Halpin v. Schultz

917 N.E.2d 436, 234 Ill. 2d 381, 334 Ill. Dec. 610, 2009 Ill. LEXIS 930
CourtIllinois Supreme Court
DecidedJune 18, 2009
Docket106537
StatusPublished
Cited by22 cases

This text of 917 N.E.2d 436 (Halpin v. Schultz) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Halpin v. Schultz, 917 N.E.2d 436, 234 Ill. 2d 381, 334 Ill. Dec. 610, 2009 Ill. LEXIS 930 (Ill. 2009).

Opinion

JUSTICE KARMEIER

delivered the judgment of the court, with opinion.

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in the judgment and opinion.

OPINION

Francis Halpin, Scott Halpin, and the estate of Merville T. Christensen (hereinafter referred to as plaintiffs) own certain farmland in Grundy County. At issue in this case is their right under the Illinois Drainage Code (70 ILCS 605/1 — 1 et seq. (West 2004)) to enter onto neighboring property owned by Peter Schultz for the purpose of replacing underground drainage tile. After Schultz refused to consent to installation of the replacement tile, plaintiffs filed suit against him for declaratory, injunctive and monetary relief. Following a bench trial, the circuit court of Grundy County entered an order permitting plaintiffs to install the replacement tile on defendant’s property, but specifying that plaintiffs would be hable for any damages caused by the work they performed. The appellate court reversed, with one justice dissenting, on the grounds that the circuit court’s order was fatally defective for failure to comply with the requirements of the Illinois Drainage Code (70 ILCS 605/1 — 1 et seq. (West 2004)). 382 Ill. App. 3d 169. We granted plaintiffs’ petition for leave to appeal. 210 Ill. 2d R. 315. For the reasons which follow, we reverse the appellate court’s judgment and affirm the judgment of the circuit court.

Background

Plaintiffs’ property was originally part of a single parcel, approximately 100 acres in size, belonging to the Christensen family. The original parcel extended from west to east along Rice Road, terminating on the east at Coster Road. In 1994, the Christensen family sold a 16.85-acre strip of the land where it abutted Coster Road. That strip was developed into a subdivision containing 16 residential lots. The subdivision has a separate water main system and a sanitary sewer system and is divided from north to south by Lake Street, which runs perpendicular to Coster Road, and Oak Street, which is also perpendicular to Coster Road.

After the subdivision was created, the Christensen family retained approximately 28 acres of their original parcel and sold the remaining 65 acres to the Halpins. The Halpins’ property is situated due west of the Christensen land, which is, in turn, due west of the new subdivision. All of these parcels are adjacent to but south of property owned by the Schultz family. Defendant Peter Schultz owns the property to the immediate north of the land owned by the Halpins and Christensen. Peter’s brother, James, owns land north of Peter’s.

The topography of the area is such that the land owned by the Halpins and Christensen has a higher elevation than the Schultzes’ land. Moving from southwest toward the northeast, the gradient declines from nearly 593 feet to between 586 and 587 feet where the Schultzes’ property begins. From there it further descends to an elevation of less than 584 feet. When it rains, surface water flows downward from the land owned by the Halpins and Christensen in a northeasterly direction across the Schultzes’ property.

Plaintiffs’ land contains drainage tile to facilitate this drainage. Aligned with the natural flow of surface water, the tile runs from the south toward the north or northeast. After the Christensens’ original 100-acre parcel was divided, the Christensens also constructed a duck pond on the land they retained. The pond was installed as part of a conservation reserve program administered by the United States Department of Agriculture. Designed with seepage tiles, the pond served to hold back water during heavy rains in order to protect lower landowners, including the Schultzes, from excessive flooding. It did not alter the general course of the natural drainage from the south to the northeast, but did decrease the volume of water which flowed over the property.

A small depression, or swale, previously ran in an east-to-west direction along the southern edge of Peter Schultz’s property near the northern border of the Christensen land. The swale, which was located entirely on Peter Schultz’s property, channeled a small amount of surface water eastward into a ditch along Coster Road, from where it would flow north. The swale was ultimately filled in and crops were planted there.

Just as drainage tile is located under the property owned by the plaintiffs, so too does drainage tile run beneath the Schultzes’ land. Work performed by a farm drainage contractor confirmed that a run of tile extends from plaintiffs’ property and continues across the Schultzes’ property in a north-northeast direction. Where, precisely, the tile terminates was never determined. While there are drain tile outlets at the northeast portion of the Schultzes’ land where it intersects a roadway, no tests were performed to confirm which, if any, of these is an exit point for the tile extending from plaintiffs’ land across the property owned by the Schultzes.

The drainage tile under the parties’ property is made of clay. It is 8 inches in diameter where it begins under plaintiffs’ land and increases to 10 inches in diameter under the Schultzes’ property. The point at which the tile transitions from one size to the other is unknown.

Clay drainage tile is susceptible to breakage and deterioration and must sometimes be repaired or replaced. Testimony presented at trial indicated that the tile under the parties’ properties was dug up and repaired numerous times. A farm drainage contractor who examined the existing tile was of the opinion that it should all be repaired using 12-inch corrugated plastic tile. The larger size would accommodate larger volumes of runoff. The change in material was dictated by the fact that clay tile is no longer manufactured. The contractor believed that plastic tile is also preferable because it is not subject to corrosion and tends to slow the movement of water. In the contractor’s view, a new 12-inch tile would not only properly address the drainage needs of the land owned by plaintiffs, but would also improve the drainage of the Schultzes’ land.

When Peter Schultz refused to permit plaintiffs to enter onto his property to undertake the repairs, plaintiffs initiated these proceedings in the circuit court of Grundy County. Plaintiffs’ complaint named as defendants both Peter and James Schultz. The complaint contained two counts. Count I sought a declaratory judgment that the natural flow of water from plaintiffs’ property is over and through the property owned by the Schultzes and that, pursuant to the Illinois Drainage Code (70 ILCS 605/1 — 1 et seq. (West 2004)), plaintiffs have the right to drain water from their property through the Schultzes’ property. Plaintiffs further requested an order: (1) granting them the right to access the Schultzes’ land to replace and repair drainage tile and (2) prohibiting the Schultzes from interfering with their right “to naturally drain said water, repair the tile or to replace the tile.” In count II, plaintiffs sought monetary damages for any crop loss caused by the Schultzes’ refusal to allow plaintiffs to access their land to make the necessary repairs to the drainage system.

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Bluebook (online)
917 N.E.2d 436, 234 Ill. 2d 381, 334 Ill. Dec. 610, 2009 Ill. LEXIS 930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/halpin-v-schultz-ill-2009.