Opinion
5-22-0624
06-13-2023
NORTH COUNTY DEVELOPMENT, LLC, Plaintiff-Appellant, v. THE VILLAGE OF COBDEN, Defendant-Appellee.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Union County. No. 21-CH-4 Honorable Tyler R. Edmonds, Judge, presiding.
JUSTICE McHANEY delivered the judgment of the court. Presiding Justice Boie and Justice Cates concurred in the judgment.
ORDER
McHANEY, JUSTICE
¶ 1 Held: Where the Village of Cobden established its affirmative defenses, we affirm the trial court's judgment order concluding that the claim of North County Development, LLC for ejectment was barred by the statute of limitations and its claim for trespass was barred because of Cobden's prescriptive easement.
¶ 2 This case involves an underground gas pipeline installed by the Village of Cobden in 1967. This pipeline runs across part of property owned by North County Development, LLC (North County). Upon discovery of the underground pipeline, North County filed its suit against the Village of Cobden (Cobden) for ejectment and trespass. North County appeals from the trial court's order finding that its ejectment claim against Cobden was barred by the applicable statute of limitations and that its trespass claim was barred by Cobden's establishment of a prescriptive easement. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 In 1967, Cobden constructed an underground gas pipeline from Jonesboro to Cobden along United States Route 51 (Route 51) to provide natural gas to residents of Cobden. The underground pipeline is in the same location now as when it was constructed and is located to the east of the Route 51 right-of-way. J.T. Blankinship and Associates Consulting Engineers created an "as built" plan contemporaneously with the construction of the pipeline, which shows its location on various properties, including the property owned by North County. This "as built" plan was filed on March 29, 1967, with the Union County Recorder of Deeds in Plat Book 5, at page 163, and is a public record.
¶ 5 On August 20, 2020, North County purchased a parcel of real estate along Route 51 in Union County from Dorothy Fleener. This parcel is not located within the village limits of Cobden. A title search conducted on behalf of North County before the purchase revealed that Cobden held two easements for construction of the pipeline in the vicinity of North County's property. One easement was granted by Laurence and Mina Hilton to Cobden on October 15, 1966, and the second was granted by Enos and Frances Herring to Cobden on November 19, 1966. At some date after the underground pipeline was constructed, the Herring property was conveyed from Enos and Frances Herring to Larry and Dorothy Fleener. The North County property is only subject to the Herring easement.
¶ 6 The record on appeal does not include a copy of the deed that transferred property from the Herrings to the Fleeners. Thus, we are not able to compare that deed to the corrected warranty deed transferring property from Dorothy Fleener to North County to determine if Dorothy sold the entirety of the original Herring property to North County. However, Exhibit B, entered into evidence at trial, is a detailed drawing of the proposed entrance from Route 51 to North County's property, including details of the needed excavation. In March 2021, Raymond A. Whiteside, a land surveyor, prepared this document for North County. The document contains a sketch of the property owned by North County (identified as "John Ham," a member of North County). From that sketch, it appears that Dorothy Fleener sold a portion of her property to North County along Route 51, and that she still owns a portion of the original Herring property. The sketch indicates that Fleener's property is surrounded on three sides by the land she sold to North County-to the east, north, and south. Route 51 lies to the west of Fleener's property. North County's proposed entrance to its property from Route 51 is to the north of Fleener's property.
