Hilligoss v. Illini Cablevision of Illinois, Inc.
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0151
Case Date: 01/14/1998
NO. 4-97-0151
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JIM K. HILLIGOSS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Douglas County
ILLINI CABLEVISION OF ILLINOIS, INC., ) No. 96CH8
Defendant-Appellee. )
) Honorable
) Dan L. Flannell,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
In this case, the information highway intersects long-
standing principles relating to ownership of real estate, and the
question is which takes precedent. Plaintiff Jim K. Hilligoss
appeals the dismissal of his complaint against defendant Illini
Cablevision of Illinois, Inc. Plaintiff's complaint filed July 29,
1996, alleged three counts: count I sought a preliminary injunc-
tion and a mandatory injunction prohibiting defendant from
installing its cable over plaintiff's property and requiring its
removal; count II sought a declaratory judgment that defendant had
no right to trespass on plaintiff's property and that the cable
should be removed; and count III was an action of forcible entry
and detainer alleging defendant had wrongfully withheld and
continued to wrongfully withhold possession of property owned by
plaintiff. The complaint alleged that in November 1995 defendant
installed the cable on plaintiff's property. Defendant's combined
motion to dismiss was brought pursuant to sections 2-615 and 2-619
of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619
(West 1994)). In granting the motion to dismiss, the trial court
did not address the section 2-615 portion of the motion.
The issues are whether, as a matter of law, (1) defendant
was conclusively shown to be a franchisee with Douglas County; (2)
section 621(a)(2) of the federal Cable Communications Policy Act of
1984 (Cable Act) (47 U.S.C. 541(a)(2) (1994)) allowed the
installation of defendant's cable across plaintiff's property; and
(3) defendant's failure to provide plaintiff with timely notice
pursuant to section 5-1096 of the Counties Code (55 ILCS 5/5-1096
(West 1994)) was a bar to the use of existing easements and rights-
of-way. We reverse and remand for further proceedings.
The section 2-619 portion of the motion to dismiss
attacked all three counts of the complaint. Noting plaintiff
sought to enjoin defendant's installation of cable television
lines, defendant referred to section 621(a)(2) of the Cable Act,
which provided as follows:
"(2) Any franchise shall be construed to
authorize the construction of a cable system
over public rights-of-way, and through ease-
ments, which is within the area to be served
by the cable system and which have been dedi-
cated for compatible uses, except that in
using such easements the cable operator shall
ensure-
(A) that the safety, function-
ing, and appearance of the property
and the convenience and safety of
other persons not be adversely af-
fected by the installation or con-
struction of facilities necessary
for a cable system;
(B) that the cost of the in-
stallation, construction, operation,
or removal of such facilities be
borne by the cable operator or sub-
scriber, or a combination of both;
and
(C) that the owner of the prop-
erty be justly compensated by the
cable operator for any damages
caused by the installation, con-
struction, operation, or removal of
such facilities by the cable opera-
tor." 47 U.S.C. 541(a)(2) (1994).
Defendant asserted that, based on this provision of the Cable Act,
plaintiff may not make private agreements or otherwise limit
rights-of-way in order to thwart a cable franchisee's access to
rights-of-way or easements. Attached as exhibit A was a dedication
of right-of-way for a public road signed by plaintiff on February
29, 1996. Exhibit B was a copy of an easement granted to GTE
North, Inc., for installing telephone equipment in an easement
across the subject property by G. Dean Hilligoss on October 30,
1995. Exhibit C was an affidavit of Del Lingafelter, defendant's
chief engineer and project manager for laying the cable, stating
the cable was installed pursuant to franchise agreements with the
City of Tuscola and Douglas County, referred to as exhibits A and
B in the affidavit, and that all cable or other equipment installed
by defendant was installed in the right-of-way or easement.
Although the affidavit referred to exhibits, they were not attached
to the motion to dismiss.
