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 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 correspondence, you contact the undersigned or, in the alternative, you have your representative contact the undersigned.” (Emphasis in original.)
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. (West 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) “granting] 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 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:
“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.
13. The refusal to allow the drainage of the SCHULTZ property has caused crop damage to the HALPIN and CHRISTEN SEN 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 million. After plaintiffs entered defendant’s land and completed their inspection, the matter proceeded to trial on May 26, 2006.
The first witness at trial, Rodger M. Christensen (a plaintiff), testified that plaintiffs’ land was originally a 100-acre parcel owned by the Christensen family. In the 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 10 or 12 different spots (5 or 6 along Rice Road and 5 or 6 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 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 United States 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 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 re-cross-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.
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’s 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 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 can’t 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 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 re-cross-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. *** [Sjince 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 No. 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 Christensen land reads: “Tile exposed at this location is 8” VC.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 plaintiffs 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 1 inch of sediment and SVz 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 filled 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 eight-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 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’s 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.
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.
Rodger 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 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.’
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 “[ijt’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.”
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].’ ” 382 Ill. App. 3d at 177.
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, 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 Plaintiffs 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 Plaintiffs 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.
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. Defendant argued the former at trial, the judge found the latter, and defendant 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 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. 382 Ill. App. 3d at 178. My position is simply that the trial judge did not commit reversible error in his finding regarding “the general course of natural drainage.” 70 ILCS 605/2 — 2 (West 2004).
For these reasons, I respectfully dissent.
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 sé). James, whose land is situated north of Peter’s land, was adjudged in default.
At the time of trial, this strip consisted of 16 independently owned home sites located along Coster Road.
Defendant’s line of questioning reveals that he believed the pond somehow increased the flow of water onto his land during heavy rains.
To avoid confusion with the Christensen plaintiffs, I refer to this witness as “Guy.”
Main Road runs east-west across the top of James Schultz’s land and intersects with Coster Road.
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.
Wepprecht’s map depicted three general pieces of land situated vertically as follows: plaintiffs 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.