¶ 7 A portion of Cobden's underground pipeline runs across the northern portion of North County's property. This portion of the underground pipeline is depicted on the "as built" recorded plan. A title search of North County's property did not reveal an easement or evidence of the underground pipeline in this northern portion of the property-in the location of the proposed entrance from Route 51. Raymond Whiteside, who performed the title search, indicated that due to COVID-19 restrictions on allowable time spent in the Union County courthouse, he "didn't get in to see" and otherwise did not locate the "as built" plan that would have established the location of the underground pipeline on North County's property. Although the "as built" plan showed the location of the underground pipeline, there was no evidence at trial that the plan included easement location(s) on the relevant northern portion of North County's property. Furthermore, Cobden did not produce evidence of an easement in the area where North County planned on constructing the entrance from Route 51. In preparation to plan the Route 51 entrance onto North County's property, Whiteside, the surveyor, ascertained the location of the underground pipeline from flags posted by a locating company. At trial, he testified that his survey matched up with the "as-built" plan as to the location of the underground pipeline. The Hilton easement is located approximately three-quarters of one mile north of North County's proposed entrance from Route 51 and is not across any part of North County's property. The Herring easement was in the southern part of North County's property and was not located within the proposed entrance from Route 51. The Herring easement states as follows:
"A strip of ground 25 feet in even width lying Easterly of and adjacent to U.S. Route 51, commencing on the South line of said Section 31 and extending Northerly for a distance of 255 feet more or less, and being situated in the Southeast Quarter of the Southwest Quarter of Section 31."
Thus, the easement only extended approximately 255 feet to the north from the southern part of this property.
¶ 8 Neither easement included the relevant section of the parcel at issue in this case. The "as built" plan reflects the presence of the underground pipeline buried in the northern portion of North County's property but does not include any related easements. The "as built" plan was specifically referenced in the Hilton and Herring recorded easements: "Said gas transmission line to be located as shown by the recorded plans filed in the Union County Recorder's Office in Plat Book 5 on Page 163."
¶ 9 After purchasing the property in 2020, North County moved forward with plans to construct a 64-foot-wide commercial entrance on the north portion of the land from Route 51. The Illinois Department of Transportation mandated that the entrance have at least 400 feet of sight visibility from the highway. To meet this visibility standard, North County would be required to lower the level of the planned entrance. Because of the depth of the pipeline, North County is not able to lower the level of the ground at the planned entrance site without impacting the underground pipeline.
¶ 10 John Ham, a member and manager of North County, testified that he had reached out to Cobden about the underground pipeline. Cobden did not offer to move its pipeline but provided North County permission to relocate the pipeline at North County's expense.
¶ 11 Karen Winzenburger, Cobden's village clerk, testified that she had held this position since 1974, and the underground pipeline had not been moved from its original location. She confirmed that North County's property is outside the village limits of Cobden.
¶ 12 William Chad Eads, Cobden's village superintendent, testified that he had held this position since 2008. Eads oversees maintenance and records regarding the underground pipeline. He testified that since he started working for Cobden in 2008, the underground pipeline has continuously been used to provide natural gas to Cobden residents. He testified further that the pipeline has not been moved since 2008. Eads testified that in addition to providing natural gas to Cobden property owners, the pipeline provides natural gas services to homes and businesses located along the trunk line between Jonesboro and Cobden. Eads confirmed that the property owners on the pipeline can still use the ground so long as they do not dig up the pipeline.
¶ 13 The trial court entered its judgment order in favor of Cobden on September 1, 2022. The court found that North County established that it is the owner of the subj ect property, and that there was no recorded easement for the pipeline in that portion of North County's property where the proposed entrance would be created. However, the trial court concluded that Cobden established both of its affirmative defenses. First, the court found that North County's ejectment claim was barred by the 20-year statute of limitations as the complaint was not filed within 20 years after the pipeline was buried in 1967, noting that the "as-built" plan was notice to the public of the pipeline's existence on the property. 735 ILCS 5/13-101 (West 2018). Second, the court found that although there was no agreed-to easement for the pipeline's original construction, Cobden established that it had a prescriptive easement.
¶ 14 II. ANALYSIS
¶ 15 A. Statute of Limitations
¶ 16 Statutory construction involves a question of law, and thus we review the trial court's ruling de novo. Eighner v. Tiernan, 2020 IL App (1st) 191369, ¶ 9 (quoting Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11).
¶ 17 The trial court's conclusion that North County's ejectment claim was time-barred was based upon two 1967 events. First, the underground pipeline was created in 1967, and second, the "as built" plan memorializing the location of the pipeline was recorded in 1967. Section 13-101 of the Code of Civil Procedure provides:
"No person shall commence an action for the recovery of lands, nor make an entry thereon, unless within 20 years after the right to bring such action or make such entry first accrued, or within 20 years after he, she or those from, by, or under whom he or she claims, have acquired title or possession of the premises ***." 735 ILCS 5/13-101 (West 2018).
