author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KASCELL JENNINGS, Defendant-Appellant.
    Fourth District
    No. 4-88-0450
    Opinion filed June 22, 1989.
    Rehearing denied August 1, 1989.

      John J. Rekowski, of Rekowski & Collins, of Collinsville, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On March 17, 1988, the circuit court of McLean County entered judgment on a jury verdict returned finding defendant Kascell Jennings guilty of unlawful possession of a controlled substance with the intent to deliver 15 grams or more (Ill. Rev. Stat. 1987, ch. b&k, par. 1401(c)) and unlawful use or possession of weapons by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1). The court subsequently sentenced defendant to a term of 33 years’ imprisonment on the controlled substances offense and five years’ imprisonment on the unlawful use of weapons offense, the sentences to run concurrently.

Defendant now appeals his conviction and sentence, contending the trial court: (1) erred in denying his motion to quash his arrest and suppress certain evidence which he claims was illegally obtained; (2) deprived him of a fair trial by allowing in certain evidence concerning other crimes; (3) erred in allowing a Department of Corrections employee to testify regarding the details of defendant’s prior felony conviction; and (4) abused its discretion in sentencing defendant to an extended-term sentence. We affirm.

The report of proceedings on defendant’s motion to quash his arrest and suppress evidence revealed that, on December 8, 1987, Illinois State Trooper Greg Neumann pulled over an automobile for traffic violations after he paced it travelling at an excessive rate of speed and watched it following another vehicle too closely. Neumann said he intended to write the driver a warning ticket for speeding. He obtained the licenses from both the driver and the passenger (defendant), as the driver indicated his passenger was the owner of the car. While waiting for the men to produce their licenses, Neumann observed flakes of a greenish-brown plantlike substance, possibly cannabis, scattered on the car’s interior. He also noticed the car had a stale smoke smell emanating from it.

Neumann said he intended to search the car for cannabis but first returned to his squad car to write out a warning ticket and run a computer check on the two licenses he had obtained. The computer check revealed defendant had been arrested in 1986 for manufacturing heroin. Neumann also learned both men had prior felony convictions.

Troopers Gregory Beoletto and Michael Snyders subsequently arrived on the scene to assist Neumann. Beoletto overheard the information concerning defendant and the driver which had been transmitted over the radio. However, he said that, before a search of the vehicle ensued, he said he had no reason to believe defendant had committed or was committing a crime. During a conversation with the defendant, Beoletto twice asked him if he could search his vehicle for guns or drugs, and defendant twice refused.

Snyders said he then approached defendant and asked him if he could search various areas of his car for guns or drugs. He said defendant laughed and told him to “go ahead, take a look.” Snyders said defendant stated to him he would not find anything anyway. Defendant testified he refused on three different occasions to allow the officers to search his car. He said a trooper then asked him to step out of the car, and he complied. Beoletto testified he did not hear the specific question which Snyders asked defendant; however, he said he thought he heard defendant say “okay” to Snyders and then watched defendant step out of the vehicle. Beoletto indicated during his testimony he was surprised Snyders had obtained defendant’s consent for a search so easily since defendant had twice responded negatively to his own requests to search.

Snyders then conducted a search of the interior of the automobile during which he initially uncovered a red, .12 gauge shotgun shell under the passenger side of the front seat. Defendant did not possess a firearm owner’s identification card, and both men had prior felony convictions, so the police placed both of them under arrest for the offense of possession of a firearm (ammunition) by a felon. Snyders asked defendant if he had a key to the car’s glove box or the trunk, and he said defendant told him he did not have any keys for them. A canine unit was summoned to inspect the vehicle, and the vehicle was subsequently towed to a nearby station.

At the station, the troopers immediately began a complete search of the vehicle. Some troopers forced open the glove box, and they discovered it contained a .20 gauge Federal shotgun shell as well as a bag containing a white powdery substance which they believed to be cocaine. A loaded .41 magnum Smith & Wesson pistol was also found in the trunk.

Following the presentation of evidence at the hearing on defendant’s motion, the trial court made the following findings in its order dated February 9, 1988: (1) the troopers “lawfully stopped” the automobile in which defendant was riding; (2) “defendant verbally consented to the search of the passenger compartment of the vehicle and exited the car to allow the officer to search”; (3) “defendant was arrested *** for unlawful possession of the shotgun shell found during the interior search by the officer who knew *** the defendant” had a prior felony conviction; and (4) with or without defendant’s consent, the search of the car’s glove box and trunk “was incident to his lawful arrest for unlawful use of weapons by a felon and was with probable cause *** based upon” the circumstances involved. The court denied defendant’s motion to quash arrest and suppress evidence.

On appeal, defendant contends the court’s decision on his motion was erroneous because he claims the troopers possessed no objectively reasonable basis for stopping his vehicle, and the reasons advanced by them were merely a pretext for their illegal search and seizure. Further, he claims no basis existed for the officer to detain him, since he was not the driver of the vehicle.

However, because Trooper Neumann paced defendant’s vehicle travelling in excess of the speed limit in violation of section 11— 601 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 601), he was justified in stopping the car. (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14; People v. Hampton (1981), 96 Ill. App. 3d 728, 422 N.E.2d 11.) Thus, the initial stop of the vehicle was valid and did not appear to be pretextual. Trooper Neumann also possessed the authority to briefly detain the driver and request that he produce a valid driver’s license. Ill. Rev. Stat. 1987, ch. 95^2, par. 6 — 112.

The State here argues the trooper also had a lawful right to ask for and run a warrant check on defendant’s driver’s license. It cites People v. Ellis (1983), 113 Ill. App. 3d 314, 446 N.E.2d 1282, and People v. Eyler (1985), 132 Ill. App. 3d 792, 477 N.E.2d 774, cert. denied (1987), 481 U.S. 1007, 95 L. Ed. 2d 205, 107 S. Ct. 1632, to support its argument.

Both Ellis and Eyler, though, involved investigatory Terry stops where police suspected criminal activity and ran warrant checks on the individuals detained. The instant case does not involve a Terry stop. The testimony of Trooper Neumann indicates he had no reason to suspect defendant of criminal activity at the time of the initial stop. In this case, the trooper did not possess the authority to demand the production of defendant’s driver’s license absent proof that defendant was driving the vehicle. (People v. Francis (1971), 4 Ill. App. 3d 65, 280 N.E.2d 49.) The evidence reveals he was, in fact, a passenger in his own car.

While Neumann did not have the authority to request defendant’s license, though, he was not restricted from glancing inside the interior portion of the automobile after the valid traffic stop. (People v. Thomas (1979), 75 Ill. App. 3d 491, 394 N.E.2d 624.) He had not yet issued a warning ticket to the driver, and it was reasonable to detain him for that brief period. Once Neumann observed a plantlike substance resembling cannabis scattered about the car’s interior, he had reasonable grounds to believe a crime had been or was being committed and evidence of the offense could be found in the vehicle. At that point, the evidence was in-plain view and, although he did not do so, Neumann had probable cause to enter the vehicle and seize the evidence. People v. Graham (1974), 23 Ill. App. 3d 685, 320 N.E.2d 156.

Defendant also contends the evidence obtained from the subsequent search of the glove box and trunk should have been suppressed because the court’s own findings indicated defendant’s consent to that search was ambiguous. Furthermore, he emphasizes the troopers did not have a search warrant. Finally, he claims the second search was a fruit of the poisonous tree because the first search itself was improper.

However, the initial search of specified areas of the passenger compartment of defendant’s car was appropriate under the circumstances here. Trooper Snyders’ testimony indicated defendant had consented at least to a search of certain areas of the car, including under the seats. The trial court’s determination, predicated upon the credibility of the witnesses, that defendant had, in fact, consented to the search was not contrary to the manifest weight of the evidence. Since valid consent was thus obtained, a warrantless search of the areas was permissible. People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608.

As noted previously, Trooper Snyders found a live shotgun shell under the front passenger seat during the course of this consensual search. The troopers knew both men were convicted felons, and their possession of such firearm ammunition was in violation of the law. (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1.) The troopers were fully justified in arresting the two men under those circumstances. The subsequent search of the vehicle was then permissible as a search incident to a lawful arrest. People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346.

In summary, the trial court properly denied defendant’s motion to quash arrest and suppress evidence since no illegal search or seizure occurred. The evidence in question was admissible under the circumstances presented here.

Next, defendant contends he was denied a fair trial where the trial court allowed in testimony and argument regarding the weapon found in the trunk and the .20 gauge shotgun shell found in the glove box of his car. Defendant was not charged with possession of that particular piece of ammunition, and the State nol-prossed the count relating to the unlawful possession of the .41 caliber pistol just prior to commencement of trial. Defendant claims information relating to these items was both irrelevant and immaterial to any of the remaining charges for which he was on trial and was also quite prejudicial. He also claims the State failed to show the gun was somehow connected with him.

The State did use the evidence repeatedly throughout the course of the trial. The prosecutor mentioned the pistol during opening statements, after which defense counsel unsuccessfully moved for a mistrial. Over objection, numerous police officer witnesses also testified concerning the weapon. The evidence revealed the weapon was discovered in the trunk of defendant’s car, but defendant’s fingerprints were not found on the gun.

Generally, evidence of the commission of other crimes by an accused is inadmissible if offered merely to establish a propensity to commit crimes. However, evidence of other crimes is admissible to show knowledge, intent, motive, design, plan, or identification. People v. Alexander (1982), 93 Ill. 2d 73, 442 N.E.2d 887.

