Hammock v. Ulrich Family Farms II,LLC.

2024 IL App (5th) 230199-U

• Court: Appellate Court of Illinois
• Decided: May 13, 2024
• Docket: 5-23-0199
• Status: Unpublished

Opinion

2024 IL App (5th) 230199-U NOTICE NOTICE Decision filed 05/13/24. The This order was filed under text of this decision may be NO. 5-23-0199 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

MICHAEL S. HAMMOCK and ) Appeal from the KATHLEEN L. HAMMOCK, ) Circuit Court of ) Madison County. Plaintiffs-Appellants, ) ) v. ) No. 18-CH-426 ) ULRICH FAMILY FARMS II, LLC, and ) DENNIS ULRICH, ) Honorable ) A. Ryan Jumper, Defendants-Appellees. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.

ORDER

¶1 Held: The trial court’s determination that the plaintiffs altered the natural flow of water by installing a restricted landing area is not against the manifest weight of the evidence. The trial court did not improperly apply the law regarding water and drainage from a dominant property to a servient property. The order of the trial court is affirmed.

¶2 The plaintiffs, Michael Hammock and Kathleen Hammock, appeal from the December 21,

2022, order of the circuit court of Madison County denying their request for injunctive relief and

the February 28, 2023, order of the circuit court of Madison County clarifying the December 21,

2022, order. For the following reasons, we affirm.

1 ¶3 I. BACKGROUND

¶4 This dispute involves a drainage issue between neighboring properties. The plaintiffs and

the defendants each own 80 acres of land adjacent to one another. The plaintiffs’ property is to the

west and the defendants’ property is to the east. The plaintiffs’ property is the dominant estate

based upon a slight grade from west to east.

¶5 On August 8, 2018, the plaintiffs filed a two-count complaint against the defendants, Ulrich

Family Farms II, LLC (Farm) and Dennis Ulrich (Ulrich), seeking injunctive relief. Count I sought

a mandatory injunction requiring the defendants to restore the natural drainage from the dominant

estate to the servient estate. Alternatively, count II sought a mandatory injunction authorizing the

plaintiffs to go upon the servient estate to restore the natural drainage from the dominant estate to

the servient estate and for an injunction prohibiting the defendants from interfering with said

restoration.

¶6 The complaint alleges as follows:

“5. Sometime in 2014, the Defendants, Ulrich Family Farms II, LLC and Dennis

Ulrich, constructed or caused to be constructed on the Servient Estate a drainage system

consisting of underground tiles. As part of this construction, the Defendants, Ulrich Family

Farms II, LLC, and Dennis Ulrich, filled in the two open waterways which transected the

Servient Estate into which water from the Dominant estate flowed.

6. The changes made by the Defendants, Ulrich Family Farms II, LLC and Dennis

Ulrich, set forth in Paragraph 5 herein, obstruct the natural flow of water to the Servient

Estate from the Dominant Estate, causing water to back up and pool on the Dominant

Estate.

2 7. The changes made by the Defendants, Ulrich Family Farms II, LLC and Dennis

Ulrich, set forth in Paragraph 5 herein constitute an unlawful obstruction of the natural

flow of water from the Dominant Estate in violation of the drainage rights of the Plaintiffs.”

¶7 In response, the defendants sought a denial of the requested injunction and asserted that

the plaintiffs’ drainage issues were caused by the construction of a restricted landing area (RLA).

Neither plaintiffs nor defendants made a claim pursuant to adverse possession, or for a claim for a

prescriptive easement, or any other acquiescence claims.

¶8 The matter proceeded to a bench trial that began on August 15, 2022, and concluded the

following day. The plaintiffs presented testimony from Michael Hammock; Mark Abert, the

farming tenant for the Hammocks; David Helgen, the person who installed drainage tile for Dennis

Ulrich; and Lee Beckman, a professional engineer and land surveyor. The defendants presented

testimony from Bryan Martindale, a professional engineer; Michael Hammock; and Dennis Ulrich.

A deposition of Nick Burrus was also admitted into evidence, as well as numerous photographs

and expert reports. The following relevant evidence was adduced at trial.

¶9 Michael Hammock (Hammock) received a bachelor’s degree in aeronautical and

astronautical engineering. He also obtained a commercial pilot’s license. In 1983, Hammock

purchased the property at issue because he was seeking property that was well suited for an RLA

so he could fly his personal aircraft from his own property. In 1984, Hammock sought approval

from the requisite governmental agencies to construct the RLA, which was granted and finalized

in January 1985.