The motion to dismiss then referred to the following
portions of section 5-1096 of the Counties Code:
"(c) In any instance in which the owner
of a residential building or the owner of
improved or unimproved real estate intends to
require the payment of just compensation in
excess of $1 in exchange for permitting the
installation of cable television facilities in
and upon such building, or upon, beneath or
over such real estate, the owner shall serve
written notice thereof upon the cable televi-
sion franchisee. Any such notice shall be
served within 20 days of the date on which
such owner is notified of the cable television
franchisee's intention to construct or install
cable television facilities in and upon such
building, or upon, beneath or over such real
estate. Unless timely notice as herein pro-
vided is given by the owner to the cable
television franchisee, it will be conclusively
presumed that the owner of any such building
or real estate does not claim or intend to
require a payment of more than $1 in exchange
and as just compensation for permitting the
installation of cable television facilities
within and upon such building, or upon, be-
neath or over such real estate. In any in-
stance in which a cable television franchisee
intends to install cable television facilities
as herein provided, written notice of such
intention shall be sent by the cable televi-
sion franchisee to the property owner or to
such person, association or managing agent as
shall have been appointed or otherwise desig-
nated to manage or operate the property. Such
notice shall include the address of the prop-
erty, the name of the cable television fran-
chisee, and information as to the time within
which the owner may give notice, demand pay-
ment as just compensation and initiate legal
proceedings as provided in this subparagraph
(c) and subparagraph (d).
***
(e) Neither the giving of a notice by the
owner under subparagraph (c), nor the asser-
tion of a specific claim, nor the initiation
of legal action to enforce such claim, as
provided under subparagraph (d), shall delay
or impair the right of the cable television
franchisee to construct or install cable
television facilities and maintain cable
television services within or upon any build-
ing described in subparagraph (a) or upon,
beneath or over real estate described in
subparagraph (b)." 55 ILCS 5/5-1096(c),(e)
(West 1994).
Exhibit D was a letter to plaintiff dated June 26, 1996, from Lorna
K. Geiler on the letterhead of her law office providing plaintiff
notice of defendant's intention to continue to install cable
television facilities within the easement affecting plaintiff's
property.
Defendant's motion to dismiss argued that, since
plaintiff had a right to pursue installation under the Counties
Code, later receipt of notice did not harm him. Defendant's
position was that, based on this statutory provision and the
documents, it was entitled to install its equipment, with damages
to be determined at a later date.
Defendant subsequently filed a motion for leave to attach
as exhibits the franchise agreements referred to in Lingafelter's
affidavit. Exhibit B to the affidavit was Douglas County Ordinance
No. 95-0-01, establishing the conditions for awarding a 15-year
nonexclusive franchise to construct, operate, and maintain a
community antenna television system (CATV) within the unincorporat-
ed areas of the county (Douglas County, Ill., Ordinance No. 95-0-01
(eff. February 21, 1995) hereinafter Ordinance No. 95-0-01) and
defendant's acceptance of the terms, conditions, and specifications
of the ordinance executed March 3, 1995. The motion to attach was
allowed without objection.
Plaintiff's reply to the motion to dismiss did not add
any other documentary exhibits for the trial court's consideration.
The gist of the reply was that the documents attached to the motion
to dismiss did not establish defendant was appointed a franchisee
or indicate a designated franchise area. Plaintiff also stated the
subject properties were not located within the City of Tuscola.
Plaintiff did verify that the facts alleged in the reply to the
motion to dismiss were true and correct, except those stated to be
on information and belief.
Following a hearing, the motion was taken under advise-
ment and the parties were given 21 days to file additional
memoranda or exhibits. Defendant filed a supplemental memorandum
with (1) certified copies of the Douglas County rights-of-way for
the two tracts and the GTE easements granted over the two tracts,
(2) a copy of the Douglas County ordinance filed with the Douglas
County recorder's office, and (3) a map showing the boundary lines
of the easements and rights-of-way and where, within those areas,
the defendant installed its cable as exhibits. The memorandum
indicated the subject tracts were located in unincorporated Douglas
County.
The rights-of-way granted, conveyed, and dedicated "to
the County of Douglas, State of Illinois for the purpose of a
public highway" the real estate described therein. The right-of-
way dedications were limited to "public road purposes and for no
other purposes, including but not necessarily limited to public
and/or private utilities."
The easements granted conveyed and warranted to GTE
North, Inc., the following:
"the perpetual right, privilege, easement and
authority to construct, operate, patrol and
maintain its communication lines, including
the necessary underground cables, wires,
conduits, markers and appurtenances upon,
over, under and across the land hereinafter
described, some of which said land may be
included in the public highway, to form a part
of a communication system to be owned and
operated by said corporation, its successors
and assigns, together with the rights of
ingress and egress to the said land and the
right to trim now and hereafter all brush and
trees along the said lines as may be necessary
for the installation, operation and mainte-
nance of said lines."
