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P. Curtis Swigert, Mary Sue Swigert, Jerald E. Camp v. Matthew J. Gillespie and Alison E. Gillespie

September 21, 2012

P. CURTIS SWIGERT, MARY SUE SWIGERT, JERALD E. CAMP, TINA M. CAMP, AND DIANNA H. KUPISH,
PLAINTIFFS-APPELLANTS,
v.
MATTHEW J. GILLESPIE AND ALISON E. GILLESPIE,
DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Macon County No. 09MR304 Honorable Albert G. Webber, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.

OPINION

¶ 1 In October 2008, defendants, Matthew J. Gillespie and Alison E. Gillespie, constructed a dirt berm along the boundary line between their property and the property of plaintiffs, P. Curtis Swigert and Mary Sue Swigert. The Swigerts and coplaintiffs, Jerald E. Camp, Tina M. Camp, and Diana H. Kupish, later sued, alleging that the Gillespies' berm caused water to back up and "pond" on their properties.

¶ 2 Following a March 2011 bench trial, the trial court entered judgment in favor of defendants, dismissing with prejudice the Camp and Kupish claims and denying the Swigert claims.

¶ 3 Plaintiffs appeal, arguing that the trial court erred by denying their request for injunctive relief because the court improperly applied a balancing-of-hardships approach to assess whether defendants, as servient property owners, could alter the natural flow of water from plaintiffs' properties.

¶ 4 We reverse and remand for further proceedings.

¶ 5 I. BACKGROUND

¶ 6 The Swigerts own approximately 10 acres of land in Blue Mound, Illinois. Their property is adjoined on the west by a residential subdivision known as Rainey's Country Acres. The Camps, Kupish, and the Gillespies, respectively, own separate parcels of land on the eastern edge of the subdivision, which abut the western edge of the Swigert property. The Camp property, lot 6, is located the furthest north. The Kupish property, lot 8, lies directly south of the Camp property. To the south of the Kupish property is lot 9, a parcel of property owned by the Burnses, who are not parties to this lawsuit. South of the Burns property lies the Gillespie property, lot 10. A map of the properties is appended.

¶ 7 In October 2008, the Gillespies installed a dirt berm along the property line between their land and the Swigerts' land. In April 2009, the Swigerts filed a complaint for injunctive relief against the Gillespies, seeking to require them to remove the berm because it caused water to back up and "pond" on the Swigert property. In February 2010, the Swigerts, the Camps, and Kupish filed a motion for joinder of plaintiffs and to file an amended complaint. The amended complaint asserted that the Gillespies' berm also caused ponding on the Camp and Kupish properties. The following month, the trial court granted the plaintiffs' motion by agreement of the parties.

¶ 8 At a March 2011 bench trial, the parties presented the following evidence.

¶ 9 P. Curtis Swigert testified that he purchased his 10-acre property in 1990. Swigert lives on two acres of the land and farms the remaining acreage. In October 2008, the Gillespies installed a 3 1/2-foot-high berm along the back of their property line, dumping dirt over the chain-link fence that previously ran along the property line. After the Gillespies built the berm, water began backing up against it over an area of the Swigerts' land measuring approximately 150 to 180 feet by approximately 60 to 80 feet. Swigert testified that the water backs up on his property whenever it rains an inch or an inch and a half, adding that the water also backs up onto the Camp and Kupish properties.

¶ 10 On cross-examination, Swigert acknowledged that he did not experience crop loss from the standing water. Swigert noted that before the Gillespies constructed their berm, David Walsh, who owned the parcel immediately south of the Gillespie property, constructed a berm along the property line between the Walsh property and the Swigert property. Walsh also constructed a berm projecting from the southeast corner of the Gillespie property onto Swigert's field, along with what he described as a 15-foot-long funnel. Swigert testified that at that time, a berm did not exist behind the Gillespie house.

¶ 11 A 50-foot-wide drainage easement runs between the Walsh and Gillespie properties. Swigert stated that the drainage ditch provides some drainage from his property, depending on the amount of rain the area receives. The ditch runs into two pipes under an adjoining road that drains into another ditch on the other side of the road.

ΒΆ 12 Matthew J. Gillespie testified that in October 2008 he built a berm between his property and the Swigerts' to stop the flow of water from the Swigert property from damaging more of his home. Gillespie said that the berm effectively directed the water toward the ditch between his property and the Walsh property, and since building the berm, he has not experienced as much water in his crawl space. Gillespie testified that when he moved into his property in 2004, a small berm ran behind both his property and the Burns property. Gillespie added dirt to fill in the low spots of the berm. A berm also ...


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