¶ 10 Hammock testified that he, with some help from his tenant at the time, constructed the

RLA. Hammock stated,

3 “what I did is since I had two waterways running west to east, the runway runs north to

south, so I had to cross those waterways. So, I covered the waterway by putting in culverts,

putting a little bit of topsoil across the top of the culvert so the grass would grow, and that’s

what I did.”

Hammock testified as follows regarding the culverts he placed:

“Q. [Plaintiff’s counsel]: The culverts, how big are they?

A. The north culvert is 18 inches in diameter and approximately 90 feet across

and the south culvert is 15 inches in diameter and it’s 100 feet, I believe.

Q. And how did you choose that sized culvert?

A. Well, the culverts were laid in existing ditches. So, what I did—and I didn’t

want to change the flow of the water through those ditches. So, what I did is I took a 10[-

]foot 2x4 out, laid it across the waterways—these waterways aren’t huge; you’ll see in

some other photographs—I laid it across them and then I measured from the bottom of the

2x4 to the bottom of the ditch how deep is that. And on the south end, it was roughly 20

inches, 22 inches, so I could easily get in a 15-inch culvert in there.

And I did the same thing on the north end and had a little—the height was like two

feet, so I could put in an 18-inch culvert and still have some top soil on top of the culvert

and allow the water to pass through.”

¶ 11 When Hammock constructed the RLA, he “put in a six-inch crown across the 70 feet of

the restricted landing area.” He testified that over the past 38 years the crown has been pushed

down and now “you’ll see a couple inches of crown across 70 feet.”

4 ¶ 12 Hammock built a driveway on the property in 1984 or 1985, a machine shed on the property

in 1986, and a home in 1996. Hammock testified that none of the changes he made to the property

changed how water drained from his property.

¶ 13 Hammock spoke to David Helgen when Helgen was designing a tile system for Ulrich.

Hammock agreed that an underground tile system is considered good agricultural husbandry.

Further, Hammock agreed that such underground tile systems are not designed to take surface

water run-off but are designed to lower the water table.

¶ 14 Mark Abert testified that he was the current farm tenant for Hammock and had been since

approximately 2009. Previously, Abert was a farm tenant, beginning in 2009, for the prior owner

of the Ulrich property, and continued as a farm tenant until Ulrich purchased the property.

Plaintiff’s counsel asked Abert if he ever saw water pond on Hammock’s property prior to 2014.

Abert stated, “Not as bad as it is now.” He also testified that he did not recall seeing flooding as

shown in Plaintiff’s Exhibit 56 prior to 2014.

¶ 15 David Helgen was called as a witness by the plaintiffs. Helgen testified that he farmed and

installed drainage tile for a living. He completed a tiling job for Ulrich in 2015 to lower the water

table within the field to promote root development for the crops. When creating the tile design for

the Ulrich farm, Helgen would have physically traveled to the field and measured the elevation

across the field. This data would then be used by a computer program to create a design for the

underground tile system.

¶ 16 Helgen testified that he installed two inlet risers at the locations where it was obvious that

culverts emptied into the fields. The risers were to allow some of the water to be directed into the

tile system instead of flowing across the field. Helgen testified that the tile system was not designed

to alter or change the surface flow of water on either Ulrich’s property or Hammock’s property.

5 ¶ 17 Helgen testified that while he was at the Ulrich property, he had a conversation with

Hammock. Helgen testified that Hammock indicated that he had “some drainage issues of some

sort, especially pertaining to the grass strip that is out there.”

¶ 18 Lee Robert Beckman testified that he was a professional engineer and land surveyor. He

owned his own business Milano & Grunloh Engineers. Beckman testified that his firm was

contacted by plaintiff’s counsel to evaluate the Hammock property in relation to the natural flow

of water and how it was changed based upon the construction of some facilities downstream.

Beckman and other individuals from his firm evaluated the property by personally viewing it,

taking measurements, completing a topographic survey, and completing a drainage analysis. A

report was prepared based upon these findings and was presented as an exhibit at trial. Beckman

testified that the report created by his firm determined, inter alia, that Ulrich’s underground tile

system was not big enough. However, at trial, Beckman conceded the size of the system is

irrelevant to determining what is happening with the water.

¶ 19 Beckman testified that he worked on the Hammock report with Nick Burris. At the time of

trial, Burris no longer worked for Milano & Grunloh Engineers as he had taken a job elsewhere.

Burris was the representative from Milano & Grunloh Engineers who had been deposed earlier in

the case.

