author: Mr. PRESIDING JUSTICE SMITH Mr. JUSTICE TRAPP,

text:
    Brownfield Subdivision, Inc. et al., Plaintiffs-Appellees, v. Rex McKee et al., Defendants-Appellants.
    (No. 11998;
    Fourth District
    May 2, 1974.

      Rehearing denied June 6, 1974.

    TRAPP, J., dissenting.
    Ralph T. Stenger, of Belleville, for appellants.
    Donald M. Tennant and Richard M. Joy, both of Champaign, for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Plaintiffs sought a mandatory injunction prohibiting defendants from occupying what they claimed was a mobile home and for its removal from the Subdivision. The basis for the action was the following restrictive covenant:

“No building shall be erected on any lot except a one family dwelling house, a garage and one service building and used exclusively as such. Buildings shall be permanent structures of an attractive design. Duplexes may be built on Lots 34, 35, 36, 37 and 38.
No structure of a temporary character, trailer, basement, tent, shack, mobile home or garage shall be used on any lot, at any time, as a residence, either temporarily or permanently.”

After a hearing, the court found that the structure erected by the defendants was a “mobile home” within the meaning of the restrictive covenant and enjoined its further use as a residence. Defendants appeal.

Is or is not what defendants erected a “mobile home”? This is the central issue of this appeal. To be sure, some side issues are raised relative to the grant of a new trial, but the principal thrust is for outright reversal, that is, that we should rule as a matter of law, that that which defendants erected on the lot they purchased in this subdivision does not fall within the ban of the covenant just quoted. Defendants argue that their home is a “sectional” home or a “modular” home, not a “mobile home”. Resolution requires a recital of the evidence.

Initially, with regard to the subdivision itself, there are approximately 66 lots, most being restricted to single-family dwellings. Exhibits of plaintiffs’ evidence that homes presently existing are of a conventional type— all the way from single-story ranch type to split-levels and two-story homes. Defendants’ structure is in part composed of an “Armor Home”— a trade name — and its dimensions are 52' x 24'. It is known in the trade as “double wide”. Altogether there are 1,460 square feet. This includes a family room added by defendants which is connected to the Armor Home — and a two-car garage. In the Armor Home there are three bedrooms, a living room, 24' x 15', with paneled walls, bay windows and full carpet, and adjacent to the living room is a modem kitchen and dining area, plus a utility room and two baths. Outside there is a concrete patio and driveway. The outside is of light aluminum and the roof runs con> pletely across the family room and a portion of the Armor Home. Apart from the family room and garage, the home rests on three I beams which are mortised into the foundation. The Armor Home comes equipped with detachable hitches and running gear. It was pulled in place by a truck, the running gear removed and in doing so, the undercarriage, springs, axles, wheels and everything under the frame goes too. The family room is 14' x 22', the garage 18' x 24', the patio 14' x 10', and the concrete driveway is approximately 35 feet long. Being “double-wide”, the Armor Home had two sections, and each was pulled separately to the lot. There is a concrete block foundation completely laid around the lower portion of the structure. The vendor of this structure designated it a “Mobile Home”. Pictures of defendants’ home are in evidence, as we have said, and by agreement of the parties, the court viewed the premises. He found the structure to be “neat and attractive” and also that it was indeed a “mobile home” within the meaning of the covenant.

“The use of the term mobile home’ is a generic term applied to a certain type of structure and is not intended to be taken in its most technical sense, by breaking it into two rigidly defined words. Both the view of tire premises, which the parties agreed should be a portion of the evidence, and the photographs leave no doubt as to the type of structure on Lot 65, however neat and attractive it has been made.”

To us the covenant is clear — mobile homes are excluded and the term mobile home is not elusive of meaning, or otherwise vague, or ambiguous. Hence, we need not concern ourselves with the rule of construction which says that if there is doubt we should lean away from any restrictions on use. Mobile homes are different from conventional homes. This difference is the basis for the restriction. The restriction’s validity is not before us — hence we need not be detained in analyzing whether this difference is meaningful in the sense of furnishing a reasonable classification for particular treatment. Thus, assuming validity of the covenant, that is, that it can be enforced, we must decide whether the court below was correct in coming to tire conclusion that it did that defendants’ structure was a mobile home. We agree with the court below, whether we call it a generic term or not, that it is descriptive enough of a given type of dwelling that adequate criteria are bound up in the term itself as to which we can ascribe a reasonable meaning.

