Opinion filed October 23, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

DUANE SORRELLS and ) Appeal from the Circuit Court MILDRED SORRELLS, ) of the 9th Judicial Circuit, ) McDonough County, Illinois. Plaintiffs-Appellants, ) ) v. ) ) Appeal No. 3-14-0763 CITY OF MACOMB, a Municipal ) Circuit No. 07-CH-38 Corporation, ) ) Defendant-Appellee ) ) (DK Linde Construction, Inc., ) The Honorable ) Rodney Clark, Defendant). ) Judge, presiding. _____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court, with opinion. Justices Lytton and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Plaintiffs, Duane and Mildred Sorrells, filed a complaint against defendant, DK Linde

Construction, Inc., (DK Linde), for flooding that occurred on their property allegedly caused by

DK Linde developing the adjacent property. Plaintiffs amended the complaint to add a claim for

inverse condemnation against defendant, the City of Macomb (City), who owned the streets that

had been developed by DK Linde. The trial court granted the City's section 2-615 motion to dismiss the plaintiffs' inverse condemnation claim with prejudice. 735 ILCS 5/2-615 (West

2012). The plaintiffs appealed the dismissal of their inverse condemnation claim. We affirm the

trial court's judgment.

¶2 FACTS

¶3 I. Original Complaint Against DK Linde

¶4 On August 30, 2007, plaintiffs filed a one-count complaint for an injunction against DK

Linde, who was developing a residential complex adjacent to their property known as the Scotch

Pine Planned Unit Development (Scotch Pine). Plaintiffs alleged that non-percolating surface

water had naturally drained from defendant's property onto their property until 1997 when DK

Linde installed a detention basin that altered the natural flow of the surface water drainage.

Since the installation of the basin, DK Linde acquired additional property to develop Phase 2 of

Scotch Pine, which included a new and expanded detention basin and drain. The plaintiffs

alleged that DK Linde diverted the natural flow of water and caused an increased amount of

surface water to drain onto their property. Plaintiffs requested that DK Linde be enjoined from

unreasonably increasing the surface water that drained onto their land and that DK Linde be

ordered to install and maintain appropriate drainage facilities.

¶5 After DK Linde answered the complaint, plaintiffs filed a motion for partial summary

judgment with the affidavit of plaintiff, Duane Sorrells, attached thereto. Sorrells attested to the

allegations of the complaint and attested to the fact that defendant had moved the point at which

water discharged onto plaintiffs' land. In response, DK Linde filed the affidavit of the engineer

who had planned the development. The engineer attested that: (1) defendant did not

unreasonably divert water; (2) the rate of surface water flow onto plaintiffs' land would decrease;

(3) the discharge from Scotch Pine had not been relocated; (4) the development complied with

2 applicable engineering standards and the subdivision ordinance; and (5) the defendant's storm

water management plan did not alter the point of discharge.

¶6 II. Amended Complaint against DK Linde and the City

¶7 On March 15, 2012, with leave of court, plaintiffs filed an amended complaint, alleging

two additional counts against DK Linde and two counts against the City. In count II against DK

Linde, the plaintiffs alleged that the construction of Phase 2 of Scotch Pine would unreasonably

discharge water onto their property that had not previously drained onto their property and the

drainage system, as designed, would create an unnatural channel on their property and cause an

increase of surface water that was diverted from other drainage basins to flow toward their land.

For count II, plaintiffs requested a permanent injunction against DK Linde. In count III against

DK Linde for negligence, plaintiffs realleged the allegations of count II and that defendant's

trespass and other conduct would damage their property. For count III, plaintiffs requested

money damages.