¶ 20 Beckman testified that his firm did not initially calculate the capacity of the culverts

because the “capacity of those culverts have no bearing on the backing up of the water.” While on

the stand, Beckman calculated that during a 10-year rain, which is what the Illinois Department of

Transportation utilizes to calculate the appropriate size of a storm sewer, the rate of water flow at

the Hammocks’ northern culvert inlet would be 52.9 cubic feet per second (CFS) and the rate of

flow to the southern culvert inlet would be 18.1 CFS.

6 ¶ 21 Further questioning on this issue was as follows:

“Q. [Defense counsel]: You mean if water was coming at 52.9 CFS to a culvert

and it could only take 10 CFS—

A. [Beckman]: It would simply back up on Mr. Hammock’s problem, which is

his own issue.

Q. Exactly. I thought you just said—exactly. If there’s—if 52 CFS is coming

into the 18-inch culvert and he can take 10 CFS, that 40 CFS is backing up on Mr.

Hammock.

A. It would just go over the runway.

Q. Well, maybe.

A. Yes.

Q. But, it certainly is not going through the pipe?

A. Correct.”

¶ 22 Beckman agreed that the culverts on the Hammocks’ property are undersized. Beckman

further testified as follows:

“Q. [Defense counsel]: Creating a 1200-foot berm six inches high where water

is going to have to flow over it on relatively flat land, that’s going to have an [effect] on

the flow of that water, isn’t it?

A. Yes, it would.

Q. All right. Trying to run water through an 18-inch or 15-inch 100-foot steel

culvert is not a natural condition on farmland, is it, to run under somebody’s farmland onto

somebody else’s farmland? You don’t see that, do you?

A. I would say it’s not natural.”

7 ¶ 23 Plaintiffs rested their case following Beckman’s testimony. The bench trial was continued

on August 16, 2022, and the defendants presented their evidence.

¶ 24 Bryan B. Martindale testified that he was a professional engineer. He has worked as a

professional engineer and civil engineer involving hydrology and drainage work since 1980.

Martindale was asked to examine the Hammock and Ulrich properties and provide an opinion on

the drainage. Martindale prepared a report with his opinions.

¶ 25 Martindale testified that the landing strip altered the natural drainage of water from the

Hammock property to the Ulrich property. The following testimony was presented:

“Q. [Defense counsel]: So there has been concern in this case, and I think that

Plaintiffs, the Hammocks, have a view that when you see large water on their side of the

runway, that this is somehow being caused by the berms on Mr. Ulrich’s property. Do you

have an opinion about that, sir?

A. [Martindale]: Well, that goes against physics. Physics, basically, is that water

is running downhill from west to east on the property, and the first obstruction that it sees

is the landing strip and the culverts, and that has restricted the flow from the natural

condition, a much wider overland sheet flow, to a much more concentrated, much smaller

area of flow, i.e., the physics says the water can’t fit through that smaller area; it has to

back up.”

¶ 26 Martindale also testified regarding the culverts being sloped more steeply than the natural

grade of the land leading to the culverts. This change in slope would change the velocity of the

water going through the culverts and onto the Ulrich property. Martindale testified that he observed

erosion on the Ulrich property from the discharge of water from the culverts.

8 ¶ 27 Ulrich testified that he is an accountant and a farmer. He purchased the land next to the

Hammocks in 2013. In the spring of 2014, the trees were removed from the Ulrich land and

farming was conducted from north to south. In 2015, an underground tile system was installed on

the Ulrich property. The underground tile system was installed to lower the water table to increase

crop yields. He also testified regarding erosion that was occurring on his property from water

leaving the culverts on the Hammocks’ property.

¶ 28 Following the conclusion of testimony, the trial court took the matter under advisement.

The trial court issued its written decision on December 21, 2022. The trial court’s order made the

following findings of fact:

“Petitioners and Respondents each own 80 acres of land adjacent to one another in

Madison County: Hammocks to the west and Ulrich to the east. Based on a slight grade

from West to East the Ulrich property is the servient land. All of the land in dispute is

zoned agricultural. In 1985 the Hammocks applied for and received permission from the

State of Illinois to build a Restricted Landing Area (RLA) on the easternmost strip of their

land adjacent to what is now the Ulrich farm. The RLA is 2420 [feet] in length from north

to south and approximately 70 feet in width. Running underneath the RLA at two spots are

metal culverts which channel surface water from the Hammock property to the Ulrich

property. Although the culverts were created at the time the RLA was installed, the ditches

that feed into the culverts can be seen on aerial maps and surveys of the two properties

going back to the 1940’s.

