{ "id": 5118881, "name": "EDWARD L. BENNO, Plaintiff-Appellant, v. THE CENTRAL LAKE COUNTY JOINT ACTION WATER AGENCY, Defendant-Appellee", "name_abbreviation": "Benno v. Central Lake County Joint Action Water Agency", "decision_date": "1993-03-05", "docket_number": "No. 2-92-0605", "first_page": "306", "last_page": "314", "citations": [ { "type": "official", "cite": "242 Ill. App. 3d 306" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "99 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164374 ], "pin_cites": [ { "page": "391-92" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0389-01" ] }, { "cite": "236 Ill. App. 3d 557", "category": "reporters:state", "reporter": "Ill. 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BENNO, Plaintiff-Appellant, v. THE CENTRAL LAKE COUNTY JOINT ACTION WATER AGENCY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court;\nPlaintiff, Edward L. Benno, appeals pro se from the orders of the trial court which dissolved a temporary restraining order (TRO), dismissed plaintiff\u2019s complaint for trespass, and awarded damages to defendant, the Central Lake County Joint Action Water Agency. The essential issue on appeal is whether a utility is free to dig and install a water main in plaintiff\u2019s land without securing plaintiff\u2019s permission or exercising the power of eminent domain where the State of Illinois has the right to use that land for highway purposes.\nOn October 23, 1991, plaintiff filed a pro se petition for a TRO against defendant. In the petition, plaintiff sought to prevent defendant from digging under or into any portion of his property until after a full hearing. Plaintiff attached to the petition his affidavit in which he averred that he owned two parcels of land at 17960 W. Route 120 which extended to the center line of Route 120 so that the south 25 feet of his property were being used by the State for highway purposes. Plaintiff further averred that a waterline under his property would prevent him from building on his land in the event that the highway easement reverts to plaintiff. Plaintiff also attached a copy of the legal description and a plat of survey of the property, and a copy of a letter from the Department of Transportation (DOT). The letter states in relevant part that DOT admitted that plaintiff owned the property up to the center line of Route 120. On the basis of these documents, the court granted a TRO.\nOn October 29, 1991, defendant filed an appearance and moved to dissolve the TRO. Defendant argued that the court erred in imposing the TRO by not giving notice to defendant and by not requiring plaintiff to post a bond to secure the TRO, and defendant suffered damages from the delay. Defendant also argued that plaintiff had no likelihood of prevailing on the merits and he would suffer no irreparable injury and has an adequate remedy at law if the pipe is laid under the shoulder of the road.\nDefendant submitted the affidavit of its construction manager, William McDonnell, in which McDonnell stated that defendant was laying 32 miles of water transmission lines, including the line under the shoulder of Route 120. Defendant procured all of the easements or rights-of-way by donation or purchase and did not have to resort to condemnation. The lines were completed on either side of plaintiff\u2019s property, but defendant needed to connect the lines to pressure test them. Further, McDonnell averred that until the line was pressure tested, the contractor could not begin the surface restoration.\nDefendant also attached a copy of the affidavit of its chairman, N. David Graf. According to Graf, defendant received written consent from DOT to install the waterline along Route 120. Defendant had intended to place the waterline on a portion of plaintiff\u2019s property which was not subject to the highway easement, but plaintiff demanded $196,300 for such an easement, so defendant relocated the line to be in the highway right-of-way. The waterline was completed except for the portion in front of plaintiff\u2019s property. The water carried through this line will serve the residents of Grayslake, Gurnee and Wildwood. Finally, defendant attached a copy of the highway permit by which DOT allowed defendant to place the lines in the highway right-of-way of Route 120.