¶8 In count IV for inverse condemnation against the City, the plaintiffs alleged that DK

Linde was developing a residential complex adjacent to the their property called Phases 1 & 2 of

Scotch Pine, which included the installation of residential structures, streets, lawns, drainage

ways, and other improvements, with the streets having been dedicated to the City. Plaintiffs

alleged that the surface water from the streets and the development on Phase 1 was directed into

unnatural channels on their land and that the surface water from Phase 2 had not previously

drained naturally onto their land. Plaintiff claimed that the drainage design would cause water

from the development to unreasonably discharge from two storm water detention basins onto

their property where there had been no natural drainage, causing erosion, creating an unnatural

channel, and increasing the amount of surface water drainage.

3 ¶9 Plaintiffs further alleged that the City failed to follow applicable drainage standards,

engineering standards, and ordinances in approving the construction and design of Phases 1 and

2. Plaintiffs alleged that the unnatural and diverted drainage of surface water had and would in

the future result in a permanent, continuing, and substantial physical interference with the use

and enjoyment of their land, amounting to a taking of a drainage easement by the City for its

streets and public ways, which would continue in the future as further streets and public ways

were developed in Phase 2. Plaintiffs claimed that the taking was "by invasion by taking

drainage rights and by permanently taking [their] lands due to an increase in the water level of

plaintiffs' lake." Plaintiffs requested, inter alia, money damages for damage to their land not

taken and an order of mandamus requiring the City to initiate condemnation proceedings for the

portion of their property that had been taken. In count V, plaintiffs alleged negligence against

the City based on the City's alleged breach of duty to refrain from altering the natural flow of

water.

¶ 10 In response, the City filed a motion to dismiss counts IV and V pursuant to section 2-619

of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)). The City argued, inter alia,

that the plaintiffs' claim regarding Phase 1 should be dismissed pursuant to the applicable one

year statute of limitations. The City also argued that it was immune from liability under section

2-104 of the Local Governmental and Governmental Employees Tort Immunity Act (Illinois Tort

Immunity Act) (745 ILCS 10/2-104 (West 2012)) (providing immunity to a local public entity

for issuing a permit, license, certificate, approval, or similar authorization), section 2-105 of the

Illinois Tort Immunity Act (745 ILCS 10/2-105 (West 2012)) (providing immunity to a local

public entity for the failure to inspect or for an inadequate or negligent inspection), and section

4 2-103 of the Illinois Tort Immunity Act (745 ILCS 10/2-103 (West 2012)) (providing immunity

to a local public entity for adopting or failing to adopt an enactment or failing to enforce a law).

¶ 11 In support of its motion to dismiss, the City provided the affidavit of Ed Basch, who had

been the Community Development Coordinator for the City. According to Basch's affidavit, the

City would transmit proposed engineering plans to a professional engineer for review. The

engineering plans for Phase 1 were prepared by McClure Engineering, Inc., and reviewed by

Benton & Associates, Inc., who found the Phase 1 drainage calculations complied with the

Macomb Municipal Code and Illinois drainage requirements. The City Council approved the

final subdivision plans for Phase 1. The engineering plans for Phase 2 were prepared by

McClure Engineering and reviewed by Hutchison Engineering, Inc., who offered suggestions for

improvements to the detention basin. The City Council approved Phase 2 in a 5 to 3 vote.

¶ 12 The trial court granted the City's motion to dismiss "on the immunity grounds," with

leave granted to plaintiffs to amend their complaint.

¶ 13 III. Second-Amended Complaint

¶ 14 The plaintiffs filed a second-amended complaint, asserting claims of inverse

condemnation in count IV and negligence in count V. In response, the City filed a section 2-619

motion to dismiss, attaching the Basch affidavit in support thereof.

¶ 15 On July 17, 2013, the trial court found that the City was immune from tort liability for the

alleged negligence count, which was dismissed with prejudice. The trial court also dismissed the

inverse condemnation count, with leave granted to amend, if possible, to allege that "it is the

streets in and of themselves that's causing the taking not th[e] entire subdivision." The plaintiffs

filed a motion for the trial court to reconsider its dismissal of counts IV and V, which the trial

court denied.

