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Leigh v. Kemp

June 19, 2009

RUTH A. LEIGH AND SARAH STURGEON, PLAINTIFFS,
v.
JACK KEMP, STEPHEN DARIMONT, TAD FREEZELAND, JOE SANDERS, RON SCOTT, DARRELL COX, AND MICHAEL COX, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#143) filed by Defendant Michael Cox, the Motion for Summary Judgment (#149) filed by Defendant Jack Kemp, the Motion for Summary Judgment (#161) filed by Defendants Darrell Cox, Stephen Darimont, Tad Freezeland, Joe Sanders and Ron Scott, and the pro se Motion for Summary Judgment (#153) filed by Plaintiffs, Ruth A. Leigh and Sarah Sturgeon. Following this court's careful and thorough consideration of the arguments of the parties and the documents provided by the parties, this court rules as follows: Defendants' Motions for Summary Judgment (#143, #149, #161) are GRANTED and Plaintiffs' Motion for Summary Judgment (#153) is DENIED. In addition, Defendants' Motions to Adopt (#159, #163) are GRANTED and Plaintiffs' Motion for Judicial Notice (#184) is DENIED.

FACTS*fn1

Plaintiff Ruth Leigh (Leigh) is a retired teacher who resides in a home on a cul-de-sac known as Whispering Oaks Drive in Charleston, Illinois. Leigh's property is located in Richard V. Noble's Subdivision. Leigh owns the property with her husband, Peter Leigh, but her husband does not live there. Plaintiff Sarah Sturgeon (Sturgeon) is Leigh's sister and lives in California. Leigh's next door neighbor on the cul-de-sac is Defendant Jack Kemp (Kemp). Kemp owns a vending machine business which he runs out of his home. Leigh and Kemp have had some disagreements over the years about various issues related to their adjoining properties and the cul-de-sac. Leigh has complained that Kemp has caused damage to her property. In 2000, Leigh hired Bruce Foltz to prepare a survey of the property. Foltz prepared a survey drawing of the area, dated December 18, 2000. The drawing showed that there was a 50-foot right-of-way from the center point of the cul-desac. Leigh testified that Foltz put a center pin in the cul-de-sac, but she does not agree that he accurately located the center of the cul-de-sac. Leigh testified, however, that she was sure Foltz was a "qualified technician."

Leigh testified that, in April 2001, she placed landscape timbers along the cul-de-sac to "get the area looking good." Kemp testified that he complained about the timbers but no one did anything about it. In May 2005, Leigh hired a landscaping contractor to place boulders by the culde-sac to prevent vehicles from coming onto her property. Kemp complained to Defendant Michael Cox (Cox), the Charleston township highway commissioner, that the boulders were impeding the path of a truck that needed to make deliveries for his business. Kemp told Cox that the trucks were having trouble turning around. Kemp testified that he and his son moved the boulders back from the cul-de-sac so they could get vehicles in.

On July 11, 2005, Leigh was not at home but her husband, Peter Leigh, was at the property. Peter Leigh called the sheriff's office to complain that there had been vandalism at the property because the landscape boulders had been moved. Defendant Joe Sanders (Sanders) and another sheriff's deputy responded and came to the property. The officers talked to Kemp and Kemp showed them some documents. Peter Leigh testified that the deputies suggested that the township should be involved in the process and called the township. Two township workers then came to the Leigh property. Peter Leigh testified that Kemp was angry and wanted the boulders moved back and the deputies wanted the matter resolved. Peter Leigh testified that he was nervous and frightened and felt pressured by Kemp and the two deputies insisting that the boulders be moved. Peter Leigh testified that he felt he had no choice and allowed the township workers to move the boulders back.

On July 13, 2005, Sturgeon was visiting Leigh and was staying at her home. Sturgeon testified that Cox came to the door. At that time, Leigh was not at home. Sturgeon testified that she talked to Cox about the boulders and Kemp's complaints about them. She testified that Kemp was moving some of the smaller boulders back at that time and that Cox spoke to Kemp about the boulders. Sturgeon testified that Leigh returned and Cox told them that he and the county engineer had been there a few weeks before and could not find anything wrong with the placement of the boulders. Sturgeon testified that Cox told them there was no problem with putting the boulders "back up to the border." Sturgeon testified that Cox then asked them to do a favor for him and leave the boulders where they were for right now because Kemp was so angry. Sturgeon testified that she and Leigh agreed to Cox's request. Cox testified that he had no recollection of his conversation with Sturgeon and Leigh on July 13, 2005. He testified, however, that if he had actually told them there was no problem with the boulders "we wouldn't have moved the rocks." He testified that he was sure they were okay after they were moved back on July 11, 2005.