\nThe court found that the TRO was granted without notice; the TRO was granted improvidently; and there existed an adequate remedy at law for plaintiff. The court therefore dissolved the TRO on October 29, 1991.\nThe following day, plaintiff filed a complaint for trespass. Plaintiff alleged, inter alia, that in February 1991, Nestor Reina, an engineer for defendant, entered plaintiff\u2019s property. Reina gave plaintiff a packet of materials which stated that construction for the pipeline would begin in the area. Plaintiff informed Reina that the property extended to the middle of Route 120 and there were no easements on the property for defendant to use. Reina told plaintiff that defendant would not enter the property. Early in March 1991, plaintiff saw workers with chain saws cutting down bushes and trees on his property and trees with X\u2019s spray-painted on them. One workman was inserting stakes into plaintiff\u2019s front yard. The man informed plaintiff that he worked for the general contractor of the project. Plaintiff told them there were no easements in the property that defendant could use, and plaintiff ordered the crew to cease destroying his trees and bushes and to leave the property. After the sheriff\u2019s deputies and Reina arrived, plaintiff showed Reina surveys of the property. Reina acknowledged that defendant had no right to enter the property and assured plaintiff they would leave and cease further trespasses. Later that month, plaintiff received a number of telephone calls from defendant requesting an easement on the property. Plaintiff further alleged that after the court dissolved the TRO, digging resumed on the property and, in the process, trees, bushes and fencing were being destroyed. In addition, plaintiff alleged that the general contractor \u201cwillfully and wantonly without notice broke the main power cable to the Property cutting off all electricity, water and heat\u201d to plaintiff\u2019s home. Finally, plaintiff alleged that the past trespasses caused him damages in excess of $100,000 and future trespasses would cause further damages because plaintiff would be further deprived of trees and bushes expected to die as a result of the digging. In his prayer for relief, plaintiff requested an injunction in addition to damages.\nDefendant filed a motion to dismiss the complaint pursuant to section 2 \u2014 615 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 \u2014 615). Defendant argued that the installation of a public improvement along a highway falls within the highway easement. On February 5, 1992, the court ruled that defendant had the right to install its pipeline beneath the highway right-of-way and there had been no trespass. The court therefore dismissed the complaint. Plaintiff filed a motion to reconsider, and defendant filed a petition for damages incurred as a result of the TRO and moved to amend the order so that the court could retain jurisdiction to hear the petition. The court denied the motion to reconsider, and it granted the motion to amend the order and allowed defendant leave to file its petition.\nPlaintiff then filed a section 2 \u2014 1401 petition for relief from the order which dissolved the TRO. (See 111. Rev. Stat. 1991, ch. 110, par. 2 \u2014 1401.) Essentially, plaintiff alleged that defendant had notice that plaintiff was seeking a TRO because plaintiff telephoned defendant\u2019s office that morning and informed defendant\u2019s assistant director of plaintiff\u2019s intention to seek a TRO. Thus, plaintiff reasoned, the TRO should not have been dissolved. Plaintiff also sought leave to file an amended complaint.\nThe court denied the section 2 \u2014 1401 petition, and it denied plaintiff leave to file an amended complaint. The court granted defendant\u2019s petition for damages and awarded defendant $10,493.57. Plaintiff then timely appealed.\nPlaintiff contends that defendant had no authority to lay its pipe on plaintiff\u2019s property. Plaintiff first cites to section 9 \u2014 113(1) of the Illinois Highway Code (Highway Code), which provides that the consent granted to a public utility by DOT to place a pipeline under part of a highway is limited to the extent of the State\u2019s property interest. (111. Rev. Stat. 1991, ch. 121, par. 9 \u2014 113(1).) Subsection (1) further states that the owner of the fee under the highway is not bound by the State\u2019s consent and the consent \u201cshall not otherwise relieve the entity granted that consent from obtaining by purchase, condemnation or otherwise the necessary approval of any owner of the fee.