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Kaskaskia Land Company, LLC v. Vandalia Levee and Drainage District

Court of Appeals of Illinois, Fifth District

September 5, 2019

KASKASKIA LAND COMPANY, LLC, Plaintiff-Appellant,
v.
THE VANDALIA LEVEE AND DRAINAGE DISTRICT, Defendant-Appellee.

          Appeal from the Circuit Court of Fayette County. No. 17-L-11 Honorable Kevin S. Parker, Judge, presiding.

          Attorney for Appellant Ronald E. Osman, Ronald E. Osman & Associates, Ltd.,

          Attorneys for Appellee Penni S. Livingston, Emily E. Scott, Scott & Fiello Schwartz, LLC

          JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Overstreet and Justice Moore concurred in the judgment and opinion.

          OPINION

          CHAPMAN, JUSTICE

         ¶ 1 The question in this appeal is whether a cause of action for inverse condemnation is cognizable when a quasi-governmental entity acquires a prescriptive flood easement over private property due to the inaction of previous landowners over a long period of time. In related litigation between the two parties to this appeal, this court held that the defendant, the Vandalia Levee and Drainage District (VLDD), acquired a prescriptive flood easement over an island in the Kaskaskia River, which includes property owned by the plaintiff, the Kaskaskia Land Company, LLC (KLC). The easement arose as a result of previous landowners' failure to maintain the island's levees over a lengthy period of time before KLC acquired any property on the island. KLC filed a petition for inverse condemnation, asserting that it was entitled to just compensation for the "taking" of an interest in its property. The trial court granted VLDD's motion to dismiss, holding that (1) KLC failed to file a counterclaim for inverse condemnation during the protracted litigation between these parties over the existence of the easement and (2) there is no cognizable claim for inverse condemnation based on a prescriptive easement that arose before the owner acquired an interest in the property. KLC appeals, arguing that both of the court's holdings were in error. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 This case comes to us after a long and complicated history of litigation involving the parties to this appeal as well as additional related parties. VLDD is a levee and drainage district. Levee and drainage districts are considered quasi-public entities. See Bradbury v. Vandalia Levee & Drainage District, 236 Ill. 36, 43 (1908). VLDD maintains a system of levees and drains that protect 12, 000 acres of farmland near the Kaskaskia River.

         ¶ 4 KLC owns land on Pecan Island, a small island in the middle of the Kaskaskia River. KLC acquired its interest in Pecan Island property from a business entity that was wholly owned and controlled by Fred Keck, one of the defendants in the original related litigation. KLC is owned and controlled by Patricia Emerick, the widow of Keck's friend and business associate, Tim Emerick. The transfer of Pecan Island property from a Keck-controlled entity to KLC took place while the original litigation involving that property was pending. At that time, KLC was owned and controlled by Tim Emerick and Keck's son, Jon Keck.

         ¶ 5 Until 1943, Pecan Island was at least partially protected from flooding by a system of levees. However, those levees were damaged in a 1943 flood, after which time, the Pecan Island Levee District was disbanded, and Pecan Island remained subject to regular flooding for a period of more than 40 years.

         ¶ 6 In 1988, Fred Keck began purchasing property on Pecan Island. Soon after he began purchasing the property, Keck began to repair the Pecan Island Levee District's nonfunctioning levees, raise the heights of those levees, and build new levees. At some point, he also began to transfer his ownership interest in his Pecan Island property to various entities, most of which were owned and controlled by Fred and Jon Keck and Tim Emerick, including KLC.

         ¶ 7 In 2008, VLDD filed a lawsuit against Fred Keck and Parish Holdings, LP. (We note parenthetically that although Keck did have an interest in Parish Holdings, it was the one entity involved in the underlying litigation that was not fully owned and controlled by either the Kecks or Tim Emerick.) However, as the litigation proceeded, additional entities were added as defendants when it was discovered that Keck had transferred interest in his Pecan Island property to those entities.

         ¶ 8 VLDD alleged in its complaint that Keck's levees raised flood heights upstream from Pecan Island, thereby damaging VLDD's levees. VLDD requested damages and injunctive relief on the basis of three theories. It asserted that the Pecan Island levees (1) constituted a nuisance, (2) violated a prescriptive easement, and (3) violated the civil law of drainage. The trial court explicitly found that before Fred Keck began rebuilding the Pecan Island levees, the island was subject to "regular if not annual flooding." However, it found that none of VLDD's theories were supported by applicable law, and it further found that VLDD failed to prove that the Keck levees caused the damage to its levees. The court therefore entered judgment for Keck and the other defendants.

         ¶ 9 This court reversed that ruling. We found that VLDD demonstrated both that it had acquired a prescriptive flood easement over Pecan Island and that the defendants' conduct constituted a nuisance. We also found that VLDD ...


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