*1 affirmed In view the circuit court is judgment of the foregoing, in all court held of that wherein the respects exception part the notice timely estopped of rescission and that plaintiff 9,300 rescind the Crystal-Doyle Gamma shares of stock involved determination, transfer. The cause is reversed and remanded for a herein, accordance with time expressed plaintiff the views when acquired and, if for re- knowledge voidability, of the sales’ necessary, and interest computation principal judgment amount plaintiff’s thereon, estopped accordance with was not holding plaintiff our 9,300 to rescind that shares of Gamma stock which portion purchased before July
Affirmed part; reversed and remanded in part. LEIGHTON,
McNAMARA and concur. JJ., Company v. Citizens Utilities Plaintiff-Appellee, Defendant- of Greater Appellant.
(No. First District (2nd Division) December DOWNING, J., concurring. specially *2 Foran, Schultz, (Robert
Allen S. Lavin Chicago and and both of Wiss E. Wiss and for Casey, counsel), appellant. James J. Karon, Kluchin, Chi-
Sheldon A. Robert M. all of Joseph Spitalli, and Koven, cago for (Friedman counsel), appellee.
Mr. LEIGHTON delivered the of the court: opinion JUSTICE This appeal arises from a Utilities suit Citizens Company owned privately utility, District against Metropolitan Sanitary recover, constitution, of Greater to a Chicago under the for damage sewage treatment The material are not in plant.1 facts dispute. 18,1962, District,
On December Sanitary acting statutory its and its powers lawfully exercising authority, construction of an completed interceptor sewer near the of Hoffman County, Estates Cook completion Illinois. This anticipated was all concerned because District had jurisdiction of the area which was situated. It village notified immediately all officials involved and directed that sewer lines from Hoffman Estates be connected with the Ten interceptor. later the days made, on, connection was and from then all from sewage was village into the system. diverted District’s sewage disposal time, that Until fact from sewage service had been utility constructed, furnished to village by was and plant that $486,756. on two occasions at a improved, total cost of plant operated certificates convenience and issued necessity Illinois Commerce In 1960 certificate, Commission. its the Commission that the required obtain from the plant Sanitary District such permits as law. may required by on Accordingly, 1961, the District January reviewed and and then plans specifications issued the permit under which plant operating when the sewer interceptor completed. elaborating the terms of permission, its District told owners that opinion, plaintiff Company, below, 1In the balance of this ap Citizens Utilities pellee court, Metropolitan Sanitary in this will to as be referred Citizens. District óf below, appellant court, Greater defendant in this will be referred to as Sanitary District, may require. District or as the context facility plant sewage was to operate temporary until stated was to remain force permit facilities were available. con-
When these become lines village did available sewer sewer, nected with having District’s no interceptor plant, value treat, village entirely, totally ceased operations depreciated Indeed, became useless. the cost of exceeded salvaging $17,000. fact, value Because although part of this no their property District, was taken or touched owners of the physically however, District, them demanded that District for loss. compensate their refused, was under no moral or saying legal obligation pay owners compensation. refusal, Citizens, a
Following company acquired ownership interceptor after the suit rights sewer was filed completed, $520,000 alleging that it was entitled to recover from District the sum of just compensation became allegedly useless of District’s construction of the result sewer and of sewer lines from the Village of Estates. For its theory II, Citizens relied article section Illinois constitu- ** 1870,2 on section 19 of tion “An Act create sanitary district on the fifth and fourteenth amendments to Federal constitu- *3 tion.4 District answered the appeared, denied complaint, the material allegations and affirmative interposed defenses. In later pretrial proceed- tire trial court entered an ings, order which found there that no factual was the issue of District’s if dispute concerning liability, any; dispute the the involved a of parties question between law. it agreed was 2 II, 13 of article of substance section the Illinois constitution 1870 of is paragraph provides “[plrivate in a property now revised condensed that shall damaged public just compensation by for without provided not be taken or use as by compensation jury provided by Such shall law. be determined law.” Ill. (1970), 1, 15. art. § Const. 