¶ 18 The purpose of a statute of limitations is "to prevent prejudice to the defendant caused by plaintiff s undue delay in filing suit." Lincoln-Way Community High School District 210 v. Village of Frankfort, 51 Ill.App.3d 602, 607 (1977). The 20-year limitations period specified in section 13-101 applies to ejectment actions. Rosenthal v. City of Crystal Lake, 171 Ill.App.3d 428, 440 (1988). "The burden of establishing the 20-year period rests on the party pleading it ***." Id. at 441 (citing Poulous v. F.H. Hill Co., 401 Ill. 204, 214 (1948)).
¶ 19 Here, there is no question that Cobden buried the pipeline in 1967. North County purchased its parcel in 2020 and filed its ejectment claim in 2021-approximately 54 years after the pipeline was installed. The trial court based its conclusion that the ejectment claim was time-barred upon the fact that Cobden filed its "as built" plan in 1967, and that this plan provided notice to all, including North County, of the pipeline's existence. North County argues that its ejectment claim is not time-barred because its surveyor's "access to the Union County Clerk's Office was *** limited during the restrictions imposed by the COVID pandemic," and though the recorded plan was found in the courthouse during a break in the bench trial, the COVID restrictions were no longer in existence.
¶ 20 During trial, Cobden's attorney asked surveyor Whiteside if he had searched the records and found the "as built" plan on page 163 of Plat Book 5. Whiteside testified that he did search the records and "did not find anything at that point in time because we were limited on time at the courthouse during that period of time because of COVID." There was no evidence that the surveyor was barred from the courthouse, merely that he was limited on time, and which prevented him from locating the recorded plan. Whiteside's testimony is not evidence that the "as built" plan was not discoverable when he conducted his title search. It is simply evidence that for whatever reason, he failed to find it. We find that the properly filed "as built" plan must be construed no differently than a recorded easement with respect to the issue of notice to the current property owner.
¶ 21 We also note that the Herring easement, which was part of the recorded history of the North County property, contained a specific reference and direction to the 1967 "as built" plan, including the book and page where the plan was recorded. While this may not have impacted "title" or "chain of title" to the property at issue, it definitely served as constructive notice to anyone surveying North County's property. North County argues that as this recorded plan was not part of the chain of title, North County cannot be bound by the plan. See Leeser v. Kibort, 243 Ill.App. 258, 26263 (1927). This argument fails because Cobden did not then and does not now claim title to the disputed section of North County's property. We construe the "chain of title" law to be tied to the seller's record title and how the seller could have impaired or encumbered the record title to the property. Id. (quoting 2 John Norton Pomeroy, A Treatise on Equity Jurisprudence, at 1304 (4th ed. 1918)).
¶ 22 Essentially, North County is attempting to invoke the discovery rule to avoid the application of the 20-year limitations period. North County argues that because it failed to locate the "as built" plan, "discovery" of the underground pipeline when a locator service flagged the line was sufficient to thwart application of the statute of limitations. We disagree.
¶ 23 To the extent that North County was invoking the discovery rule in this case, it has the burden to prove the date of discovery. Super Mix of Wisconsin, Inc. v. Natural Gas Pipeline Co. of America, LLC, 2020 IL App (2d) 190034, ¶ 36 (citing Kirby v. Jarrett, 190 Ill.App.3d 8, 12 (1989)). In Super Mix of Wisconsin, Inc., the plaintiffs acquired a parcel in 2003 subject to a pipeline easement granted in 1945 to the defendant. Id. ¶ 1. Upon acquiring the parcel, the plaintiffs began mining sand and gravel. Id. In 2015, the plaintiffs' mining operation proceeded and came closer to the pipeline. Id. The plaintiffs then asked the defendant to reroute its pipeline, and the defendant refused. Id. The plaintiffs filed their complaint seeking a declaratory judgment as to the parties' rights under the easement and seeking damages for inverse condemnation. Id. ¶ 2. The trial court held that the plaintiffs' claims were time-barred. Id. Without delving into the particular mineral rights issues or the applicable statute of limitations in that case, the trial court found, and the appellate court affirmed, that the original owner of the parcel-dating back 73 years when the underground pipeline was placed-" 'knew or should have known of the impact of this [easement] on his property,'" and thus the plaintiffs in this case" 'came knowing full well that the easement was there and how it would affect their use of the property.' "Id. ¶¶ 16, 37. In short, the plaintiffs' claims "accrued in 1945, when the easement was granted, and the pipeline was constructed." Id. ¶ 37.
