People ex rel. Peters v. O'Connor, No. 3-99-0354
3rd District, 25 February 2000
| THE PEOPLE, ex rel. DONALD PETERS, Executor of the Estate of Clarence Peters, Plaintiff-Appellant, v. LAVERNE O'CONNOR, GENE WARMBIR, RUSSELL ROSENBOOM, and MILKSGROVE SPECIAL DRAINAGE DISTRICT NO. 1 OF IROQUOIS COUNTY,ILLINOIS Defendants-Appellees. | Appeal from the Circuit Courtfor the 21st Judicial Circuit,Iroquois County, Illinois No. 96--MR--12 Honorable Duane J.O'Connor, Judge, Presiding |
JUSTICE BRESLIN delivered the opinion of the court:
Plaintiff Donald Peters, as executor of the estate of his father, Clarence Peters, filed suit against the commissioners of MilksGrove Special Drainage District No. 1, and the District itself (collectively District), seeking an order of mandamus to forcethe District to repair a bridge over a drainage ditch which would allow Peters access to a landlocked portion of his father'sfarm. The trial court (1) ordered the District to repair or replace the bridge, at least to the specifications of the bridge as itwas originally built; (2) denied Peters damages for crop loss for the period of time he had no access to the landlockedportion of his farm; and (3) held that the District had a 1.65 acre easement as the result of this court's decision in Peters v.Milks Grove Special Drainage District No. 1, 243 Ill. App. 3d 14, 610 N.E.2d 1385 (1993). We hold that a drainage districthas a duty to maintain, repair or replace a bridge to landlocked property created by a drainage ditch, and must do so in areasonable manner so as to provide a passageway for today's farm uses. Moreover, we hold that damages for crop loss neednot be calculated with mathematical certainty, but that it is enough to show realistically expected crop yield and value.
FACTS
In 1990, the District dredged a drainage ditch separating Peters' farmland into two parcels consisting of 54 acres on oneside of the ditch and 17 acres on the other. The District had a previously existing easement in the land alongside the ditchbut, in dredging the ditch in 1990, soil and debris were placed on Peters' land beyond the easement. Following thedredging, the slopes of the ditch began to erode. The erosion caused damage to a bridge crossing the ditch which was builtby the District prior to 1956 pursuant to the Illinois Drainage Code (Act) (70 ILCS 605/12-5 (West 1998)). The bridge wasPeters only access to the 17 acre parcel. That property became useless to Peters when the bridge could no longer handle theweight of his farm equipment.
In 1993, this court ruled that the District had an obligation to repair and maintain the bridge pursuant to the Act. See Peters,243 Ill. App. 3d at 23, 610 N.E.2d at 1391. We also held that the District had "taken" 1.65 acres of Peters' land when itplaced soil and debris beyond its easement and we ordered the District to pay just compensation in the amount of $4,125.Peters, 243 Ill. App. 3d at 20, 610 N.E.2d at 1390.
When the District failed to repair the bridge, Peters filed this suit for an order of mandamus to force the District to do so. Inthe same complaint, Peters asked for damages for crop loss from the 17 landlocked acres for the years 1992 through 1998when he could not access the property due to the state of disrepair of the bridge. The District filed a counterclaim requestingthat the court order Peters to convey to it the 1.65 acres of land for which it had paid just compensation.
The trial court denied the District's claim for a conveyance of the land, holding instead that the appellate court gave theDistrict an easement. The court ordered the District to repair or replace the bridge, at least to the specifications of the bridgewhen it was originally constructed. Further, the court denied Peters damages for crop loss from the landlocked acresbecause, it concluded, Peters had not provided sufficient evidence of his damages. Peters now appeals.
Other relevant facts will be discussed as they become pertinent to the analysis.
ANALYSIS
The first issue on appeal is whether the trial court erred when it held that the Act (70 ILCS 605/12-5 (West 1998)) requiresonly that the District repair the bridge to the condition in which it existed when it was originally erected.
The primary rule of statutory construction is to give effect to the legislature's intent. Doyle Plumbing & Heating Co. v.Board of Education, Quincy Public School District No. 172, 291 Ill. App. 3d 221, 683 N.E.2d 530 (1997). When construingthe language of a statute, a court should consider its plain and ordinary meaning within the overall context of its reason andnecessity and its stated purpose. Illinois Bell Telephone Co. v. Illinois Commerce Comm'n, 282 Ill. App. 3d 672, 669N.E.2d 628 (1996). This court reviews matters of statutory interpretation de novo. A.B. Dick Co. v. McGraw, 287 Ill. App.3d 230, 678 N.E.2d 1100 (1997).