These documents contain the limiting language:
"This Easement Grant does not include the
perpetual right to place, replace, operate,
and maintain additional communication lines
and appurtenances, subsequent to those ini-
tially installed. Grantee shall not place
such additional communication lines and appur-
tenances until after Grantor has been consult-
ed with and duly notified and gives written
permission and is appropriately compensated."
In granting the motion to dismiss, the trial court found
(1) defendant is a CATV franchisee under the terms of the Douglas
County ordinance; (2) defendant installed its cable and equipment
on or under the subject land within the easement to GTE and/or
right-of-way to Douglas County previously granted by plaintiff,
defendant is not bound by the limiting language in these documents
due to the provisions of the Cable Act, and plaintiff's assertion
that defendant's use within the existing easement or right-of-way
is not compatible is without merit; (3) while defendant failed to
provide timely notice to plaintiff as required by the Illinois
statute, that failure can in no manner be considered a bar to
defendant's use of existing easement or right-of-way grants because
the Illinois statute merely confers the right to seek compensation
from defendant for its use of the preexisting grants and the notice
requirement is not a condition precedent to commencement of
installation; (4) while the Illinois statute provides the opportu-
nity and mechanism for plaintiff to seek just compensation,
plaintiff's complaint as presently formulated seeks no such relief;
and (5) defendant was and is entitled to install and maintain its
equipment within the GTE easement and county right-of-way.
On appeal, the reviewing court considers de novo the
propriety of granting a motion to dismiss pursuant to section 2-619
of the Code. Spiegel v. Hollywood Towers Condominium Ass'n, 283
Ill. App. 3d 992, 998, 671 N.E.2d 350, 355 (1996). Section 2-619
of the Code permits dismissal if "the claim asserted *** is barred
by other affirmative matter avoiding the legal effect of or
defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1994). Where
the defect is not apparent on the face of the pleading attacked,
the motion must be supported by affidavit or documents of a similar
nature such as depositions and answers to interrogatories. Kedzie
& 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619
N.E.2d 732, 735 (1993). In determining the propriety of the
granting of the motion to dismiss, this court considers "whether
the existence of a genuine issue of material fact should have
precluded the dismissal or, absent such an issue of fact, whether
dismissal is proper as a matter of law." Kedzie, 156 Ill. 2d at
116-17, 619 N.E.2d at 735.
Plaintiff argues the documents do not establish defendant
is a franchisee of Douglas County. The construction of an
ordinance is a question of law, to which rules of statutory
construction apply. Makowski v. City of Naperville, 249 Ill. App.
3d 110, 122, 617 N.E.2d 1251, 1259 (1993); Village of Southern
View v. County of Sangamon, 228 Ill. App. 3d 468, 472, 592 N.E.2d
639, 642 (1992). The primary rule of statutory construction is to
ascertain and give effect to the intent of the legislature.
Village of Southern View, 228 Ill. App. 3d at 472, 592 N.E.2d at
642. In ascertaining the legislative intent, the courts look first
to the language of the legislative provision. Solich v. George &
Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d
76, 81, 630 N.E.2d 820, 822 (1994). This court has examined the
entire ordinance for guidance as to intent. See City of Spring-
field v. Board of Election Commissioners, 105 Ill. 2d 336, 341, 473
N.E.2d 1313, 1315 (1985).
The title to the Douglas County ordinance indicates it is
an ordinance to establish conditions for awarding a 15-year non-
exclusive franchise. Plaintiff argues the use of the term "said
franchise" in the title is an indication that adoption of the
county ordinance was intended to be an awarding of a specific
franchise. Section 1 states the purpose of the ordinance was to
provide for the granting of "Franchises" and set forth obligations
and rights of the county and grantee. A "Franchise" is defined as
"the right, privilege and authority granted by this Ordinance to
construct, maintain and operate a CATV system through use of
Streets of any unincorporated area of Douglas County, Illinois."