¶ 24 We are aware that in Rosenthal v. City of Crystal Lake, the appellate court implied that the 20-year statute of limitation for ejectment would not date back to the date that the underground sewer system was buried. See Rosenthal, 171 Ill.App.3d at 441. The court ultimately concluded that the current owner discovered the presence of the underground sewer within 20 years after he became the titled owner of the property. Id. In reaching this conclusion, the court did not tack on the years when the preceding property owner had title dating back to the installation of the sewer system. Id. The court's analysis of the limitations period calculation was connected to the "open and notorious" element of an adverse possession claim. Id. We find Rosenthal is distinguishable because unlike here, there was no evidence of an easement or right-of-way pertaining to the property at issue ever being recorded. Id. at 432. The court emphasized that, "due to the sewer's hidden location, 71/2 feet underground, it cannot be said that defendant's presence on the property was open and notorious for more than 20 years before this action was filed." Id. at 441. Here, the pipeline's hidden underground location was open and notorious for more than 20 years before North County filed suit because of the "as built" plan record notice in the office of the Union County Recorder of Deeds.
¶ 25 Having reviewed the record on appeal, the relevant law, and the briefs and arguments of counsel, we affirm the trial court's conclusion that the statute of limitation bars North County's ejectment claim.
¶ 26 B. Prescriptive Easement
¶ 27 "The question of the establishment of an easement by prescription is nearly always a question of fact." Batchelder Co. v. Gustafson, 32 Ill.App.3d 14, 18 (1975) (citing Petersen v. Corrubia, 21 Ill.2d 525, 532 (1961)). In a bench trial, the trial court "has the obligation of weighing the evidence and making findings of fact." Wells v. State Farm Fire & Casualty Insurance Co., 2021 IL App (5th) 190460, ¶ 38 (citing Dobbs v. Wiggins, 401 Ill.App.3d 367, 375 (2010)). Thus, we defer to the court's findings unless they are contrary to the manifest weight of the evidence. Id.; Chicago's Pizza, Inc. v. Chicago's Pizza Franchise Ltd. USA, 384 Ill.App.3d 849, 859 (2008); Jackson v. Bowers, 314 Ill.App.3d 813, 818 (2000)." 'A judgment is against the manifest weight of the evidence only when the opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence.'" Chicago's Pizza, Inc., 384 Ill.App.3d at 859 (quoting Judgment Services Corp. v. Sullivan, 321 Ill.App.3d 151, 154 (2001)); Comm v. Goodman, 6 Ill.App.3d 847, 853 (1972). "As the trier of fact, the trial judge was in a superior position to judge the credibility of the witnesses and determine the weight to be given to their testimony." Chicago's Pizza, Inc., 384 Ill.App.3d at 859. Furthermore, we find that it is important to stress that the trier of fact is in a better position to resolve any conflicts in the testimony and draw inferences from the facts. People v. Gray, 2017 IL 120958, ¶ 35; People v. Bradford, 2016 IL 118674, ¶ 12. Therefore, we will not substitute our judgment for that of the trial court on questions involving the weight of the evidence or the credibility of the witnesses. Id.