5 ¶ 16 IV. Third-Amended Complaint

¶ 17 On August 5, 2013, plaintiffs filed a third-amended complaint, alleging an inverse

condemnation claim against the City in count IV. Plaintiffs alleged that they owned real estate

adjacent to land on which DK Linde was developing a residential complex known as Phases 1 &

2 of Scotch Pine, which included "residential structures, street, lawns, drainage ways, and other

improvements, which streets have been dedicated to the City." The surface water from the

streets and the development on Phases 1 and 2 was being channeled and directed, by the streets,

into unnatural channels onto their land and surface water from Phase 2 had not previously

drained naturally onto their land. Plaintiffs alleged the water from the development, including

from the streets, was channeled and directed by the streets to unreasonably discharge from two

storm water detention basins onto the land: (1) where there had been no natural drainage

channel; (2) where their land would be eroded into an unnatural channel on their property; (3) at

a point where there had not been any natural drainage or runoff from Phase 2; (4) causing

increased discharge from the streets due to the construction of residential facilities, streets and

sidewalks, which would have ordinarily percolated into the soil, and from rooftops draining into

the streets; (5) with the flow of surface water having never previously before flowed toward

plaintiffs' land; (6) with the unreasonable and improper artificial drainage from the development

and streets causing damage to their lake, dam, and other structures on plaintiffs' land; and (7)

with the ditches and drainage facilities on Phases 1 and 2 unreasonably increasing the surface

water drainage onto their land.

¶ 18 Plaintiffs further alleged that in approving the construction and design of Phases 1 and 2,

the City failed to follow applicable drainage standards, engineering standards, laws and

ordinances, and failed to consider the damage to plaintiffs' land. Plaintiffs claimed that the

6 unnatural and diverted drainage of surface water in increased amounts, which was diverted onto

their land by the streets, resulted in a "permanent, continuing and substantial interference with

[their] use and enjoyment of their land, amounting to a taking of an interest in plaintiffs' property

without compensation." The plaintiffs claimed that the City: (1) discharged surface water from

the streets and other locations onto their land that "would not normally flow upon plaintiffs'

lands"; (2) diverted surface water from the streets "in channels other than natural drainage

channels"; (3) failed to comply with City ordinances; (4) caused flooding on their property; (5)

failed to correct defects in the design and construction of the streets; and (6) by way of the

streets, unreasonably increased the flow of surface water from the development onto their land

"beyond a range consistent with the policy of reasonableness of use which led initially to the

good-husbandry exception." Plaintiffs claimed that the City had taken a drainage easement and

drainage rights, and "the unreasonable and unauthorized discharge of surface water and increase

thereof from the defendant's streets" had and will cause damage to other property that was not

taken. For relief, plaintiffs requested, inter alia, money damages and an order of mandamus

requiring the City to initiate condemnation proceedings.

¶ 19 On September 20, 2013, the City filed a section 2-619.1 combined motion to dismiss

count IV of the third-amended complaint pursuant to sections 2-615 and 2-619 of the Code of

Civil Procedure (Code). See 735 ILCS 5/2-615, 2-619, 2-619.1 (West 2012). On January 17,

2014, the trial court noted that the third-amended complaint was not specific as to the streets

being the cause of the alleged taking and the plaintiffs "continued to attempt to bootstrap the

entire subdivision into the complaint and the City enjoys certain immunities in relation to the fact

that this was a private subdivision." The trial court granted the City's section 2-615 motion to

dismiss count IV with prejudice, finding count IV failed to state a cause of action for inverse

7 condemnation. Thereafter, the trial court denied the plaintiffs' motion to reconsider but granted

their request for a finding that there was no just reason to delay an appeal pursuant Illinois

Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Plaintiffs appealed.

