No. 3--06--0767
Filed April 23, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
FRANCIS HALPIN, SCOTT HALPIN, and ) Appeal from the Circuit Court
THE ESTATE OF MERVILLE T. ) of the 13th Judicial Circuit
CHRISTENSEN, By and Through its Executor, ) Grundy County, Illinois
Rodger Christensen, )
)
Plaintiffs-Appellees, )
) No. 05--MR--10
v. )
)
PETER SCHULTZ )
)
Defendant-Appellant )
)
)
(James Schultz, )
and Unknown Owners of Record, ) Honorable
) Robert C. Marsaglia
Defendants). ) Judge, Presiding
JUSTICE WRIGHT delivered the opinion of the court:
Defendant, Peter Schultz (hereinafter referred to as defendant), appeals from an order of
the Grundy County circuit court allowing plaintiffs, Francis Halpin, Scott Halpin, and the estate of
Merville T. Christensen, by and through its executor, Rodger Christensen, to “replace and
maintain” agricultural tile on defendant’s farmland without his permission. After carefully
reviewing the record, we vacate the circuit court’s order.
BACKGROUND
On April 26, 2005, plaintiffs filed a two-count complaint in the Grundy County circuit
court alleging that defendants prevented them from exercising their statutory right to drain water
through defendants’ land. In count I, plaintiffs requested the court to grant a declaratory
judgment “finding the natural flow of water from plaintiffs’ property is over and through the
property of the defendants,” and declaring plaintiffs possessed a continuous right to drain water
from their property through defendants’ property. In the same count, plaintiffs requested the
court to grant them the right of access to defendants’ land to replace and repair drainage tile.
Plaintiffs also requested an order prohibiting defendants’ interference with these “rights to
naturally drain said water, repair the tile or to replace the tile.” In count II, plaintiffs sought
monetary damages for any crop loss caused by defendants’ refusal to allow plaintiffs permission
to enter his land to repair or alter the drainage system.
The complaint named neighbors, James and Peter Schultz, and “Unknown Owners of
Record” as defendants. Peter Schultz (defendant) appeared personally and challenged the action
pro se. Defendant’s nephew, James or Jimmy Schultz, was served with summons and consented
to allow access to his 37 acres, which lie between Peter’s property and his brother James’s three
acres. Defendant’s brother James was not personally served or named in the court’s final order.1
Nephew James Schultz has not appealed.
Plaintiffs subsequently filed a motion for summary judgment, which the court
denied. Included in the order denying summary judgment, the trial judge allowed
plaintiffs to enter defendant’s property “for the purpose of determining topography and
1
The complaint does not reveal whether defendant’s brother was the intended defendant.
Regardless, neither James Schultz has joined this appeal.
2
find[ing] existing tiles.” The court ordered the inspection to occur no later than January
15, 2006, and required a prerequisite 24 hours’ notice to defendant before entry on his
property. The court specifically ordered plaintiffs to secure a liability insurance policy for
at least $1 million prior to entry.
Plaintiffs entered defendant’s property on two occasions. On January 14 or 15,
2006, Richard Wepprecht (Wepprecht), a farm drainage contractor, probed the property
to determine the presence and direction of defendant’s drainage tiles. On February 7,
2006, Wepprecht and his son returned to defendant’s land with a backhoe and truck. This
time, a marked squad car and uniformed officer stood by while Wepprecht used the back
hoe to remove between 14 and 42 inches of frozen cover soil in order to expose and
examine the condition of defendant’s drainage tiles. Wepprecht photographed the
excavation for future court proceedings.
The matter proceeded to trial on May 26, 2006. As a preliminary matter,
defendant requested that the court bar plaintiffs from introducing evidence gathered
during their second inspection and excavation of his property. In his opening remarks,
defendant informed the judge that plaintiffs gathered evidence from his property on
February 7, 2006, a date that was beyond the court’s January 15 deadline for plaintiffs to
enter defendants property, to locate the tile and measure elevations. Defendant also
advised the judge that the entry occurred without 24-hour notice to him and, therefore,
he was not present to witness the procedures. In response, the court advised defendant
that if he suffered any damage to his property, he would “need to bring an action. The
motion (to bar) will be denied.”
3
Plaintiffs opened their case by calling one of the plaintiffs, Rodger M. Christensen
(Rodger), the executor of the Merville T. Christensen estate, who testified to the history
of the land. He stated his 28-acre parcel was originally part of an approximately 100-acre
parcel previously owned by the Christensen family and annexed to the city of South
Wilmington in September of 1993. In 1994, the family sold a 16.85-acre strip of land,
which was developed into a 16-lot subdivision with all lots abutting Coster Road, with
plans to expand the subdivision to 80 lots. The subdivision had a separate water main
system, a sanitary sewer system, and was divided from north to south by Lake Street,
which runs perpendicular to Coster Road. The family retained approximately 28 acres
and constructed a two-acre pond on that property, and sold the other 65 acres on the
western side of their property to “the Halpin brothers.” Rodger described an instance in
1966 when he personally observed water from the entire 100-acre parcel draining to the
northeast over the Schultz brothers’ land and watched crop debris washing across the
land in that direction. Rodger testified that the original 100-acre parcel contained
drainage tile which he personally repaired on five or six occasions during the 1960s and
1970s. Rodger was not aware of any modifications to the property that altered the
natural flow of water from the time he made these observations in 1966.
Approximately two years before trial, Rodger spoke to defendant, Peter Schultz,
about a small east-west ditch or swale located along the south edge of defendant’s
property along Rodger’s north property line. During their discussion, defendant advised
Rodger that defendant planned to eliminate the ditch by turning it into cropland.
According to Rodger, he remembered that when the ditch existed, it “took” some
4
drainage water but “it wasn’t a high percentage.” After entering the swale, Rodger stated
the water traveled eastward into a ditch along Coster Road. After entering that ditch, the
runoff traveled to the north. Rodger agreed the swale was located entirely on defendant’s
property. Rodger also agreed his family constructed a pond on their remaining land,
complete with a duck blind, and that the Halpins dug a second duck blind on their 65
acres.
Rodger explained the purpose of the duck pond was to “hold back” water during
heavy rains to protect lower landowners from excessive flooding as part of a
conservation reserve program (CRP) administered by the United States Department of
Agriculture (USDA). Rodger further explained the pond was designed with seepage tiles
to help landowners to the north by “giving them less water.” Rodger stated the pond did
not alter the general course of natural drainage from the south to the northeast.
The plaintiffs’ second witness at trial was Guy Richard Christensen, unrelated to
the plaintiff, an engineer for Chamlin & Associates in Morris, Illinois. Guy testified that
he was present in defendant’s field when the elevation measurements and excavation
occurred. Wepprecht located tiles starting at a point near the boundary line between
defendant’s land and Christensen’s property toward the north-northeast through
defendant’s land, but he noted the actual discharge point for these drainage tiles was not
located. Guy explained he could not identify an exit point for the tile because, “It was
not determined by Mr. Wepprecht which – there’s several tiles that outlet at the ditch on
the northeast corner of the Schultzs’ property at that intersection of the roadway. It was
not determined which of those was the outlet tile for this existing tile that we shot
5
elevations of.”