¶ 28 "An easement is a right or privilege in the real estate of another [citation], but it is by definition a nonpossessory interest [citations]." Nationwide Financial, LP v. Pobuda, 2014 IL 116717, ¶ 28. "An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Restatement (Third) of Property (Servitudes) § 1.2(1) (2000). In the case of an underground pipeline, the holder of the easement is only allowed to use the area for purposes reasonably related to this pipeline. Id. cmt. d. "Thus, there is no requirement in the law of easements that the owner of the land be altogether deprived of possession or use of the land." Pobuda, 2014 IL 116717, ¶ 28.
¶ 29 As stated by the Illinois Supreme Court, the relevant legal principles that govern prescriptive easements are clear and settled: "To establish an easement by prescription, the use of the way in question must have been-for a 20-year period-adverse, uninterrupted, exclusive, continuous, and under a claim of right." Id. ¶ 27 (citing Petersen, 21 Ill.2d at 531).
¶ 30 The evidence supporting the "continuous" and uninterrupted" required elements in this case is the same. If there is privity between users of the land, the time periods of use can be tacked together. Id. Here, Cobden installed the underground pipeline in 1967, and it has been in continuous and uninterrupted operation since installation. Cobden employee Karen Winzenburger testified that the underground gas pipeline has been used continuously, without interruption, since 1974 when she became employed by Cobden. Thus, these two elements-continuous and uninterrupted-are not at issue.
¶ 31 The "hostile or adverse" required element" 'does not imply actual ill will, but only the assertion of ownership incompatible with that of the true owner and all others.'" Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶ 42 (quoting Joiner v. Janssen, 85 Ill.2d 74, 81 (1981))." 'Although evidence of the use and control over land is the typical manner by which any claimant establishes title by adverse possession, it must be clearly shown that the use of the land was adverse and not merely permissive, since permissive use of land, no matter how long, can never ripen into an adverse possessory right.'" Id. (quoting Mann v. La Salle National Bank, 205 Ill.App.3d 304, 309-10 (1990)). Adversity requires more than mere permission to use the land. Pobuda, 2014 IL 116717, ¶ 43 (citing Monroe v. Shrake, 376 Ill. 253, 256 (1941)). "In the absence of evidence tending to show that such long-continued use of the way may be referred to a license or other special indulgence, which is either revocable or terminable, the conclusion is, that it has grown out of a grant by the owner of the land, and has been exercised under as title thus derived." Rush v. Collins, 366 Ill. 307, 315 (1937). Although the right or grant of usage may be presumed, the facts supporting the presumption must be "established by the greater weight of the evidence." Id. Here, there is no evidence that any property owner provided Cobden with permission to utilize the disputed property. Yet, Cobden used the land consistently since 1967. We find that these facts support the trial court's conclusion that the "hostile or adverse" element was met.
¶ 32 The "exclusive" required element" 'does not mean that no one may or does use the way, except the claimant of the easement. It means no more than that his right to do so does not depend upon a like right in others, and it does not mean that the claim is necessarily well founded.'" Brandhorst, 2014 IL App (4th) 130923, ¶ 74 (quoting Petersen, 21 Ill.2d at 531). "Where a way has been used openly, uninterruptedly, continuously and exclusively for more than a period of twenty years, the origin of the way not being shown, there is a presumption of a right or grant from the long acquiescence of the party upon whose land the way is located." Id. Moreover, the exclusivity element to establish a prescriptive easement differs from the exclusivity required in a case of adverse possession. Pobuda, 2014 IL 116717, ¶ 30. In adverse possession, the exclusivity element requires possession of the land in that the owner must exert physical control over the property. Id. ¶ 31 (citing Dena Cohen, Exclusiveness in the Law of Prescription, 8 Cardozo L. Rev. 611, 628 (1987)). In contrast, an easement is not "possessed" by a party:
"Easements allow only a limited right to use the servient land and the control necessary for possession is not a characteristic of this use. The creation of an
easement, by any method, does not deprive the servient owner of any portion of the fee soil. Not only is the owner's title not challenged, but once an easement has been acquired, the claimant has no right to exclude the owner or anyone else. However, when one acquires title by adverse possession, one gains the right to exclude all." (Emphasis omitted and internal quotation marks omitted.) Id.
