Victor Twp. Drainage Dist. 1 v. Lundeen Family Farm P'ship

19 N.E.3d 652

VICTOR TOWNSHIP DRAINAGE DISTRICT 1, Plaintiff–Appellee

v.LUNDEEN FAMILY FARM PARTNERSHIP, Linda S. Johnson, Cynthia J. Lundeen, Dean A. Lundeen, Gerald L. Lundeen, Margaret E. Perry, and Donna A. Shaw, Defendants–Appellants.

No. 2–14–0009.

Appellate Court of Illinois, Second District.

Sept. 29, 2014.

Daniel J. Kramer, of Law Offices of Daniel J. Kramer, of Yorkville, for appellants.

John W. Countryman, of Foster & Buick Law Group, LLC, of Sycamore, for appellee.

OPINION

Justice SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 On August 28, 2013, the trial court entered an order granting injunctive relief to the plaintiff, Victor Township Drainage District 1, against the defendants, Lundeen Family Farm Partnership, Linda S. Johnson, Cynthia J. Lundeen, Dean A. Lundeen, Gerald L. Lundeen, Margaret E. Perry, and Donna A. Shaw. The trial court directed the defendants to disconnect a drain tile on their property that they had connected to the plaintiff's drainage district and cap it off at least 100 feet east of the connection. The trial court further ordered that, before the soil was replaced, the plaintiff or its representatives should be allowed to inspect the disconnection. The defendants appeal from that order. We affirm.

¶ 2 BACKGROUND

¶ 3 On September 30, 2011, the plaintiff filed suit against the defendants, seeking a temporary restraining order and a preliminary injunction. The plaintiff alleged that it was a drainage district established pursuant to the Illinois Drainage Code (Drainage Code) (70 ILCS 605/1–1 et seq. (West 2010)). The plaintiff further alleged that the defendants installed a drain tile on their property (the subject property), a 120–acre parcel east of Graham Road in De Kalb, and connected it to the plaintiff's facilities without the plaintiff's consent. Further, the subject property was outside the natural watershed of lands drained by the plaintiff's facilities. The plaintiff alleged that it was irreparably damaged and that there was no adequate remedy at law.

¶ 4 A bench trial was held on April 5, 2012. There is no transcript of the proceedings in the record. However, the record includes the trial court's written order entered on May 10, 2012. In that order, the trial court (Judge Kurt Klein) acknowledged that the defendants should not have connected their drain tile to the plaintiff's system. However, the court further found that it would be unreasonable to require the defendants to disconnect, because the plaintiff had observed the installation over a period of time and failed to object. The court noted that no further connection would be permitted and that the defendants would be required to pay the impact costs of connecting to the plaintiff's facilities.

¶ 5 On July 10, 2012, the plaintiff filed a motion to reconsider or for a new trial. In part, the plaintiff argued that a new trial was warranted because the trial court had applied an incorrect legal standard to the facts. Specifically, Illinois drainage law did not permit one to change the natural course of drainage and, further, it did not permit one watershed to drain into another watershed without prior approval.

¶ 6 On September 24, 2012, following a hearing, the trial court entered a written order granting the plaintiff's motion and ordering a new trial. A complete report of proceedings is not included in the record. However, there is an excerpt from the hearing. In the excerpt, the trial court explained that it had hoped that the parties would see the reasonableness of its May 10 order, but acknowledged that they had not. The trial court stated:

“[The plaintiff's counsel] has a valid point with the third matter [,] misapplication of the law. I was trying to accomplish something that maybe I shouldn't have been trying to accomplish. Maybe it was a bridge too far, but apparently these fellows are not going to get along, so I'm going to vacate the proofs and give you another whack at it with another judge.”

¶ 7 On January 13, 2013, the plaintiff filed a two-count first amended complaint. Count I requested a mandatory injunction ordering the defendants to disconnect their drain tile from the plaintiff's drainage district and a permanent injunction barring any future connections by the defendants. Count II, which requested a declaratory judgment, was ultimately dismissed upon the plaintiff's motion.