The measurements of five elevations were from south to northeast, as follows:
585.77 feet, 585.12 feet, 584.73 feet, 584.15 feet, and 583.78 feet. Responding to
questions from the judge later in his testimony, Guy explained that the two-foot fall in
elevation on Peter’s and James Schultz’s property was sufficient to allow water to flow
nicely with respect to field tile drainage. He concluded that the tile on defendant’s land
was carrying water “to the northeast from the Christensen property across the respective
Schultz’ property,” and that the “natural flow of water” was to “the northeast.”
Plaintiff’s exhibit No. 7 is a survey map depicting the land and defendant’s field
tile described by Guy. On the map, notations marked certain locations with 8-inch tile
and others with 10-inch tile. The existing tile is shown proceeding north and slightly east
through defendant’s land, and then straight north through James Schultz’ land in the
Coster Road ditch. The diagram does not show a discharge point.
Exhibit 7 also displays an “alternate” location for a entirely new line of drainage
tile to be constructed across defendant’s land running directly to the north and
discharging on Main Road. The “alternate field tile location” discharges into an “existing
ditch” along Main Road.
The next witness to testify was Richard R. Wepprecht, a professional farm
drainage contractor with over 30 years of experience. Wepprecht testified that the first
time he was on defendant’s property, he located field tiles running from the Christensen
land northeast into defendant’s land, and then running northward through Peter’s and
James Schultz’ land. Wepprecht testified that he started his first probe and located field
6
tile at the northernmost point of exhibit No. 8 on James Schultz’s property. He worked
southward from there locating six locations where he located and performed a “dig” to
verify that a field tile was located there and to verify the condition and direction of the
tile. These were specifically identified in plaintiff’s exhibit No. 8. He used approximately
30 flags to mark the route of the tile.
On February 7, Wepprecht returned with a backhoe and performed some
excavation to visually inspect the buried tile and take photographs to prepare for trial.
He used a backhoe because the ground was frozen. The excavation occurred at six
different locations. According to Wepprecht, he dug down 42 inches and found a 10-
inch clay tile on James Schultz’ land with one inch of sediment and 3½ inches of water
inside at dig No.1, the dig closest to the northern end of the Schultz’ property border.
The water was running slowly toward the north at this point. Wepprecht agreed he
installed a new plastic corrugated tile at this location on February 7 because he broke the
existing clay tile with his digging. When asked why he did not follow the tile to its
discharge point on Coster Road, Wepprecht said, “[b]ecause I think we were supposed to
not get into that homeowner’s property down in their lawn.”
In Wepprecht’s professional opinion, the drainage tiles should all be replaced with
a larger 12-inch plastic corrugated tile. The reason for use of plastic tile was that clay tile
corrodes, is no longer manufactured, and, unlike smooth clay tile, creates friction that
slows the movement of water. Wepprecht opined that a 12-inch tile would properly
address the drainage needs of plaintiffs’ land and also improve the drainage of Peter’s and
James Schultz’ land.
7
The next witness was plaintiff Frances E. Halpin, Jr., who identified his land as
lying west of the Christensens’ land and south of defendant’s land. Following Halpin’s
testimony, plaintiffs moved to admit several exhibits. Defendant objected to Plaintiff’s
exhibits Nos. 3, 4, 5, 6, and 7, and nine photographs consisting of plaintiff’s exhibit No.
8, renewing his objection to the exhibits on grounds that the exhibits depicted information
gathered on February 7, beyond plaintiff’s court-ordered authorization to be present on
defendant’s land. The court allowed admission of these exhibits over defendant’s
objection.
Defendant was the next witness in the proceeding and testified that water on the
Christensen land always flowed eastward to the ditch along Coster Road, and then
northward through the ditch, prior to the construction of the subdivision. Defendant
opined that the natural flow of water on the farmland had changed since the development
of the subdivision and the CRP programs. He also testified that there was a divisional
line, where Lake Street intersected with the subdivision, where water flowed in a
northerly direction north of the line and a southerly direction south of that line.
According to defendant, plaintiffs’ field tiles never connected with tiles on his
land. He described a swale, created many years earlier between the Christensen and
Schultz properties, where Christensen’s field tiles deposited water and defendant’s
drainage tiles deposited water. The water ran eastward on the surface and discharged into
a ditch along Coster Road. Defendant noted plans for additional development on the
Christensen land and complained that those plans would cause further change in the
natural course of drainage, sending even more water northward onto his land instead of
8
eastward through the subdivision lawns and into the Coster Road ditch. Defendant
explained that there currently is an existing steel tile where this drainage to the east
exited.
Defendant described damage to his electrical cords and field that was caused by
the backhoe used on February 7, 2006. He emphasized that he was not afforded the 24-
hour notice of the inspection, or of any excavation, and he did not receive a copy of the
liability insurance policy the court ordered. Defendant stated the backhoe muddied up his
property and damaged the existing tiles. Later in the proceeding, he expressed concerns
that, if the court allowed Wepprecht to return to his farm with heavy equipment to
replace one line of tile, the weight of Wepprecht’s equipment would collapse other tiles
on his well-tiled farmland. He stressed that the clay tiles should be repaired by hand to
prevent further damage to the existing tiles. He described how 15 acres of his 2006
crops were adversely affected by flooding caused by the backhoe damage, and he was
worried about further damages resulting from ripping up all of the tiles and replacing
them with larger ones.
Defendant reminded the judge that plaintiffs wanted to change the size and
direction of the drainage tile which, he claimed, “the Illinois law – drainage law does not
even permit.” Defendant also testified that the tiles on his property “nowhere at all empty
into a ditch.” He stated his field tiles have no direct connection to the Halpin farm or the
Christensen property. He believed his tiles join with his nephew’s 37 acres to the north
and then travel into his brother’s 3 acres beyond his nephews land. He emphasized that
no one has examined his brother’s field.
9
Defendant also testified to prior conversations with his neighbors; stating Rodger
approached him one day, shook his hand, and apologized for a misunderstanding
regarding the grassy swale. According to defendant, Rodger told him the swale belonged
to defendant and he had the right to plow it up. Defendant also stated Frank Halpin
stopped by his property one day and told him “he was going to tie tiles onto my property.
There was no asking, no nothing. He was just telling me what he was going to do. I
basically told Mr. Halpin to leave my property.”
Defendant noted that on February 7, 2007, the Grundy County sheriff provided a
squad car with flashing lights to stand by on his property while the backhoe and truck
traveled on his land. Defendant stated that a deputy informed him that there was a court
order requiring him to allow the inspection of his land. When he asked to see the order,
the deputy refused.
The judge overruled a relevancy objection, stating the violation of a court order
was “relevant” because the order required 24-hour notice. The court stated, “As an
evidentiary matter, if you went out and dug and didn’t give him 24 hours notice so he
would have a right to be there to see what was going on, that’s a problem, but that’s a
different – that’s a credibility problem.”
Upon inquiry by the court, defendant explained the natural flow of the
Christensen’s water was northeastward across the Christensen land to the grassy swale,
east to the ditch, then breaking to the north and south at Lake Street. Again, in response
to the court’s question, defendant explained his farm is a well-tiled farm. He emphasized
that his tiles have never joined with the tiles on the property that belonged to the original
10
Christensen parcel.