Here, evidence that the troopers subsequently found a pistol and shotgun shell in the trunk and glove box of defendant’s car made it more likely defendant knew of the existence of the shotgun shell under the front passenger seat. Although the connection between the items admittedly is more tenuous because a shotgun shell, and not ammunition for a pistol, was found, we still hold the evidence was properly admitted to show defendant’s knowledge in this case.

Defendant also contends the trial court erred in allowing a Department of Corrections employee to testify concerning the details of his prior imprisonment at Menard Correctional Center. Donald Gentsch, a records supervisor at that center, testified he became familiar with an individual known as Kascell Jennings during his employ at Menard. Gentsch identified that Kascell Jennings as the defendant sitting in the courtroom. He further examined and testified from certain departmental conviction records and relayed information from them concerning the county and case number of defendant’s previous conviction and sentence to the Department of Corrections.

Defendant acknowledges the State had to allege and prove the existence of defendant’s prior felony conviction as an element of the offense of unlawful use of a weapon by a felon. However, he claims it was unnecessary for a witness to identify defendant as a prior felon and to testify about his prior incarceration in order to prove this element, especially when defendant did not challenge the certified copy of the conviction. He argues such testimony was highly prejudicial and irrelevant.

According to statements of counsel, defense counsel refused to stipulate to defendant’s prior felony record initially and continued in such refusal until the witness in question arrived to present his testimony. Since no stipulation occurred, the State proceeded through Gentsch to prove defendant’s prior conviction and his identity.

In the prosecution for unlawful use of a weapon by a felon, a prior conviction must be proved by the record or by an authenticated copy of conviction showing the caption, return of indictment or filing of information, arraignment, paneling of jury, and final judgment. (People v. Gober (1986), 146 Ill. App. 3d 499, 496 N.E.2d 1226.) While we recognize the identity of name in a certified copy of a prior conviction gives rise to a rebuttable presumption of identity of person (People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353), we cannot conclude error occurred here when the State called a Department of Corrections employee to testify concerning defendant’s identity and prior conviction and sentence. The statutory predecessor to the present section 24 — 1.1 of the Criminal Code of 1961 made it a felony for a prior convicted felon to commit the crime of unlawful use of weapons within five years of his conviction or release from the penitentiary. (Ill. Rev. Stat. 1983, ch. 38, par. 24 — 1(b).) Cases interpreting this earlier statutory provision indicated that identification evidence establishing defendant as the same person as the stated felon was not only desirable but necessary in order to obtain a conviction under this enhanced penalty portion of the statute. (People v. Mitchell (1979), 68 Ill. App. 3d 370, 386 N.E.2d 153; People v. Dixon (1970), 46 Ill. 2d 502, 263 N.E.2d 876.) The trial court did not err in allowing the testimony in question here.

Finally, defendant contends the trial court abused its discretion in imposing an extended-term sentence of 33 years’ imprisonment for his conviction for possession of 15 or more grams of cocaine with the intent to deliver it since he had no prior record of other drug offenses, and his conduct did not threaten or cause great harm. He claims the court also failed to take certain other factors into consideration, including his age, the length of time between this and his last criminal conviction, his employment, and existence of dependents to support.

At the sentencing hearing, the court took judicial notice of the presenterice investigation report and the facts and evidence adduced at trial. The report revealed defendant’s age, employment, and family status as well as his prior record. Included in the list of prior offenses committed by defendant were the crimes of burglary, armed robbery, and murder. While defendant offered no evidence in mitigation at the sentencing hearing, both he and his counsel made statements to the court concerning the mitigating circumstances present.

In sentencing the defendant to an extended term, the court acknowledged the present conviction was defendant’s first controlled substance offense. However, the court also emphasized defendant had previously been convicted of a number of felonious offenses. Moreover, the controlled substance conviction involved a large quantity of high quality cocaine. The court concluded that, due to defendant’s past record, an extended-term sentence was necessary to protect the public and to deter others.

In setting forth the reasons for the sentence imposed, a trial court need not recite, and assign a value to, each fact presented at the sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) It is presumed the court considered all evidence offered in mitigation absent some statement to the contrary. (People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112.) Sentences which fall within the statutory limits will not be disturbed by us on review absent an abuse of discretion by the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The circumstances present in the instant case fully support the sentence imposed. The trial court did not abuse its discretion in sentencing defendant to an extended term of 33 years.

For the reasons stated, the judgment of the circuit court of McLean County is affirmed.

Affirmed.

McCULLOUGH, P.J., and SPITZ, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCULLOUGH

license: Public Domain

text:
    JOSEPH TAMALUNIS et al, Plaintiffs-Appellees, v. THE CITY OF GEORGETOWN, Defendant-Appellant (Joseph S. Dalida et al., Defendants).
    Fourth District
    No. 4-88-0677
    Opinion filed June 28, 1989. —
    Rehearing denied August 30, 1989.

      Gregory C. Ray and Paul G. Prendergast, both of Craig & Craig, of Mattoon, and Kenneth W. Blan, Jr., of Blan Law Offices, of Danville, for appellant.
    Warren E. White, of Danville, for appellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

This appeal involves a nuisance action brought by the plaintiffs against the City of Georgetown (City) for the discharge of untreated sewage from a sewer overflow located at Seminary Street in Georgetown into a stream running across plaintiffs’ property. The jury awarded plaintiffs $150,000 in compensatory damages for the nuisance and a permanent injunction was entered against the continued discharge of the sewage. The injunction was stayed pending this appeal.

The City presents six issues for our consideration: (1) whether the court erred in granting plaintiffs’ motion for summary judgment on count I; (2) whether the court lacked subject-matter jurisdiction to decide counts II and III of plaintiffs’ complaint; (3) whether the court erred in finding this case involved a temporary nuisance; (4) whether the court erred in denying the City leave to amend its answer to include affirmative defenses; (5) whether the trial errors and misconduct of plaintiffs’ counsel denied the City a fair trial; and (6) whether the court erred in entering a permanent injunction against the discharge of overflow sewage onto plaintiffs’ property.

We affirm in part and reverse in part.

This case began on May 5, 1983, when plaintiffs filed a complaint against the City and various city officials for the continual discharge of untreated sewage onto their property. In count I, plaintiffs sought a declaratory judgment as to the ownership of the real estate over which a stream, known as Seminary Creek, runs. The sewage is discharged into this stream from the overflow located at Seminary Street. In count II, the plaintiffs sought compensatory and punitive damages for the City’s discharges of untreated sewage, industrial waste, and other pollutants onto their property from the overflow. In count III, the plaintiffs requested a permanent injunction against the discharge of this sewage and an order requiring the City to remove any sewage and pollution on plaintiffs’ property and to restore their property to its natural environment.

Plaintiffs’ property, also known as lot 24, includes 10 acres and was purchased in 1960. It is bounded on the west by Seminary Street. The City owns and operates a combined sewage-storm water sewage system which serves approximately 4,213 residents in the City. Two-thirds of the sewer system is serviced by a 54-inch sewer tile, or main outlet sewer, which terminates at Seminary Street on the western edge of plaintiffs’ property. At Seminary Street, the 54-inch sewer tile reduces to a 15-inch sewer tile, which runs underground through plaintiffs’ property to a sewage treatment plant near Ellis Branch, located approximately 1,500 feet from the easterly boundary of plaintiffs’ property.

The sewer system was constructed in 1913. The 15-inch sewer tile, or outlet sanitary sewer, was designed to carry untreated sewage from the main outlet sewer underground to a septic tank located at Ellis Branch. The septic tank was later replaced by a sewage treatment plant in 1961-62. At the Seminary Street overflow, which runs under Seminary Street, where the 15-inch tile receives the sewage, any storm water in the sewer system flows into Seminary Creek, which runs across plaintiffs’ land in an easterly direction toward Ellis Branch.

In count I, plaintiffs sought a declaratory judgment as to the ownership of the real estate over which Seminary Creek runs. Plaintiffs contended the City acquired only an easemént in this property in a condemnation action in 1913, where plaintiffs’ predecessor in title to lot 24, Charles Madden, was paid $200 for lands taken to construct the sewer system. The City claimed fee simple title was acquired to the subject real estate, which is 20 feet wide, being 10 feet measured at right angles to either side of the center of Seminary Creek.

In count II, plaintiffs contended the 15-inch underground sewer tile was not large enough to handle all of the sewage and therefore, the excess sewage flowed onto plaintiff’s property and into Seminary Creek. Plaintiffs further contended in their complaint that they repeatedly complained to City officials about the discharges; that the Illinois Environmental Protection Agency (EPA) filed a complaint in 1978 against the City for violations of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111par. 1001 et seq.), and that the Pollution Control Board (PCB) ordered the discharges of untreated sewage abated in 1979 but the City continued to discharge sewage onto plaintiffs’ property.

The City answered the complaint on May 31, 1983. In the answer, the City denied liability for the discharge of sewage, admitted the violations of the Act and the findings of the PCB in 1979, asserted title to the 20-foot-wide strip by virtue of the 1913 condemnation action, and further asserted that the 1913 damages paid to plaintiffs’ predecessor in title were adequate compensation for the plaintiffs. The City did not include any other affirmative defenses in the answer.

Plaintiffs filed a motion for summary judgment on counts I and III and on the issue of liability alleged in count II. On November 28, 1984, plaintiffs’ motion was granted as to count I. The trial court concluded that the City acquired an easement for the underground sewer in the 1913 condemnation action. This easement extended to the surface, 10 feet at right angles to each other on either side of the creek, for the purpose of constructing, repairing, and cleaning or maintaining the underground sewer line. The November 1984 order did not include a finding under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

A jury trial on count II was conducted in April 1985. On April 18, 1985, the jury found for the plaintiffs and awarded $127,750 in compensatory damages and $255,500 in punitive damages. In its post-trial motion, filed on May 15, 1985, the City requested that the verdict be set aside, the judgment be vacated, and a new trial granted. The City claimed that the errors in the introduction of evidence, jury instructions, and conduct of plaintiffs’ trial counsel led to the grossly excessive verdict for the plaintiffs. The City also claimed the court erred in characterizing the nuisance as a temporary rather than a permanent nuisance.