This issue is governed by the first paragraph of section 12-5 of the Act because the District was organized prior to June 28,1919, and the bridge in question was erected prior to January 1, 1956. Paragraph one of section 12-5 states in pertinent part:
"In districts organized prior to June 28, 1919, under the Farm Drainage Act, the districts shall continue to be liablefor the construction, reconstruction and maintenance of at least one bridge or proper passageway over each openditch constructed or ordered constructed prior to the effective date of this Act [January 1, 1956] where the samecrosses any enclosed tract or parcel of land in such a manner that a portion thereof is landlocked and has no accessfrom any public highway other than by a bridge or passageway over the ditch. The cost of constructing,reconstructing and maintaining such bridge or crossing shall be paid by the district***." (emphasis added) 70 ILCS605/12-5 (West 1998).
In the first Peters case, this court held that the District must "maintain the bridge in a safe condition so that Peters can usethe bridge for access to the landlocked portion of his farm." Peters, 243 Ill. App. 3d at 23, 610 N.E.2d at 1391. Peterscontends that this language implies that because he must have access to the farm property, whatever bridge is constructed orrepaired must be able to handle modern farm machinery.
Whether a drainage district must repair or replace a bridge constructed by the district pursuant to section 12-5 of the Act insuch a condition that it can accommodate today's farm machinery is an issue of first impression. While there is no case lawdirectly on point, we find that People ex rel. Speck v. Peeler, 290 Ill. 451, 125 N.E. 306 (1919), provides valuable guidanceon how to approach the analysis of this issue.
In Speck, the drainage district removed several bridges when constructing a ditch and subsequently replaced them as theyoriginally existed. The highway commissioner argued that when the bridges eventually needed to be replaced with moremodern and permanent structures, it was the drainage district's responsibility to do so. The court held that the duty toreplace the bridges still rested upon the highway commissioner because it was he who "possess[ed] the only authorityconferred by law for levying a tax or incurring a liability for public road and bridge purposes." Speck, 290 Ill. at 456-57,125 N.E. at 308. The court went on to state that the highway commissioners' duty to build bridges on the highways acrosswaterways is continuous. Speck, 290 Ill. at 457, 125 N.E. at 309.
In this case, it is the District which is empowered to levy taxes for the purpose of maintaining bridges. See Peters, 243 Ill.App. 3d at 22, 610 N.E.2d at 1391. Moreover, the plain language of section 12-5 of the Act indicates that the District's dutyto construct, reconstruct and maintain at least one farm bridge to landlocked property is continuous. See 70 ILCS 605/12-5(West 1998).
Paragraph one of section 12-5 deals entirely with bridges erected by the District after the construction of a drainage ditchcreates a landlocked portion of farmland. The Act specifically requires the District to continue to reconstruct and maintainat least one "proper passageway" to the landlocked property. 70 ILCS 605/12-5 (West 1998). In short, if farmers are unableto access their land with necessary farm equipment due to the District's failure to maintain its bridge in a fashion that willallow it to accommodate modern farm equipment, then farmers have effectively been denied passage to their land as if thebridge did not exist.
While Speck concerned the maintenance of public roads and bridges, and not those used solely by farmers to cross drainageditches constructed on their property, we find this difference to be inconsequential to a decision on this issue. It is the publicas a whole that benefits from the creation of drainage ditches and not simply the farmers who must rely upon the bridgescrossing them to access all parts of their farmland. Thus, it is the public as a whole that must contribute to the cost ofmaintaining district bridges through the levying of taxes by the drainage district.
We now hold that paragraph one of section 12-5 of the Act requires a district that has landlocked a portion of a farmer'sland by way of a drainage ditch to provide a bridge or passageway to the landlocked property capable of sustaining modernfarm equipment. We do not mean to suggest that the District is required to construct the bridge to Peters' specifications orto the specifications of his expert witness. We hold only that whatever bridge the District constructs must be appropriate toaccommodate modern farm equipment.
The next issue on appeal is whether the trial court erred when it found that Peters had not presented sufficient evidence toaward damages for crop loss for that period of time when Peters was unable to access the landlocked property.
The trial court here denied Peters damages for crop loss because it found that Peters had failed to offer evidence of soil type,crop rotation, or production history. The court concluded that it could not calculate damages with any degree of certaintywithout such evidence.