Thus, establishing exclusivity for a prescriptive easement requires" 'no more than that [the claimant's] right to [use the way] does not depend upon a like right in others.' "Id. ¶ 33 (quoting Petersen, 21 Ill.2d at 531). The Illinois Supreme Court also noted that if there is no evidence indicating that the use of the property by the user was permissive, there is a "presumption of a right or grant from the long acquiescence of the party upon whose land the way is located." Id. ¶ 39 (citing Rush, 366 Ill. at 315). "The law favors this conclusion because it is reasonable to assume that the owner would not have acquiesced to the use for so long when it was in his interest to have interrupted it, unless he felt that the party using it had a right that could not be defeated." Id. Public policy mandates this presumption "to promote the public peace and quiet claims of possession." Id. Here, there is no evidence that Cobden's use of the land was permissive, and there is no question that the land has been continuously utilized since the pipeline's 1967 installation. Therefore, there is a presumption as to exclusivity because the land has been used by Cobden on an open, uninterrupted, continuous, and exclusive basis since 1967. Rush, 366 Ill. at 315.
¶ 33 To establish the required element of a "claim of right," Illinois courts have concluded that" '[u]sing and controlling property as [the] owner is the ordinary mode of asserting a claim of title inconsistent with that of the true owner.'" Brandhorst, 2014 IL App (4th) 130923, ¶ 60 (quoting Peters v. Greenmount Cemetery Ass'n, 259 Ill.App.3d 566, 570 (1994)). As the appellate court noted in Brandhorst v. Johnson, this element is similar to the element of hostile or adverse possession. Brandhorst, 2014 IL App (4th) 130923, ¶ 60. The elements of adversity and claim of right are synonymous. Dena Cohen, Exclusiveness in the Law of Prescription, 8 Cardozo L. Rev. at 624. Based upon the same evidence used to establish hostile or adverse possession in this case, plus the trial testimony of Cobden employee Chad Eads explaining how the underground pipeline is used and how maintenance and inspections are conducted by Cobden, we find that Cobden established the "claim of right" element.
¶ 34 Here, the trial court found that North County's trespass claim failed because Cobden had established its prescriptive easement for the underground pipeline. We agree and conclude that the evidence at trial strongly supported the trial court's finding. Not only was there no evidence of permissive use in this disputed area of North County's property, but Cobden publicly "announced" that its underground pipeline was present and being used. No permissive easement was granted by previous property owners for this disputed area. If an easement had been granted to Cobden, there could not have been a prescriptive easement as the usage would have been permissive instead of adverse. Cobden filed its "as built" plan with the Union County Recorder of Deeds office and cross-referenced it in the Herring easement applicable to North County's property. As the trial court stated in its judgment order: "easements and all other burdens on a parcel of land are filed with the Office of the County Clerk," and North County "provides no defense or reason why Raymond Whiteside did not locate the plat of the 'as built gas line.'" We conclude that the trial court's conclusion that Cobden established a prescriptive easement is not contrary to the manifest weight of the evidence. Chicago's Pizza, Inc., 384 Ill.App.3d at 859.
¶ 35 Although we conclude that the trial court's findings must be affirmed, we briefly address alternate arguments advanced by North County on appeal. North County argues that Cobden's use of the land constituted a taking of North County's private property regardless of the label attached to its taking-prescriptive easement versus adverse possession. In support, North County cites to the Illinois Constitution and caselaw. Our Illinois Constitution provides: "Private property shall not be taken or damaged for public use without just compensation as provided by law." Ill. Const. 1970, art. I, § 15. Cobden counters that because it is not claiming adverse possession, it has not "taken" the property, and thus the constitutional argument advanced by North County is without merit. We agree. By its very nature, the prescriptive easement claimed by Cobden provides a limited right to use-not own-North County's land. Dena Cohen, Exclusiveness in the Law of Prescription, 8 Cardozo L. Rev. at 628. Cobden is not attempting to permanently remove ownership from North County.