When we say that mobile homes are different from conventional dwellings, we have to be specific. It would be easy enough to affirm by simply saying that the evidence was not against the manifest weight of the evidence based on the pictures in the record that we ourselves can view, and by giving full credence to the court’s belief that what it saw on the view of the premises was indeed a mobile home. But we would be shirking our duty to do so and to simply affirm by saying that a mobile home is that which looks like a mobile home, defining a thing in its own terms has obvious drawbacks.

The crux is in design. It is not so much that it is moveable but that it was designed to be moved. It is not so much what kind of a foundation it might have — here we can assume that it is permanent — but that it was designed without a permanent foundation. Logically, therefore, we can say that a mobile home is a structure which is designed to be moved and has no foundation or the need for one. In 54 Am.Jur. 2d 472, Mobile Homes, Trailer Parks, and Tourist Camps, section I (1971), we read:

“According to the Mobilehome Dealers National Association, a mobile home may be defined as a moveable or portable dwelling built on a chassis, connected to utilities, designed without a permanent foundation, and intended for year-around living, * *

In Manchester v. Phillips, 343 Mass. 591, 592, 180 N.E.2d 333, a zoning ordinance read:

“The word dwelling shall mean a building or a portion thereof, either designed or used as living quarters, but shall not include an overnight camp, trailer, or mobile home.”

There the mobile home was 25 feet wide and 51 feet long and was placed on a concrete foundation. The owner proposed various improvements such as a canopy and a veranda, plus some landscaping and brick steps, but was prevented from doing so by an injunction. In describing this dwelling, the court said:

“Pictures show what is unmistakably the super-structure of a partially metal mobile unit, situated in an area in which there are modest but neat conventional frame houses. A pencil sketch showed this unit as to be somewhat disguised by the canopy, the planting of some shrubs, and the laying out of low privet hedges.” (343 Mass, at 593.)

In Manchester, and as we do here, the characterization “mobile home” was given an ordinary meaning, the court concluding:

“* * * In ordinary parlance the unit shown in the exhibits will be spoken of as a trailer or a mobile home, even if it has not been sold with wheels or its wheels have been taken away, and even if it has been affixed to the land. It looks like a trailer, has the qualities of a trailer superstructure, and has been built as a trailer. There is no such ambiguity about the language of the by-law as to lead us to interpret it strictly against the public interest because it will operate in derogation of the landowner’s ability at common law to make unrestrained use of his property.” (343 Mass, at 596).

The structure we deal with here is somewhat different — it is “double wide”. But width itself, does not argue against it being a mobile home, if it was designed without a foundation, and if it was built as a moveable dwelling to fit on a chassis, because it then falls within the definition given to us from 54 Am.Jur. 2d.

Analogous is Jones v. Beiber, 251 Iowa 969, 972, 103 N.E.2d 364, and while the court was not concerned with the definition of the term “mobile home”, as such, but rather with “trailer”, its reasoning is helpful. There the covenant read that, “no garage, trailer, shack, or hut shall be used for living purposes.” Defendant’s trailer was 50' x 8'. As here, the wheels were removed and it was placed on a foundation. We quote:

“Due regard must be had for the purpose contemplated by the parties thereto, and words used must be given their ordinary and obvious meanings as commonly understood at the time the instrument was executed, unless they have acquired a particular meaning in the particular relationship in which they appear, or in respect to the particular subject matter involved, or unless it clearly appears in the context that the parties intended to use them in a different sense.”

As in this case, the argument was made that once the wheels were removed, the trailer was no longer a trailer — to put it simply. The court held otherwise.

Pertinent in our context is the case of Wright v. Michaud, 160 Maine 164, 174, 200 A.2d 543. Up for consideration was the constitutionality of an act which stated that no trailer or mobile home would be allowed in a certain zone, and that they would not constitute a single family residence use whether on a foundation or not. In answer, the court stated:

“Today the modern mobilehome is equipped with all the modem necessities and conveniences of comfortable living, compressed into an area of sufficient size to meet the needs of an increasing number of people. Such a structure, however elaborately it may be constructed or equipped, does not lose its appearance as a mobile home by becoming affixed to the realty.”

