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Victor Township Drainage Dist. 1 v. Lundeen Family Farm P'ship

Court of Appeals of Illinois, Second District

September 29, 2014

VICTOR TOWNSHIP DRAINAGE DISTRICT 1, Plaintiff-Appellee,
v.
LUNDEEN FAMILY FARM PARTNERSHIP, LINDA S. JOHNSON, CYNTHIA J. LUNDEEN, DEAN A. LUNDEEN, GERALD L. LUNDEEN, MARGARET E. PERRY, and DONNA A. SHAW, Defendants-Appellants

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Appeal from the Circuit Court of De Kalb County. No. 11-CH-543. Honorable John F. McAdams, Judge, Presiding.

SYLLABUS

The trial court properly granted an injunction ordering defendants to disconnect a drain tile they installed on their farmland and then connected to plaintiff's neighboring drainage district and cap off the tile at least 100 feet east of the connection after allowing representatives of plaintiff district to inspect the disconnection, since the trial court did not err in failing to apply either the good-husbandry rule, which permits the owner of dominant land to alter the flow of water onto a servient estate if such action is required for proper husbandry of the dominant estate, or the civil law rule followed in Illinois, which allows water to naturally flow from higher land to lower land, especially when defendants' land did not naturally drain into plaintiff district, but, rather, the water on defendants' land either naturally flowed away from plaintiff's district or pooled on defendants' land and defendants' drain tile diverted the water to plaintiff's district; furthermore, defendants failed to establish that plaintiff was estopped from asserting any right to injunctive relief, the trial court properly found that plaintiff established irreparable harm, and defendants' objection to the requirement that plaintiff's representatives be allowed to inspect the removal of the last 100 feet of defendants' tile and the installation of a cap was rejected.

Daniel J. Kramer, of Law Offices of Daniel J. Kramer, of Yorkville, for appellants.

John W. Countryman, of Foster & Buick Law Group, LLC, of Sycamore, for appellee.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

SCHOSTOK, JUSTICE.

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[¶1] On August 28, 2013, the trial court entered an order granting injunctive relief to the plaintiff, Victor Township Drainage District 1, against the defendants, Lundeen Family Farm Partnership, Linda S. Johnson, Cynthia J. Lundeen, Dean A. Lundeen, Gerald L. Lundeen, Margaret E. Perry, and Donna A. Shaw. The trial court directed the defendants to disconnect a drain tile on their property that they had connected to the plaintiff's drainage district and cap it off at least 100 feet east of the connection. The trial court further ordered that, before the soil was replaced, the plaintiff or its representatives should be allowed to inspect the disconnection. The defendants appeal from that order. We affirm.

[¶2] BACKGROUND

[¶3] On September 30, 2011, the plaintiff filed suit against the defendants, seeking a temporary restraining order and a preliminary injunction. The plaintiff alleged that it was a drainage district established pursuant to the Illinois Drainage Code (Drainage Code) (70 ILCS 605/1-1 et seq. (West 2010)). The plaintiff further alleged that the defendants installed a drain tile on their property (the subject property), a 120-acre parcel east of Graham Road in De Kalb, and connected it to the plaintiff's facilities without the plaintiff's consent. Further, the subject property was outside the natural watershed of lands drained by the plaintiff's facilities. The plaintiff alleged that it was irreparably damaged and that there was no adequate remedy at law.

[¶4] A bench trial was held on April 5, 2012. There is no transcript of the proceedings in the record. However, the record includes the trial court's written order entered on May 10, 2012. In that order, the trial court (Judge Kurt Klein) acknowledged that the defendants should not have connected their drain tile to the plaintiff's system. However, the court further found that it would be unreasonable to require the defendants to disconnect, because the plaintiff had observed the installation over a period of time and failed to object. The court noted that no further connection would be permitted and that the defendants would be required to pay the impact costs of connecting to the plaintiff's facilities.

[¶5] On July 10, 2012, the plaintiff filed a motion to reconsider or for a new trial. In part, the plaintiff argued that a new trial was warranted because the trial court had applied an incorrect legal standard to the facts. Specifically, Illinois drainage law did not permit one to change the natural course of drainage and, further, it did not permit one watershed to drain into another watershed without prior approval.

[¶6] On September 24, 2012, following a hearing, the trial court entered a written order granting the plaintiff's motion and ordering a new trial. A complete report of proceedings is not included in the record. However, there is an excerpt from the hearing. In the excerpt, the trial court explained that it had hoped that the parties would see the reasonableness of its May 10 order, but acknowledged that they had not. The trial court stated:

" [The plaintiff's counsel] has a valid point with the third matter[,] misapplication of the law. I was trying to accomplish something that maybe I shouldn't have been trying to accomplish. Maybe it was a bridge too far, but apparently these fellows are not going to get along,

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so I'm going to vacate the proofs and give you another whack at it with another judge."

[¶7] On January 13, 2013, the plaintiff filed a two-count first amended complaint. Count I requested a mandatory injunction ordering the defendants to disconnect their drain tile from the plaintiff's drainage district and a permanent injunction barring any future connections by the defendants. Count II, which requested a declaratory judgment, was ultimately dismissed upon the plaintiff's motion.

[¶8] On February 19, 2013, the defendants filed an answer to the first amended complaint, alleging three affirmative defenses. The first affirmative defense was based on estoppel. In support, the defendants alleged that the subject drain tile installation occurred within the boundaries of Union Drainage District No. 4 (Union 4) and that Union 4 approved the work. Additionally, prior to commencement of the work, the plaintiff asked Dean to attend one of the plaintiff's meetings. At that meeting, Dean informed the plaintiff's commissioners of the drain tile installation and no one voiced any objections at that time or while the work was being completed. The defendants therefore argued that the plaintiff should be estopped from asserting any right to an injunction.

[¶9] The second affirmative defense was based on accord and satisfaction. The defendants argued that in 1976 the plaintiff and Union 4 entered a written agreement whereby Union 4 was allowed to outflow into the plaintiff's district and would pay for the cost of the use of the common drain between the two districts. The third affirmative defense was based on the good-husbandry rule. The defendants argued that the good-husbandry rule was an exception to the Illinois drainage law and allowed for the drain tile installation at issue, because it resulted in the reasonable agricultural use of the subject property.

[¶10] A bench trial commenced on March 26, 2013, with Judge John McAdams presiding. Dale Stockley testified that he was the plaintiff's attorney. Stockley was familiar with the subject property, which he described as the Lundeen property east of Graham Road. On September 6, 2011, Dean came to one of the plaintiff's meetings. Two of the plaintiff's commissioners were present. Dean requested that the subject property be annexed into the district. Eight days later, Stockley and the commissioners went to view the subject property and saw that it drained to the east. At that time he saw a backhoe on the property, but could not see for what it was being used. There was no discussion of a drain tile installation or approval for such work. Two days later, Stockley went back to Dean's farm and informed Dean that his request to annex was denied.

[¶11] David Burrows testified that he was a licensed civil engineer and was employed by the plaintiff in 2006 and 2007 to review boundary lines. Since the defendants had installed the subject drain tile, he had been out to view the property at the plaintiff's request. He was familiar with the plaintiff's boundaries, as depicted in plaintiff's exhibit No. 1. The exhibit was prepared under his supervision. There were some spot elevations done near roadways and culverts to determine which way things were draining. The property draining to the east drained to the Somonauk Creek watershed, and the property that drained to the west went to the plaintiff's watershed. (The record ...


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