3 "Every sanitary damages district shall liable for all to real estate within or * * * by damaged without such district shall be reason the of con 888 traction, enlargement improvement or use of provisions under the * * 1961, 42, par. *.” Ill. ch. of act Rev. Stat. this to The 5th amendment the United States only Constitution is a limitation on (Corrigan powers government. Buckley 323, of (1926), the Federal 271 U.S. 46 S.Ct. L.Ed. Constitutional (1956).) Law 69 More C.J.S. § over, guarantee “private our State that property constitution shall not be public just compensation” greater or for use without taken is than by City (1942), 5th amendment. Donaldson v. secured Bismarck of resolving dispositive N.D. N.W.2d issue in appeal, discuss we will on the State statutory provisions constitutional involved. summary judgment. for cross-motions would file District Citizens and respective arguing of law thereafter, memoranda done, and This was motions took the The court submitted. litigants of the positions and granted filed by denied the one and then consideration was damages of ruling, question Citizens. After this by one filed of Citizens. $385,000in favor of a verdict that returned by jury heard the case brings District now the verdict. entered on Judgment whether is issue presented The dispositive this court for our review. thus summary judgment, for Citizens’ motion in granting trial court erred plant, the loss of the holding Illinois II, section of the under article suffered damages compensable sanitary “An Act to create or under section 19 Constitution of 1870 * * ** Stat, par. 339). Rev. districts (Ill. belonging before that no property the record us It is clear from it was to others taken adjacent or owners of of the constitu meaning within Taking private property District. of a the ascertain fifing petition, accomplished only tion can be rel. ex just compensation. (People and the payment ment of value 600, 111 I.L.P. City 414 Ill. N.E.2d Chicago, Gutknecht v. And, Domain it is also clear that there was no Eminent §42 obstruction of Citizens’ District. intrusion or District’s construction of a an public improvement, happened What sewer, later connected to sewer fines from the that was Estates, from Citizens’ thereby diverting sewage treat useless because it no plant becoming longer ment followed plant, the village. could serve then, whether this damage is question, private property constitutional meaning guarantee
for use of the construction of an improvement reason within the damage 19 of the district act. The sanitary answer to this of section meaning our necessarily meaning courts have depends given to damage applicable as it appears provision concept section of pertinent and in the drainage constitution code. 102 Ill. Rigney v. owner invoked II, 13, of the Illinois constitution of 1870 and sued section the city article allegedly he sustained a result of damages con city’s of Chicago *4 some distance from his property. viaduct As in struction the case of'.a any nor was there us, taking, physical there was no intrusion upon before However, the owner that the viaduct cut proved his land the land. from city’s with main thoroughfares, all communication one to and one. had The owner’s he had access. evidence prior which established rentals obstruction, monthly of this of his property result reduced value deteriorated two-thirds. Despite showing, court; the owner was denied in the trial court recovery appellate affirmed. He appealed to court and supreme presented tire issue he “or required damaged” construction of words provision constitution Illinois of 1870 which guaranteed that “[p]rivate property shall not be or taken damaged for without public just use compensation.” 1870, 11, (Emphasis Ill. Const. supplied.) art. 13.§ After reviewing and decisional history law this and jurisdic other tions, the court damage concluded that under the 1870 constitution did not in require, every of actual proof or appropriation physical injury to an owner’s property. the court reversed the denials of relief so, to the owner. In it concluded doing that “damaged” any meant direct physical disturbance of a either right, public private, an owner enjoys connection with his property; right gives value; an additional is right which disturbed in a way inflicts with special damage respect excess that sustained added, The court generally. was the “[I]t intention of the framers constitution present require to be compensation made where, legislative enactment, all cases but some an action would lie common Ill. 64 at 81. law.” definition stood unchanged
This
has
and unmodified since Rigney wa
decided. It
been
approved by
highest
has
court of this country. (See
161,
City Chicago
125 U.S.
Taylor (1888),
31 L.Ed.
S.Ct.
&
D.M.
Co. v. Missouri
Ry.
Osborne
(1893), 147 U.S.
Pacific
155, 13
L.Ed.
S.Ct.
It has influenced
development of American law.
Place,
Honolulu v.
Market
Ltd.
County
(Hawaii 1973),
Statutory
517 P.2d
Van
Modification
Alstyne,
of Inverse Condemna
Scope
Power,
Legislative
tion:
Stan. L.
771-72 (1967);
Rev.
Nichols
Eminent
Act
create
on Eminent Domain
Domain
sanitary
§
districts
§
* * *”
6.441
And,
[3]
(Ill.
(rev.
Rev.
3d ed.);
Stat.
to section
Am.
19 of
Jur.
par.