On June 25, 1985, the trial court set aside the punitive damage award, after concluding that the City was not liable, as a matter of law, for the punitive damages. On January 14, 1986, the trial court also set aside the award of compensatory damages, finding any evidence or discussion regarding punitive damages could have influenced the award for compensatory damages. A new trial on the issue of damages was ordered on January 14, 1986.

Plaintiffs appealed the vacation of both damage awards and order for a new trial to this court. The City raised no issues in the first appeal. The orders of the trial court on January 14, 1986, were affirmed by this court. Tamalunis v. City of Georgetown (1987), 150 Ill. App. 3d 1162 (unpublished order under Supreme Court Rule 23).

Prior to the second trial, the City filed on November 4, 1987, a motion to dismiss counts II and III for want of subject-matter jurisdiction. The City alleged the PCB was the sole entity, by virtue of the Act, with jurisdiction over actions regarding the discharge of sewage. (Ill. Rev. Stat. 1985, ch. 111-k, par. 1001 et seq.) The motion to dismiss was denied on December 30, 1987.

On January 28, 1988, the City filed a motion for reconsideration of its post-trial motion filed May 5, 1985, and a motion for leave to file an amended answer to count II. The proposed amended answer included five affirmative defenses to the City’s liability as alleged in count II. These defenses included: (1) governmental immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.) (Governmental Immunity Act); (2) the 1913 condemnation action was res judicata to all claims raised by the plaintiffs; (3) the failure of a municipality to enact an ordinance, the only legal method whereby the City could repair the sewer system, was not actionable under the Governmental Immunity Act; (4) the City was operating the sewer system in compliance with a National Pollutant Discharge Elimination System permit issued by the Illinois EPA and, therefore, the plaintiffs had no cause of action; and (5) a stipulation entered in litigation in 1939 between the City and the Gosses, other predecessors in title to the plaintiffs, imposed a burden in the nature of an easement on plaintiffs’ property, which runs with the land. The court denied the City’s motions on March 21, 1988.

Prior to trial, both parties filed motions in limine regarding the nature of the nuisance. The City requested that the evidence be limited to damages for a permanent nuisance, damages being measured by the diminution in the fair market value of the property as a result of the nuisance. The plaintiffs requested evidence be limited to damages for a temporary nuisance, where damages are measured by the deprivation of the use, enjoyment, and comforts of the property and the discomfort, aggravation, and annoyance suffered by the property owner. The court denied the City’s motion on July 14, 1988, and ordered a trial on the temporary nuisance theory. The court also ruled that the second trial would cover only the time period from May 5, 1978, to May 5, 1983. On July 22, 1988, the individual defendants were dismissed from this action.

The second jury trial began on July 25, 1988. Joseph Tamalunis testified that every time at least .2 of an inch of rain fell or when the sewer system was deliberately blocked at some point, raw sewage flowed onto his property from the overflow. The raw sewage included human excrement, toilet paper, sanitary napkins, and condoms. Joseph also described how the sewer system works and identified nine photographs, later admitted into evidence, which depicted the inside of the outlet sewer at Seminary Street. In dry weather, the 15-inch sewer tile is 90% full. A 24-inch sewer tile serving the north part of Georgetown, added to the system after the original system was constructed, joins the 15-inch tile near the overflow and empties onto Joseph’s property at the overflow. Joseph also testified that the odor of sewage from the creek is powerful and often prevents him from doing any yard work when the wind blows from the north.

Marvin Fitzwater, a neighbor of the plaintiffs, also testified, over objection, regarding Seminary Creek and the fact that the water used to be clear and clean and fish were found in the creek as well. By his testimony, it was established that the period when the creek was clean was before 1962. He stated that between 1978 and 1985, the creek on plaintiffs’ property was very polluted and “smelled real bad.”

Jess Pritchett, director of public works for the City, testified regarding the sewer system and the changes made to the system between 1982 and 1984. The City replaced a jail gate covering the open 54-inch tile exiting from underneath Seminary Street onto plaintiffs’ property with a reverse bar screen. The 24-inch sewer tile was modified to prevent sewage from dumping directly into the creek on plaintiffs’ property. Most, though not all, of the changes were completed by the time of the first trial in this case. Pritchett stated no changes were made in the diversion chamber inside the 54-inch tile where the 15-inch tile is joined or to any part of the 54-inch tile underneath Seminary Street. On cross-examination, Pritchett also stated that the City’s sewer system is designed to serve 8,000 people and that the sewer treatment plant at Ellis Branch is designed to handle 456,000 gallons of sewage flow in dry weather. In 1984, Pritchett stated that the plant treated approximately 352,000 gallons of sewage on a dry day. He further testified that department employees were instructed by him to manually remove, after each rainfall, any sewage trapped behind the bar screen and take the sewage to the treatment plant. Joseph had previously testified that he observed department employees remove this trapped sewage and deposit it into Seminary Creek on his land.

Betty Tamalunis also testified, over objection, that toilet paper began appearing in the creek in 1964. Betty stated that because of the sewage in the creek, she and Joseph could not plan family get-togethers on the north side of their house. She stated, over defense objection, that she and Joseph were known as the “mean old people” who did not let kids take their sleds down the hill near the creek in the winter. Betty stated she constantly watches for kids playing near the creek and tells them it is not healthy near there. She stated Joseph used to clean the creek by hand but Betty asked him not to because she feared he would contract a disease from the hypodermic needles and prophylactics deposited in the creek.

Dale Francis, a self-employed consulting engineer and land surveyor, testified for the plaintiffs regarding what happens at the overflow when it rains. He stated the diversion chamber, which is where the 15-inch tile joins the 54-inch tile beneath Seminary Street, overflows and water and sludge are deposited into the creek. The sludge, also known as “first flush,” is the settlement of the solids from the sewage that settles in the bottom of the sewers during dry weather. Fifty percent of the sludge is human excrement and it has a black color. He stated the bar screen does not prevent all of the sludge from being deposited onto plaintiffs’ property, the only real purpose of the bar screen being to prevent animals and people from walking into the open sewer. Francis also described the sewage and sludge shown in various photographs admitted into evidence. He stated sludge does not wash away but builds up on the land. Eventually, sludge decomposes, but Francis estimated decomposition in the creek would take years where in the treatment plant it takes 90 days. Francis estimated that 90 million gallons of combined storm water and sewage were deposited onto plaintiffs’ property between May 1978 and April 1985. On cross-examination, Francis stated that some of the first flush sewage after a rainfall passes to the sewage treatment plant, though most of it is deposited into Seminary Creek on plaintiffs’ property.

At the close of plaintiffs’ case, the City’s motion for directed verdict was denied. The City made an offer of proof for permanent nuisance which was denied. At the close of all the evidence, the City’s second motion for a directed verdict was denied.

The jury awarded plaintiffs $150,000 in damages. The City filed its post-trial motion on August 11, 1988. At a hearing held on August 29, 1988, the City’s post-trial motion was denied. At this hearing, the City also presented a motion to dismiss count III pursuant to section 2 — 619(a)(1) of the Civil Practice Law for lack of subject-matter jurisdiction. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(1).) This motion was also denied. Plaintiffs’ motion for permanent injunction was granted on August 31, 1988. The City’s motion to vacate the injunction was denied on September 6, 1988. However, on September 6, 1988, the court stayed the enforcement of the injunction pending this appeal.

We first consider the City’s issue regarding count I. The trial court concluded that plaintiffs were owners of a strip of land where the sewage is deposited. The City argues that the two prior actions between the City and plaintiffs’ predecessors in title, Madden and Goss, established that the City acquired a fee simple interest in the strip of land in 1913 and, therefore, the court erred in granting summary judgment for the plaintiffs. Assuming it acquired only an easement in 1913, the City alternatively argues that the Goss litigation expanded its easement to include the right to discharge, on the surface above the sewer line, overflow from Seminary Street sewer. In the further alternative, the City urges it acquired an easement by prescription for the discharge of overflow onto plaintiffs’ land.

Initially, plaintiffs contend the City has waived this argument on appeal because it failed to raise the issue in the first appeal. On the merits, plaintiffs rely on the City’s ordinance No. 5, enacted in 1913, which stated the City acquired a fee simple interest in the land where the septic tank (now sewage treatment plant) was located and an easement in the strip of land on plaintiffs’ property. Plaintiffs further point out that the 1939 action between the City and Scott Goss and Rosa Goss was settled prior to trial on the issues which are similar to those raised in this action. Moreover, the settlement agreement in the Goss action specifically stated that the parties did not admit or deny ownership of the strip of land. Plaintiffs argue that the Goss litigation evidences the fact that the City did not have the right to discharge untreated sewage onto plaintiffs’ land. Plaintiffs maintain the right to discharge at the overflow is restricted to storm water. Lastly, plaintiffs argue an easement by prescription to discharge untreated, raw sewage is against public policy and equitable principles.

In its reply brief, the City urges it did not waive this issue on appeal because the plaintiffs raised the sole issue presented in the first appeal, which was brought under Rule 306. (107 Ill. 2d R. 306.) The City also urges that the overflow at Seminary Street is never pure, or confined to storm water. Rather, the overflow is an essential design feature of the combined sewer system, which feature gave the City the right to discharge overflow onto plaintiffs’ property beginning in 1913. This right is part of its easement on plaintiffs’ land, according to the City, and the subsequent Goss litigation established that the overflow at Seminary Street would never be pure but the City would agree only to prevent the discharge from sewage “deemed offensive by the Illinois State Sanitary Water Board” (now the Pollution Control Board).