Douglas County, Ill., Ordinance No. 95-0-01 (eff. February 21,
1995). A "Grantee" is "any person, firm, corporation or partner-
ship to whom a franchise shall be granted hereunder." "Grantor" is
"Douglas County as represented by its county board or any delegate
acting within the scope of its jurisdiction." Douglas County,
Ill., Ordinance No. 95-0-01 (eff. February 21, 1995). Section 4(A)
requires the county board to conduct a public proceeding concerning
a grantee's application for a franchise to determine whether it
possessed all necessary qualifications and its construction
arrangements were adequate and feasible. If the county board makes
the appropriate finding within 30 days after the close of the
public hearing, the county shall give the grantee the right,
privilege and franchise to construct, operate, and maintain a CATV
system. Section 4(B) of the ordinance provides:
"A Franchise granted by the County under
the provisions of this Chapter shall permit
constructing, operating and maintaining a
Cable System in the County, including the
right to erect, install, construct, repair,
replace, reconstruct and retain in, on, over,
under, upon, across and along the Streets and
other public property such lines, cables,
fiber optics, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances,
pedestals, attachments and other property and
equipment as are necessary and appropriate to
the operation of the Cable System. It shall
be unlawful for any person to construct,
install or operate a Cable System in the
County within any Street or within any other
right-of-way within the County without a
properly granted Franchise awarded pursuant to
the provisions of this Ordinance, which Fran-
chise is in full force and effect." Douglas
County, Ill. Ordinance No. 95-0-01 (eff.
February 21, 1995).
Section 4(C) states the franchise so granted is not exclusive, and
the county may grant a similar use to another person during the
period of the franchise. If the county elects to grant an
additional franchise, in an area where a franchise has already been
granted, to an applicant not authorized to provide service within
the county prior to the effective date of the ordinance, the county
must do so after considering several enumerated factors at a public
hearing noticed in a newspaper of general publication. The
ordinance and any franchises awarded pursuant to it relate to and
cover the entire unincorporated areas of Douglas County as provided
in section 4(E).
Defendant points to several references in the ordinance
to the term "this franchise" and to franchise as "herein granted."
Defendant argues this language indicates the ordinance was intended
to be an ordinance awarding a franchise to defendant rather than an
enabling ordinance that would allow awarding franchises generally.
However, section 19(A) provides:
"This Ordinance and its terms and provi-
sions shall be accepted by Grantee by written
instrument executed and acknowledged by it as
a deed is required to be, and filed with the
County Clerk within twenty (20) days after
passage of an Ordinance granting Franchise to
such Grantee. Such written instrument shall
state and express the acceptance of this
Ordinance and its terms, conditions and provi-
sions and said Grantee shall agree in said
instrument to abide by, to observe and perform
same, and declare that statements and recitals
herein are correct and that it has made and
does make this Agreement, statements and
admissions in this Ordinance recited to have
been made." Douglas County, Ill., Ordinance
No. 95-0-01 (eff. February 21, 1995).
Plaintiff argues the use of the term "this franchise" in
the renewal section refers to a franchise to be renewed and not to
this particular ordinance. Plaintiff notes defendant was not named
in this ordinance as a franchisee or grantee.
The county has the power to make contracts necessary to
the exercise of its corporate powers. 55 ILCS 5/5-1005(3) (West
1994). Approval of an ordinance requires a favorable vote by a
majority of the members of the county board present at a meeting,
except where otherwise provided. 55 ILCS 5/2-1005 (West 1994).
Section 5-1096 of the Counties Code relating to the granting of a
CATV franchise does not provide an exception to the requirement
that adoption of an ordinance must be by a majority vote of the
board members present at the meeting.
Defendant cites no cases in support of its interpretation
of the ordinance, in violation of Supreme Court Rules 341(e)(7) and
(f). 155 Ill. 2d Rs. 341(e)(7), (f).
The ordinance could be interpreted as plaintiff suggests
or as defendant suggests. It is unnecessary for this court to
decide the proper construction since, if it can be construed as
plaintiff suggests, defendant is not entitled to dismissal of the
complaint as a matter of law. On the record presented, the
ordinance could be construed to require the adoption of another
ordinance specifically awarding a franchise to defendant and
incorporating this general ordinance by reference. To the extent
there may be an ambiguity, the practice in Douglas County may be
evidence of what the county board intended, including the accep-
tance of franchise fees by the county and whether companies were
generally allowed to conduct business after filing an acceptance of
the ordinance. In any event, dismissal of plaintiff's complaint is
premature.