On July 31, 2005, Leigh and her husband sent a letter to Defendant Ron Scott (Scott), the Coles County Sheriff, and asked about the status of Peter Leigh's report of vandalism on July 11, 2005. In the letter, they stated that Cox had told them that he and the county engineer saw no problem with the landscaping arrangement and that "Cox said that there was no right-of-way problem with the original placement of the landscaping boulders." They stated that they "left the boulders for the time being where Jack Kemp demanded that they be moved because we feared further consequences of his extreme anger."

On August 2, 2005, Scott sent a letter to Leigh and her husband and stated that either he or Defendant Darrell Cox, his chief deputy, would check on the investigation of Leigh's complaint of vandalism. On August 4, 2005, Cox sent a letter to Kemp and Leigh. The letter stated:

After investigation and consultation with the county engineer and the township attorney I have determined that the policy for Noble Subdivision will be as follows:

Charleston Township Road District will maintain the road and the road only. Any object placed on the road will be removed. Any other matters concerning Noble Subdivision the Township Road District will consider to be a neighborhood dispute and will not become involved.

As far as I am concerned this matter is now concluded.

Cox testified that the letter was written when the boulders had been moved back off the right-ofway, off the road, and he thought everything was smoothed over. Leigh testified that she and her husband "both interpreted [the letter] to allow us to move [the boulders] back to where we had them in the first place." However, Peter Leigh testified that he did not think they had received an indication from anyone that it was okay to move the boulders back from the point where they were on July 11, 2005.

On August 19, 2005, Leigh had the landscaper return the boulders to their original location. Kemp complained, and Defendant Steve Darimont (Darimont), a sheriff's deputy, responded to the complaint on August 22, 2005. Darimont testified that he spoke to Kemp and Kemp complained about an obstruction in the cul-de-sac. Kemp showed Darimont the boulders and told him that they had been moved back onto the roadway. Kemp provided him with a copy of a survey of the cul-desac which showed the amount of right-of-way in the cul-de-sac. Darimont testified that he had dispatch call Cox about the situation. Darimont testified that Cox came out and said he would bring machinery the next morning to move the landscape timbers and boulders from the cul-de-sac.

On August 23, 2005, Cox arrived at the cul-de-sac around 8:00 a.m. Three sheriff's deputies, Defendants Tad Freezeland (Freezeland), Darimont and Sanders, also arrived at the cul-desac. Darimont testified that Cox requested their presence that morning to keep the peace.

Freezeland's vehicle was equipped with a video camera and recorded the events that morning. Cox testified that "there were rocks where the road was" in front of Leigh's house. Cox testified that the rocks were in the right-of-way. He testified that, because of the neighborhood dispute between Leigh and Kemp, he obtained the plat of the subdivision "and consulted with our attorney and the county engineer" and determined that the boulders were on the township right-of-way. Cox testified that the county engineer went out to look at it and determined that the boulders were a hazard and should be moved. Cox testified that "[t]here is a 50 foot radius line from the center of the cul-de-sac out which would indicate where the township right-of-way is" and that the township owns the property designated as right-of-way.*fn2 Cox testified that, in most cases, the right-of-way extends well beyond the paved road. He stated, however, that the right-of-way is still the right-of-way of the township.

Cox testified that there was a pin in the cul-de-sac which he believed marked the middle of the cul-de-sac. He had his workers measure from the pin to the edge of the cul-de-sac in several directions. The measurements showed 38 feet from the center to the edge of the cul-de-sac except in front of Leigh's property, which measured 361/2 feet. Cox testified, in response to a question from Leigh, that "it was all 38 feet, except in front of your house where you had moved the boards out on to the road and put sod down, . . . which, by the way, nobody complained about until you moved the boulders in."

Sturgeon came out of the house first on the morning of August 23, 2005, and began arguing that the boulders should not be moved. Leigh also came out and argued that the boulders were on her property. Leigh and Sturgeon sat down on two of the boulders. Darimont testified that he asked them to move out of the area so the men could do their work. The evidence shows that the police officers at the scene told them repeatedly to move and warned them many times that they would be arrested if they continued to refuse to obey the officers' orders and if they refused to move off the township property. Both Leigh and Sturgeon refused to move off of the property and they were both arrested and taken to the Coles County jail. This court notes that the video recording of the encounter shows that the officers on the scene exhibited remarkable patience and restraint in dealing with Leigh and Sturgeon. After the arrest, the township workers moved the landscape timbers back approximately 18 inches and put the boulders in back of the timbers. Cox testified that he moved the rocks because they were on the road. The township workers then put cold mix asphalt on the roadway where the timbers and boulders had been.

Both Leigh and Sturgeon were in the Coles County jail for approximately seven hours on August 23, 2005. On April 20, 2006, the charges ...


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