“An
2d
to believe the legislature
there is no reason
intended the
339),
word
meaning.
to have
other
principal legislative
“damaged”
puipose
statute,
decision,
in the enactment of this
which occurred after the Rigney
afford litigants
right
to' creat a venue and
to bring
their action in:
real estate is
counties where
situated as
as in
well
Co.,
where the
district is located.
v. S.
sanitary
Kosicki
A.
county
Healy
380 Ill.
sions means some disturbance of a owners of with their one property, enjoyed value, which, disturbed, additional when would cause gave
257 by generally in that public excess of sustained special damage v. City Otis Elevator (See an action the common law. give rise to defined, thus 419, 424, Damage, 263 Ill. 105 as 338.) N.E. Chicago, of authority. (Compare actionable, statutory had be but for to District’s 486; Talbott, see 152 N.E. Light Power v. 321 Ill. Corp. Illinois meaning of 2A This 3ded.).) Nichols on Eminent Domain (rev. 6.41[1] § course, to to or of has damage, rights application with their treatment enjoyed owners plant. constitution, a of is word meaning of our “Property,” within capable of and interest general every right to import applies specie a money of and on it to base being enjoyed practicable such is 393 Ill. v. Lodge, City Chicago, value. Father Basils Inc. of Co., 805; 234 65 v. City County Turnpike N.E.2d Belleville St. Clair of Ill. N.E. 11 Constitutional Law “The 84 I.L.P. §461 also, in strict legal term but comprehends only thing not possessed, a thing; means the the owner in relation land or rights of to parlance, use, it, and the dispose of a to of right person possess, enjoy, 2d right to exclude from the use.” Am. others corresponding (26 Jur. Knox, v. Domain see Drainage Eminent Commissioners (1966); § Emmerson, v. 298 Ill. 86 N.E. Transcontinental Oil Co. Ill. N.E. these constitu 645.) recognition rights It is of that our tion from use without prohibits private property being damaged public and thus secured the owners of the treat just compensation sewage to enjoyment ment undisturbed their right property. to use and of plant 172, 176, See Ill. Kane v. 64 N.E.2d City Chicago, of Now, what of the treatment property right plant owners is, that direct disturbance District in a subjected way rise to a cause of action the common law? Careful examina gave tion the admitted discloses that the owner’s question, of facts without res, itself, is, treatment to the was not disturbed right plant in connection completion with of Res, 102 Ill. at Rigney City Chicago, sewer. (See C.J.S. 549, 554-55, Horn v. compare (1952); District, way, Nor disturb the of the right N.E.2d did use, enjoy, treatment owners to exclude others plant possess, dispose or their it that no using property. appears right which owners to their plant enjoyed disturbed occurrence, gave the one that this by the District. rise to con directions, jurisdiction, was District’s exercise its lawful troversy, that sewer statutory right give, as it had lines sewer, completed interceptor Estates connected with the the treatment to which it village and loss to would have continued furnishing sewage service.
we reach is whether the consequential interruption plant’s treatment service to the owners village damaged right undisturbed judgment, use of their In our enjoyment property. did not. We are convinced that such a constitu- theory compensable tional damage cannot be fashioned that underlies by refining concept undisturbed use enjoyment of property. question was owned privately utility operating a certificate of convenience and issued necessity Illinois state, Commerce Commission. certificate of public “[n]o convenience and necessity shall be construed granting monopoly *6 an exclusive immunity or franchise.” Rev. privilege, (Ill. Stat. 111 n , par. Moreover, 56.) under which op certificate was plant when erating District’s sewer its interceptor completed required was “* * * owners to permit secure or permits such the Metropolitan * * Sanitary District of Greater Chicago required by be law may In requirement, with this compliance plant owners of the submitted plans specifications and for a applied permit which permit. issued allowed a plant operate sewage treatment temporary with a told facility provision which the owners that 11Permits for “[a] * ** temporary sewage treatment be facilities will force until only it is Engineer determined Chief of The Metropolitan Sanitary District that Sanitary District facilities sewerage are avail determine, able. When the Chief shall Engineer so the Permittee agrees to abandon of operations treatment temporary sewage and make plant a direct indirect connection to a Metropolitan Sanitary District sewer not was tire age facility.” under a existing non franchise, it under a operating exclusive was temporary permit its whenever the chief engineer terms revocable of tire District deter sewage mined District’s own facilities were available. a or permit