Plaintiff also argues defendant's acceptance of the
ordinance was not in the proper form because the ordinance required
it to be executed and acknowledged as a deed would be, and the
acceptance was not in this form. See 765 ILCS 5/20 (acknowledge-
ment or proof of deeds, et cetera), 26 (form of acknowledgement)
(West 1994). It is unnecessary to decide this question. Defendant
has cited no legal authority indicating that its unilateral
acceptance of the ordinance can create a contract with the county
in the event the ordinance is construed as an enabling ordinance
rather than an ordinance specifically referring to defendant. In
addition, neither party has addressed the questions of whether the
county may waive the deficiency in the form of the acceptance and,
if so, whether plaintiff has standing to complain.
Even though reversal is required based on the analysis of
the first issue, we will address the remaining issues.
The plaintiff argues the finding of the trial court that
the Cable Act allowed the installation of defendant's cable across
his property was contrary to the evidence before the court.
Lingafelter's affidavit stated defendant's cable was installed on
existing rights-of-way or easements. Plaintiff argues there is
nothing in the record to show the location of the cable after
installation. Lingafelter's affidavit is sufficient. Plaintiff
did not submit a counteraffidavit disputing the veracity of
Lingafelter's statement. Plaintiff argues Lingafelter's affidavit
is unreliable because it does not refer to the certified copies of
the easements and rights-of-way that were later submitted to the
trial court. Plaintiff presented no counteraffidavit to the trial
court that indicated the legal descriptions of the easements or
rights-of-way in the documents relied on by Lingafelter were
different from the legal descriptions in the certified copies. Nor
does plaintiff deny the easements and rights-of-way were in
existence when the cable was installed. The trial court could
find, based on the documents submitted, that the cable equipment
was installed in the existing easements or rights-of-way.
Plaintiff asserts the focus of the analysis under section
621(a)(2) of the Cable Act should not be on whether cable installa-
tion is compatible with the purpose of the easement, but whether it
is compatible with the purpose of the dedication. Plaintiff relies
on the limitations placed on the dedications of the rights-of-way
and the easements expressly included in those documents. We
disagree.
Plaintiff relies on Cable Associates, Inc. v. Town &
Country Management Corp., 709 F. Supp. 582 (E.D. Pa. 1989).
However, that reliance is misplaced. In Cable Associates, the
issue related to whether the cable company had a right to continue
use of drop lines to individual apartments within the defendant's
buildings. Cable Associates, 709 F. Supp. at 583. The court
construed "dedication" as a conveyance to the public of an interest
in real property. As to one of the apartment buildings in
question, the easement had been granted to Bell Telephone Company
"with the further right to place and maintain building cable,
terminals, wires, and additional facilities that may be required to
provide service." The court noted there was no evidence the cable
television lines would follow the telephone lines in the apartment
complex. Cable Associates, 709 F. Supp. at 584. The scope of Bell
Telephone's easement was the actual location of its wires. Cable
Associates, 709 F. Supp. at 586. The court noted the Cable Act was
not intended to confer eminent domain rights on franchise cable
operators, and the easements referred to in that act must be (1)
compatible and (2) "dedicated" in the broader sense than merely set
apart for some private purpose. The Bell Telephone easement was
not "dedicated" in that sense. Cable Associates, 709 F. Supp. at
585-86.
Unlike Cable Associates, the GTE easement here is a
public dedication, allowing for telephone line service to more than
just plaintiff's property. In Centel Cable Television Co. v. Thos.
J. White Development Corp., 902 F.2d 905 (11th Cir. 1990), a
developer attempted to deny the cable company access to utility
easements within the development. The court found the Cable Act
was intended to forbid any private agreements that would prevent a
cable franchise from using dedicated utility easements. Congress
intended to authorize cable operators to "piggyback" on easements
dedicated to electric, gas, or other utility transmission. So, the
plats and agreements in that case, which purported to control
access to development roads by allowing access to electric and
telephone utilities, while prohibiting access to the cable company,
violated the Cable Act. Centel, 902 F.2d at 909. The court
concluded it would be inconsistent with the policy of the Cable Act
to hold that cable operators could not piggyback on access rights
granted to other utilities where the exercise of the rights was
necessary to the full enjoyment of the related easements. Centel,
902 F.2d at 909.
In Media General Cable of Fairfax, Inc. v. Sequoyah
Condominium Council of Co-owners, 991 F.2d 1169 (4th Cir. 1993),
Media sought to be allowed to install cable wires in compatible
easements in the condominium commons area. The denial of such an
order was affirmed. The condominium association had granted
easements to various utilities, with limitations and conditions.