¶ 20 ANALYSIS

¶ 21 On appeal, plaintiffs argue that the trial court erred in granting the City's section 2-615

motion to dismiss count IV of their third-amended complaint for failure to state a claim for

inverse condemnation. Plaintiffs claim that the allegations were sufficient wherein they alleged a

taking by the City of a drainage easement to drain surface water onto their land, channeled by the

City's streets, in unreasonable amounts, and in an unnatural channel. 1 The City argues the

allegations were insufficient to support plaintiffs' claim of a governmental taking. The sole issue

1 Under Illinois common law, a landowner has a duty to refrain from increasing the

natural flow of surface water onto the property of an adjacent landowner. Van Meter v. Darien

Park District,

(2003) (citing Templeton v. Huss,

(1974)).

When surface water falling or coming on one tract naturally descends upon the other, the owner

of the higher (dominant) land has a natural easement in the lower (servient) tract. Mileur v.

McBride,

(1986). The owner of an upper field cannot construct drains

or ditches to create new channels for water in a lower field. Templeton,

-39

(quoting Peck v. Herrington,

(1884)). However, under the "good husbandry"

exception, the owner of dominant land may increase or alter the flow of water upon a servient

estate as may be required by good husbandry. Id.at 139. Nonetheless, the good-husbandry

exception is limited to that which is incidental to the reasonable development of the dominant

estate. Id.; Bollweg v. Richard Marker Associates, Inc.,

(2004).

8 presented for review is whether the plaintiffs' allegations were sufficient to establish a cause of

action for inverse condemnation.

¶ 22 This court reviews de novo an order granting a section 2-615 motion to dismiss. Pooh-

Bah Enterprises, Inc. v. County of Cook,

(2009). A section 2-615 motion to

dismiss challenges the legal sufficiency of a complaint based on defects apparent on the face of

the complaint and should not be granted unless it is clearly apparent that no set of facts can be

proven that would entitle the plaintiff to relief.

The critical inquiry in determining whether a

pleading should be dismissed pursuant to section 2-615 is whether the allegations, when

construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action

upon which relief may be granted. Kanerva v. Weems,

. Thus, we must

determine whether the allegations in Count IV of the third-amended complaint, construed in the

light most favorable to the plaintiffs, were sufficient to establish a cause of action for inverse

condemnation.

¶ 23 Both the United States Constitution and the Illinois Constitution prohibit the taking of

private property for public use without just compensation. Hampton v. Metropolitan Water

Reclamation District of Greater Chicago,

(opinion not released

for publication in the permanent law reports and is subject to revision or withdrawal).

Specifically, the fifth amendment of the United States Constitution prohibits private property

from being "taken for public use, without just compensation." U.S. Const., amend. V. The

Illinois Constitution provides, "[p]rivate property shall not be taken or damaged for public use

without just compensation." Ill. Const. 197, art. I, § 15. The same provision was stated in the

1870 Illinois Constitution. Ill. Const. 1870, art. II, § 13.

9 ¶ 24 Eminent domain is a state's sovereign power to take private property for public use,

subject to the constitutional requirement that just compensation be paid. City of Edwardsville v.

County of Madison,

(1911). In an eminent domain proceeding, the condemning

body files a condemnation action under the Eminent Domain Act (735 ILCS 30/1-1-1 et seq.

(West 2012)) to officially take real property from its owner. 735 ILCS 30/10-5-5 (West 2012).

¶ 25 In an inverse condemnation proceeding, the property owner initiates an action to obtain

an order of mandamus to compel the government to file a condemnation claim. Herget National

Bank of Pekin v. Kenney,

(1985). There is a distinction between property

that has been physically taken and property that has been damaged. Patzner v. Baise,

(1990). Where no part of the land is taken, a property owner cannot, by mandamus,

compel proceedings under eminent domain.

; Granite City Moose Lodge No. 272 v.

Kramer,

(1983); People ex rel. Pratt v. Rosenfield,

(1948) (overruling by United States Supreme Court, in part, recognized in Hampton,

to the extent the Pratt holding is that a temporary flooding can never constitute

a compensable taking under the Illinois Constitution); Rigney v. City of Chicago,

, 71-

72 (1881); Rothschild v. Baise,

(1987).