Defendant acknowledged that he did not dig any holes to discover if plaintiffs’
land contained tiles running east to west. He stated he did not have the right to go on the
Christensen property. He did not dig down to discover if there was a tile joining
Halpin’s land by drainage tile to his own drainage system.
Regarding tiles that discharged water north of his land onto Main Road, he noted
those tiles might come from his brother’s farm. He had seen these tiles discharging
water, but he testified that he did not know whether the water discharged through any
tiles on either Coster Road or Main Road came “out of” his property.
Plaintiff’s counsel called Rodger Christensen in rebuttal. Rodger described that,
as part of the CRP program, the government compensated him for installing seepage tiles
and building the duck pond to slow water down. According to Rodger, the seepage tiles
were installed “entirely on our property. The seeping tile was placed so that it would go
into the pond. I did not change the flow. It was naturally there.” During cross-
examination by defendant, Rodger denied the backhoe was used to move a tile that
changed the direction of the natural flow from east to a pattern of water flow to the
northeast on to defendant’s land.
During closing arguments, the judge interrupted plaintiffs’ counsel and stated:
“Mr. Rigazio and Mr. Schultz, here I think is what we’re talking about, 605/2-5.
‘If on the trial of the case,’ which we’ve now completed, ‘it is found that the
proposed drain will be of ample capacity, will not materially damage the land of
the defendant,’ that’s Mr. Schultz, ‘and will empty into a) a natural water course,
11
b) the highway authority, or c) any other outlet which the plaintiff has the right to
use; then the finding or verdict shall be for the plaintiff, and the defendant shall be
allowed such actual damages only as will be sustained by entering upon the land
and construction of the drain thereof after keeping the same in repair.’ All right.
So what we’re talking about here is proposed drain will be of ample capacity, so
what we’re talking about now is eight ample capacity or do you have to have 12
to have ample capacity. And let’s just all emphasize that we’re not talking about
making ample capacity for any future subdivision. We all agree with that.”
Counsel for plaintiffs agreed.
During his own closing arguments, defendant said 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.
Rodger’s counsel responded that running a drainage tile to the east and avoiding
the Schultz farm was not possible because the land was not pitched enough to carry the
runoff to the drainage ditch to the north. Plaintiffs’ counsel, attorney Belt, addressed the
court, requesting that defendant be ordered to contribute to the cost of installation of the
new, corrugated 12-inch drainage tile.
At the conclusion of arguments, the judge entered an order granting plaintiffs’
request for a declaratory judgment. The order specifically stated:
“The natural flow of water is from Plaintiffs’ property over and through
defendants’ property. Plaintiffs may continue to drain in that direction and may go
onto defendants’ property to replace and maintain the tile in existence. Plaintiffs
12
may install the 12-inch tile testified to by Wepprecht, but must pay damages, if
any, in accordance with 605/2-6.”
Plaintiffs filed a motion to reconsider, noting that the judge failed to address their request
for an order compelling defendant to pay 66% of the replacement costs. They again
requested such an order. The judge subsequently ruled as follows: “Plaintiffs’ motion to
reconsider is granted. The relief sought therein is denied.” The instant appeal by
defendant followed.
ANALYSIS
This appeal involves two issues related to the application of the Illinois Drainage
Code (Code)(70 ILCS 605/2-1 et seq. (West 2004)). 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.
Defendant writes in his pro se brief submitted to this court, “The tiles were never
tied together.” As his contention of error, defendant concludes that plaintiffs should not
“be allowed to tie into my field tiles, since their field tiles never did.” Again, in his reply
brief he states, “Halpins’ could never prove a tie in or an exit of their field tiles.” Relying
on the Code, counsel for plaintiff responds by framing the issue for our consideration as
follows:
“Whether the court errored [sic] in giving Plaintiffs the right to enter onto
13
the property of Defendants for the purpose of erecting, replacing, or repairing
tile***in accordance with 70 ILCS 605/1-1 et al [sic].”
The construction of a statute involves a question of law and is subject to de novo
review. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228 (2007). To that end, we
have carefully examined the Drainage Code in its entirety, considered the issues defined
by plaintiff’s response to defendant’s appeal, and examined only those facts admitted by
defendant or introduced by the parties as evidence during the bench trial. The issues
considered herein are those matters directly related to the construction of the Drainage
Code, which plaintiff asserts provides his unconditional authority to construct drainage
tiles on his neighbor’s land without permission. We determine the trial judge improperly
usurped defendant’s right to refuse access to his private property by entering an order
without making the requisite findings required by the Code.
A landowner’s right to deny others permission to enter upon his land has been
historically protected as a constitutional right, with very few exceptions. People v. Sayer,
246 Ill. 382 (1910). Our supreme court eloquently described this principle by stating:
“[A]ny [A]ct that would authorize a trespass by a private person, for his own
purposes, upon lands owned by another, would be in conflict with the plainest
provisions of the Constitution and fundamental rights of property.” Sayer, 246
Ill. at 387.
The Illinois legislature has both recognized and protected the significant property rights
of agricultural landowners by the enactment of the Drainage Code. The Code balances
these important interests.
14
1. Use of Existing Drainage Tiles
Plaintiffs filed this action to compel his neighbor to allow plaintiffs access to
defendant’s land against defendant’s wishes. Plaintiffs hoped the court would order
defendant to allow plaintiffs to construct a larger covered field tile on defendant’s land
and then connect the larger tile with drainage tiles on plaintiffs’ properties to drain their
lands. Plaintiffs’ complaint directed the court to section 2-1 of the Code. Section 2–1
states:
“Land may be drained in the general course of natural drainage by either
open or covered drains. When such a drain is entirely upon the land of the owner
constructing the drain, he shall not be liable in damages therefor.” 70 ILCS
605/2-1 (West 2004).
However, plaintiffs’ proposed drainage was not contained entirely within their own
property. Contrary to the position taken by the dissent, the language of section 2-1 does
not create an inalienable right for dominant property owners to require their neighbors to
repair existing tiles or allow the construction of new covered drains across their lands for
the benefit of their dominant neighbors. The authority to extend a covered drain, the
relief sought by plaintiffs, from higher land to lower land, is found in section 2-2 of the
Code.
Section 2-2 of the Code, entitled “Extension of covered drain through land of
others” (70 ILCS 605/2– 2 (West 2004)), is determinative. No matter how slight the
decline in elevation, section 2-2 of the Code provides that a property owner situated
15
above his neighbor, when necessary, may compel the neighbor with subservient land to
accept water carried in a privately owned, covered drain from the higher ground to the
covered drains in the lower ground, all in the course of natural drainage.
The trial judge described the topography of the area where the Christensen and
Schultz farms were situated as so flat it resembled “a billiard table.” The Christensen
farm has an elevation change of approximately seven feet from the highest point to the
boundary line at defendant’s farm. Defendant’s farm has even less slope than his
neighbor’s. Defendant’s land has only a two-foot change in elevation.
Nonetheless, plaintiffs’ land is situated higher than defendant’s. Even assuming
arguendo, the court correctly found the course of natural drainage was from plaintiffs’
higher ground, over and through defendant’s land, as the dissent concludes, the Code sets
forth stringent requirements for additional findings that the circuit court ignored.