Rule 306 allows a party to petition for leave to appeal an order from the circuit court granting a new trial. (107 Ill. 2d R. 306.) An order granting a new trial is interlocutory and the only means to appeal the order is by means of Rule 306. (Matyskiel v. Bernat (1967), 85 Ill. App. 2d 175, 179, 228 N.E.2d 746, 749.) The rule also provides that the rulings of the trial court on post-trial motions are before the reviewing court without the necessity of a cross-appeal. (107 Ill. 2d R. 306(a)(2).) At the time the trial court granted plaintiffs’ motion for summary judgment on count I, no Rule 304(a) finding was entered. (107 Ill. 2d R. 304(a).) In post-trial motions after the first trial, no issues were raised regarding the court’s ruling on count I. While it is arguable whether this issue could have been raised in the first appeal, we determine the City has waived this issue because it failed to preserve this issue in its post-trial motion after the second trial. Under Supreme Court Rule 366(b)(2)(iii) (107 Ill. 2d R. 366(b)(2)(iii)), any issue not raised in a post-trial motion is waived on appeal. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337.) We find this issue is waived.

We next consider whether the trial court had subject-matter jurisdiction to decide counts II and III of plaintiffs’ complaint. The City urges that the trial court lacked subject-matter jurisdiction over counts II and III because of the Act. (Ill. Rev. Stat. 1987, ch. 111Vs, par. 1001 et seq.) The City urges the Act designates the PCB as the sole entity or judicial body to determine issues related to the discharge of untreated sewage by a municipal sewer system. Specifically, the City urges that plaintiffs’ remedy for violation of the law rests with asking the EPA to act. (Ill. Rev. Stat. 1987, ch. 111Va, par. 1030.) In turn, the EPA may file a complaint against the City and, thereafter, a hearing would be held before the PCB. (Ill. Rev. Stat. 1987, ch. 111^, par. 1031.) The City maintains the Act preempts the common law action of nuisance.

The City also suggests that the jury in this case was allowed to redefine the standards set for unlawful pollution, in contravention of the stated policies of the Act. The City points out it is discharging sewage within the strictures of its permit issued by the EPA.

Plaintiffs point out and we agree that the Act expressly provides that civil and criminal remedies available to persons aggrieved by wrongful actions pertaining to the Act are not excluded or impaired by the Act. (Ill. Rev. Stat. 1987, ch. 111^, par. 1045(a).) The supreme court in the City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 313 N.E.2d 161, stated that the Act provides remedies which are in addition to those remedies recognized at common law. As to the City’s second issue, we find the court had subject-matter jurisdiction to consider plaintiffs’ nuisance action.

The City next contends this case involves a permanent, not a temporary, nuisance as found by the trial court. The trial court denied the City’s offer of proof for a permanent nuisance where the measure of damages is the diminution in the fair market value of plaintiffs’ property. The City’s evidence established the damages to be $1,150.

As determinative of damages recoverable for injury to property, the law of nuisance recognizes two types of nuisances: temporary or permanent. A permanent nuisance is one characterized as continuing indefinitely and the structure constituting the nuisance is a lawful one, or one which the person or entity has a legal right to maintain. (58 Am. Jur. 2d Nuisances §§117, 118 (1971); O’Brien v. City of O’Fallon (1980), 80 Ill. App. 3d 841, 846, 400 N.E.2d 456, 459.) In several cases relevant to the issues presented here, Hlinois courts have found a sewage treatment plant, an overflow valve in a sanitary sewer system, a sanitary district drainage system, and a dam constructed by a municipality for a waterworks system to constitute permanent nuisances. (Richards v. Village of Edinburg (1968), 97 Ill. App. 2d 36, 239 N.E.2d 479; O’Brien, 80 Ill. App. 3d 841, 400 N.E.2d 456; Vette v. Sanitary District (1913), 260 Ill. 432, 103 N.E. 241; City of Centralia v. Wright (1895), 156 Ill. 561, 41 N.E. 217.) The measure of damages for a permanent nuisance is the depreciation in the market value of the property injured. 58 Am. Jur. 2d Nuisances §121 (1971); O’Brien, 80 Ill. App. 3d at 845, 400 N.E.2d at 459.

A temporary nuisance is one which is occasional, intermittent, or recurrent and is remediable, removable, or abatable. (58 Am. Jur. 2d Nuisances, §§117, 118 (1971).) In addition, a nuisance which is caused by the negligent construction of a legal enterprise or the negligent manner of its operation is generally considered temporary. (58 Am. Jur. 2d Nuisances §118 (1971).) The Illinois Supreme Court has determined the discharge of untreated sewage and the illegal dumping of refuse to be abatable nuisances. (Dierks v. Commissioners of Highways (1892), 142 Ill. 197, 31 N.E. 496; N.K. Fairbank Co. v. Nicolai (1897), 167 Ill. 242, 47 N.E. 360.) Generally, the measure of damages for a temporary nuisance is the personal inconvenience, annoyance, and discomfort suffered on account of the nuisance. 58 Am. Jur. 2d Nuisances §124 (1971); Fairbank, 167 Ill. at 247, 47 N.E. at 361; Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 281 N.E.2d 323.

The City urges the Seminary Street overflow is a permanent nuisance, because it has been in operation continuously for 70 years, and the City intends to continue operating the sewer system. The City relies on Vette v. Sanitary District (1913), 260 Ill. 432, 103 N.E. 241, O’Brien v. City of O’Fallon (1980), 80 Ill. App. 3d 841, 400 N.E.2d 456, Richards v. Village of Edinburg (1968), 97 Ill. App. 2d 36, 239 N.E.2d 479, City of Centralia v. Wright (1895), 156 Ill. 561, 41 N.E. 217, and Strange v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1910), 245 Ill. 246, 91 N.E. 1036.

As an alternative argument, the City urges that if this case was properly considered a temporary nuisance, a proper damage award is “capped” by the measure of damages for a permanent nuisance. Accordingly, the City requests a remittitur to $1,150. The City cites no authority for this argument.

The plaintiffs contend the dumping of raw sewage is a temporary nuisance. They argue the City’s reliance on the above-cited cases is misplaced. Plaintiffs also state that a landowner complaining of a nuisance has the option of treating the nuisance as a temporary or permanent nuisance and cite Strange in support of this argument.

Except for the O’Brien case, none of the cases relied upon by the City involve a municipal sewer system or the discharge of raw, untreated sewage. In O’Brien, plaintiffs brought a nuisance action for contamination of a private lake by raw sewage from a municipal sanitary sewer system. The City installed an “overflow valve” in the sewer line to relieve pressure in the sewer lines during periods of heavy rainfall. When the valve was open, raw sewage was discharged into a ditch and eventually dumped into plaintiffs’ lake. At the time the valve was installed, the area near the lake was undeveloped land. After many complaints from the plaintiffs, the original valve was replaced with a manually operated valve. This new valve and other changes to the system reduced the time when the valve was opened during heavy rainfall. Thus, the amount of sewage in plaintiffs’ lake diminished. However, it was not eliminated.

The plaintiff in O’Brien sought damages for a permanent nuisance. On appeal, the defendant city argued the plaintiff offered no evidence to establish the nuisance was permanent. The court found that even though under the general rule, the overflow valve would be considered a temporary nuisance because it was unlawful due to its operation in violation of EPA rules and regulations, application of the general rule to the case was contraindicated. The court noted that the evidence established the City intended to continue to operate the overflow valve, while engaging in various measures to reduce or halt the dependency on the valve. The O’Brien court also noted there were no prospects for removal or abatement of the nuisance, though legal action to remove or abate had been taken.

The O’Brien case is not in accord with an Illinois Supreme Court case, N.K. Fairbank Co. v. Nicolai (1897), 167 Ill. 242, 47 N.E. 360. In that case, a landowner filed an action for nuisance against a nearby landowner for the maintenance of foul smelling barrels on his property and the dumping of refuse into the street. The plaintiff sought damages for depreciation in the value of his property (permanent nuisance) and damages for the injury to the rental value of his property (temporary nuisance). The supreme court found permanent nuisance damages could not be recovered for “nuisances which may be removed at any time or abated at the instance of a party aggrieved thereby.” Fairbank Co., 167 Ill. at 246, 47 N.E. at 361.

In another case, Dierks v. Commissioners of Highways (1892), 142 Ill. 197, 31 N.E. 496, the supreme court found the discharge of sewage was an abatable nuisance. In Dierks, a landowner sought only an injunction to abate a nuisance caused by the drainage of raw sewage onto her property. The court found that the evidence established that the “continuance [of the sewage discharge] will be detrimental to the comfort, the health and lives of those who reside in the immediate locality, and it ought to be abated.” Dierks, 142 Ill. at 213. 31 N.E. at 501.

We conclude the discharge of untreated raw sewage is a temporary nuisance. While the City may have the right to operate the combined sewer system, the untreated sewage involved in this case defies any conceivable suggestion that its discharge at the overflow is within current legal guidelines. The City maintains it is discharging pursuant to a valid EPA permit. However, the evidence is to the contrary.

The City’s permit states that the overflow at Seminary Street is permitted provided it conforms to the following:

“Required effluent limitations for combined sewers and treatment plant bypasses shall conform with 35 Illinois Administrative Code 306.103(c).”