We will not disturb a trial court's judgment as to damages unless it is against the manifest weight of the evidence. Royal'sReconditioning Corp. v. Royal, 293 Ill. App. 3d 1019, 689 N.E.2d 237 (1997). A judgment is against the manifest weight ofthe evidence if it appears to be unreasonable, arbitrary or unsupported by the evidence. Leonardi v. Loyola University ofChicago, 168 Ill. 2d 83, 658 N.E.2d 450 (1995).
Absolute mathematical certainty is not required to fix the amount of damages. Rhodes v. Sigler, 44 Ill. App. 3d 375, 357N.E.2d 846 (1976). In Johnson v. Sleaford, 39 Ill. App. 2d 228, 237-38, 188 N.E.2d 230 (1963), the court held that themeasure of damages -for crop loss is ascertained by the:
"probable amount of grain the crop would produce, and the probable value of the same in the market at the marketseason, deducting therefrom the necessary cost of cultivating, harvesting, and taking the same to market; the amountand value are necessarily hypothetical and an opinion thereon can only be formed by considering the average yield atthe place and under like circumstances and the average value of the products in the market at the place and time ofmarket [citation]."
Peters testified that the crops grown on the landlocked 17 acres were always the same as those planted on the adjoining 54acres across the ditch and that the yields were almost identical. Peters then used the crop yield from the 54 acres between1992 and 1998 to figure what the yield would have been from the 17 acres had he been able to farm them. He thensubtracted the proportionate cost of taxes, chemicals and seeds to come up with a figure of $7,990 which he testified washis loss. None of this testimony was refuted by the District.
We find that Peters sufficiently proved damages for crop loss consistent with the formula set forth in Johnson. Accordingly,we reverse the trial court's decision denying Peters damages for crop loss in the amount of $7,990 because that decisionwas against the manifest weight of the evidence.
The final issue on appeal is whether the trial court erred in ruling that the District obtained an easement in the 1.65 acres ofland for which it was ordered to pay just compensation.
In a counterclaim to this action, the District requested the court to order Peters to convey to it the 1.65 acres of land byvirtue of our decision in the first Peters case. See Peters, 243 Ill. App. 3d at 20, 610 N.E.2d at 1390. The circuit courtdenied the request for a conveyance, finding instead that this court had given an easement over the 1.65 acres which theDistrict may continue to use. Peters appeals this decision, arguing that this court never gave the District an easement in theadditional acres. On appeal, the District does not seek a conveyance of the land but, instead, contends that the courtcorrectly granted it an easement in the 1.65 acres.
In the first Peters case, we found that the District's original easement was limited to the extent of its prior actual use and, inpiling dirt on Peters' land, the District had exceeded the scope of its easement. We then awarded Peters $4,125 because theDistrict is a public agency prohibited from "taking" private property without just compensation. Peters, 243 Ill. App. 3d at20, 610 N.E.2d at 1390. This court never discussed the effect of the "taking" in terms of a property interest acquired by theDistrict.
Eminent domain is defined as the right of a sovereign to condemn private property for public use and to "appropriate theownership or possession of such property." Leonard v. Autocar Sales & Service Co., 392 Ill. 182, 64 N.E.2d 477 (1945). If,during the construction of a public improvement, earth material invades the real estate of another so as to destroy or impairits usefulness, that action by the sovereign qualifies as a "taking" even though the sovereign made no attempt to formallycondemn it. Horn v. City of Chicago, 403 Ill. 549, 87 N.E.2d 642 (1949). To constitute a "taking" through eminent domainproceedings, there must be actual physical invasion of the property. Otherwise, the landowner has only an action at law fordamages to the property. Luperini v. County of Du Page, 265 Ill. App. 3d 84, 637 N.E.2d 1264 (1994).
In the instant case, there was actual physical invasion which amounted to a "taking." This court held that Peters wasdeprived of 1.65 acres of land that were "taken by a public agency for public use." Peters, 243 Ill. App. 3d at 20, 610N.E.2d at 1389. After the land was valued at $2,500 per acre, the court awarded Peters "just compensation" in the amount of$4,125. A careful review of the Peters decision indicates that Peters was paid for the whole 1.65 acres rather than damagesonly. Thus, we conclude that the language used by this court and the method of valuation of Peters' loss indicates that thiscourt intended to give the District some property right in the land. Accordingly, we find that the circuit court did not errwhen it granted the District an easement in the 1.65 acres with a right to its continued use.
For the foregoing reasons, the judgment of the circuit court of Iroquois County is affirmed in part and reversed in part andthe cause is remanded for further proceedings consistent with this order.
Affirmed in part and reversed in part; cause remanded.
HOLDRIDGE and HOMER, JJ., concur.