Halpin v. SchultzHalpin v. Schultz
delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in
OPINION
Francis Halpin, Scott Halpin, and the estate of Merville T. Christensen (hereinafter referred to as plaintiffs) own certain farmland in Grundy County. At issue in this case is their right under the Illinois Drainage Code (
Background
Plaintiffs’ property was originally part of a single parcel, approximately 100 acres in size, belonging to the Christensen family. The original parcel extended from west to east along Rice Road, terminating on the east at Coster Road. In 1994, the Christensen family sold a 16.85-acre strip of the land where it abutted Coster Road. That strip was developed into a subdivision containing 16 residential lots. The subdivision has a separate water main system and a sanitary sewer system and is divided from north to south by Lake Street, which runs perpendicular to Coster Road, and Oak Street, which is also perpendicular to Coster Road.
After the subdivision was created, the Christensen family retained approximately 28 acres of their original parcel and sold the remaining 65 acres to the Halpins. The Halpins’ property is situated due west of the Christensen land, which is, in turn, due west of the new subdivision. All of these parcels are adjacent to but south of property owned by the Schultz family. Defendant Peter Schultz owns the property to the immediate north of the land owned by the Halpins and Christensen. Peter’s brother, James, owns land north of Peter’s.
The topography of the area is such that the land owned by the Halpins and Christensen has a higher elevation than the Schultzes’ land. Moving from southwest toward the northeast, the gradient declines from nearly 593 feet to between 586 and 587 feet where the Schultzes’ property begins. From there it further descends to an elevation of less than 584 feet. When it
Plaintiffs’ land contains drainage tile to facilitate this drainage. Aligned with the natural flow of surface water, the tile runs from the south toward the north or northeast. After the Christensens’ original 100-acre parcel was divided, the Christensens also constructed a duck pond on the land they retained. The pond was installed as part of a conservation reserve program administered by the United States Department of Agriculture. Designed with seepage tiles, the pond served to hold back water during heavy rains in order to protect lower landowners, including the Schultzes, from excessive flooding. It did not alter the general course of the natural drainage from the south to the northeast, but did decrease the volume of water which flowed over the property.
A small depression, or swale, previously ran in an east-to-west direction along the southern edge of Peter Schultz’s property near the northern border of the Christensen land. The swale, which was located entirely on Peter Schultz’s property, channeled a small amount of surface water eastward into a ditch along Coster Road, from where it would flow north. The swale was ultimately filled in and crops were planted there.
Just as drainage tile is located under the property owned by the plaintiffs, so too does drainage tile run beneath the Schultzes’ land. Work performed by a farm drainage contractor confirmed that a run of tile extends from plaintiffs’ property and continues across the Schultzes’ property in a north-northeast direction. Where, precisely, the tile terminates was never determined. While there are drain tile outlets at the northeast portion of the Schultzes’ land where it intersects a roadway, no tests were performed to confirm which, if any, of these is an exit point for the tile extending from plaintiffs’ land across the property owned by the Schultzes.
The drainage tile under the parties’ property is made of clay. It is 8 inches in diameter where it begins under plaintiffs’ land and increases to 10 inches in diameter under the Schultzes’ property. The point at which the tile transitions from one size to the other is unknown.
Clay drainage tile is susceptible to breakage and deterioration and must sometimes be repaired or replaced. Testimony presented at trial indicated that the tile under the parties’ properties was dug up and repaired numerous times. A farm drainage contractor who examined the existing tile was of the opinion that it should all be repaired using 12-inch corrugated plastic tile. The larger size would accommodate larger volumes of runoff. The change in material was dictated by the fact that clay tile is no longer manufactured. The contractor believed that plastic tile is also preferable because it is not subject to corrosion and tends to slow the movement of water. In the contractor’s view, a new 12-inch tile would not only properly address the drainage needs of the land owned by plaintiffs, but would also improve the drainage of the Schultzes’ land.
When Peter Schultz refused to permit plaintiffs to enter onto his property to undertake the repairs, plaintiffs initiated these proceedings in the circuit court of Grundy County. Plaintiffs’ complaint named as defendants both Peter and James Schultz. The complaint contained two counts. Count I sought a declaratory judgment that the natural flow of water from plaintiffs’ property is over and through the property owned by the Schultzes and that, pursuant to the Illinois Drainage Code (
James Schultz never answered or appeared to contest plaintiffs’ claims, and a default judgment was ultimately entered against him. Following various developments not relevant here, the case proceeded to trial against Peter Schultz alone. Peter, who elected to represent himself, testified on his own behalf. He denied that plaintiffs’ field tile connected with tile on his land and asserted that the natural flow of surface water across plaintiffs’ land is actually toward the east rather than toward the north. Peter challenged plaintiffs’ assertion that changes made on their property had not altered the natural flow of surface water. He claimed there were plans for additional development on plaintiffs’ land and complained that those plans would cause further change in the natural course of drainage, sending even more water northward onto his land.