Timmerman v. Gabriel, 155 Mont. 294, 295, 470 P.2d 528, is more to the point here as a “double-wide” mobile home was involved. The covenant in this case read:

“ ‘Said lot or lots shall be improved only by the erection of a one-family dwelling house constructed of new materials * * *.
* * *
No structure of a temporary character, trailer, basement, tent, shack, garage, barn, or other outbuilding shall be used on any lot at any time as a residency either temporarily or permanently, nor shall any residential structure be occupied for residential purposes until completely finished.’ ”

When the two halves were combined, the structure was 50' x 20'. As here, each had a steel frame underneath with wheels and was pulled to the foundation on which it rested. The utilities were hooked up, trim placed on the exterior, and landscaping effected. We quote:

“The house the Gabriels placed on their property is very similar to the typical trailer house. It has metal siding, a metal frame to which it attaches springs, axles, wheels, and draw bars. The fact that some of these features may be removed, and were removed in the instant case, does not change the basic structure of the house itself. The structure was sold to the Gabriels by a trailer sales firm while it was on their sales lot, mounted on wheels. It was later pulled to the Gabriels’ lot by a tractor-truck. The term mobile home is an advertising euphemism for a large house trailer and although the larger models of mobile homes are considerably less mobile than the small models, they are essentially similar in structure and appearance. It cannot be demonstrated that they are not essentially unlike a trailer as to exclude them from the general definition of ‘trailer.’
* * * However, the restrictive covenant being construed here is directed to a type of structure such as a trailer, basement, tent, shack, garage, barn or other outbuilding and the prohibition extends to the use of those type of structures as dwellings because of the nature of their construction rather than their mobility.” (155 Mont, at 298.)

In essence, we come down to this, once a mobile home, always a mobile home. That this “double-wide” started off as a mobile home is not in doubt. One of defendants’ witnesses described it as “two mobile homes so constructed to fit together to make the mobile home larger.” Having started life as a mobile home, lack of mobility created by the user does not render it not a mobile home. “Mobile” and “home” have to be read together — not separately, as the court below pointed out. Mobility, then, or to use the better word in this context, portability, is not germane, that is, when portability is removed — let us assume permanently — from a mobile home by securely anchoring it to a foundation and to other structures, it still remains a mobile home. We conclude that the injunction below was properly issued, that defendants were in violation of the covenant, and therefore the decree appealed from is affirmed.

Affirmed.

SIMKINS, J., concurs.

Mr. JUSTICE TRAPP,

dissenting:

The judgment of the trial court should be reversed.

In a confusion of business nomenclature, statutory regulation and •formal security arrangements, the issue should be examined in the light of the nature and quality of the structure as it existed at the time the complaint was filed.

A mobile home is defined in Ill. Rev. Stat. 1973, ch. 111½, par. 712.1 as:

“ ‘Mobile home’ means a structure designed for permanent habitation and so constructed as to permit its transport on wheels, temporarily or permanently attached to its frame, from tire place of its construction to the location, or subsequent locations, at which it is intended to be a permanent habitation and designed to permit the occupancy thereof as a dwelling place for 1 or more persons, provided that any such structure resting on a permanent foundation, with wheels, tongue and hitch permanently removed, shall not be construed as a mobile home’.”

Paragraph 724 requires that a mobile home display a certificate of title on the vehicle as required in Ill. Rev. Stat. 1973, ch. 95½, par. 3— 120. The vehicle described in the latter statute is defined as a “house trailer”. In paragraph 1 — 128 of the same chapter, a house trailer is defined as a recreational trailer equipped or used for living quarters.

It appears proper to conclude that the statute contemplates both a degree of highway use and that the unit so registered is essentially an entity self-sustaining and providing living accommodations in itself.

As in the statute, the courts have equated or held synonymous the terms trailer, house trailer and mobile homes and have described such as being designed as a highway vehicle. See cases cited, 96 A.L.R.2d 234.