\u201d (111. Rev. Stat. 1991, ch. 121, par. 9 \u2014 113(1).) However, the provision does not apply to uses for highway or road purposes. 111. Rev. Stat. 1991, ch. 121, par. 9 \u2014 113(1).\nDefendant responds that the water main is within the highway easement. Defendant cites to Cammers v. Marion Cablevision (1976), 64 Ill. 2d 97, in support of its argument. Defendant relies on the following language from Cammers:\n\u201c[U]nderground installations which are for the benefit of the public at large and which do not impair the use of the highway have been regarded as falling within the highway easement. (Barrows v. City of Sycamore (1894), 150 Ill. 588, 593.)\u201d Cammers, 64 Ill. 2d at 103.\nPlaintiff argues that Cammers is distinguishable and is not controlling authority. First, as plaintiff correctly points out, the above-quoted portion of Cammers is dictum. (Times Mirror Cable Television of Springfield, Inc. v. First National Bank (1991), 221 Ill. App. 3d 340, 351; Lewis v. Illinois Bell Telephone Co. (1982), 107 Ill. App. 3d 97, 99.) Lewis rejected the supreme court\u2019s interpretation of Barrows in Cammers. (See also Cammers, 64 Ill. 2d at 104 (Ryan, J., dissenting).) Lewis held that where the land is in an unincorporated area, the underground installation was an additional burden on the fee owner and was not part of the highway easement. (Lewis, 107 Ill. App. 3d at 101.) (We note, parenthetically that section 9 \u2014 113(a) was amended in 1988 to also require consent for highways within a municipality. See 111. Rev. Stat. 1991, ch. 121, par. 9 \u2014 113(a).)\nThe holding of Lewis is directly on point factually with the present cause. However, we agree with plaintiff that Cammers is not controlling authority for another reason. Cammers applied the 1973 version of section 9 \u2014 113 which provided, in relevant part, that, \u201c \u2018No ditches, drains, track, rails, poles, wires, pipe line [sic] or other equipment of any public utility company *** shall be located, placed or constructed upon or along any highway *** without first obtaining the written consent of the appropriate highway authority ***.\u2019\u201d (Emphasis added.) {Cammers, 64 Dl. 2d at 101, quoting Dl. Rev. Stat. 1973, ch. 121, par. 9 \u2014 113.) Section 9 \u2014 113 was amended in 1984, to state, \u201cNo ditches, drains, track, rails, poles, wires, pipe line [sic] or other equipment of any public utility company *** shall be located, placed or constructed upon, under or along any highway *** without first obtaining written consent of the appropriate highway authority ***.\u201d (Emphasis added.) (Dl. Rev. Stat. 1985, ch. 121, par. 9 \u2014 113(a).) The 1973 version further provided:\n\u201c[C]onsent to so use a highway may be granted subject to such terms and conditions not inconsistent with this Code as the highway authority deems for the best interest of the public. The petitioner shall pay to the owners of property abutting upon the affected highways established as though by common law [sic] plat all damages the owners may sustain by reason of such use of the highway ***.\u201d (Emphasis added.) (111. Rev. Stat. 1973, ch. 121, par. 9-113.)\nThe 1984 amendment also added subsection (1) to section 9 \u2014 113, which, as noted above, limits the State\u2019s consent to the extent of its interest in the land.\nWhen the legislature has made a material amendment to a statute after judicial interpretation of the statute, it is presumed that the legislature intended to effect a change in the law. (DeGrand v. Motors Insurance Corp. (1992), 146 Ill. 2d 521, 526.) The 1984 amendments drastically altered section 9 \u2014 113. (Compare Dl. Rev. Stat. 1985, ch. 121, par. 9 \u2014 113 with Dl. Rev. Stat. 1983, ch. 121, par. 9 \u2014 113.) We conclude that the legislature intended to change the law.