Plaintiffs would have us selectively ignore the plain language of portions of the
entire Drainage Code that protect the property rights of subservient land owners in order
to affirm the trial court’s decision. From the onset, plaintiffs ignored segments of the
Code, designed to protect defendant’s significant private property interests which were at
stake. It does not appear a statutory bond was ever considered to insure defendant
would be paid for damages to his disturbed fields. 70 ILCS 605/2-3 (West 2004).
Further, plaintiffs did not prepare or attach a map to the complaint, as required, showing
at least the proposed discharge outlet for the drainage water beyond defendant’s land. 70
ILCS 605/2-4 (West 2004). These omissions, pertaining to damages and the discharge
16
point, may have contributed to plaintiffs’ failure to provide the necessary evidence that
would have enabled the court to make the appropriate factual findings required by the
Code.
Additionally, the Code required the court to consider whether the proposed
covered drain was both necessary and would not materially damage the defendant’s land
and would empty into an acceptable discharge outlet. 70 ILCS 605/2-5 (West 2004).
Further, if the release point for the discharge of the water was proposed to be along a
public roadway, such as would occur in this case, the Code compelled the court to
determine whether plaintiffs had obtained permission from the “highway authorities” for
discharge. 70 ILCS 605/2-5 (West 2004). In essence, the Code requires, once the water
arrives by covered drain in the lower property owner’s tiles, that the covered drain must
carry the upper neighbor’s water to a discharge point beyond the lower property owner’s
fields.
Plaintiffs’ exhibit 7, the topography map created by plaintiffs’ engineer, Guy
Christensen, conclusively established the discharge point or outlet was unknown. The
exhibit includes this language,
“ DISCHARGE OF TILE WAS NOT LOCATED AND IS NOT SHOWN ON
THIS DRAWING.”
Plaintiffs’ expert witness, Richard Wepprecht, whom the court found very credible and
qualified, also testified that the outlet point for the tile had not been ascertained.
The trial judge seemed to recognize, but later ignored, this statutory requirement
17
to find that the proposed covered drain would have a finite discharge point, as
demonstrated by this exchange after the close of evidence and during closing arguments,
“MR.SCHULTZ: *** are they saying they’re going to exit off my
property
into the ditch? I have no drain tiles that exit off my property into the ditch.
THE COURT: No, and no one has said you do. I don’t think anyone
has testified to that. Mr. Belt?
MR.BELT [plaintiff’s counsel]: No, I don’t believe so, your Honor.
THE COURT: Okay. And that is – but you’re – I mean, but that is an
element they have to show. I agree.” (Emphasis added.)
The lack of a discharge point is a relevant consideration for our review since
plaintiffs have requested that we rely on the Code as a basis to affirm the trial court’s
decision. The Code requires that the extended drainage must carry the water in the
proposed covered tiles to a discharge point beyond the lower landowner’s fields.
Contrary to the trial court’s ruling, the Code does not allow a covered drain to be
constructed and extended to deposit stagnant water on a neighbor’s land.
Not a single witness testified to the location of an outlet point where plaintiffs’
water, carried in defendant’s existing, private covered drain, would be discharged beyond
defendant’s property at either Coster Road or Main Road. The testimony of plaintiffs’
expert witness, Wepprecht, established that a discharge point for the new proposed tile to
18
the northeast, after crossing defendant’s land, could not and had not been determined.
Citing Callahan v. Rickey, 93 Ill. App. 3d 916 (1981), the dissent characterizes
the trial judge’s ruling as a fair resolution of contradictory evidence within the province
of the trier of fact. We agree that the trial court was called upon to resolve the
discrepancies in the facts as to natural course of the water flow. However, regarding the
lack of a determination for a discharge point for the water naturally traveling across
defendant’s land, Wepprecht’s testimony was undisputed. There was not any
contradictory evidence regarding the discharge point for the trial judge to resolve. All
witnesses agree, the discharge point was not located. We emphasize after making a
factual determination of the natural course, the court was required to apply the Drainage
Code to the facts and make additional specific findings.
The trial court’s order did not find a discharge point or note the approval of the
discharge location by the highway authorities. The statute specifically states, if these
findings are not “so found,” then the “finding *** shall be for the defendant.” 70 ILCS
605/2-5 (West 2004). The language of the statute is unequivocal. Absent these findings,
the Code required the circuit court’s order “shall be for the defendant.” It was not and,
therein, lies the error.
Remand is unnecessary in this case. Not only did the circuit court fail to make
the requisite findings, a careful review of the record demonstrates the trial court would
not be able to make such findings, as required by the Code, based on the evidence in this
case. The absence of evidence offered by plaintiffs to prove that a proposed discharge
19
point existed beyond defendant’s land constitutes a critical factual omission requiring a
reversal of the trial court’s ruling.
2. Access for Repair or Construction
In this case, the court order reads, plaintiffs “may go onto defendants’ property to
replace and maintain the tile in existence.” The order as written did not allow for the
simple repair of a few old, broken, clay tiles. Here, plaintiffs’ exhibit No. 7 contained two
proposals for the extension of drainage tile across defendant’s land. Both proposals
required the construction of a completely new line of tile. The first proposal, directed
towards Coster Road, would tear out the existing 8-inch and 10-inch clay tiles to
facilitate the installation of a larger 12-inch tile. The second proposal would not involve
demolition of the old tile, but instead would create a new “alternate” route for discharge
directed towards Main Road, a line of drainage tile that does not currently exist on either
of the Schultz properties. We conclude the term “replace” as employed by the trial court
would allow for new construction.
During his testimony, and again in his reply brief, defendant expressed serious
concerns over the potential damage to his family farm. He stated the heavy equipment
would destroy most of his other clay tiles, would muddy up his land, and could reduce
future crop yields. In error, the judge’s order allows the construction to begin before
assessing defendant’s damages, contrary to section 2–6 of the Code. The installation of
12-inch tile at either the existing or the new location cannot begin under the authority of
the Code before damages are paid to defendant.
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The law does not favor the expropriation of private property for the public good
without just compensation. Even less attractive is the expropriation of private property
for the private benefit of an adjoining property owner. Yet this is precisely what the trial
court allowed. The court allowed plaintiffs the use of the defendant’s land for their
private benefit without any compensation for either the use or the damage occasioned by
access.
Much like the taking of private property rights for the public good under the
principles of eminent domain, the Drainage Code restricts plaintiffs’ access to defendant’s
land for the construction of extended drainage tiles until a point in time after damages and
costs have been addressed. The code allows access without permission only:
“after paying or depositing the damages awarded and paying the costs
taxed against him, [plaintiff] may thereupon enter the premises of the defendant
and construct the drain***” 70 ILCS 605/2-6 (West 2004)
Plaintiffs mistakenly construed the Code not only to compel access to their
neighbor’s land, but expected the court would require defendant to pay 66% of the cost
to construct the private covered drain that would be used for his neighbors’ benefit. The
court correctly denied this relief, repeatedly.
Here, the court’s order stops short of considering the damage obligation and
prematurely allows access beyond the dictates of section 2-6 of the Code. However,
more significant to the outcome of this appeal is the fact that the order did not include
requisite factual findings regarding a proper discharge point, and the evidence could not
21
support the minimum requirements of the Code on this issue.