Section 306.103(c), now section 306.305(c) (35 Ill. Adm. Code §306.305(c), at 3543 (1985)), requires that discharged water must be treated “to the extent necessary to prevent accumulations of sludge deposits, floating debris and solids in accordance with 35 Illinois Administrative Code 302.203.” (Emphasis added.) Section 302.203 provides:

“Unnatural Sludge
Waters of the State shall be free from unnatural sludge or bottom deposits, floating debris, visible oil, odor, unnatural plant or algal growth, unnatural color or turbidity, or matter of other than natural origin in concentrations or combinations toxic or harmful to human, animal, plant, or aquatic life.” (35 Ill. Adm. Code §302.203, at 3506 (1985).)

Plaintiffs’ evidence clearly established that the overflow discharge is not treated and the creek is polluted.

We have considered the O’Brien case cited by the City. Admittedly, it is factually similar to the case before us. There, however, the landowner sued for a permanent nuisance and the court recognized the facts to involve a temporary nuisance. In affirming a finding that a permanent nuisance was involved, the O’Brien court focused on the defendant city’s intent to continue operating the illegal structure. We decline to adopt the Fifth District Appellate Court’s analysis in O’Brien. In our view, an otherwise lawful structure, such as the municipal sewer system in this case, becomes unlawful when the manner of its operation exceeds the guidelines established for its legal operation. The intent of the owners of such a structure to continue the method of operation is not the proper focal point and cannot negate the fact that the structure is illegally operated. The trial court’s finding of temporary nuisance is affirmed.

The City next maintains the trial court abused its discretion in denying the City’s leave to file an amended answer before the beginning of the second trial. It is within the sound discretion of the trial court to permit or refuse an amendment to pleadings at any time before final judgment and its decision will not be disturbed on review absent an abuse of discretion. (American Pharmaseal v. TEC Systems (1987), 162 Ill. App. 3d 351, 515 N.E.2d 432; DiBenedetto v. County of Du Page (1986), 141 Ill. App. 3d 675, 491 N.E.2d 13.) The test of whether the court’s discretion has been properly exercised is whether the amendment furthers the ends of justice. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 281, 193 N.E.2d 833, 840.) Other factors to consider in evaluating the court’s exercise of discretion include the timeliness of the proposed amendment and whether the other party is prejudiced or surprised by the amendment. (DiBenedetto, 141 Ill. App. 3d at 681, 491 N.E.2d at 18; American Pharmaseal, 162 Ill. App. 3d at 360, 515 N.E.2d at 437.) In Cvengros v. Liquid Carbonic Corp. (1981), 99 Ill. App. 3d 376, 425 N.E.2d 1050, the court noted leave to file an amendment to a complaint should not be denied on the sole basis that it is not timely.

The plaintiffs urge the City has waived this issue because it did not raise the liability issue in the first appeal. We agree. After the first trial, the trial court ordered a new trial on damages alone. The issue of the City’s liability was properly an issue before review in this court in the first appeal. (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282.) The City did not argue or raise this issue then but sought to reopen the liability issue by seeking leave to amend its pleadings. We decline to address this issue on waiver principles.

The City next claims various evidentiary rulings during the second trial as well as the conduct of plaintiff’s trial counsel deprived it of a fair trial. Specifically, the City urges (1) various photographs, exhibit Nos. 55 through 62, admitted into evidence over defense objection were prejudicial to the City; (2) exhibit Nos. 31 through 39, depicting the inner chambers of the sewer system, were irrelevant; (3) testimony regarding the condition of the creek prior to 1978 should not have been admitted and was prejudicial to the City; (4) testimony regarding the “humiliation” or “embarrassment” suffered by the plaintiffs is not a proper element of nuisance damages; and (5) testimony regarding plaintiffs’ cost to protect their property from the sewage was irrelevant.

Regarding exhibit Nos. 55 through 62, these exhibits are not part of the record on appeal, and therefore, the City has waived this issue under Supreme Court Rule 323. (107 Ill. 2d R. 323.) As to exhibit Nos. 31 through 39, the testimony regarding the condition of the creek prior to 1978 and the testimony regarding plaintiffs’ costs of protecting their property, the City has waived these issues for failure to cite authority for its arguments. 107 Ill. 2d R. 341(e)(7); People ex rel. Daley v. Warren Motors, Inc. (1986), 114 Ill. 2d 305, 321, 500 N.E.2d 22, 29.

Regarding the elements considered for temporary nuisance elements damages, the City argues the testimony concerning the plaintiffs’ “humiliation” and “embarrassment” is subjective and, therefore, improper because temporary nuisance damages are based on objective standards.

As the City points out, the trial court ruled that plaintiffs could not recover separately for humiliation or embarrassment but the jury could consider these feelings in regard to the annoyance plaintiffs suffered because of the sewage. The City raises no issues on the jury instructions. The instructions to the jury on the elements of plaintiffs’ damages were “deprivation of the use, enjoyment, and comforts of the property and the annoyance to them.”

The City claims the testimony was prejudicial but does not point out how it was so, other than to suggest that Betty’s testimony led the jury to award damages for imaginary injuries or that Betty was a person of delicate sensibilities. The record does not establish that the plaintiffs’ humiliation and embarrassment were separately considered so as to influence the amount of the damage award. We find no error.

The City also contends the conduct of plaintiffs’ trial counsel deprived it of a fair trial. Specifically, the City claims prejudice by:

(1) The introduction of evidence regarding events after 1985.
(2) The final arguments of plaintiffs’ counsel where the City’s actions were characterized as “illegal”; where the counsel attempted to make a per diem argument for damages; where counsel argued embarrassment.
(3) Voir dire statements when counsel referred to insurance and asked a prospective juror to put herself in plaintiffs’ shoes.
(4) Opening statements when counsel twice made statements which would not be provable by the evidence.

The City claims the cumulative effect of the inflammatory and prejudicial evidence resulted in a jury prejudiced against the City and in sympathy with the plaintiffs.

The record reflects that the City’s objections to voir dire statements, openings statements, introduction of evidence occurring after 1985, closing argument remarks referring to “illegal,” and a per diem argument were sustained by the trial court.

Generally, in matters involving arguments or remarks of counsel, the question of prejudicial impact, if any, upon the jury is within the sound discretion of the trial court and will not be disturbed on review unless there has been a clear abuse of discretion. (Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E.2d 1091.) Here, the trial court denied the City’s post-trial motion and expressly found plaintiffs’ counsel’s actions were not deliberate in the sense of misleading the jury but rather were attributable to counsel’s “overzealousness.”

The record establishes that the trial court advised the jury to disregard improper comments of counsel during voir dire and admonished the jury that opening statements and closing arguments do not constitute evidence for jury consideration. In addition, the jury was properly instructed on the time frame involved in this case. We find no abuse of discretion in the trial court’s rulings.

Finally, the City maintains the issuance of the permanent injunction against the discharge of any sludge, sewage, or toilet waste at the Seminary Street overflow was error. Specifically, the City contends the trial court should have balanced the benefits to the plaintiffs with the financial burden on the City to comply with the injunction. Plaintiffs urge they have a right to have the nuisance abated, notwithstanding the burden on the City. Plaintiffs rely on Calhoon v. Communications Systems Construction, Inc. (1986), 140 Ill. App. 3d 1012, 489 N.E.2d 23, and Ruth v. Aurora Sanitary District (1959), 17 Ill. 2d 11, 158 N.E.2d 601.

The granting of an injunction is a matter of discretion for a circuit court. (Statler v. Catalano (1988), 167 Ill. App. 3d 397, 411, 521 N.E.2d 565, 575.) A reviewing court will only look to whether the circuit court properly exercised its broad discretionary powers when it granted injunctive relief and will only overturn a circuit court’s ruling where there has been a manifest abuse of discretion. Statler, 167 Ill. App. 3d at 411, 521 N.E.2d at 575.

An injunction is an extraordinary remedy which is only granted after the plaintiff establishes the existence of a lawful right, irreparable harm, and an inadequate remedy at law. (Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 937, 445 N.E.2d 901, 906.) The right sought to be protected must be certain and clearly ascertainable. (Wilson, 112 Ill. App. 3d at 937, 445 N.E.2d at 906.) The standard for the adequacy of the legal remedy is whether it is clear, complete, and as practical and efficient as the equitable remedy. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 549, 370 N.E.2d 223, 227.) Irreparable harm does not mean injury that is beyond repair or beyond compensation in damages but rather denotes transgressions of a continuing nature. SSA Foods, Inc. v. Giannotti (1982), 105 Ill. App. 3d 424, 428, 434 N.E.2d 460, 463-64.

Plaintiffs established the discharge of sewage onto their property substantially interferes with the enjoyment of their property. Plaintiffs have proved a lawful right and irreparable harm due to the continuing nature of the sewage discharges. Whether this irreparable harm has been adequately remedied by the award of $150,000 damages is the remaining question.

Plaintiffs’ argument that the mere existence of the nuisance in this case affords them injunctive relief against the nuisance is not tenable. Equity will not, as a matter of course, order relief in nuisance cases until all the circumstances and consequences of such action are considered. (Haack v. Lindsay Light & Chemical Co. (1946), 393 Ill. 367, 373, 66 N.E.2d 391, 394.) Plaintiffs’ reliance on Calhoon, a case involving an encroachment on private property by cable television transmission lines, is misplaced and we do not view Calhoon as dispositive of this issue.

We conclude the damage award adequately remedies the nuisance found in this case, and therefore, we reverse the injunction. Our decision is not meant to reflect our belief that the nuisance is not remediable and should not be abated by the City. On the contrary, plaintiffs may seek and qualify for equitable relief in the future in a separate action should the discharge of sewage at the Seminary Street overflow continue, as in the past, unabated. Haack, 393 Ill. 367, 66 N.E.2d 391.