\nNo case has interpreted section 9 \u2014 113(1) or considered the effect of the amended language of section 9 \u2014 113(a). All of the cases cited by both parties predate the statutory amendments. Thus, we will apply the rules of statutory construction to determine whether defendant was required to obtain plaintiff\u2019s consent prior to installing the water main. The goal of statutory interpretation is to give effect to the intent of the legislature in enacting the statute. (Balmoral Racing Club, Inc. v. Illinois Racing Board (1992), 151 Ill. 2d 367, 390.) That intent should be derived from the language of the statute, the evil to be remedied and the object of the provision. American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 24.\nAccording to the plain language of section 9 \u2014 113(1), the public utility must obtain the consent of the property owner, unless the construction is for a highway purpose. (111. Rev. Stat. 1991, ch. 121, par. 9 \u2014 113(1).) Defendant does not argue that installation of the water main is for a highway purpose. Justice Ryan, in his dissent to Cammers, explained that no one could lay sewer pipes on the right-of-way without the consent of the highway authorities because the use of the land is \u201csubject to the right of the public to unobstructed use of the highway easement. The effect of section 9 \u2014 113 is to ensure that no one \u2014 whether an abutting landowner, a public utility, or a private company acting with permission of the landowner \u2014 will interfere with the public\u2019s highway easement.\u201d (Cammers, 64 Ill. 2d at 107 (Ryan, J., dissenting).) Thus, the water main, like a sewer, is not being installed for a highway purpose.\nDefendant argues that it did not need plaintiff\u2019s permission because the installation of the water main was within the easement. \u201cObtaining a right-of-way by easement is an interest in land ***.\u201d (Greater Peoria Sanitary & Sewage Disposal District v. Baise (1992), 234 Ill. App. 3d 622, 626.) If the unlimited use of the highway shoulder is a use permitted under the easement rights of DOT, then, under section 9 \u2014 113(1), defendant did not need plaintiff\u2019s permission. If, however, DOT\u2019s easement is limited to using the highway and right-of-way solely for highway purposes, then defendant needed plaintiff\u2019s permission to install the water main on plaintiff\u2019s land because the use would be beyond the scope of the State\u2019s interest in the property. Plaintiff relies on In re Onarga, Douglas & Danforth Drainage District (1989), 179 Ill. App. 3d 493, for the proposition that Illinois courts \u201chave been loath to increase the usage to which an easement is put even through [sic] the proposed use is relative to the original purpose of a constituted easement.\u201d (Onarga, 179 Ill. App. 3d at 494-95.) In Onarga, the court held that replacing a 10-inch drainage tile with a 24-inch drainage tile was an impermissible increase in the burden on the servient estate. 179 Ill. App. 3d at 495.\nDefendant responds that under Cammers the scope of the highway easement includes underground improvements made for the benefit of the public. However, as noted above, the statutory language regarding the \u201cbest interest of the public\u201d was deleted in the 1984 amendment to the statute. Thus, whether the project is for the benefit of the public is no longer a factor.\nDefendant further argues, however, that the result in Cammers does not depend on section 9 \u2014 113, but is based on common-law principles. We disagree. Cammers held that the consent of the State, pursuant to section 9 \u2014 113, did not relieve the cable company from liability to the property owners for damages. (Cammers, 64 Ill. 2d at 102.) If Cammers applied common-law principles, the court would have allowed the injunction (see 64 Ill. 2d at 103) and would have found that the action of the cable company constituted a trespass (64 111. 2d at 108 (Ryan, J., dissenting)).\nWe conclude that the installation of the water main is beyond the scope of the easement. Defendant does not have an easement in the property. The easement here belongs to DOT for highway purposes, and an easement may not be extended to accommodate other uses. (See McCann v. R.W. Dunteman Co. (1993), 242 Ill. App. 3d 246, 255.) As discussed above, a water main is not a highway purpose. (See Cammers, 64 Ill. 2d at 107 (Ryan, J., dissenting).) The installation of the water main on plaintiff\u2019s property would constitute a trespass at common law. (See Brinkley v. Brinkley (1988), 174 Ill. App. 3d 705, 709, 713.) The only authority for defendant to install the water main is pursuant to section 9 \u2014 113(1), the statutory abrogation of the common law, or if it exercises the power of eminent domain.