The intrusion upon defendant’s private property rights should not be taken lightly
even though he appeared pro se. This court must insist on the strict compliance with the
Drainage Code before forcing one landowner to accept the unwelcome intrusions of
another and creating a perpetual easement on the land without compensation. The order
does not comply with the Drainage Code and must be set aside.
CONCLUSION
For the foregoing reasons, the judgment of the Grundy County circuit court is
reversed and the order vacated.
Reversed.
WRIGHT, J., with McDADE, PJ., concurring.
JUSTICE HOLDRIDGE, dissenting:
Plaintiffs’ land is situated to the south of Defendant’s land. On April 4, 2005,
counsel for Plaintiffs sent a letter to Defendant stating, in pertinent part:
“Pursuant to the Illinois Drainage Code ***, the Estate of Merville
Christensen and Frances Halpin are hereby seeking your permission to repair a
certain drain i.e. field tile, which is a field tile and drain for the mutual benefit of
the Christensen property, the Halpin property and your property. The Estate of
Merville Christensen and Frances Halpin are proposing to drain by way of field tile
the natural flow of water from their properties through your property and north
22
and exiting off of the James Schultz property, as has occurred for over the past
100 years.
Please note that the above referenced statute specifically allows them to
drain water without interference, interruption or obstruction by you. It is the
intent of the Estate of Merville Christensen and Frances Halpin to utilize this
statute in releasing of the natural flow of water from their property.
I have enclosed copies of plat maps marked as follows: ‘A’ the property of
the Estate of Merville Christensen, ‘B’ the Frances Halpin property, ‘C’ your
property and ‘D’ the James Schultz property.
By way of history, it is our belief and understanding that the tile has been in
place and the natural flow of water has existed in this fashion via existing field tile
for approximately 100 years. It is the intention of our clients to begin work
immediately on the repair and/or replacement of field tile so as to not lose this
year’s crop due to flooding. Please be aware that the field tile work proposed by
the Estate of Merville Christensen and Frances Halpin will, in all likelihood, benefit
your property and cause minimal inconvenience.
It is our purpose and intent of this correspondence, to obtain your
permission and perform the above work in an amicable (friendly) fashion without
the necessity of litigation. However, due to the impending planting season, time is
of the essence and we will need your response within 5 days of the service of this
document on you. In that regard, we ask that upon immediate receipt of this
23
correspondence, you contact the undersigned or, in the alternative, you have your
representative contact the undersigned.”
The letter then reiterated Plaintiffs’ desire to avoid litigation but explained that they
would file suit, as authorized by the Illinois Drainage Code (Code) (70 ILCS 605/1--1 et
seq. (2004)), if such action became necessary.
On April 26, 2005, Plaintiffs filed a two-count complaint in the Grundy County
circuit court alleging that Defendant had repeatedly prevented them from exercising their
statutory right to drain water through his land. In Count I, they sought a declaratory
judgment (1) “finding the natural flow of water from Plaintiffs’ property is over and
through the property of the Defendants,”2 (2) “granting the Plaintiffs *** a right to
continue to drain water from their property over the Defendants’ property,” and (3)
“grant[ing] the right to go onto Defendants’ property for the purpose of replacing and
repairing tile.” Plaintiffs also requested an order prohibiting Defendant “from interfering
with [their] abilities and rights to naturally drain said water, repair the tile or to replace
the tile on the Defendants’ property.” In Count II, they requested money damages for
2
In addition to Peter Schultz (Defendant), the complaint named James Schultz and
“Unknown Owners of Record” as defendants. Plaintiffs effected personal service on Peter and
James, and they published notice to the Unknown Owners. Peter was the only person who
appeared in court and challenged the action (pro se). James, whose land is situated north of
Peter’s land, was adjudged in default.
24
any crop loss stemming from Defendant’s actions. Also on April 26, 2005, Plaintiffs filed
a request to admit pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216).
Defendant filed a written answer admitting all paragraphs in Plaintiffs’ complaint
except the following three:
“8. [Count I] There does exist, on the belief of the Plaintiffs, certain
drainage or field tile which is believed to have existed for approximately 100 years
across Plaintiffs’ property and drains through the property of the Defendants. The
Plaintiffs have made various requests of the Defendants to allow Plaintiffs to repair
said tile for the natural drainage of water from their property.
***
12. [Count I] There will be no harm, nor injury to the Defendants if this
Court were to grant Plaintiffs the right to naturally drain the respective properties
over the property of the Defendants.
***
13. [Count II] The Plaintiffs further and in addition thereto, request certain
money damages in the amount of crop loss or damage suffered by the Plaintiffs for
the crop year of 2005, yet to be determined, and any future crop loss as a result of
the Defendants’ actions.”
Defendant filed a second answer denying the following paragraphs from Plaintiffs’
request to admit:
25
“3. The natural drainage of water from the property as contained in
Exhibit ‘C’ is to the North.
4. A field tile exists through the property contained in Exhibit ‘C’ and
drains water from the property contained in Exhibits ‘A’ and ‘B’.
5. The field tile as described above has existed for more than 50 years.
6. The natural drainage of water from the HALPIN property as described
in Exhibit ‘B’ and the CHRISTENSEN property as described in Exhibit ‘A’ is over
and through the property as described in Exhibit‘C’.
***
9. PETER SCHULTZ has prohibited FRANCES HALPIN and the
CHRISTENSENS from going onto his property for the purpose of replacing or
repair of field tile.
10. PETER SCHULTZ fails and refuses to repair or replace said field tile
which is the subject matter of this proceeding.
11. The field tile which is the subject matter of this proceeding carries the
natural flow of water from the HALPIN and CHRISTENSEN property over and
through the SCHULTZ property.
12. The refusal to allow HALPIN and CHRISTENSEN onto the
SCHULTZ property has caused excessive water on the HALPIN AND
CHRISTENSEN property.
26
13. The refusal to allow the drainage of the SCHULTZ property has
caused crop damage to the HALPIN and CHRISTENSEN property.”
Defendant filed these answers on July 25, 2005.
Plaintiffs subsequently filed a motion for summary judgment. Defendant
responded by averring that: he did not know if tiles existed as alleged by Plaintiffs; he
would allow such tiles to be repaired upon proof that they existed, but he would not
allow new tiles to be installed; he had left messages on Plaintiffs’ answering machines
advising them of such; the natural flow of water from Plaintiffs’ land was eastward and
had been blocked by a subdivision development, causing existing tiles to be filled with
dirt; and there was a question of fact regarding how long the alleged tiles had existed on
his land. Defendant said his land included both a building site and existing tiles that he
did not want damaged. He also did not want a drainage easement running through the
land because he planned to develop it in the future.
On November 4, 2005, the circuit court denied Plaintiffs’ motion for summary
judgment and instead granted them leave to enter Defendant’s property “for the purpose
of determining topography and find[ing] existing tiles.” Plaintiffs were ordered to give
Defendant at least 24 hours’ notice and secure a liability insurance policy for at least
$1,000,000. After Plaintiffs entered Defendant’s land and completed their inspection, the
matter proceeded to trial on May 26, 2006.
