{ "id": 2432486, "name": "MARCO J. MUSCARELLO et al., Plaintiffs-Appellants, v. WILLIAM SCHMIDT et al., Defendants-Appellees", "name_abbreviation": "Muscarello v. Schmidt", "decision_date": "1989-02-07", "docket_number": "No. 2-88-0387", "first_page": "999", "last_page": "1002", "citations": [ { "type": "official", "cite": "178 Ill. App. 3d 999" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "443 F. Supp. 167", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3978156 ], "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/f-supp/443/0167-01" ] }, { "cite": "39 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379335 ], "year": 1977, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0113-01" ] }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "339 Ill. App. 551", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5010477 ], "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-app/339/0551-01" ] }, { "cite": "140 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3532136 ], "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0621-01" ] }, { "cite": "125 Ill. 2d 203", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554811 ], "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0203-01" ] } ], "analysis": { "cardinality": 403, "char_count": 6149, "ocr_confidence": 0.782, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08081532938792957 }, "sha256": "4c8049f998f4157dc1e83946e09c28a8bea0a601f62cfb0208a27d02883eb4c5", "simhash": "1:5587d8a4aa8d3ba9", "word_count": 1033 }, "last_updated": "2023-07-14T17:15:09.210343+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARCO J. MUSCARELLO et al., Plaintiffs-Appellants, v. WILLIAM SCHMIDT et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE WOODWARD\ndelivered the opinion of the court:\nPlaintiffs, Marco and Patricia Muscarello, appeal from an order of the circuit court of Kane County granting defendants\u2019 motion for summary judgment. On appeal, plaintiffs contend that the trial court erred in granting summary judgment to defendants because there was no evidence that the previous owner of the property consented to the construction of a sewer on the property. We affirm.\nDuring the first half of 1973, a storm sewer was constructed between Hampshire Manor Subdivision Unit No. 1 (Unit No. 1) and a pond on an adjacent tract of land known as the Bumidge farm. This storm sewer was constructed by Phillips Construction Company (PCC), which was the developer of Unit No. 1. The principal owner of PCC was Philip Rose, who was also the contract purchaser of the Bumidge farm. This contract did not permit the building of such a sewer.\nIn August 1973, Rose assigned his contract rights to Marco Muscarello, and in June 1977, plaintiffs acquired title to the property in joint tenancy. In November 1977, Marco discovered what he considered to be an excess amount of water in the pond on his property. Upon inspection, Marco discovered the storm sewer line running from Unit No. 1 to the pond on his property.\nPlaintiffs filed a three-count complaint in 1986, alleging that the Village of Hampshire approved of the construction of the sewer line contrary to normal drainage flow. The complaint asked for injunctive relief, damages for trespass, and a writ of mandamus to force Hampshire to institute eminent domain proceedings on the property. Defendant moved for summary judgment, arguing that plaintiffs\u2019 predecessor in interest acquiesced in the construction of the sewer, and therefore, plaintiffs are estopped from suing Hampshire. The trial court found that the storm sewer was a \u201cmutual benefit drain\u201d under the Illinois Drainage Code (the Code) (Ill. Rev. Stat. 1985, ch. 42, par. 2 \u2014 8) and that Bumidge had acquiesced in the sewer\u2019s construction, thereby creating a permanent easement on plaintiffs\u2019 property. This appeal ensued.\nBefore proceeding to the merits of this case, we note that defendant has filed a motion to strike certain portions of plaintiffs\u2019 reply brief which reargue plaintiffs\u2019 objections to a previous motion to supplement the record on appeal. We ordered that defendant\u2019s motion be taken with the case. We will disregard all statements not properly a part of a reply brief.\nIt is well established that the moving party is not entitled to summary judgment unless he has an absolute right to it as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1005.) Summary judgment is a drastic remedy which should be granted only when the movant\u2019s right is free from doubt. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 215.) After reviewing the record, we conclude that summary judgment was proper in this case.\nSection 2 \u2014 8 of the Code (Ill. Rev. Stat. 1985, ch. 42, par. 2 \u2014 8) states in pertinent part:\n\u201cWhen a ditch, covered drain or levee is, or has been, constructed by mutual license, consent or agreement, either separately or jointly, by the owners of adjoining lands so as to make a continuous line across the lands of such owners, *** such ditch, covered drain or levee shall be deemed to be a drain or levee for the mutual benefit of all lands connected to, or protected by, it. The mutual license, consent or agreement required in this section need not be in writing, but may be established by parol or inferred from the acquiescence of the parties.\u201d Ill. Rev. Stat. 1985, ch. 42, par. 2 \u2014 8.\nThe sewer in the present case was built across adjoining lands. Unit No. 1 had been conveyed to Rose and was being developed by Rose\u2019s construction company. Rose also was the contract purchaser of the Bumidge farm. A contract purchaser of property is the equitable owner of that property. In re Estate of Martinek (1986), 140 Ill. App. 3d 621, 628.\nFor a drain to be a mutual benefit drain under the Code, the drain must be constructed \u201cin a continuous line over adjoining land of different owners.\u201d (Savoie v. Town of Bourbonnais (1950), 339 Ill. App. 551, 560.) The Code defines owner as: \u201c[A]n owner of an undivided interest, a life tenant, a remainderman and a trustee under an active trust but does not include a mortgagee, a trustee under a trust deed in the nature of a mortgage, a lien holder or a lessee.\u201d Ill. Rev. Stat. 1985, ch. 42, par. 1 \u2014 2(i).\nWhile a contract purchaser is not specifically enumerated in the Code\u2019s definition of owner, such a purchaser has rights similar to the persons defined as \u201cowners\u201d under the Code. Therefore, the same person owned both tracts of land for purposes of the Code, and the sewer cannot be classified as a mutual benefit drain.\nHowever, while the Code does not apply, we may affirm the trial court\u2019s judgment on any basis found in the record. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) Marco was Rose\u2019s assignee. It is axiomatic that when a valid assignment is created, the assignee stands in the shoes of the assignor. (Stavros v. Karkomi (1976), 39 Ill. App. 3d 113, 123.) An assignee cannot maintain an action if the assignor could not have maintained the action. United States v. American National Bank & Trust Co. (N.D. Ill. 1977), 443 F. Supp. 167, 174.\nIn the present case, plaintiffs\u2019 own pleadings indicate that the storm sewer was completed before Rose assigned his interest to Marco. Rose could not have maintained an eminent domain action against Hampshire over a sewer that Rose installed; therefore, plaintiffs may not maintain such an action against Hampshire, and summary judgment was properly granted.\nThe judgment of the circuit court of Kane County is affirmed.\nAffirmed.\nMcLAREN and LINDBERG, JJ., concur.", "type": "majority", "author": "JUSTICE WOODWARD" } ], "attorneys": [ "Jeffrey L. Lawrence, of Kelley & Associates, of Schaumburg, for appellants.", "Mark T. Schuster, of Strom & Schuster, of Elgin, for appellees." ], "corrections": "", "head_matter": "MARCO J. MUSCARELLO et al., Plaintiffs-Appellants, v. WILLIAM SCHMIDT et al., Defendants-Appellees.\nSecond District\nNo. 2-88-0387\nOpinion filed February 7, 1989.\nRehearing denied March 7, 1989.\nJeffrey L. Lawrence, of Kelley & Associates, of Schaumburg, for appellants.\nMark T. Schuster, of Strom & Schuster, of Elgin, for appellees." }, "file_name": "0999-01", "first_page_order": 1021, "last_page_order": 1024 }