\nWith these principles in mind, we now consider whether the trial court erred in dismissing plaintiff\u2019s complaint for trespass. A motion to dismiss a complaint admits all well-pleaded facts alleged in the complaint. (Carrillo v. Hamling (1990), 198 Ill. App. 3d 758, 764.) Although defendant ostensibly brought the motion to dismiss under section 2 \u2014 615 (HI. Rev. Stat. 1991, ch. 110, par. 2 \u2014 615), the motion actually was in the nature of a motion to dismiss based on affirmative matter which defeats the claim (111. Rev. Stat. 1991, ch. 110, par. 2\u2014 619(aX9)). A complaint should not be dismissed pursuant to section 2\u2014 619 unless it is clear that no set of facts exists which would entitle the plaintiff to recover. Geick v. Kay (1992), 236 Ill. App. 3d 868, 874.\nIn his complaint for trespass, plaintiff alleged that he owned the property on which defendant entered and began installing the water main. Plaintiff also alleged that he did not give defendant permission to install the water main. Plaintiff further alleged that defendant\u2019s actions destroyed plaintiff\u2019s trees and bushes and defendant acted willfully and wantonly. (See Rodrian v. Seiber (1990), 194 Ill. App. 3d 504, 509-10.) A trespass is the entry onto another\u2019s land without permission, invitation, or other right. (Hendle v. Stevens (1992), 224 Ill. App. 3d 1046, 1055.) The allegations of the complaint are sufficient for the court to find that defendant failed to comply with the requirements of section 9 \u2014 113(1) and that defendant wrongfully entered plaintiff\u2019s land. Defendant did not present any affirmative matter to show that it exercised the power of eminent domain to acquire the right to install the water main. In addition, plaintiff\u2019s request for a permanent injunction is properly supported by allegations that he suffered continuing trespasses. (Chicago Title & Trust Co. v. Weiss (1992), 238 Ill. App. 3d 921, 928.) We conclude that the court erred in dismissing plaintiff\u2019s complaint.\nDefendant argues that plaintiff\u2019s appeal should be limited to reviewing the dismissal of the complaint because, according to defendant, plaintiff waived the other issues by failing to argue them on appeal. (See 134 Ill. 2d R. 341(e)(7); Stichauf v. Cermak Road Realty (1992), 236 Ill. App. 3d 557, 566.) In the concluding paragraph of his appellant\u2019s brief, plaintiff requests that we reverse any ruling of the circuit court which was based on the erroneous finding that defendant was free to dig and install the water main in plaintiff\u2019s land without his permission. However, the order dissolving the TRO was also based on the finding that defendant did not have notice of the hearing. Thus, a basis still exists for the dissolution of the TRO. In addition, defendant\u2019s petition for damages and plaintiff\u2019s section 2 \u2014 1401 petition were based in part on the question of notice of the hearing for the TRO. Plaintiff did not submit a report of proceedings or a bystander\u2019s report. We must assume that the trial court granted defendant damages based on plaintiff\u2019s failure to notify defendant of the hearing for the TRO. (See Foutch v. O\u2019Bryant (1984), 99 Ill. 2d 389, 391-92.) Consequently, we will not disturb that ruling.\nThe judgment of the circuit court of Lake County is affirmed in part and reversed in part, and the cause is remanded for further proceedings on plaintiff\u2019s complaint.\nAffirmed in part; reversed in part and remanded.\nWOODWARD and BOWMAN, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "Edward L. Benno, of Grayslake, appellant pro se.", "Stewart H. Diamond and Dean W. Krone, both of Ancel, Clink, Diamond & Cope, P.C., of Chicago, for appellee." ], "corrections": "", "head_matter": "EDWARD L. BENNO, Plaintiff-Appellant, v. THE CENTRAL LAKE COUNTY JOINT ACTION WATER AGENCY, Defendant-Appellee.\nSecond District\nNo. 2 \u2014 92\u20140605\nOpinion filed March 5, 1993.\nEdward L. Benno, of Grayslake, appellant pro se.\nStewart H. Diamond and Dean W. Krone, both of Ancel, Clink, Diamond & Cope, P.C., of Chicago, for appellee." }, "file_name": "0306-01", "first_page_order": 324, "last_page_order": 332 }