Termination of franchise terms is revocable not the owner of that is deprive property does constitutionally compensa Boston Elevated Co. v. Ry. ble. Commonwealth 310 (1942), Mass. 87; 528, 39 United Co. v. Light N.E.2d Electric Deliso Construction Co. 553; Acton 315 Mass. N.E.2d v. compare United (1943), States 896; 1968), F.2d Transportation Cir. Greater (9th Wilmington Author 819; A.2d ity (Del. 1971), v. Kline Hendricks County Rural Electric v. Public Service Co. Membership Corp. (Ind. App. 1971), 276 N.E.2d For like the of example, municipality a 852.) Estates in competition with operates that constructs an utility existing one obligation depreciation no constitutional for pay has of value affected. Greater (Compare Tangipahoa Utility Co. v. City 510, writ denied (1972), Hammond 255 So. 2d App. 1971), (La. of Water (1953), v. Polar Tucson 2d La. So. of domain, where eminent taking in a Ariz. 259 P.2d Even 561.) busi of loss compensation, of value must determined for purpose not are value deterioration in ness profits consequential Dresel, 110 v. R.R. Co. Chicago Evanston elements of damage. (See Diel, Ill. 6- Buildings Works Public compare Department some fact, proof absent 130, 232 N.E.2d App.2d with in connection they right direct disturbance of enjoyed at sue owners could there was no whom their one property, consequence law to for the loss common recover with of Hoffman Estates from the Village sewer lines reasons, we conclude sewer. For these the completed no the owners to or in their sewage not liable District was District; consequence, and as a Sanitary motion Citizens’ granting trial court erred in Citizens. with loss of holding summary judgment damages compensable Citizens suffered plant, II, or under section article section 13 the Illinois Constitution of 1870 * * to create districts we reverse Accordingly, of “An Act sanitary the issues reaching and without summary judgment, grant $385,000 we Citizens’ proof damages, judgment reversed concerning based on the order entered in this court judgment verdict. We jury’s **5 favor of the District.* Sanitary Reversed, here for the judgment District.
HAYES, concurs. J.,P. DOWNING,
Mr. concurring: specially JUSTICE I concur with both result and set forth in the reasoning court, Based on the record I there majority opinion. before believe additional are facts the decision this court. support Since the sanitary sewerage system, which included the lines, treatment and collector was owned and operated Suburban Utilities In 1956 (hereinafter Suburban). Citizens and purchased, date, since owned the stock of Suburban. 1962, 11,
On filed in the Circuit May Village Court of Cook County 5 Supreme provides appeals reviewing “[i]n Court Rule all court discretion, just: may, in its and on such terms as deems ft e ft give (5) any judgment ought and make order given to have been * * par. 1973, 110A, (a)(5). made Ill. Rev. Stat. ch.
an eminent domain action to includ acquire sewerage entire system, ing named, the real estate involved in litigation. the instant This action among others, Citizens and to commencing Suburban as defendants.1 Prior 25, the eminent domain litigation, Village on April authorized 1962 by the Illinois Commerce Commission to the action against institute a certificated 47, 1 et public utility. (See Ill. Rev. Stat. par. to, Citizens filed seq.) traverse and a motion to said eminent dismiss domain petition challenging, reasons, legal for various sufficiency said On petition. December 1962 the circuit court denied the motion and dismiss traverse. 18, 1962, On December Village served notice upon and Suburban of the of its availability interceptor sewerage system. Thereafter, December the local collector lines sewer Village connected to the Metropolitan interceptor service at the treatment plant terminated. The record further that on discloses 29,1962, the December subject site was the quit-claim deed F S from Suburban to & Construction original Co.—the subdivider the deed developer; was recorded June 18, 1963, On October an agreement was reached between the Village Citizens, respect said eminent domain action for the sale system excluding sewerage subject site; $1,642,176.00.2 consideration was to be purchase consummated 7, 1964. January 17, 1964,
On January Citizens and the Village stipulated to an order the eminent domain dismissing stipulation, among action. other things, “* * * and all matters in said controversy been having satisfactorily settled and between the parties,” long it has been held that in eminent domain actions, title back
to real estate relates
to the time of
filing
petition
against
rights existing
condemn and
land at
that date are transferred
(See Chicago
of the award.
v. McCausland
part
(1942),
604-05, N.E.2d
I.L.P. Eminent Domain
As
§163
in the aforesaid
“It is
stated
also said that
law the
regarded
land is
taken at the time
being
petition
eminent domain is filed. [Cita
College
See also Board
District 504 v. Carey (1969),
tions.]”
Junior
3 Metropolitan press point appeal. did not People v. Allison Plaintiff-Appellee, State
Hoffman, Defendant-Appellant.
(No. First (2nd Division) December