The first witness at trial, Roger M. Christensen (a plaintiff), testified that
Plaintiffs’ land was originally a 100-acre parcel owned by the Christensen family. In the
27
1990s, a strip on the eastern edge of the parcel was sold for a subdivision development,3
and later the westernmost 65 acres were sold to “the Halpin brothers.” Christensen
testified that prior to these transactions, his family had owned and farmed the 100-acre
parcel for as long as he could remember. He was 58 years old and had personally
participated in the farm work. The parcel was bordered on the south by Rice Road, on
the east by Coster Road, and on the north by Defendant’s land. Coster Road bordered
the eastern edge of Defendant’s land as well.
Christensen was familiar with the natural course of drainage for the entire 100-
acre parcel, stating that drainage was poor but flowed to the northeast. He described an
instance from 1966 where he personally observed the drainage for several hours after a
large storm dropped seven inches of rain. His observation occurred from ten or twelve
different spots (five or six along Rice Road and five or six along Coster Road), including
Defendant’s land and James Schultz’s land all the way up to where “several tile come up
on the northeast corner.” Christensen also got out into the field “a little bit.” He
observed that water from the entire 100-acre parcel was draining to the northeast over
Defendant and James Schultz’s land, as evidenced by crop debris being washed in that
direction. Christensen testified that since then, nothing had happened to the land to alter
the natural flow of water. This observation was consistent with a 1994 plat map showing
3
At the time of trial, this strip consisted of 16 independently-owned home sites located
along Coster Road.
28
that the southwest corner of the 100-acre parcel had an elevation of 593 feet while the
northeast corner had an elevation of 586 feet.
Christensen further testified that the 100-acre parcel contained drainage tile which
he personally repaired on five or six occasions during the 1960s and 1970s. This tile ran
toward the north-northeast. During four of his repairs, he had actually seen water
running inside the tile, and the water was flowing northward. Approximately two years
prior to trial, Christensen spoke with Defendant about the north-northeast flow of water
over their land. A small east-west ditch had been installed along the south edge of
Defendant’s property in the 1960s. Defendant told Christensen that he (Defendant)
planned to eliminate the ditch because he did not think it was necessary. By the time of
trial, the ditch had been “plowed under.” Christensen recalled that when the ditch
existed, it carried some drainage water eastward into another ditch running along Coster
Road, whereupon the water flowed northward.
On cross examination by Defendant, Christensen testified that his family dug a
two-acre pond on their land, with a duck blind, and the Halpins dug another duck blind
on their 65 acres. Christensen denied that Plaintiffs’ property ever contained field tiles
running eastward into the ditch along Coster Road. He reiterated this denial on redirect
examination. He also explained that his family dug the two-acre pond in compliance with
a conservation program administered by the U.S. Department of Agriculture (USDA).
The pond was intentionally located on the lowest spot of ground--its purpose being to
“hold back” water during heavy rains, thus protecting lower landowners from excessive
flooding. Christensen inquired of the USDA if the pond could be used for hunting
29
activities, and the answer he received was yes. The land his family owned at the time of
trial was up for sale. Since he did not know what the future buyer would do with the
land, he had no idea how much rainwater would be displaced by hard surfaces like roads
and rooftops.
On recross examination, Christensen testified that he spent half a day at the pond
site with USDA representatives, who looked at maps and shot elevations. These
representatives approved the pond and said it would help landowners to the north by
“giving them less water.” Defendant countered this statement at trial by declaring, “I
have talked to them also, and they also stated the water comes across my property
harder4 because the water from the south flows to the north.” Christensen responded:
“From the south to the north -- northeast. That’s very good. We’re on the same line
now.” Defendant continued asking questions suggesting that the pond altered the natural
course of drainage, whereupon Christensen said any change that occurred had actually
improved the drainage for Defendant’s land. Such improvement included installation of
seeping tiles recommended by the USDA. Finally, on redirect examination, Christensen
explained that the pond did not alter the general course of natural drainage from the
south to the northeast. If such alteration had occurred, the USDA would not have
approved the project.
4
Defendant’s line of questioning reveals that he believed the pond somehow increased the
flow of water onto his land during heavy rains.
30
The second witness at trial, Guy Richard Christensen (no relation to the
Christensen plaintiffs),5 testified that he worked as an engineer for Chamlin & Associates
in Morris, Illinois, and had been a registered professional engineer since 1977. He was
familiar with the process of shooting elevations and determining land grade, having
performed those tasks thousands of times. As an employee of Chamlin & Associates,
Guy participated in the engineering and excavation work for the water system servicing
the 16 houses built on the east edge of Plaintiffs’ land. This work occurred on the west
side of Coster Road. Before the excavation started, Guy did not see any field tile exiting
Plaintiffs’ land at Coster Road. Neither was any such tile encountered during the
excavation.
Guy testified that an expert named Mr. Wepprecht located tile running from the
northeastern corner of the Christensen land toward the north-northeast through
Defendant and James Schultz’s land. Chamlin & Associates was retained to shoot
elevations along that tile, and Guy was present in the field when the work occurred.
Elevations were determined at five separate points, beginning at the northeast corner of
the Christensen land and continuing northward to a point near Main Road.6 The five
elevations, measured from the top of the buried tile rather than the ground surface, and
running south-to-north, were as follows: 585.77 feet, 585.12 feet, 584.73 feet, 584.15
feet, and 583.78 feet. The tile continued northward from the fifth point, but its terminus
5
To avoid confusion with the Christensen plaintiffs, I refer to this witness as “Guy.”
6
Main Road runs east-west across the top of James Schultz’s land and intersects with
Coster Road.
31
was not located. Regarding the terminus, Guy said, “It appears it would come out on
Main Road or near the corner of Main and Coster.” He concluded that the tile was
carrying water “to the northeast from the Christensen property across the respective
Schultzs’ property,” and that the “natural flow of water” was to “the northeast.”
While conducting cross examination, Defendant asserted that a steel tile
discharged water along Coster Road near his south property line where he plowed over
the small ditch. Regarding field tiles allegedly discharging along Coster Road from
Plaintiffs’ land, Defendant acknowledged, “In all honesty, I cant remember the tiles,” but
he claimed they once existed and had been redirected into the steel tile. He also asserted
that the housing development along Coster Road altered the natural flow of drainage by
sending more water onto his land. Guy responded to these points by testifying that: (1) if
a metal storm tile ran eastward along Defendant’s south property line and discharged at
Coster Road, he would not consider it a field tile; (2) he had no information suggesting
that Plaintiffs’ land drained from west to east; and (3) the housing development along
Coster Road did not increase water flow onto Defendant’s property because each house
had a catch basin, situated lower than the pavement, that accepted the surface water.
On redirect examination, Guy clarified that his conclusion about the natural north-
northeast drainage encompassed Plaintiffs’ land as a whole, including the Halpins’ 65
acres. While conducting recross examination, Defendant asserted, “now when they are
doing the development, the subdivision, the development, the pond out in the field and all
of the duck blinds and all of the digging and everything, *** now it is all coming towards
the north.” Regarding the housing development specifically, he continued: “So when the
32
water flows towards the east and goes down the ditch, that’s the way it is. And that is
the -- where the whole problem is arising on this whole lawsuit, is that the water, once it
bumps into these houses, once it built the houses up, that’s where the problem’s arising.