¶ 36 We also note that Illinois courts have held that certain types of prescriptive easements will not constitute a taking. North County sought damages with its trespass claim but did not seek damages for the alleged "taking." Nevertheless, we briefly address the "taking" issue in the prescriptive easement context.
¶ 37 In Illinois, there is no "taking," and thus compensation is not mandated, when a private road is converted to a public highway. City of Des Plaines v. Redella, 365 Ill.App.3d 68, 74 (2006), overruled on other grounds by Pobuda, 2014 IL 116717. At issue in City of Des Plaines v. Redella was whether a prescriptive easement pursuant to a statute constituted a compensable taking. Id. On appeal, the defendants argued that this statute could not be construed to allow seizure of the private road by the plaintiff, a public entity, without compensation. Id. The appellate court discounted the defendants' declaration that conversion of the private road into a public road constituted a "taking," stating that the plaintiff was only granted a prescriptive easement to the roadway, and not fee title to the property itself. Id. The appellate court then directly addressed the question of whether a prescriptive easement could constitute a constitutional "taking" warranting compensation. Id.
¶ 38 The appellate court in City of Des Plaines v. Redella found guidance in cases from Colorado and New Mexico. The Colorado case, Board of County Commissioners of Saguache County v. Flickinger, 687 P.2d 975, 984 (Colo. 1984), also involved a "taking" pursuant to a state statute. The prescriptive easement was recognized because the fee interest owner of the roadway allowed access of the public to the roadway for 20 years. Id. The Colorado court stated statutory conversion of a private road to a public one after 20 years "did not constitute a governmental taking for which compensation was required." Id. at 984-85. The New Mexico case, Algermissen v. Sutin, 61 P.3d 176 (N.M. 2002), involved private parties and not governmental entities but noted: "The general rule is that acquisition of an easement by prescription is not a taking and does not require compensation to the landowner." Id. at 185 (citing Luevano v. Maestas, 874 P.2d 788, 795 (N.M. Ct. App. 1994)).
¶ 39 This court has held that a prescriptive flood easement by a governmental entity does not constitute a "taking" requiring compensation. Kaskaskia Land Co. v. Vandalia Levee &Drainage District, 2019 IL App (5th) 180403. In Kaskaskia Land Co., the plaintiff owned land on a small island in the Kaskaskia River over which the Vandalia Levee and Drainage District had a prescriptive flood easement. Id. ¶¶ 4, 9. The prescriptive flood easement is like other prescriptive easements in that for over 20 years the property had flooded and the floodings were adverse and uninterrupted by the island landowners who continued a long-established practice of not interfering with the Kaskaskia River's natural flow of floodwater. Id. ¶ 23. This court likened the "taking" in the case to those "takings" in Redella and Flickinger because the elements to establish the prescriptive easement were essentially identical. Id. ¶¶ 24, 27. In concluding that compensation was not required for the prescriptive flood easement, we stated that "a prescriptive easement is a granting, not a taking." Id. ¶ 28.
¶ 40 In addition to the authority of Redella and Kaskaskia Land Co., we also note that the Restatement (Third) of Property (Servitudes) provides important guidance on the issue of compensation for a public "taking" of private property with a prescriptive easement.
"[Servitudes for the benefit of the public can be acquired by prescription ***. The prescriptive user may be either a governmental body or the general public. If the prescriptive user is a governmental body, the rights that can be acquired by prescription are the same as those that can be acquired by private parties, at least within the limits of the governmental body's authority to acquire property. The fact that a governmental body has the power of eminent domain does not prevent it from acquiring servitude benefits by prescription. Acquisition by prescription is not a taking and does not require compensation to the landowner for the servitude." Restatement (Third) of Property (Servitudes) § 2.18 cmt. f (2000).
We conclude that Illinois caselaw is in keeping with the Restatement, and thus a prescriptive easement or servitude by a public body does not constitute a "taking," and does not require compensation to the landowner for the prescriptive easement. Id.; Kaskaskia Land Co., 2019 IL App (5th) 180403, ¶ 31; Redella, 365 Ill.App.3d at 75.
