Halpin v. Schultz

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Halpin v. Schultz

State: Illinois

Court: 3rd District Appellate

Docket No: 3-06-0767 Rel

Case Date: 04/23/2008

Preview:No. 3--06--0767 Filed April 23, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 FRANCIS HALPIN, SCOTT HALPIN, and ) THE ESTATE OF MERVILLE T. ) CHRISTENSEN, By and Through its Executor, ) Rodger Christensen, ) ) Plaintiffs-Appellees, ) ) v. ) ) PETER SCHULTZ ) ) Defendant-Appellant ) ) ) (James Schultz, ) and Unknown Owners of Record, ) ) Defendants). ) Appeal from the Circuit Court of the 13th Judicial Circuit Grundy County, Illinois

No. 05--MR--10

Honorable Robert C. Marsaglia Judge, Presiding

JUSTICE WRIGHT delivered the opinion of the court:

Defendant, Peter Schultz (hereinafter referred to as defendant), appeals from an order of the Grundy County circuit court allowing plaintiffs, Francis Halpin, Scott Halpin, and the estate of Merville T. Christensen, by and through its executor, Rodger Christensen, to "replace and maintain" agricultural tile on defendant's farmland without his permission. After carefully reviewing the record, we vacate the circuit court's order. BACKGROUND

On April 26, 2005, plaintiffs filed a two-count complaint in the Grundy County circuit court alleging that defendants prevented them from exercising their statutory right to drain water through defendants' land. In count I, plaintiffs requested the court to grant a declaratory judgment "finding the natural flow of water from plaintiffs' property is over and through the property of the defendants," and declaring plaintiffs possessed a continuous right to drain water from their property through defendants' property. In the same count, plaintiffs requested the court to grant them the right of access to defendants' land to replace and repair drainage tile. Plaintiffs also requested an order prohibiting defendants' interference with these "rights 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 defendants' refusal to allow plaintiffs permission to enter his land to repair or alter the drainage system. The complaint named neighbors, James and Peter Schultz, and "Unknown Owners of Record" as defendants. Peter Schultz (defendant) appeared personally and challenged the action pro se. Defendant's nephew, James or Jimmy Schultz, was served with summons and consented to allow access to his 37 acres, which lie between Peter's property and his brother James's three acres. Defendant's brother James was not personally served or named in the court's final order.1 Nephew James Schultz has not appealed. Plaintiffs subsequently filed a motion for summary judgment, which the court denied. Included in the order denying summary judgment, the trial judge allowed plaintiffs to enter defendant's property "for the purpose of determining topography and

The complaint does not reveal whether defendant's brother was the intended defendant. Regardless, neither James Schultz has joined this appeal. 2

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find[ing] existing tiles." The court ordered the inspection to occur no later than January 15, 2006, and required a prerequisite 24 hours' notice to defendant before entry on his property. The court specifically ordered plaintiffs to secure a liability insurance policy for at least $1 million prior to entry. Plaintiffs entered defendant's property on two occasions. On January 14 or 15, 2006, Richard Wepprecht (Wepprecht), a farm drainage contractor, probed the property to determine the presence and direction of defendant's drainage tiles. On February 7, 2006, Wepprecht and his son returned to defendant's land with a backhoe and truck. This time, a marked squad car and uniformed officer stood by while Wepprecht used the back hoe to remove between 14 and 42 inches of frozen cover soil in order to expose and examine the condition of defendant's drainage tiles. Wepprecht photographed the excavation for future court proceedings. The matter proceeded to trial on May 26, 2006. As a preliminary matter, defendant requested that the court bar plaintiffs from introducing evidence gathered during their second inspection and excavation of his property. In his opening remarks, defendant informed the judge that plaintiffs gathered evidence from his property on February 7, 2006, a date that was beyond the court's January 15 deadline for plaintiffs to enter defendants property, to locate the tile and measure elevations. Defendant also advised the judge that the entry occurred without 24-hour notice to him and, therefore, he was not present to witness the procedures. In response, the court advised defendant that if he suffered any damage to his property, he would "need to bring an action. The motion (to bar) will be denied." 3

Plaintiffs opened their case by calling one of the plaintiffs, Rodger M. Christensen (Rodger), the executor of the Merville T. Christensen estate, who testified to the history of the land. He stated his 28-acre parcel was originally part of an approximately 100-acre parcel previously owned by the Christensen family and annexed to the city of South Wilmington in September of 1993. In 1994, the family sold a 16.85-acre strip of land, which was developed into a 16-lot subdivision with all lots abutting Coster Road, with plans to expand the subdivision to 80 lots. The subdivision had a separate water main system, a sanitary sewer system, and was divided from north to south by Lake Street, which runs perpendicular to Coster Road. The family retained approximately 28 acres and constructed a two-acre pond on that property, and sold the other 65 acres on the western side of their property to "the Halpin brothers." Rodger described an instance in 1966 when he personally observed water from the entire 100-acre parcel draining to the northeast over the Schultz brothers' land and watched crop debris washing across the land in that direction. Rodger testified that the original 100-acre parcel contained drainage tile which he personally repaired on five or six occasions during the 1960s and 1970s. Rodger was not aware of any modifications to the property that altered the natural flow of water from the time he made these observations in 1966. Approximately two years before trial, Rodger spoke to defendant, Peter Schultz, about a small east-west ditch or swale located along the south edge of defendant's property along Rodger's north property line. During their discussion, defendant advised Rodger that defendant planned to eliminate the ditch by turning it into cropland. According to Rodger, he remembered that when the ditch existed, it "took" some 4

drainage water but "it wasn't a high percentage." After entering the swale, Rodger stated the water traveled eastward into a ditch along Coster Road. After entering that ditch, the runoff traveled to the north. Rodger agreed the swale was located entirely on defendant's property. Rodger also agreed his family constructed a pond on their remaining land, complete with a duck blind, and that the Halpins dug a second duck blind on their 65 acres. Rodger explained the purpose of the duck pond was to "hold back" water during heavy rains to protect lower landowners from excessive flooding as part of a conservation reserve program (CRP) administered by the United States Department of Agriculture (USDA). Rodger further explained the pond was designed with seepage tiles to help landowners to the north by "giving them less water." Rodger stated the pond did not alter the general course of natural drainage from the south to the northeast. The plaintiffs' second witness at trial was Guy Richard Christensen, unrelated to the plaintiff, an engineer for Chamlin & Associates in Morris, Illinois. Guy testified that he was present in defendant's field when the elevation measurements and excavation occurred. Wepprecht located tiles starting at a point near the boundary line between defendant's land and Christensen's property toward the north-northeast through defendant's land, but he noted the actual discharge point for these drainage tiles was not located. Guy explained he could not identify an exit point for the tile because, "It was not determined by Mr. Wepprecht which

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