specially concurring:
The Agreement between Sullivan and the Cooperative does a number of things. It recognizes that Sullivan has the power to provide service outside the existing city limits, it resolves a dispute as to the Elder Tract and provides compensation for the Cooperative’s assets there, and it establishes a method for resolving future disputes as to other areas and providing compensation for the Cooperative. The Agreement in several places refers to annexation. Some portions of the Agreement, such as paragraph 5, use annexation as the point in time at which the turnover of service becomes effective and the right to compensation comes into being. The Agreement does not mention that a city has some ability to supply electric power outside its boundaries without annexing the area to which power is supplied. See Jacksonville, 18 Ill. 2d 618, 165 N.E.2d 300. Absent clear language I do not read the Agreement as requiring Sullivan to proceed by way of annexation and prohibiting Sullivan from using other legitimate methods to supply power outside its boundaries. There is no indication in the Agreement that it makes any difference to the Cooperative which method Sullivan uses, and the reference to annexation is simply a reference to Sullivan’s decision to begin supplying power, however that decision is carried out.
An important part of the Agreement, for purposes of this case, is paragraph 5. That paragraph provides that when Sullivan annexes territory in the future it will enter into negotiations to purchase the Cooperative’s facilities, “if that territory had been within the service territory of the Cooperative.” Apparently there is no obligation to purchase facilities that are within the service territory of Sullivan, as shown on Appendix B. Apparently at the time of the Agreement the Cooperative did not have much in the way of facilities in what was designated as Sullivan’s existing service territory. If the Cooperative has no right to compensation for its facilities, what difference does it make to the Cooperative whether Sullivan proceeds by way of annexation or by some other method?
Paragraph 3 of the Agreement provides that the parties have agreed to their existing service areas as of the date of the Agreement, as shown on Appendix B. I would be willing to listen to any evidence that Appendix B was not accurate and that the Cooperative actually was furnishing service to some areas listed as being within Sullivan’s service area. I agree with the trial court, however, that affidavits by the Cooperative’s employees that the Agreement simply was not in accordance with the parties’ intent are inadmissible. It does not appear that the Cooperative was furnishing service either to what is now to be Schable Acres Subdivision, or to the property in the northeast quarter of section 23. At most it appears that no one was furnishing power to those areas, and perhaps that was why the Cooperative had no objection to those areas being included within Sullivan’s service area.
The Cooperative has recognized Sullivan’s right to furnish power to Schable Acres and to the property in the northeast quarter of section 23. The Cooperative apparently has no facilities in those areas, and the Agreement makes it clear the Cooperative is not entitled to any compensation for facilities in those areas. What complaint does the Cooperative have if Sullivan chooses to supply power to those areas without annexation, if it is able to do so in some other manner? I do not read the Agreement to allow the Cooperative to insist upon annexation in this case. It appears the Cooperative is relying upon a technicality to avoid complying with its agreement now that significant service to these areas will be required.