¶ 41 North County also contends that caselaw supports its contention that Cobden is unable to establish a prescriptive easement. In support of this claim, North County cites two cases, both of which involve an underground sewer system. As detailed in the following paragraphs, we find both cases to be distinguishable.
¶ 42 In Seefeldt v. City of Lincoln, 57 Ill.App.3d 417, 420 (1978), the court concluded that Lincoln could not establish a prescriptive easement for its underground sewer line. In Seefeldt, the property owners sued the city to enjoin it from removing and replacing the sewer line where it crossed the Seefeldts' property. Id. at 418. In defense, Lincoln contended that it had a prescriptive easement. Id. The trial court found that Lincoln failed to establish that there was a claim of right with the Seefeldts' knowledge because the sewer was underground and not visible, and thus the sewer alone could not serve as notice to the owners "of its existence or notice of adverse claim or use by the city." Id. In support, Lincoln argued that an 1891 special assessment was a public record and served as constructive notice to all subsequent purchasers of the sewer's existence. Id. at 420. However, Lincoln failed to introduce evidence of the special assessment in this case, and the Seefeldts did not agree that their property was subject to the assessment. Id. The appellate court noted that there was no evidence that the sewer described in the 1891 ordinance, which resulted in the special assessment to property owners and the subsequent filing of the Special Assessment Roll of 1891, was part of the sewer system crossing the Seefeldts' property. Id. at 419-20. There was also no evidence that a plat prepared that detailed the location of the sewer line was ever filed. Id. In addition, the court noted that the special assessment was not a conveyance and, therefore, any lien the assessment may have created would have been discharged upon the property owners' payments. Id. at 420. "The general rule with respect to sewers and other underground drains is that because they are not visible, their existence does not give rise to a prescriptive easement unless the owner of the servient estate has actual or constructive notice of the sewer." Id. at 422.
¶ 43 In Rosenthal v. City of Crystal Lake, the appellate court similarly found that due to the buried sewer's hidden location approximately 7.5 feet underground, Crystal Lake could not establish that its sewer line was "open and notorious" for more than 20 years before Rosenthal filed the action. Rosenthal, 171 Ill.App.3d at 439-40. As in Seefeldt, Crystal Lake had nothing filed that provided actual or constructive notice to the Rosenthals of the sewer line's existence across the property. However, Crystal Lake did not raise the defense of a prescriptive easement or adverse possession, and thus the analysis is not directly on point with the facts of this case.
¶ 44 Factually, both Seefeldt and Rosenthal are distinguishable. Both cases involved an underground sewer line with no documents publicly recorded that could have placed the property owner on actual or constructive notice. In this case, there is no question that the underground pipeline has been in its current location since 1967, and that the "as built" plan has been on file since 1967 in the office of the Union County Recorder of Deeds. The Herring easement also references the "as built" plan and provides constructive notice of the existence of the underground pipeline.
¶ 45 We are also aware that Cobden, as a municipality, statutorily would have had the right to place an underground pipeline along or under a highway so long as it obtained consent of the highway authority. Ill. Rev. Stat. 1965, ch. 121, § 9-113. As we have stated, no easement was located that covered the disputed land. Moreover, there was no documentation entered into evidence at trial that the owner of the disputed land at the time of the pipeline's installation granted permission to Cobden to install the pipeline. Although North County did not seek compensation for the "taking" of this disputed property, there is a question about whether Cobden had legal authority to "take" the land at issue because the property is outside the village limits of Cobden. However, Cobden is not seeking to take the property by adverse possession. Instead, Cobden successfully established its prescriptive easement that allowed it to use North County's property. The parties did not cite, nor has this court found, caselaw prohibiting a municipality from establishing a prescriptive easement in this manner.
¶ 46 III. CONCLUSION
¶ 47 For the above reasons, we affirm the judgment of the Union County circuit court holding that North County's claim for ejectment was barred by the statute of limitations and that its claim for trespass was barred by Cobden's prescriptive easement.
¶ 48 Affirmed.