To summarize, we affirm the trial court’s decision in count I of the complaint and the trial court’s determination that this case involves a temporary nuisance. We find no error in the evidentiary and pretrial rulings of the trial court and conclude that the City was not prejudiced by the conduct of plaintiffs’ counsel. We reverse the order for injunctive relief.

Affirmed in part; reversed in part.

KNECHT and SPITZ, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BRITZ, JR., Defendant-Appellant.
    Fourth District
    No. 4-88-0192
    Opinion filed July 10, 1989.
    Rehearing denied August 7, 1989.

      Daniel D. Yuhas and Charles W. Hoffman, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On January 26, 1988, defendant John Britz, Jr., was found guilty by a jury sitting in Sangamon County of committing the offense of murder, in violation of section 9 — 1 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). He was subsequently sentenced to 25 years’ incarceration. He now appeals, alleging (1) he was not proved guilty beyond a reasonable doubt; (2) the court improperly conducted jury voir dire; (3) impermissible eavesdropping evidence was admitted; and (4) the prosecutor made improper closing argument. We affirm.

Defendant was originally convicted for this offense in April 1983. This court reversed and remanded, finding error with the jury voir dire, and that a statement given on July 12, 1979, should have been suppressed. (People v. Britz (1984), 128 Ill. App. 3d 29, 470 N.E.2d 1059.) Our supreme court affirmed this reversal. (People v. Britz (1986), 112 Ill. 2d 314, 493 N.E.2d 575.) On the initial retrial in May 1987, the jury became hung, and a mistrial was declared. The trial resulting in the present conviction commenced on January 19, 1988.

The State’s evidence established that on June 9, 1979, T.M. was found shot to death at a Clark gas station in Springfield. He was discovered lying on his back near the right front tire of his van. His billfold was found lying open near his body without any money in it. Next to the left front tire was a screwdriver, a removed hubcap, and an air hose.

T.M. had a single bullet wound to his upper right shoulder. There was little blood. Expert testimony established he was shot with a .22 caliber bullet which went through his shoulder, both lungs, and his heart. He may have died immediately. If not, he could have moved only a short distance. The muzzle of the weapon would have had to have been held between several inches and two feet of the shoulder. The path of the bullet is consistent with T.M. being in a kneeling or crouched position at the time he was shot.

Bernard Ebel lives in the second house south of the gas station. At 5:30 a.m. on the morning of June 9, 1979, he was sitting on his back porch when he heard one gunshot. A few minutes later, he observed a person cut across the backyard of his neighbor to the north, go to the alley behind his house, and follow the alley south to Fourth Street. He described the person as a white male approximately 17 to 21 years of age, of medium height, and with dark hair over his ears. He did not get a view of the person’s face and could not identify him.

Harold Goff was interviewed by police on June 9, 1979. Since he died before trial, his statement was introduced. On June 9 at 5:05 a.m., he was at the Lucky Lady Laundromat where he worked. Next to the building in the parking lot, he saw a white male, 19 to 21 years of age, around 5 feet 8 inches tall. The youth was clean shaven with black hair brushed back on the sides. The youth had a long-barrelled, .22 caliber gun bolstered to his side. When asked what he was doing, the youth just shook his head. Goff reentered the laundromat and, several minutes later, noticed the youth was gone. The laundromat was located in the same complex as a Kroger Store and was two to three blocks from the scene of the murder. Goff was later shown a photographic lineup, which did not include a picture of defendant, and picked someone else. In 1982, Goff was again asked to help but stated his eyesight was too bad to identify anyone positively.

On June 11, 1979, Cheryl Penman, a counselor with the Youth Services Bureau, took a call from defendant on the bureau’s hot line. The bureau counsels juveniles with drug and alcohol problems. On that day, defendant called four or five times. Around 10 p.m., he called saying he had been doing PGP, also known as angel dust, and had been picked up the night before as a suspect in this murder. He told her he looked a lot like the composite picture and repeatedly asked, “Do you think I could have done it?”

Penman and Bart Quick, a psychologist with the bureau, met briefly with defendant the next day. During that day, defendant called the bureau in excess of 100 times. Once he was upset and told Penman he had killed before and would kill again if she related to anyone the conversation they had about the shooting. Around 6 p.m., he called back. Penman directed Quick to pick up the extension phone. Quick placed his hand over the mouthpiece and listened. They heard defendant say, “I was the one,” in discussing the instant offense. Quick opined that, even though defendant was then 19, his actions were more age-appropriate for a 12-year-old.

Approximately two years later, Penman saw defendant in a bar where he was drinking. He told her that he had fooled Detectives Marcia Lange and William DeMarco and had committed the offense.

By June 22, 1979, defendant was a suspect in the crime because he matched the composite of the perpetrator, and he had made the comments to Penman. Marcia Lange, the detective in charge of the investigation, got Penman to reluctantly cooperate with an eavesdropping procedure. An order was entered, and 10 telephone conversations between Penman and defendant, which took place between July 3 and July 13, 1979, were taped.

The conversations revealed that defendant, insisting that Penman misunderstood his earlier comments, continually denied any involvement in the shooting. He exhibited a keen knowledge of guns. He also expressed a fear about police taping his telephone conversations. Penman repeatedly told defendant she was concerned about him, and he should get his problems off his chest. She also appealed to his masculinity, at one point, telling him she found his police involvement exciting. Finally, on July 12, she urged defendant to meet her at the police station and to talk with the police. Late that night, he agreed to do so and, after speaking with the police for an hour, he left.

Around 3 a.m. on July 13, 1979, defendant contacted the police and wished to speak with Lange. She and chief-of-detectives DeMarco met defendant at the station. Defendant did not appear under the influence of drugs or alcohol. After waiving his Miranda rights, defendant stated that he could not remember what he was doing or where he was on the night of the murder. He then stated, “I think I could have been the person who killed him.” He went on to say only he and God really knew what happened that night. After the interview, defendant left.

The next day, July 14, around 12:20 p.m., defendant, who was in custody on unrelated charges, again asked to meet with Lange and DeMarco. He stated he remembered being at the Clark gas station on the night of the murder and, also, being at the Kroger parking lot prior to that time. He remembered having a weapon in his possession, which may have been in its holster. He also remembered hearing a shot and running down the alley southward.

On July 15, defendant instigated another interview with Lange and DeMarco. Also present was Detective John Tolley. Defendant stated, “I know I did it.” He did not know why, explaining he was messed up on PGP at the time of the shooting. He remembered having a .22 caliber revolver, seeing the victim kneeling by his right rear tire, hearing a shot, and seeing the victim fall face forward. He stated he was four to six feet away from T.M. when he shot him. He remembered taking T.M.’s wallet, removing money, and dropping it near the body. He then fled south down the alley and, eventually, threw the gun in the river. Defendant stated there was no doubt in his mind that he did it. In all interviews, defendant was supplying all the information.

Defendant was then taken to the scene, where he reenacted the shooting and showed the detectives the route he followed as he fled. He showed that he jumped a small fence into the backyard of the first house south of the station. He ran across the yard to the alley, and down the alley to Fourth Street.

Lange and DeMarco placed defendant’s height to be around 5 feet 10 inches tall. DeMarco also stated that, despite efforts, the gun was never recovered from the river. Tolley explained the difference between an automatic weapon and a revolver is that an automatic discharges a spent cartridge while a revolver does not.

Defendant was arrested for the murder. However, charges were later nol-prossed due to insufficient evidence.

In 1982, Detective Alan Daley was involved in the murder investigation. In June 1982, he executed a search warrant on defendant’s trailer and seized two .22 caliber bullets which had been shot into the wall. The bullets could have come from the same gun as the bullet which killed T.M. The bullets had similar class characteristics but, due to the damage from striking the wall, no individual characteristic similar to both could be identified. These class characteristics are common to a number of different types of .22 caliber weapons.

During the summer of 1982, defendant contacted Daley at least 20 times stating he was trying to get information on the murder to help solve it. On September 9, 1982, Daley interviewed defendant concerning the homicide. Defendant gave a written statement at that time. The substance of the statement is that on the night of the murder, he was in the home or shop of Dennis Burke and was talking with Penman on the hot line the entire night. Defendant also acknowledged shooting one of the bullets into the wall. Defendant was arrested for this murder on September 23, 1982.

On October 6, 1982, defendant again contacted Daley. At this interview, Detective Charles Pennell was also present. Defendant then spoke about and reenacted the present offense. He told Pennell to kneel or squat, and then walked up behind Pennell, indicating his finger was a .22 caliber revolver. He placed his finger at the back of Pennell’s right shoulder. He indicated that the victim turned to speak, and then he shot the victim in the upper shoulder. At that point, he fled to his father’s garage, going south through the alley. After the shooting, he picked up the wallet, taking the money, and dropped the wallet next to the body. When Pennell left to get refreshments, defendant started crying and said, “Al, I didn’t mean to kill him; I didn’t mean to kill him.” Defendant was again supplying all the information. He also drew a rough picture of the crime scene.

Defendant also gave two other versions of the incident. In one, defendant was lying ill on the floor of the gas station bathroom. The victim opened the door, and defendant shot him. He then dragged the victim to his van. In the other, defendant had fallen asleep at the station. The victim came up and got into a fight with defendant, whereupon defendant shot him.

On October 8, defendant again asked Daley to come talk with him. Defendant said he felt he had done the actual shooting. He remembered hearing a shot, seeing the victim fall, and running south through the alley. At one point, he started crying and said, “I shot the guy.”

