Appeal from Circuit Court of McLean County No. 11MR245 Honorable Paul G. Lawrence, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Carla Bender 4th District Appellate
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Knecht concurred in the judgment and opinion.
¶ 1 The plaintiffs in this case are Pleasant Hill Cemetery Association (Association) and Keith Smith. The Association owns some farmland, which Smith, as a tenant farmer, rents from the Association. The defendant is Timothy Morefield, the highway commissioner of Arrowsmith Township. Plaintiffs brought this case against Morefield for allegedly altering the surface flow of water, and thereby damaging the farmland, by some work he did on 3200 East Road in Arrowsmith Township.
¶ 2 Invoking the immunity in section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201 (West 2010)), defendant moved to dismiss the amended complaint as "barred by *** affirmative matter avoiding the legal effect of or defeating the claim"-the "affirmative matter" being, of course, the immunity (735 ILCS 5/2-619(a)(9) (West 2010)). The trial court granted defendant's motion, dismissing the amended complaint with prejudice. Plaintiffs appeal.
¶ 3 In their appellate briefs, plaintiffs offer no convincing rationale for holding the immunity in section 2-201 (745 ILCS 5/2-201 (West 2010)) to be inapplicable to the work that defendant did, as road commissioner, on 3200 East Road. Therefore, we affirm the trial court's judgment.
¶ 5 The amended complaint has two counts, both of which allege that defendant violated the "Drainage Law" by making "unreasonable and material changes to the natural drainage patterns" on land that the Association owned and which Smith, as a tenant farmer, had been renting from the Association. Count I is the Association's action against defendant. Count II is Smith's action against defendant.
¶ 6 Both counts allege as follows. "In multiple phases during 2008 through 2010, the Defendant constructed a new farm drainage system, all related to and along 3200 East Road, which materially affects the farm real estate of the [Association], which is contiguous to 3200 East Road" and "immediately downstream from the changes."
¶ 7 Before defendant began the construction and also during the construction, the Association "informed the Defendant of the likely results of its alteration of water diversion, difficulty of cultivation to some parts of the [Association's] land as a result of water diversion, and the adverse effects of the concentration of water flow on other parts of [the land]." Both counts assert: "When making the changes [in the drainage system], the Defendant was willful and wanton because he knew changes would violate the common law and statutory obligation to maintain natural drainage patterns, and result in the alteration of natural drainage patterns ***."
¶ 8 In count I, the Association specifically describes the property damages it allegedly has incurred as a result of defendant's alteration of the natural drainage patterns. For this property damage, the Association seeks compensation in an amount in excess of $50,000. Count I alleges:
"9. The changes created by the Defendant in the natural drainage pattern created the following adverse conditions for the [Association's] farm real estate, which have damaged the Plaintiff:
(a) a reduction in tillable acres,
(b) a reduction in the productivity due to the need to delay planting,
(d) a need to replace existing drainage tile which will become uncovered as a result of erosion, and
(e) a need to install additional drainage tile to remove the additional volume of water flowing onto the premises, which does not drain away since the additional inflow was not placed into an existing drainage pattern, which collectively has reduced the value of the [Association's] farm real estate by an amount in excess of $50,000.00, which damage the [Association] is seeking herein.
10. Plaintiff's use and enjoyment of his affected land has been unreasonably and substantially invaded, creating a confiscatory effect.
11. The changes described *** above proximately caused the damage Plaintiff has suffered."
¶ 9 Likewise, in count II, Smith alleges:
"9. The changes created by the Defendant in the natural drainage pattern caused the following adverse conditions for the [Association's] farm real estate, which ...