The court found the easements granted were private, not public,
easements and placing Media's cables along the private easement
constituted a compensable taking that the Cable Act did not
authorize. Media General, 991 F.2d at 1172. Media General is
distinguishable because this case does not involve the defendant
attempting to get access to plaintiff's house or buildings, but to
install cable in the public easements along the roadway.
In C/R TV, Inc. v. Shannondale, Inc., 27 F.3d 104, 107-09
(4th Cir. 1994), a subdivision developer attempted to limit access
to a cable company. In the deed for each lot, the developer
reserved a right-of-way for general utility use and the right to
convey those rights. It owned all 55 miles of paved roads in the
subdivision. It granted easements for electric and telephone
service lines, and authorized GTE South, Inc., to string telephone
lines on its poles. It also authorized a competing cable company
to string television cables on the poles. After obtaining a
franchise, C/R TV started installing cable and the subdivision
attempted to halt that action, warning the cable company its crews
would be considered trespassers. The court of appeals found the
easements allowing "'the installation, erection, maintenance,
repair and operation of electric transmission and distribution pole
lines, and electric service lines, with telephone lines thereon'"
(C/R TV, Inc., 27 F.3d at 106) sufficient to authorize the
stringing of television transmission cable. The discussion in that
case focused on West Virginia law rather than the Cable Act.
We conclude section 621(a)(2) of the Cable Act allows
defendant to place its cable within the easements and rights-of-way
involved here if it has established it is a franchisee. This
conclusion, however, does not determine plaintiff's final issue,
i.e., whether the trial court erred in its ruling as to the
necessity of notice required by section 5-1096 of the Counties
Code. Defendant has cited no authority suggesting the Cable Act
preempts the state from enacting requirements with which it must
comply before proceeding to install its cable. Indeed, defendant
argues the Counties Code provides an alternative basis for allowing
it to install its cable.
Section 5-1096(c) of the Counties Code requires written
notice of an intention to install cable television facilities be
sent by the CATV franchisee to the property owner or manager. 55
ILCS 5/5-1096(c) (West 1994). Defendant's notice was after it had
already placed its cable within the easements. The parties dispute
its accuracy on some points and whether it applies to one or both
of the subject tracts. It is unnecessary to resolve these
disputes. Plaintiff acknowledges that section 5-1096 of the
Counties Code prohibits a property owner from forbidding or
preventing the franchisee from entering upon the property owner's
real estate in connection with the construction or installation of
a CATV system and facilities, provided, however, that the real
estate owner may require just compensation as permitted under
sections 5-1096(c) and (d). 55 ILCS 5/5-1096(b) (West 1994).
Plaintiff argues that defendant cannot enter the
properties until section 5-1096 is complied with, and defendant
argues that plaintiff is not harmed, he has now received notice,
and this is not a proceeding to establish the amount of compensa-
tion owed him. Section 5-1096(e) provides that the giving of a
notice by the owner under subparagraph (c), the assertion of a
specific claim, and the initiation of legal action to enforce such
claim under subparagraph (d) do not affect the right of the
franchisee to construct or install cable. 55 ILCS 5/5-1096(e)
(West 1994). Section 5-1096(e) does not state that defendant need
not give notice of an intent to install cable before proceeding to
do so. By installing cable without notice to the property owner,
a CATV franchisee deprives the property owner of an opportunity to
view and photograph the disruption to his property so as to be able
to prove the amount of damages to which he is entitled. We do not
agree with defendant that section 5-1096 allows it to proceed and
pay damages later.
In considering this case, we are disturbed by the absence
in the CATV access provisions of the Counties Code of any penalties
or award of attorney fees to which a property owner might become
entitled because of the failure of the CATV franchisee to provide
notice to the owner of the real estate prior to proceeding to
install cable. We recognize that defendant's complete compliance
with section 5-1096 of the Counties Code, although late, will avoid
the imposition of a mandatory injunction to remove the cable
already installed. Therefore, on remand, since plaintiff has
alleged trespass as the basis for the relief he sought, he shall be
given the opportunity to amend his complaint to allege a common law
action to seek damages for the trespass based on the failure of
defendant to provide notice pursuant to the Counties Code prior to
installing its cable. See 34 Ill. L. & Prac. Trespass 12, 13
(1958).
The judgment of the circuit court of Douglas County is
reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
KNECHT and COOK, JJ., concur.
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