¶ 26 The addition of the word "damaged" in the 1870 Illinois Constitution, now found in the

1970 Illinois Constitution, provided for compensation to property owners whose property was

"injuriously affected" by government action but there had not been a government taking. Rigney,

; see also Citizens Utilities Co. of Illinois v. Metropolitan Sanitary District of

Greater Chicago,

(1974) (providing the word "damaged" within the

1870 constitution means some direct physical disturbance of a property right which gave the

property additional value, the disturbance of which causes special damage in excess of that

10 sustained by the general public). Before the addition of the word "damaged" to the Illinois

Constitution, a landowner had no relief for property damage that was caused by a public

improvement unless there was an actual physical invasion of the land itself. Horn v. City of

Chicago,

(1949). Section 15 of article I of the 1970 Illinois Constitution

retained the addition of the word "damaged" and afforded a property owner in Illinois greater

protection than its federal counterpart because the Illinois Takings clause guarded against both a

governmental taking of property and governmental damage to property. See, e.g., Hampton,

; International College of Surgeons v. City of Chicago,

(7th Cir. 1998). Thus, where no taking of property has occurred, the property owner's

remedy for a governmental disturbance of a property right is an action at law for damages to

recover compensation under the Illinois Constitution. Patzner,

; Pratt,

; Cuneo v. City of Chicago,

(1942); Rigney,

; Euwema

Co. v. McKay Engineering & Construction Co.,

(1942).

¶ 27 There is "no magic formula" to determine, in every case, whether the government's

interference with property is a "taking." Arkansas Game & Fish Comm'n v. United States,

, __,

(2012). Most takings claims turn on the specific facts of the

case.

at __,

. Factors relevant to determining whether there has been a

compensable taking are: (1) the duration of the physical invasion; (2) the degree to which the

invasion was the intended or foreseeable result of authorized government action; (3) the

character of the land and the owner's reasonable economic expectations regarding the use of

property; and (4) the severity of the interference.

at __,

; Hampton,

.

11 ¶ 28 In Arkansas Game & Fish, the United States Supreme Court focused on the factors of

duration and foreseeability in holding that "government-induced flooding temporary in duration

gains no automatic exemption from Takings Clause inspection." The United States Supreme

Court in Arkansas Game & Fish addressed its prior decision in Sanguinetti v. United States, in

which it held there was no taking where the factors of foreseeability and causation were not

present where the government did not intend to flood the land and had no reason to expect that

flooding would result from the construction of its canal. Arkansas Game & Fish,

,

(citing Sanguinetti v. United States,

(1924)). Also, the

property in Sanguinetti was subject to seasonal flooding prior to the construction of the canal and

the landowner failed to show that the causal connection between the construction of the canal

and the increased flooding was anything other than pure conjecture.

at __,

(citing Sanguinetti,

).

¶ 29 After Arkansas Game & Fish, public improvements that cause a temporary accumulation

of water on property may be considered to be a taking in some circumstances. See Hampton,

. Under the Illinois Constitution, a temporary flooding of property can

give rise to either a taking or an action at law for damages, depending on the circumstances. See

Ill. Const. 1970, art. I, § 15. Thus, the requirement within the Illinois Constitution that the

government pay just compensation for property that has been either taken or damaged is satisfied

with an action at law for damages where the property was damaged for public use but no part of

the property was taken. See Patzner,

; Horn,

; Pratt,

; Kane v. City of Chicago,

(1945); Catello v. Chicago, Burlington. &

Quincy R.R. Co.,

(1921); Euwema,

.

12 ¶ 30 In this case, the plaintiffs alleged that the streets were constructed by DK Linde and

"dedicated" to the City. According to plaintiffs' allegations, the City had taken the plaintiffs'

property in the form of a "drainage easement" for the drainage of its streets. "It is well

established that the government may not take an easement without just compensation." Ridge

Line, Inc. v. United States,

(Fed. Cir. 2003) (quoting United States v.