Now you’re wanting to send it all my way by means of a tile that we don’t believe
exists.” Defendant also asserted that water flowing northward across his land stopped at
a high point. Responding to questions from the judge, Guy explained that the amount of
elevation loss documented by Chamlin & Associates was sufficient for water to flow
nicely inside the tile. He also said he found no interruption or high point in the grade of
Defendant’s land.
On recross examination by Defendant, Guy explained why he did not identify an
exit point for the tile: “It was not determined by Mr. Wepprecht which -- there’s several
tiles that outlet at the ditch on the northeast corner of the Schultzs’ property at that
intersection of the roadway. It was not determined which of those was the outlet tile for
this existing tile that we shot the elevations of. *** [S]ince he did not determine that ***
I did not know which one was it and what the elevation of it was.” Defendant then
asked, “So the tile that’s exiting could be a lot higher and that’s the reason it’s backing
up on my property?” Guy responded, “I guess that could be possible,” but then added:
“The only thing that would refute that is if Mr. Wepprecht had located that tile, which I
believe he did and opened it, and it had flow in it going to the north, [then] I would
assume it’s not plugged to the north.”
Plaintiff’s Exhibit #7 is a survey map depicting the land and field tile as described
by Guy. On the map, a notation at the spot where elevation was measured on the
33
Christensen land reads: “Tile exposed at this location is 8" V.C.T. Exact location of
transition from 10" to 8" is unknown.” The tile is shown proceeding north (and slightly
east) through Defendant’s land, and then straight north through James Schultz’s land
paralleling Coster Road. Consistent with Guy’s testimony, the tile diagram stops just
short of a discharge point. However, a notation on the map at the intersection of Coster
Road and Main Road reads, “Exist. 60" pipe.” Also, farther west on the map, an
“alternate field tile location” is marked with a route going from Plaintiff’s land, straight
north through defendant and James Schultz’s land, and discharging into an “existing
ditch” along Main Road.
The next witness at trial was Richard R. Wepprecht, a professional farm drainage
contractor with over 30 years of experience. Ninety percent of his business consisted of
installing field tile. Wepprecht testified that he located a tile running from the Christensen
land northward through Defendant and James Schultz’s land. He found a sinkhole where
the tile had broken and collapsed on the Christensen land just south of the property line
with Defendant. From that spot he moved northward, locating and flagging the tile by
probing about every 20 feet. He used approximately 30 flags to mark the route of the
tile.
Wepprecht also performed some excavation to get down and visually inspect the
tile. He used a backhoe because the ground was frozen. The excavation occurred at six
different locations, which he marked on a map using labels “Dig #1” through “Dig #6”
(Dig #1 being the northernmost and Dig #6 being the southernmost). At Dig #1,
Wepprecht found a 10-inch clay tile on Defendant’s land with one inch of sediment and
34
3½ inches of water inside. The water was running slowly toward the north. Wepprecht
installed a piece of plastic corrugated tile at this location to repair a piece of clay tile that
broke during his digging. At Dig #2, he found a 10-inch clay tile on Defendant’s land
containing three inches of dirt and no water. The tile was already cracked. At Dig #3,
Wepprecht found a 10-inch clay tile on Defendant’s land. The tile was full of dirt and
already had a hole in it. At Dig #4, he found a 10-inch clay tile on Defendant’s land that
was already broken and completely filed with dirt. This tile was incapable of carrying any
water. At Dig #5, Wepprecht found a 10-inch clay tile on Defendant’s land that was
already badly cracked. He also observed water pressure in the hole. The reason for this
pressure was that water arriving at Dig #5 from the south had nowhere to go because a
complete blockage existed farther down the line (as observed at Dig #4). At Dig #6,
Wepprecht found an 8-inch clay tile on the Christensen land just south of the border with
Defendant’s land. The tile was cracked and clean of dirt. Water pressure was observed
in this hole as well. From the location of Dig #6, Wepprecht’s map showed the tile
moving toward the 65 acres owned by the Halpins. He explained that tile commonly
increases in diameter toward the end of a line because water volume is higher there. He
also advised that clay tile is no longer manufactured, having been phased out and replaced
by plastic corrugated tile.
In Wepprecht’s professional opinion, the tile he located on the Christensen land
and Defendant’s land should be replaced with 12-inch plastic corrugated tile. The reason
for plastic tile was that clay tile is no longer manufactured. The reason for 12-inch tile
was that corrugated tile, unlike smooth clay tile, creates friction that slows the movement
35
of water. Thus, a larger diameter is needed to maintain the same volume of flow.7
Wepprecht opined that a 12-inch tile would properly address the drainage needs of
Plaintiffs’ land and also improve the drainage of Defendant and James Schultz’s land.
On cross examination, when asked why he did not follow the tile to its discharge
point, Wepprecht said, “[b]ecause I think we were supposed to not get into that
homeowner’s property down in their lawn.”8 Defendant then accused Wepprecht of
breaking his tile by digging with the backhoe, whereupon Wepprecht said he only broke
the tile at Dig #1--and he replaced the broken piece with a new piece of plastic
corrugated tile. The other pieces of clay tile were already broken when he dug down to
them.
The next witness was Frances E. Halpin, Jr. (a plaintiff), who identified his land
lying west of the Christensens’ land and south of Defendant’s land.
7
This last point was not made during Wepprecht’s testimony but rather upon consultation
with counsel during closing arguments. The consultation occurred in response to a question by
the judge regarding why a larger diameter was recommended.
8
Wepprecht’s map depicted three general pieces of land situated vertically as follows:
Plaintiff’s land on the south (the Christensen land comprising the east side of the parcel and the
Halpin land comprising the west side); Defendant’s land in the middle; and James Schultz’s land
on the north. In the northeast corner of James Schultz’s land (southwest corner of the
intersection of Coster Road and Main Road), the map shows a small square labeled “Building
Site.” The path of the tile runs parallel with Coster Road and into that square.
36
Following Halpin, Defendant took the stand and testified that water from
Plaintiffs’ land had always flowed eastward until the subdivision was developed. Because
of the subdivision, and the USDA conservation program, the natural flow of water was
changed toward the north. He further testified that Plaintiffs’ field tiles ran eastward and,
at some time in the past, discharged into a ditch along Coster Road. The tiles never
connected with tiles on his land. Defendant noted plans for additional development on
the Christensen land and complained that those plans would cause further change in the
natural course of drainage, sending even more water northward onto his land.
On cross examination, Defendant reiterated his claim that tile on the Christensen
land did not connect with his own tile but instead ran eastward. He acknowledged that
he never entered Plaintiffs’ land or dug along his south property line to verify this claim.
Regarding tiles that discharged north of his land, he acknowledged an exit site on Coster
Road, another exit site at the intersection of Coster Road and Main Road, and others on
Main Road. He had seen these tiles discharging water but testified that he did not know
where the water came from. In his response to Plaintiffs’ motion for summary judgment,
Defendant had stated: “[Plaintiffs] can repair any broken tile or tiles found in my
property. However, I do not want them to install a whole new line where tiles did not
exist.” When confronted with this statement on cross examination by Plaintiffs’ counsel,
Defendant said it only applied if a tie-in could be established between tile from the
Christensen land and tile on his land.