In April 1985, defendant was a roommate of Kevin Jackson. At the time of the trial, Jackson was an inmate in the Illinois Department of Corrections. He has seven convictions for burglary, three for theft, and one for escape. He has known defendant in excess of 15 years. Jackson asked defendant how T.M. died. Defendant stated T.M. died quickly, and there was not much blood. Defendant explained that T.M. was putting air in his tire, and defendant walked up behind him, shooting him in the head. In July 1985, defendant told Jackson that he was not worried about his trial because he was going to have Penman killed.

In September 1986, defendant was a roommate of Craig Foster. At the time of trial, Foster was awaiting sentencing on Federal charges, which contained a maximum of 37 years in jail. Defendant told Foster that defendant did not know whom he could trust because he had earlier talked with a roommate who ended up testifying against him, and it was very damaging. He then stated shooting the victim was a rush. Since he was intoxicated, it did not sink in until later that he killed somebody. He then felt bad. The State rested.

Defendant presented evidence that the composite looked like another person, and this was the same person Goff picked out of the photographic lineup. However, police officials testified they were satisfied this person had an alibi. There was evidence that defendant was listed as six feet tall when he was in the service, and that he was in special education classes in school. Defendant also introduced three newspaper articles and one radio story about the shooting that ran in Springfield shortly after the incident. The jury found defendant guilty as charged.

Defendant initially contends he was not proved guilty beyond a reasonable doubt. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676; People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) As the Supreme Court explained in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789:

“[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Emphasis in original.)

In People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, our supreme court applied this standard to Illinois cases.

Defendant’s basic assertion is that he falsely confessed to the offense. He believes his confessions are the result of being manipulated by Penman, his immature behavior, and his drug-induced suggestible condition. He seems to suggest that his confession has become accepted and internalized by himself, which explains why he is still confessing to the crime over three years after his dealings "with Penman. He believes his position is borne out by the fact his confessions contain inconsistencies amongst themselves, and are, at times, inconsistent with some of the physical evidence.

Initially, we note there is little evidence to support this position. There is no evidence, psychological or otherwise, which would suggest that defendant is susceptible to this occurring. The evidence does establish defendant was in special education in school, acted immaturely for his age, and ingested large amounts of alcohol and drugs. It also establishes Penman attempted to play on his fears and affections during the taped conversations. However, it is a far leap in logic to find that these factors alone would lead defendant to convince himself that he has, in fact, committed the crime, and to so internalize this belief that he was still confessing three years later. Further, this theory fails to explain several critical pieces of evidence.

First, it is clear that on June 11, 1979, defendant initiated contact with the Youth Services Bureau and Penman. He stated he looked a lot like the composite, and asked if Penman thought he could have shot T.M. The next day, he called over 100 times. He, at times, threatened Penman and, ultimately, told her he had committed the murder. This latter comment was overheard by Quick. All this took place prior to the taped conversations when Penman supposedly induced defendant to falsely confess. It is also apparent that he was the first one to broach the possibility that he killed T.M.

Secondly, defendant’s theory fails to explain his particular knowledge about the incident. Defendant repeatedly stated that, after the shooting, he fled south across the backyard of the first house and down the alley. Ebel testified that shortly after the gunshot, he saw someone, whose description defendant generally matched, fleeing along that direction. Defendant also stated he remembered being in the Kroger parking lot. Goff saw someone, again with the same general description as defendant, wearing a .22 caliber weapon in the Kroger lot about 25 minutes before the shooting. Finally, defendant, an admitted gun fan, stated repeatedly that he used a .22 caliber revolver. This also fits the evidence since no spent cartridge was found at the scene.

Defendant argues that any knowledge of the incident he has is gained from the police or news sources. Yet, the testimony of all the police officers is that defendant volunteered all the information. A review of the news stories placed into evidence also establishes that they contained no reference to the perpetrator’s flight path, the sighting at Kroger, or what type of .22 caliber weapon was used. Thus, the jury could reasonably conclude this knowledge is only available to the murderer of T.M.

Finally, defendant’s theory fails to explain why on September 9, 1982, he gave a written statement to Daley, indicating he was speaking on the phone with Penman on the night of the shooting, an alibi which is clearly false and suggestive of criminal knowledge. He also repeatedly called Daley that summer and offered to help solve the crime. These efforts to divert police attention from himself do not fit with the proposed description of a misguided youth who has had a false confession planted in his mind and feels compelled to so confess.

Defendant points to inconsistencies between his confessions and the evidence, as establishing that his confessions are false. For example, he argues his statement indicated he was four to six feet from T.M. at the time of the shooting, and the expert testimony was that he could have been, at most, two feet away. However, the difference could be explained simply by errors in estimating distances. Further, it is clear defendant was under the influence of drugs at the time of the shooting. In several statements, he appeared to be remembering as if in a fog. The jury could have reasonably determined that this particular inconsistency, as well as the others defendant relies on, is due to the drug effects and is not important.

Thus, it is our determination, applying the principles of Jackson, that the State has met .its burden and proved defendant guilty beyond a reasonable doubt.

Defendant next contends the court erred in conducting the jury voir dire. Prior to trial, he requested that any prospective juror who stated he had knowledge of the case through the media be individually voir dired to ascertain the extent of that knowledge. The court declined.

The trial court may, at its discretion, conduct individual voir dire, out of the presence of other jurors, but it is not required to do so. (People v. Neal (1985), 111 Ill. 2d 180, 197-98, 489 N.E.2d 845, 852, cert. denied (1986), 476 U.S. 1165, 90 L. Ed. 2d 733, 106 S. Ct. 2292.) Defendant asserts this discretion was abused. He believes individual voir dire was necessary to determine if the jurors were aware he had previously been convicted of this offense. He believes, relying on several out-of-jurisdiction cases, that such knowledge should automatically result in dismissal of the prospective jurors for cause. (See United States v. Williams (5th Cir. 1978), 568 F.2d 464; Barker v. Virginia (1985), 230 Va. 370, 337 S.E.2d 729; Hughes v. Delaware (Del. 1985), 490 A.2d 1034; Cappadona v. State (Fla. App. 1986), 495 So. 2d 1207.) However, this is not the law in Illinois.

In Illinois, the determination to be made is whether the jury is fair and impartial and will decide the case based on the evidence presented during the trial, and not on the basis of information received from outside sources. (People v. Taylor (1984), 101 Ill. 2d 377, 386, 462 N.E.2d 478, 482.) However, knowledge of the case will not itself disqualify one for jury service. (People v. Gendron (1968), 41 Ill. 2d 351, 355, 243 N.E.2d 208, 211.) As our supreme court explained:

“It is not necessary that jurors be unaware of the case before they assume their roles in the jury box. Crimes, especially heinous crimes, are of great public interest and are extensively reported. It is unreasonable to expect that individuals of average intelligence and at least average interest in their community would not have heard of any of the cases which they are called upon to judge in court. Total ignorance of the case is exceptional, and it is not required. (Irvin v. Dowd (1961), 366 U.S. 717, 722-23, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1642-43.) What is required is the assurance that a juror will be able to set aside all information he has acquired outside the courtroom, along with any opinions he has formed, and decide the case strictly on the evidence as presented in the courtroom. Irvin v. Dowd (1961), 366 U.S. 717, 723, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639,1643.” (Taylor, 101 Ill. 2d at 386, 462 N.E.2d at 482.)

The determination of whether a prospective juror possesses the state of mind which will enable him to give the accused a fair and impartial trial rests within the sound discretion of the trial court. (People v. Thomas (1980), 89 Ill. App. 3d 592, 599, 411 N.E.2d 1076, 1082; People v. Singletary (1979), 73 Ill. App. 3d 239, 246, 391 N.E.2d 440, 446.) This determination should not be set aside unless it is against the manifest weight of the evidence. People v. Cole (1973), 54 Ill. 2d 401, 414, 298 N.E.2d 705, 712.

In the present case, defendant points to extensive pretrial publicity of his case. As evidence of this, he filed 36 newspaper articles with the court. Of these, all but five were published in 1986 or earlier. Four of those five were written in May 1987 during defendant’s second trial, which ended with a mistrial. This was over eight months prior to the current trial. Periods of four months and six months between the questioned publicity and the trial have been held a sufficient period of time to dissipate any unfavorable effect from the publicity, or to reduce it to unimportance. (See Gendron, 41 Ill. 2d at 355-56, 243 N.E.2d at 212; People v. Berry (1967), 37 Ill. 2d 329, 332, 226 N.E.2d 591, 593.) Thus, the sole article which could impact the jury is the one published on the day of jury selection. This article was on page 13 of the newspaper and was a straightforward news piece on the history of this case. It was neither flamboyant nor inflammatory.

Of the prospective jurors, almost all had heard of this case through various news sources. Of the 12 selected, 7 had heard of the case quite some time before the trial. Five had seen the questioned article in the paper. Of these five, two glanced or skimmed the article, and a third could not remember what he had read. Defendant challenged only three of these for cause and still had peremptory challenges left when the jury was seated. All the jurors indicated they had no preconceived notions on defendant’s guilt or innocence; they could be fair and impartial; and they could determine the case based only on the evidence presented at trial. The record establishes defendant received a trial before a fair and impartial jury, and we, therefore, find no abuse of discretion in the court’s voir dire procedure.

Defendant next argues the court erred by failing to suppress the testimony of Quick concerning what he overheard in the telephone conversation between Penman and himself. He believes Quick violated the eavesdropping provisions of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, pars. 14 — 1 through 14 — 9). A person commits eavesdropping if he uses “an eavesdropping device” to hear a conversation without either the consent of all the parties to the conversation or a court order. (Ill. Rev. Stat. 1987, ch. 38, par. 14 — 2.) Any evidence obtained in such fashion is inadmissible in a criminal trial. Ill. Rev. Stat. 1987, eh. 38, par. 14 — 5.