Dickinson,

(1947), and Nollan v. California Coastal Comm'n,

(1987)). However, plaintiffs alleged that the private development as a whole caused the

alleged unreasonable amount of surface water to drain onto their land from the detention and

drainage basins.

¶ 31 Specifically, plaintiffs alleged, "the water from the development, including from the

streets, is being channeled and directed by said streets and is and will be unreasonably

discharged from two Storm Water Detentions Basins onto Plaintiffs [property]." At most, the

allegations, taken as true, indicate that the increased drainage onto the plaintiffs' land was for the

benefit of both the private development and the public streets. Although temporary or permanent

government-induced flooding can constitute a taking of property by flooding, the flooding as

alleged in this case was induced by the private developers, not government action. Plaintiffs'

complaint makes clear that the water allegedly invading the plaintiffs' property was drainage

from two storm water detention basins or other drainage basins.

¶ 32 Thus, the allegations of count IV of the third-amended complaint are insufficient to

support plaintiffs' claim of a taking for public use where the alleged increased water drainage

was coming from the entire development, including streets, through detention or drainage basins.

The development was not a public property and the acceptance of the dedication of the streets

inside the development does not give rise to a taking where the drainage was from the basins. In

13 addition, plaintiffs failed to allege that the water draining from the development onto their land,

in an unreasonable amount and unnatural channels, was the intended or foreseeable result, in

whole or part, of the City's actions rather than that of the development. See Bay Bottoms

Drainage District v. Cache River Drainage District,

(1920); Arkansas Game & Fish,

,

(property loss is compensable as a "taking" only when the

government intended to invade a protected property interest or the invasion was the direct,

natural, or probable result of authorized activity as opposed to a resulting incidental or

consequential injury) (citing Ridge Line, Inc.,

).

¶ 33 Furthermore, condemnation cases traditionally arise from government action alone; not

from multiple causes that would include actions of private actors, as in this case where the water

was from the whole development flowing into detention basins. See, e.g., Patzner,

(alleged a taking by the secretary of transportation where the Illinois Department of

Transportation's construction machinery parked on adjacent property caused the landowner to

relocate his business); Herget,

(plaintiff sought a writ of mandamus to compel the

Director of Department of Conservation to undertake eminent domain proceedings for

compensation where government caused plaintiff's property to become submerged after it

enlarged a lake); Granite City,

(property owner sought writ of mandamus to

compel the Secretary of Transportation to institute eminent domain proceedings for the alleged

taking and damaging of property due to construction of an adjacent roadway overpass); Pratt,

(landowners sought a writ of mandamus to require the city, mayor, members of city

council, Illinois Central Railroad Company, and the Director of Public Works and Buildings of

the State of Illinois to file a petition to determine damages allegedly caused by a change in grade

that was made in connection with the removal of an old viaduct); Rigney,

(landowner

14 brought suit against the city for damages to plaintiff's land allegedly caused by the city's

construction of a viaduct or bridge). To constitute a government taking or compensable

government action, the water overflow must be the result of a structure or action imposed by the

governmental entity, even if after Arkansas it is only a temporary invasion of the property.

Compare Herget,

(affirming trial court's order for issuance of a writ of mandamus

to compel eminent domain proceedings where the government submerged plaintiff's land by

enlarging a lake), with Sanguinetti,

(no taking found because landowner failed to

show that overflow onto his land was causally connected to the government's canal construction

rather than to increased seasonal flooding). In this case, the alleged flooding of the plaintiffs'

land was from the overflow of drainage and detention basins, not from the City's actions.

¶ 34 Consequently, we find plaintiffs failed to state a cause of action against the City for

inverse condemnation. We affirm the trial court's 2-615 dismissal of count IV of the plaintiffs'

complaint for inverse condemnation.

¶ 35 CONCLUSION

¶ 36 The judgment of the circuit court of McDonough County is affirmed.

¶ 37 Affirmed.

15