¶ 8 On February 19, 2013, the defendants filed an answer to the first amended complaint, alleging three affirmative defenses. The first affirmative defense was based on estoppel. In support, the defendants alleged that the subject drain tile installation occurred within the boundaries of Union Drainage District No. 4 (Union 4) and that Union 4 approved the work. Additionally, prior to commencement of the work, the plaintiff asked Dean to attend one of the plaintiff's meetings. At that meeting, Dean informed the plaintiff's commissioners of the drain tile installation and no one voiced any objections at that time or while the work was being completed. The defendants therefore argued that the plaintiff should be estopped from asserting any right to an injunction.

¶ 9 The second affirmative defense was based on accord and satisfaction. The defendants argued that in 1976 the plaintiff and Union 4 entered a written agreement whereby Union 4 was allowed to outflow into the plaintiff's district and would pay for the cost of the use of the common drain between the two districts. The third affirmative defense was based on the good-husbandry rule. The defendants argued that the good-husbandry rule was an exception to the Illinois drainage law and allowed for the drain tile installation at issue, because it resulted in the reasonable agricultural use of the subject property.

¶ 10 A bench trial commenced on March 26, 2013, with Judge John McAdams presiding. Dale Stockley testified that he was the plaintiff's attorney. Stockley was familiar with the subject property, which he described as the Lundeen property east of Graham Road. On September 6, 2011, Dean came to one of the plaintiff's meetings. Two of the plaintiff's commissioners were present. Dean requested that the subject property be annexed into the district. Eight days later, Stockley and the commissioners went to view the subject property and saw that it drained to the east. At that time he saw a backhoe on the property, but could not see for what it was being used. There was no discussion of a drain tile installation or approval for such work. Two days later, Stockley went back to Dean's farm and informed Dean that his request to annex was denied.

¶ 11 David Burrows testified that he was a licensed civil engineer and was employed by the plaintiff in 2006 and 2007 to review boundary lines. Since the defendants had installed the subject drain tile, he had been out to view the property at the plaintiff's request. He was familiar with the plaintiff's boundaries, as depicted in plaintiff's exhibit No. 1. The exhibit was prepared under his supervision. There were some spot elevations done near roadways and culverts to determine which way things were draining. The property draining to the east drained to the Somonauk Creek watershed, and the property that drained to the west went to the plaintiff's watershed. (The record indicates that the subject property was located in Union Drainage District No. 1 (Union 1) and that the Somonauk Creek watershed is also referred to as the Union 1 ditch.)

¶ 12 Burrows further testified that, based on conversations with some of the property owners downstream of the subject property and within the plaintiff's district, there were flooding issues during severe rain events prior to the connection of the subject property. Accordingly, he opined that the defendants' drain tile connection would increase the number of potential floods. Based on his investigation and preparation of plaintiff's exhibit No. 1, and based on elevations, Burrows opined that the natural watershed of the subject property drains to the east. He opined that there was no impediment to placing a drainage system in the area and draining it to the east. Further, it was not reasonable to drain the subject property to the west. Burrows testified that, if the trial court ordered a disconnection of the subject property from the plaintiff's drainage district, the disconnection would have to be a minimum of 100 feet east “to assure that you're getting separation below ground so that that water doesn't migrate on the ground and still get into the ditch.” Additionally, once the drain tile was removed, clay would have to be placed in the excavation to ensure that water did not continue to flow in that direction.

¶ 13 Ronald Frieders testified that he was one of the plaintiff's commissioners. There were about 7,500 acres in the plaintiff's district. In 2007, the plaintiff hired an engineering firm to figure out if there were any properties adding water to the district that were not contributing to maintenance fees. Such properties were then annexed into the district. He was familiar with the subject property and knew that it was not within the plaintiff's boundaries. Frieders further testified that he was familiar with the subject drain tile installation. The drain tile was 24 inches in diameter and was placed 17 feet deep to get it across Graham Road and into the low ground.

¶ 14 Frieders owned and farmed property within the plaintiff's boundaries and occasionally experienced crop damage as a result of overflow. In the spring of 2011, he had over 30 acres of crops that he replanted three times due to repeated rains. Since that time there had not been any unusually heavy rain events. Prior to 2011, the plaintiff's drainage district would overflow two to three times in a five-year period. It would be difficult to estimate damages to his crops as a result of the subject drain tile installation, because every rainfall event was different.

¶ 15 Norman Wesson testified that he was also one of ...