It is apparent Quick did not have a court order, nor defendant’s permission. Thus, if Quick used “an eavesdropping device” to overhear the conversation, then the evidence should have been suppressed. In overhearing the conversation, Quick listened on an extension phone and placed his hand over the mouthpiece.

It is settled that an extension phone is not an eavesdropping device unless it has been functionally altered. (People v. Gervasi (1982), 89 Ill. 2d 522, 526, 434 N.E.2d 1112, 1114; People v. Gaines (1981), 88 Ill. 2d 342, 363, 430 N.E.2d 1046, 1056.) Defendant argues Quick, by placing his hand over the mouthpiece, did functionally alter the extension. Our supreme court recently addressed this exact question in People v. Shinkle (1989), 128 Ill. 2d 480, and, determining this conduct did not turn an extension phone into an eavesdropping device, affirmed the admission of the overheard evidence.

Defendant finally contends he was denied a fair trial by improper prosecutorial closing argument. He cites to two specific incidents. One was not objected to at the time, nor contained in the post-trial motion and is, therefore, waived. (See People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739, 743.) The other occurred in the following exchange:

“[PROSECUTOR]: Previously [defendant] had said he had been four to six feet away, but this time with Charles Pennell kneeling or squatting he places his finger near or at the right shoulder of Charles Pennell, and this is consistent with what Dr. Grant Johnson said about the shot occurring not at muzzle length to at least two or three inches away but not more than two to three feet.
. Remember, during this time of the murder John Britz told everyone he was on PCP.
Now, remember what — use your common sense. What were some of the things that PCP could possibly do to you? Maybe it’s some disorientation — .
[DEFENSE COUNSEL]: Objection. There is no evidence on this.
[PROSECUTOR]: It’s argument, Judge.
[COURT]: You may proceed.
[PROSECUTOR]: Possibly depth perception, things such as this.
Using your common sense, determine what PCP does as far as the range when these comments were made.”

Defendant believes this argument is improper because the prosecutor is introducing facts not in evidence. It is improper for a prosecutor to argue facts not in evidence. (People v. Johnson (1987), 119 Ill. 2d 119, 143, 518 N.E.2d 100, Ill, cert. denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 629, 108 S. Ct. 2027.) However, it is perfectly permissible for counsel to base his argument on the facts proved and the legitimate inferences drawn therefrom. Johnson, 119 Ill. 2d at 143, 518 N.E.2d at Ill; People v. Burnett (1963), 27 Ill. 2d 510, 517, 190 N.E.2d 338, 342.

The questioned argument is properly based on the trial evidence and inferences drawn therefrom. Defendant repeatedly told people he was “messed up” on POP and had difficulty remembering what happened. It is a reasonable inference that the use of PCP could affect defendant’s ability to remember specific distances. Further, even if the remark was improper, such remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused. (Johnson, 119 Ill. 2d at 139-40, 518 N.E.2d at 109-10.) As noted earlier, we do not view the discrepancy between “four to six feet” and “at most two feet” to be such a discrepancy as would, in this case, create a reasonable doubt as to defendant’s guilt. Accordingly, any error in argument on this point would not substantially prejudice defendant.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE NASH

text:
    DOMINICK LAFATA, Plaintiff-Appellant, v. THE VILLAGE OF LISLE et al., Defendants-Appellees (Clark Equipment Company et al., Defendants).
    Second District
    Nos. 2-88-0483, 2-88-0677 cons.
    Opinion filed June 30, 1989.
    Rehearing denied August 1, 1989.

      Daniel N. Kadjan, of Arnold & Kadjan, of Chicago, for appellant.
    D. Kendall Griffith, Donald W. Garlinger, and Robert G. Black, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Wheaton, for appellee Frank Novotny and Associates, Inc.
    Thomas G. DiCianni, of Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago, for other appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Dominick Lafata, brought this action to recover damages for personal injuries he sustained as the result of alleged violations of the Illinois Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) in connection with work being performed at a construction site. The trial court granted summary judgment to defendants, Village of Lisle and Frank Novotny and Associates, Inc., after finding, as a matter of law, that the front-end loader which struck and injured plaintiff was not a mechanical contrivance within the meaning of the Structural Work Act. Plaintiff appeals.

In October 1985, Dominick Lafata was employed as a laborer on a construction site by Benchmark Construction Company (Benchmark), which had been hired by the Village of Lisle to install a water main and a storm sewer. A road was also being widened and new curbs and gutters installed. At the time he was injured, plaintiff was working with a front-end loader, a four-wheel vehicle with a shovel-type bucket in front, owned by Benchmark, which was used for moving dirt and pipes. In order to move a pipe, a cable would be hooked around the pipe and attached to another hook at the top of the bucket of the end loader. The pipe is then carried three or four feet off the ground, and a man walks in front of the end loader holding the pipe to keep it from tilting. Prior to the accident, plaintiff had hooked the pipe by cable to the end loader and was holding it steady while walking over the construction area to trenches about a half block away where the pipes were being laid in the ground. The pipe was to have been laid alongside the trench where a backhoe, another earth-moving vehicle, would be used to place it in the trench.

The end loader was driven by Edward Kaminscky, an operating engineer and employee of Benchmark. He had a clear view of plaintiff as they were transporting the pipe, but when Kaminscky approached a corner where he had to make a left turn, he took his eyes off plaintiff momentarily because school children and other traffic were nearby. At this time, plaintiff fell to the ground and was then struck by the advancing front-end loader.

To recover damages for his injuries, plaintiff filed suit against defendants Village of Lisle; Frank Novotny and Associates, Inc., an engineering firm which prepared the drawings, plans, and specifications for repair of the sewer system; Clark Equipment Company, the vendor of the end loader; and McAllister Equipment Company, the manufacturer of the end loader, alleging liability under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60, 69), which states in part:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such a manner as to prevent the falling of any material that may be used or deposited thereon.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 60.
“For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby ***.” Ill. Rev. Stat. 1985, ch. 48, par. 69.

Defendant McAllister Equipment Company filed a motion to dismiss pursuant to section 2 — 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621), which was granted. Defendants Village of Lisle and Frank Novotny and Associates, Inc., moved for summary judgment, asserting that the front-end loader which caused plaintiff’s injuries was not a device governed under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60). In its letter opinion granting summary judgment to defendants, the trial court stated:

“The question of whether a certain device is governed by the Act is a matter of statutory construction and is therefore a question of law for the court to determine contrary to the assertion by Plaintiff that it is a question of fact ***. The end loader in the instant case was being used as a device to transport pipe from one point on the construction site to another point on the construction site; therefore, does not come within the ambit of the Structural Work Act ***. The determination that the end loader is not a device covered under the Structural Work Act obviates the necessity to determine the issue of proximate cause.”

Plaintiff argues that summary judgment should have been denied, as a matter of law, as the front-end loader is a “mechanical contrivance” within the meaning of section 1 of the Structural Work Act.

Initially, we note that in cases appealed to this court, Supreme Court Rule 341(e)(4)(ii) requires that an appellant’s brief contain a statement of jurisdiction (122 Ill. 2d R. 341(e)(4)(ii)), and plaintiff has not complied with this requirement in this case but will be expected to do so in the future.

There have been cases which determined that the Structural Work Act applies solely to supports for workers and does not apply to the recovery of damages for injuries caused as a result of the failure to provide, or the inadequacy of, support for work materials. Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 1026, 414 N.E.2d 147 (holding that the harm must be caused by a failure of something a worker is using to support himself); Carlson v. Moline Board of Education (1984), 124 Ill. App. 3d 967, 974, 464 N.E.2d 1239 (holding that mechanical devices generally refer to contrivances on which a worker is dependent for support).

However, this narrow construction of the Structural Work Act has also been rejected, and we agree with those courts which consider that the Act was intended to protect against injuries caused by unsafe support devices used on a construction site, or the failure to supply support devices, whether their purpose is to support workers or materials. Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 1130, 441 N.E.2d 889 (holding that the Act applied where a forklift was being used as a support for construction materials at the time the materials struck and injured the plaintiff); Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 621, 427 N.E.2d 193 (finding that a Traxcavator, a tractor-like device with a front bucket used to scoop and lift material, when used in such a manner, is a mechanical contrivance within the meaning of the Act).

As the court noted in Prange (109 Ill. App. 3d at 1130), most of the devices specifically enumerated in the Structural Work Act (scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances) primarily function as a support for materials rather than for workers, suggesting a legislative intention to protect workers in, on, around, and under support devices for materials on construction sites. A determination whether a particular device is covered by the Structural Work Act cannot be based solely on the identity of the device, apart from the actual use to which it is put, but must be based upon the use and function of the device in the circumstances shown. Urman v. Walter (1981), 101 Ill. App. 3d 1085,1093, 428 N.E.2d 1051.

We find that the front-end loader in issue was a mechanical contrivance within the meaning of the Structural Work Act as it was being used as a support for construction materials at the time of plaintiff’s injury.

We do not consider additional arguments of the parties which go beyond the scope of the trial court’s ruling and relate to other applications of the Structural Work Act to the facts of this case. Summary judgment was granted here solely upon a determination by the court that the front-end loader transporting a pipe hooked to its bucket was not a mechanical device within the meaning of the Structural Work Act. Issues not considered by the trial court cannot be argued on review. (Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532, 535, 430 N.E.2d 145.) As summary judgment was improperly granted on the ground discussed in favor of defendants Village of Lisle and Frank Novotny and Associates, Inc., it will be reversed and the cause remanded for further proceedings.

Reversed and remanded.

INGLIS and WOODWARD, JJ., concur.