{
  "id": 3482600,
  "name": "ILLINOIS BELL TELEPHONE COMPANY, Petitioner-Appellant, v. KITTY LEWIS, Defendant-Appellee",
  "name_abbreviation": "Illinois Bell Telephone Co. v. Lewis",
  "decision_date": "1983-06-27",
  "docket_number": "No. 4-82-0788",
  "first_page": "72",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T15:08:51.886955+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ILLINOIS BELL TELEPHONE COMPANY, Petitioner-Appellant, v. KITTY LEWIS, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE MILLS\ndelivered the opinion of the court:\nThe question: When a telephone company condemns private property, must it follow the provisions of the Telegraph and Telephone Act or must it follow the provisions of the Public Utilities Act?\nIllinois Bell answers: Telegraph and Telephone Act.\nLewis responds: Public Utilities Act.\nWe hold: Both.\nThese same parties were before this court in the previous case of Lewis v. Illinois Bell Telephone Co. (1981), 98 Ill. App. 3d 1047, 425 N.E.2d 55. In Lewis, we set out the facts that led to that appeal:\n\u201cPlaintiff [Lewis] owned the fee simple title to the premises which were a strip of land 55 feet wide and 3,960 [feet] long and constituted the westerly portion of a larger tract. The strip had been dedicated as an easement for highway purposes some years earlier by the plaintiff and a rural public highway existed thereon.\nDefendant [Illinois Bell] entered into negotiations with the plaintiff for permission to lay underground telephone cable in the highway easement but these negotiations came to naught. Notwithstanding, defendant proceeded to lay the cable in the easement commencing in May 1980, and ending about July 1980. The forcible entry and detainer suit followed in November 1980.\u201d (98 Ill. App. 3d 1047, 1048, 425 N.E.2d 55, 56.)\nThe circuit court entered judgment awarding possession of the premises to Lewis. Illinois Bell appealed. We affirmed. We held that Illinois Bell could only take private property by exercising its eminent domain authority. We also stated that the specific enabling legislation which provided Illinois Bell with the power of eminent domain is:\n\u201cthe Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.) and the delegation of that power to telephone companies under section 4 of \u2018An Act relating to the powers, duties and property of telephone companies\u2019 [the Telegraph and Telephone Act] (Ill. Rev. Stat. 1979, ch. 134, par. 20).\u201d (98 Ill. App. 3d 1047, 1050, 425 N.E.2d 55, 58.)\nWe then remanded the cause back to the circuit court with directions to:\n\u201center a supplementary order requiring the defendant [Illinois Bell] *** either (1) to agree with the plaintiff [Lewis] upon the amount of compensation to be paid and pay it, or (2) to commence a proceeding in eminent domain to acquire the easements in question ***.\u201d 98 Ill. App. 3d 1047, 1052, 425 N.E.2d 55, 59.\nUpon remand, the parties entered into negotiations. They proved fruitless. Illinois Bell then filed a petition for condemnation. Lewis filed a traverse and motion to dismiss the petition. At the hearing on the motion to dismiss, Illinois Bell argued that it had complied with all of the conditions precedent to exercising its eminent domain authority pursuant to the provisions of the Telegraph and Telephone Act. Lewis argued that pursuant to the provisions of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 1 et seq.), a hearing before the Illinois Commerce Commission is a condition precedent to the condemnation of private property by a public utility and since such a hearing had not taken place, Illinois Bell\u2019s petition should be dismissed.\nJudge Reither agreed with Lewis and granted the motion to dismiss.\nIllinois Bell appeals.\nWe affirm.\nIllinois Bell argues that it does not have to follow the eminent domain procedures contained in the Public Utilities Act because the Illinois legislature has provided concurrent authority to condemn under the Telegraph and Telephone Act and the Public Utilities Act. Illinois Bell contends that it may choose which statutory method it wishes to use and it has chosen to follow the procedures in the Telegraph and Telephone Act instead of those in the Public Utilities Act. Lewis maintains that Illinois Bell\u2019s eminent domain authority under the Public Utilities Act is exclusive and that the company does not have any eminent domain authority under the Telegraph and Telephone Act.\nBoth parties are incorrect.\nAs we said in Lewis, the source of Illinois Bell\u2019s eminent domain authority is the Telegraph and Telephone Act. When Illinois Bell exercises that authority, however, it must also comply with the provisions of the Public Utilities Act. Section 59 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 63) states:\n\u201cWhen necessary for the construction of any alterations, additions, extensions or improvements ordered or authorized under sections 50 *** of this Act, any public utility may enter upon, take or damage private property in the manner provided for by the law of eminent domain.\u201d\nSection 50 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 50) states in part:\n\u201cWhenever the Commission, after a hearing shall find that additions, extensions, repairs or improvements to, or changes in, the. existing plant, equipment, apparatus, facilities or other physical property of any public utility *** are necessary and ought reasonably to be made *** the Commission shall make and serve an order authorizing or directing that such additions, extensions, repairs, improvements or changes be made *** in the manner and within the time specified in said order.\u201d\nIn 1903, the Illinois legislature first gave telephone companies the power of eminent domain by enacting the Telegraph and Telephone Act. In 1921, the legislature enacted the Public Utilities Act which requires all public utilities to receive Illinois Commerce Commission permission before exercising the power of eminent domain. The 1921 act impliedly repealed the authority given telephone companies in the 1903 act to condemn private property without permission from the State. In 1961, the legislature enacted an amendment to the Telegraph and Telephone Act which placed another restriction on the telephone company\u2019s eminent domain power: If the property is in a highway right-of-way, the company must also obtain the permission of the Illinois Department of Transportation before it exercises its eminent domain authority. See section 4 of the Telegraph and Telephone Act (Ill. Rev. Stat. 1981, ch. 134, par. 20), and section 9 \u2014 113 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 9 \u2014 113.\nTherefore, in the case at bench, where Illinois Bell \u2014 a public utility \u2014 is attempting to condemn property that lies in a highway right-of-way, it may exercise its eminent domain powers under the Telegraph and Telephone Act. First, however, because Illinois Bell is a public utility, it must obtain permission from the Illinois Commerce Commission and second, because the property is in a highway right-of-way, Illinois Bell must also obtain permission from the Illinois Department of Transportation.\nIllinois Bell failed to obtain permission from the Illinois Commerce Commission. Ergo, the trial court was correct in granting Lewis\u2019 motion to dismiss Illinois Bell\u2019s petition for condemnation.\nAffirmed.\nWEBBER, P.J., and GREEN, J., concur.",
        "type": "majority",
        "author": "JUSTICE MILLS"
      }
    ],
    "attorneys": [
      "Alfred B. LaBarre, of Ensel, Jones, Blanchard & LaBarre, of Springfield, for appellant.",
      "Nolan Lipsky, of Petersburg, for appellee."
    ],
    "corrections": "",
    "head_matter": "ILLINOIS BELL TELEPHONE COMPANY, Petitioner-Appellant, v. KITTY LEWIS, Defendant-Appellee.\nFourth District\nNo. 4 \u2014 82\u20140788\nOpinion filed June 27, 1983.\nRehearing denied September 9, 1983.\nAlfred B. LaBarre, of Ensel, Jones, Blanchard & LaBarre, of Springfield, for appellant.\nNolan Lipsky, of Petersburg, for appellee."
  },
  "file_name": "0072-01",
  "first_page_order": 94,
  "last_page_order": 97
}