In the course of his testimony, Peter expressed frustration and resentment with the way plaintiffs had addressed the drainage tile issue. He felt that in the course of inspecting the tile system, plaintiffs had damaged his field, his crops and the existing tile and had proceeded without giving him the notice to which he was entitled. He also argued that the repair work contemplated by plaintiffs would change the size and direction of the drainage tile in a manner not authorized by Illinois law.
Peter rested his case without presenting any further witnesses. During closing arguments, he stated that he wanted plaintiffs to run their tile eastward and stay off his land. He also reiterated his claim that no tile from plaintiffs’ land tied into tile on his property. Plaintiffs’ counsel responded that the evidence had clearly shown that the natural drainage was as plaintiffs had claimed and that they had met their burden of showing that they were entitled to enter onto the Schultzes’ property to repair the drainage tile. Plaintiffs’ counsel also asserted that because the repairs would benefit the Schultzes, they should be required to pay a proportionate share of the repair costs.
Following the trial, the circuit court entered a written order granting plaintiffs’ request for a declaratory judgment. In its order, the court specifically found, inter alia, (1) that the natural flow of water is from plaintiffs’ property over and through the property owned by the Schultzes, (2) that a clay tile field currently runs through plaintiffs’ property and connects to a clay tile field under the Schultzes’ property as plaintiffs contended, (3) that the existing clay tile is old and in need of repair, (4) that the deficiencies in the clay tile were not caused by the inspections undertaken in connection with this litigation, (5) that the repairs could utilize the 12-inch corrugated plastic tile recommended by the field drainage expert who testified at trial, and (6) that pursuant to section 2 — 6 of the Illinois Drainage Code (
Following entry of the foregoing order, plaintiffs moved to reconsider. The basis for their motion was that the court had not addressed their request that the Schultzes
Peter, continuing to represent himself, appealed to the appellate court. As grounds for his appeal, Peter argued that, contrary to the circuit court’s finding, the tile under plaintiffs’ property had never been connected to his tile system and that plaintiffs were responsible for altering the natural flow of surface water. Peter further argued, among other things, that plaintiffs had made the drainage situation worse, had impermissibly increased the natural flow of water onto his land, and had entered his property without permission or court authorization to examine the tile system.
The appellate court vacated the circuit court’s order in a written opinion.
“First, whether the Code provides the authority for a property owner, situated on higher ground, to compel an adjoining agricultural land owner to allow the entry onto his land for use of his privately owned, covered drainage tiles against his wishes, for the private benefit of the upper property owner. Second, whether the circuit court’s order complied with the dictates of the Code in this case.”382 Ill. App. 3d at 177 .
The appellate court answered the first question in the affirmative, and that issue is no longer in dispute. The point of contention in this proceeding is the court’s resolution of the second question. The appellate court determined that the circuit court’s order was fatally defective because (1) “[i]t does not appear a statutory bond was ever considered to insure defendant would be paid for damages to his disturbed fields [as required by section 2 — 3 of the Code (
In seeking leave to appeal to our court, plaintiffs complained that statutory deficiencies claimed by the appellate court were never raised by Peter himself. Plaintiffs asserted that by relying on those points, which should have been deemed forfeited, the appellate court went beyond its proper function as a court of review and impermissibly assumed the role of advocate for Peter. Plaintiffs also argued, in the alternative, that the appellate court usurped the role of the circuit court “in such aspects as judging the credibility of the witnesses, evidence, testimony and arguments.”
We agree with plaintiffs that the appellate court’s judgment is fatally flawed, but for a different reason. We have reviewed the appellate court briefs in this case, and it is true that the grounds invoked by the appellate court when ruling for Peter were not raised by Peter himself.
There is no indication in the record before us that the appellate court improperly assumed the role of advocate for Peter. Our assumption is that in proceeding as it did, the appellate court merely sought to insure that the precepts of
Under the Illinois Drainage Code, if plaintiffs originally paid for construction of the tile system, or are suecessors in title to the persons who did, they have a statutory duty to keep the drainage tile in good repair.
In claiming that the tile system on his property was not part of the same drainage system serving plaintiffs’ land, Peter was arguing, in effect, that this was not merely a repair case but involved a new extension which would be subject to
Where, as here, a case involves repairs to rather than extensions of a tile system, a landowner may attempt to assert that consideration of the factors which justified initial extension of the drainage tile system across the subject property remains appropriate because topographic or other changes have affected the need for
Peter has expressed understandable concern that the tile work contemplated by plaintiffs will damage his fields and the existing tile. He need not fear. In a repair case involving the land of another, the plaintiff is liable, by statute, for the actual damages caused by the repair work.
For the foregoing reasons, the judgment of the appellate court is reversed. The judgment of the circuit court is affirmed.
Appellate court judgment reversed; circuit court judgment affirmed.
Notes
Plaintiffs have not pursued the issue of whether the Schultzes should be required to pay a portion of the repair costs, and that aspect of their claim is not before us.