In 2015, a year after his purchase of the property, Ulrich made certain modifications

to his farmland. First, ruts on his property that had been cut by the flow of water from the

Hammock property following discharge from the ditches and culvert were drug and

9 levelled so that equipment could run over the previously steep banks. Second, Ulrich

installed an underground tiling system under his farmland. The usual use for such a system

is the lowering of the ground water level to promote root depth and consequently increase

yields in Ulrich’s crop. However, as part of the 2015 installation, intake inlets were also

installed on the Ulrich property western edge directly across from the Hammock culvert

outlets. The surrounding Ulrich property was modified to catch or funnel water to the tiling

intake through berms and a catch crown which act as a backboard around the inlets.

The undisputed testimony is that during certain rain events water will pool on the

Hammock property both to the east and west of the RLA with the western pooling

continuous to the inlets and pond around the tiling system intake. At the time of trial the

RLA had not been used since approximately 2008.”

The trial court’s order also contained the relevant case law considered by the trial court and the

analysis of the issues presented. The trial court noted the good husbandry exception which has

been recognized since the 1800s and allows a dominant property to change the flow of water for

agricultural good husbandry purposes. Peck v. Herrington, 109 Ill. 611 (1884). The trial court also

noted the modernization of this principle which results in a balancing of the harms and benefits of

changing the natural flow of water. Templeton v. Huss, 57 Ill. 2d 134 (1974).

¶ 29 Ultimately, the trial court found that the crown of the RLA created an unnatural barrier to

the flow of surface water across the Hammock property. The trial court noted that there was no

testimony that the RLA had any agricultural purpose and it had previously been used for the

Hammocks’ recreational landing of small airplanes but had not been used for such since 2008.

¶ 30 The trial court identified the ultimate issue as “whether an unnaturally concentrated flow

of water from the dominant estate has to be accepted by the servient estate in the most efficient

10 manner, (remembering that acquiescence and adverse possession are not considered) or simply has

to be accepted.” The trial court conducted a harm and benefit analysis and found in favor of the

defendants.

¶ 31 On January 20, 2023, the plaintiffs filed a motion to clarify the order of December 21,

2022. Specifically, the plaintiffs sought clarification of the following portion of the order:

“However, Ulrich is cautioned that should the slope and grade of any of the Ulrich

improvements result in a barrier for the natural volume of sheet flow from the dominant to

the servient estate, assuming the pre-RLA slope and grade from the dominant estate, then

those improvements must be modified to preserve the natural sheet flow rate.”

A hearing on the motion was conducted on February 28, 2023. At the hearing, the trial court

explained on the record that if the RLA was removed, then Ulrich would need to modify the

improvements on his land.

¶ 32 Plaintiffs filed a timely notice of appeal on March 27, 2023.

¶ 33 II. ANALYSIS

¶ 34 A. Natural Flow of Water

¶ 35 On appeal, the plaintiffs argue that the trial court’s finding that the RLA altered the natural

flow of water was against the manifest weight of the evidence. Further, the plaintiffs allege the

trial court improperly considered that Ulrich’s improvements were consistent with good husbandry

and that the Hammock property was nonagricultural. Based on the foregoing, the plaintiffs argue

the trial court erred in refusing to grant their requested injunctive relief.

¶ 36 “The standard of review in a bench trial is whether the judgment is against the manifest

weight of the evidence.” Camelot, Inc. v. Burke Burns & Pinelli, Ltd., 2021 IL App (2d) 200208,

¶ 50. When sitting as the trier of fact in a bench trial, the trial court makes findings of fact and

11 weighs all of the evidence in reaching a conclusion. Nokomis Quarry Co. v. Dietl, 333 Ill. App. 3d

480, 483-84 (2002). “When a party challenges a trial court’s bench-trial ruling, we defer to the

trial court’s factual findings unless they are contrary to the manifest weight of the evidence.” Id.

at 484. When applying this standard of review, we give great deference to the trial court’s

credibility determinations, and we will not substitute our judgment for that of the circuit court

“ ‘because the fact finder is in the best position to evaluate the conduct and demeanor of the

witnesses.’ ” Staes & Scallan, P.C. v. Orlich, 2012 IL App (1st) 112974, ¶ 35 (quoting Samour,

Inc. v. Board of Election Commissioners, 224 Ill. 2d 530, 548 (2007)). “A factual finding is against

the manifest weight of the evidence when the opposite conclusion is clearly evident or the finding

is arbitrary, unreasonable, or not based in evidence.” Samour, 224 Ill. 2d at 544. The trial court’s

findings and judgment will not be disturbed “if there is any evidence in the record to support such

findings.” Brown v. Zimmerman, 18 Ill. 2d 94, 102 (1959).