Roger M. Christensen testified in rebuttal that he never altered the direction of tile
on the Christensen property. He never modified the tile beyond making repairs, and
37
neither was he aware of anyone else doing so. Moreover, during excavation for the 16
home sites along Coster Road, he specifically looked for disturbance of field tiles and saw
none.
While conducting cross examination, Defendant argued with Christensen about
the direction of tile lines on the Christensen property. He also asked about the seeping
tile installed in conjunction with the USDA conservation program. Christensen
responded that seeping tile was installed so water would go into the pond; the tile did not
alter the natural flow of drainage from south to north. He said when water comes out of
the pond, it flows to the northeast, and before the pond was installed, water also flowed
toward the northeast.
During closing arguments, on the subject of Wepprecht’s recommendation for
replacement with 12-inch tile, the judge interrupted Plaintiffs’ counsel and stated:
“Mr. Rigazio and Mr. Schultz, here I think is what we’re talking about,
605/2-5. ‘If on the trial of the case,’ which we’ve now completed, ‘it is found that
the proposed drain will be of ample capacity, will not materially damage the land of
the defendant,’ that’s Mr. Schultz, ‘and will empty into a, a natural water course,
b, the highway authority, or c, any other outlet which the plaintiff has the right to
use, then the finding or verdict shall be for the plaintiff, and the defendant shall be
allowed such actual damages only as will be sustained by entering upon the land
and construction of the drain thereof after keeping the same in repair.’
38
All right. So what we’re talking about here is proposed drain will be of
ample capacity, so what we’re talking about now is is eight ample capacity or do
you have to have 12 to have ample capacity. And let’s just all emphasize that
we’re not talking about making ample capacity for any future subdivision. We all
agree with that.”
Counsel for Plaintiffs agreed. It was during this discussion that counsel, after
consultation, informed the court that since “[i]t’s corrugated tile as opposed to the
smooth clay tile,” it “creates more friction” and “holds the water up,” necessitating a
wider diameter to maintain the same flow. Plaintiffs further requested an order
compelling Defendant to bear part of the cost of replacing the tile. During his own
closing arguments, Defendant said 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.
The judge entered an order granting Plaintiffs’ request for a declaratory judgment.
The order specifically stated:
“The natural flow of water is from Plaintiffs’ property over and through
Defendants’ property. Plaintiffs may continue to drain in that direction and may go
onto Defendants’ property to replace and maintain the tile in existence. Plaintiffs
may install the 12-inch tile testified to by Wepprecht, but must pay damages, if
any, in accordance with 605/2-6.”
39
Plaintiffs filed a motion to reconsider, noting that the judge failed to address their request
for an order compelling Defendant to bear a portion of the replacement costs. They
again requested such an order. The judge subsequently ruled as follows: “Plaintiffs’
motion to reconsider is granted. The relief sought therein is denied.” The instant appeal
by Defendant followed.
Our sole issue is whether the trial judge erred in finding that the general course of
natural drainage was from Plaintiffs’ land over and through Defendant’s land. I
respectfully disagree with the majority’s assertion that more is involved in this appeal.
The majority supports its assertion as follows:
“Defendant writes in his pro se brief submitted to this court, ‘The tiles were
never tied together.’ As his contention of error, defendant concludes that plaintiffs
should not ‘be allowed to tie into my field tiles, since their field tiles never did.’
Again, in his reply brief he states, ‘Halpins’ could never prove a tie in or an exit of
their field tiles.’ Relying on the Code, counsel for plaintiff, responds by framing
the issue for our consideration as follows:
‘Whether the court errored [sic] in giving Plaintiffs the right to enter onto
the property of Defendants for the purpose of erecting, replacing, or repairing
tile...in accordance with 70 ILCS 605/1-1 et al [sic].’”
This latter statement is taken from the front matter of Plaintiffs’ brief. In my
view, the statement does not establish an additional issue for review because, inter alia,
40
Plaintiffs’ actual argument does not include such an issue. In the argument section of
their brief, a single issue is delineated as follows:
“The judgment of the trial court was not an abuse of discretion, and the court
found that the Plaintiffs have established by a preponderance of evidence that the
natural flow of water is from the south to the north/northeast. This would support
the Plaintiff’s position and deny the Defendant any relief from this court. The
Defendant presented no evidence whatsoever to establish that the water flowed
anywhere but in accordance with Plaintiff’s expert testimony.”
A reading of Plaintiffs’ argument reveals a sole contention that the trial judge did not err
in finding that the general course of natural drainage was from their land over and
through Defendant’s land. There simply is no argument on any other issue. This fact
also addresses the majority’s references to Defendant’s reply brief because “[t]he reply
brief *** shall be confined strictly to replying to arguments presented in the brief of the
appellee.” 210 Ill. 2d R. 341(j); see also 210 Ill. 2d R. 341(h)(7) (points not argued in
the appellant’s opening brief cannot be raised in the reply brief). Finally, Defendant had a
specific reason for arguing that no tie-in existed, and his reason was not to raise a
separate issue. He made this argument to support his overall claim that the general
course of natural drainage was eastward rather than northward through his property.
This is why he asserted that Plaintiffs’ tiles ran eastward and discharged into the ditch
along Coster Road, although no evidence supported his assertion.
41
These observations accord with Defendant’s own representation at trial: “So
when the water flows towards the east and goes down the ditch, that’s the way it is. And
that is the -- where the whole problem is arising on this whole lawsuit, is that the water,
once it bumps into these houses, once it built the houses up, that’s where the problem’s
arising. Now you’re wanting to send it all my way by means of a tile that we don’t
believe exists.” (Emphasis added.) I take Defendant at his word. The whole problem, by
his framing of the issue, is whether water flows onto his property because of alterations
to Plaintiffs’ land, or whether water naturally flows that way. Plaintiff argued the former
at trial, the judge found the latter, and Plaintiff appealed that finding. Our review should
be confined to the issue he presented. See Meyers v. Woods, 374 Ill. App. 3d 440
(2007). Perhaps counsel would have raised other issues, but Defendant did not retain
counsel. Having made that choice, “he is not entitled to any special consideration,” and I
believe this court should “not apply a more lenient standard” for him. People v. Fowler,
222 Ill. App. 3d 157, 163 (1991).
As to the trial judge’s decision, our standard of review is manifest weight of the
evidence (Callahan v. Rickey, 93 Ill. App. 3d 916 (1981)), and a decision does not fail
that standard unless the opposite conclusion is clearly evident from the record (First
Baptist Church of Lombard v. Toll Highway Authority, 301 Ill. App. 3d 533 (1998)).
Moreover, especially in a case involving contradictory testimony, it is the trial judge’s
province as trier of fact to assess witness credibility, weigh the evidence, and determine
the preponderance thereof. Callahan, 93 Ill. App. 3d 916. Based on the evidence recited
above, the trial judge clearly did not contravene the manifest weight of the evidence on
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the sole issue presented in this appeal. Contrary to the majority’s assertion, I do not take
the position that “the language of section 2-1” creates “an inalienable right” for dominant
landowners. My position is simply that the trial judge did not commit reversible error in
his finding regarding “the general course of natural drainage.” 605 ILCS 605/2--2 (West
2004).
For these reasons, I respectfully dissent.
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