaintiff did not object to the variance request then or at the second hearing a week or two later.
As plaintiff expected, defendant began construction work in the second full week of September 1996. About a week into the process, however plaintiff noted with surprise that the footings for the new south wall were clearly on his property. Plaintiff's wife had noticed the new footings somewhat earlier. Concerned, plaintiff and Nancy Whitlock met the next business day with Joseph Castrogiovanni at the site. Plaintiff told Castrogiovanni that, if the footings stayed, plaintiff was "going to have a lease." Castrogiovanni replied that they could work something out, whether at " 'a dollar a year or a thousand dollars a month.' " Believing defendant was willing to pay for the encroachment, plaintiff contacted Kinley but did not try to stop defendant from building the addition. Plaintiff knew he had a legal right to tell defendant to get off of his property, but he wanted to be a good neighbor, and he trusted Castrogiovanni's assurances that his property would not be harmed.
About a week or two after the meeting at the site, plaintiff and John Castrogiovanni, defendant's secretary, happened to meet at defendant's store. Kinley had sent defendant a proposed lease, and plaintiff told John Castrogiovanni he would like to get the lease signed as soon as possible. Castrogiovanni replied only that he had talked to Gosdick, who was researching the matter, and that defendant would "work it out to [plaintiff's] satisfaction."
Aside from expressing concern about the encroaching footings, plaintiff complained repeatedly that defendant was exceeding its permission to use plaintiff's land and that the project was causing various kinds of property damage. On October 14, 1996, Kinley sent Gosdick a letter stating, in part, that, as of noon the next day, plaintiff's authorization for defendant to use the property would be withdrawn and any incursion onto the property would be a trespass. Furthermore, according to the letter, defendant's right to use the property would be suspended until a number of matters were resolved, including compensation for the permanent encroachment caused by the footings for the new south wall. On October 15, 1996, plaintiff attended a meeting at Gosdick's office. In his deposition, plaintiff conceded that he did not regard the October 14 letter as a demand to remove the footings; rather, the intention of the letter was to insist that defendant get its people, trucks, and scaffolding off his property. Plaintiff also allowed that, at the October 15 meeting, the parties may not have discussed the footings issue at all.
In November 1996, plaintiff obtained a survey that showed that, although the new south wall was on defendant's property, the footings extended at least 18 inches onto his land. Plaintiff could not say how far underground the footings were placed. The new wall was three feet further south than the old retaining wall. Plaintiff never saw any paperwork showing that the old wall's footings had been on his property. About three or four weeks after the construction began, Joseph Castrogiovanni told him that the old footings had been on plaintiff's side. Plaintiff doubted this, as the old wall had appeared to be at least a half foot north of the boundary line. However, plaintiff, admittedly not an expert in construction, did not know whether the old footings had been on his side of the line. He had never seen the footings for the old wall.
When asked what damage he believed the encroaching footings caused, plaintiff responded that he believed they interfered with his ability to develop his land, although he had not thought seriously about developing the property in the immediate future. Plaintiff never gave defendant permission to place the footings on his property. However, he did not flatly tell defendant to stop doing so, or to remove ...