¶ 37 In this case, the plaintiffs challenge the trial court’s finding that the RLA they created

altered the natural flow of water from their property to the servient property to the east. We have

thoroughly reviewed the record on appeal. We note that the trial court heard testimony from each

side’s expert witnesses as well as lay testimony from the parties. The plaintiffs’ own expert

testified that the culverts installed under the RLA resulted in an unnatural flow of water, and

further, that the culverts were undersized. Further, the plaintiffs’ experts testified that the RLA

resulted in water flow from all but four to six acres of the Hammocks’ property to be directed

through the culverts.

¶ 38 Accordingly, we cannot say that the trial court’s finding that plaintiffs altered the natural

flow of water was arbitrary, unreasonable, or not based on the evidence or that the opposite

conclusion was clearly evident.

12 ¶ 39 Next, we turn to the contentions that the trial court improperly applied the law regarding

good husbandry, i.e., that the court improperly considered the good husbandry of the defendants

and the consideration of the nonagricultural nature of plaintiffs’ property. We review the

application of law de novo. Shulte v. Flowers, 2013 IL App (4th) 120132, ¶ 19.

¶ 40 Illinois law regarding the flow of water from one property to another as well as when

alterations to the natural flow of water are permitted is well-settled. See Hicks v. Silliman, 93 Ill.

255 (1879), and Peck v. Herrington, 109 Ill. 611 (1884). The general principle is “[w]here water

from one tract of land falls naturally upon the land of another, the owner of the lower land must

suffer the water to be discharged upon his land and has no right to stop or impede the natural flow

of the surface water.” (Emphasis added.) Gough v. Goble, 2 Ill. 2d 577, 580 (1954). Additionally,

the owner of the dominant property may not construct drains or ditches to create new channels for

water in the servient property, unless the changes are for agricultural purposes on his own land, as

may be required by good husbandry. Peck, 109 Ill. at 619.

¶ 41 As the development of property for reasons other than agricultural became the norm, the

law adapted.

“The question which must be confronted is whether the increased flow of surface

waters from the land of the [dominant property] to that of the [servient property], regardless

of whether it was caused by diversion from another watershed, the installation of septic

tanks, the grading and paving of streets, or the construction of houses, basements and

appurtenances, was beyond a range consistent with the policy of reasonableness of use

which led initially to the good-husbandry exception.” Templeton v. Huss, 57 Ill. 2d 134,

146 (1974).

13 Now instead of analyzing whether changes to the dominant land are required for agricultural good

husbandry, a balancing of the harms and benefits is conducted to determine if the alterations are

reasonable. Swigert v. Gillespie, 2012 IL App (4th) 120043, ¶¶ 35-36.

¶ 42 After the trial court made its determination that the Hammocks, the dominant property

owners, altered the natural flow of water with the installation of the RLA, the next step of the

analysis is to determine whether the Hammocks were allowed to make such an alteration. Under

the former good husbandry exception, the analysis would have stopped as soon as it was

determined that the Hammocks’ property was used for recreation purposes rather than agricultural

purposes. However, recognizing that the law changed from the strict agricultural good husbandry

only exception to a reasonable use exception, the analysis continues.

¶ 43 When determining what is reasonable, in either a rural, agricultural setting or an urban

setting, a balancing between the benefit to the dominant estate versus the harm to the servient

estate must be considered. Shulte, 2013 IL App (4th) 120132, ¶ 29.

“In other words, to what extent does the change in the natural flow of surface water benefit

the higher land and harm the lower land, and is this balance of harm and benefit equitable?

In addressing those questions, the trier of fact may consider the following factors ***:

(1) the extent of the harm, (2) the character of the harm, (3) the social value that the law

attaches to the use or enjoyment invaded, (4) the suitability of that use or enjoyment to the

character of the locality, (5) the burden on the servient estate of avoiding the harm, and

(6) the usefulness of the development of the dominant estate.” Id.

¶ 44 In the present matter, the trial court applied the proper law and balanced the harms and

benefits for a reasonable use analysis. As there was no error in the application of the law, the trial

court’s findings of facts regarding the harms and benefits would be reviewed under the manifest

14 weight of evidence standard. The plaintiffs did not challenge these findings in their brief; however,

if they had, the trial court’s balancing of the harms and benefits between the properties under the

reasonable use test was not against the manifest weight of the evidence. Accordingly, the trial court

correctly denied the requested injunctive relief.

¶ 45 III. CONCLUSION

¶ 46 For the foregoing reasons, we affirm the December 21, 2022, order of the circuit court of

Madison County.

¶ 47 Affirmed.