dissenting:
I dissent. The majority has relied on a nonexistent distinction between this case and Gordon v. Department of Transportation (1983), 99 Ill. 2d 44, and Sass v. Kramer (1978), 72 Ill. 2d 485, to reach an erroneous result.
Sections 8(a) and (b) of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, pars. 439.8(a), (b)) provide in pertinent part:
“The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the state founded upon any law of the State of Illinois, or upon any regulation thereunder * * *.
(b) All claims against the state founded upon any contract entered into with the State of Illinois.”
The record shows that the land in question had been flooded and part of the lake since sometime in 1960, and this action was filed in 1981. Defendant, as affirmative defenses, pleaded that the action was not timely brought because the Department had occupied the land “openly, continuously, exclusively, adversely and notoriously” for a period of more than 20 years prior to the filing of the action. It also pleaded a dedication to public use, laches, and conduct on the part of the plaintiff which created an irrevocable license to use the land.
In Sass v. Kramer (1978), 72 Ill. 2d 485, 490-91, the court held that whether the State is a party to a suit in violation of the sovereign immunity statute (Ill. Rev. Stat. 1981, ch. 127, par. 801) “depends upon the issues involved and the relief sought.” Sass presented the question whether the State had abandoned an easement. The court held that it was necessary to determine whether, under the facts, there had been an abandonment of the easement, and that the action necessarily involved and affected an interest in property of the State and could only be brought in the Court of Claims.
In Gordon v. Department of Transportation (1983), 99 Ill. 2d 44, the plaintiff claimed ownership of a parcel of land by adverse possession. The State claimed ownership based on a conveyance or by common law dedication. The court held that the action should have been brought in the Court of Claims because the State was the real party in interest.
There is no question that an owner who can prove that his property was damaged can compel the State to institute an action in eminent domain. (People ex rel. Haynes v. Rosenstone (1959), 16 Ill. 2d 513, 516.) Absent the issues raised by the pleadings and the testimony as to whether the State was in possession of the property by reason of an action other than a taking of the property, the opinion of the majority would be correct. Here, however, the situation presented is that the State claims a right to possession of land of which it has had possession for more than 20 years, and under the circumstances, the claim of the plaintiff is a claim against the State over which the Court of Claims has sole jurisdiction. The majority states that the circuit court found “that defendant had not obtained an irrevocable license for continued use of the land” (105 Ill. 2d at 409), but conspicuous by its absence is any explanation of why’the circuit court had jurisdiction to determine that issue.
The issue presented is whether the State has acquired a property interest which entitles it to flood the property in question. Whether the State’s interest rests upon a conveyance, a dedication, adverse possession, or an irrevocable license, plaintiff’s action is against the State of Illinois, and can only be brought in the Court of Claims.
CLARK, C.J., and WARD, J., join in this dissent.