The record is clear that defendant purchased the building in two sections, each of which was transported separately and neither alone was capable of providing living accommodations within the statutory context of a “house trailer” or mobile home.

So far as this record shows, the completed structure complies with the zoning and building codes of the municipality. It appears that the walls have studding of the usual dimensions and spacing, that the completed structure has a pitched roof covered with asphalt shingles purchased by defendant to complete the building. The owner was required to purchase aluminum siding to cover the 24 foot ends created when the two sections were joined together. The affixing of such siding would necessarily combine die two sections into a single entity.

The record shows that in terms of construction, the building was a house built in two sections, albeit sold and delivered as personal property. While the respective sections were delivered by towing, the wheels and supporting rigging were not a part of the delivered units, but belonged to and were returned to the manufacturer. The fact that the structure was delivered on a series of wheels does not determine its nature. The testimony is that it was equally feasible to deliver such upon a low-boy trailer. The owner purchased and affixed to the footings and foundation three structural T” beams onto which the sections were lowered and affixed. Such beams were mortared into the foundation. The structure had no capability as a highway vehicle.

Within the context of Town of Manchester v. Phillips, 343 Mass. 591, 180 N.E.2d 333, the structure was not built as a trailer or self-contained unit and was not built upon a chassis. Even if one disregards the added portions of the building which were built on site, there are no characteristics of a trailer or mobile home. It constrains credibility to conclude that upon completion the building was either structurally or legally a mobile home.

Neither the fact that the structure was sold by a dealer in conventional mobile homes, nor that it could, in theory, again be separated into two sections, should be determinative of the nature of the structure as finally completed.


source: Caselaw Access Project

author: Mr. JUSTICE CRAVEN Mr. PRESIDING JUSTICE TRAPP

license: Public Domain

text:
    Board of Education of Armstrong High School District No. 225 et al., Plaintiffs-Appellees, v. James H. Ellis, Superintendent of Educational Service Region, Vermilion County, et al., Defendants-Appellants.
    (No. 12205;
    Fourth District
    May 14, 1974.

      Rehearing denied June 6,1974.

    TRAPP, P. J., dissenting.

      Charles R. Young, of Graham, Meyer, Young, Welsch and Maton, of Danville (Carroll E. Snyder, of counsel), for appellants.
    Harvey H. Acton and Thomas B. Meyer, both of Acton, Bookwalter, Meyer & Smith, of Danville, for appellees.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

On June 17, 1971, a petition was filed with the superintendent of the educational service region of Vermilion County requesting that he call an election to vote on the establishment of a community school district in the area described in the petition. The petition filed with the regional superintendent purported to be filed under the provisions of section 11— 6 of the School Code. (Ill. Rev. Stat. 1971, ch. 122, par. 11 — 6.) A public hearing was held on the petition on August 16, 1971. Evidence presented on behalf of the petitioners and objectors was heard. The defendant Ellis granted the petition. On September 6, 1971, certain objectors filed a petition for review under the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264-279) seeking to review the decision of the regional superintendent. Ultimately, the circuit court of Vermilion County rendered a decision setting aside the order of the regional superintendent. This appeal is to review that action of the circuit court.

This court has no jurisdiction of this case and there was no jurisdiction for administrative review in the circuit court. Although initially this issue was not briefed by the parties, this court on its own motion raised the question of jurisdiction, dismissed the appeal, has received supplemental briefs upon the issue and now considers that issue upon a motion to vacate our order on appeal.

The chronology above set forth indicates that the petition for review under the Administrative Review Act was filed on September 16, 1971. In the year 1971, section 11 — 6 of the School Code was amended. The substantive effect of that amendment was to provide that a decision of the regional superintendent denying a petition such as the one with which we are here concerned is defined as an administrative decision subject to review under the Administrative Review Act. The amendatory legislation, being Public Act 77 — 604, was passed prior to July 1, 1971, was approved by the governor on July 31, 1971, and was in full force and effect as of the date of this entire proceeding. The regional superintendent approved the petition and his action in approval of the petition is not defined as an administrative decision subject to review under the Administrative Review Act.

The Administrative Review Act applies to and governs every action to review judicially a final decision of an administrative agency where the act creating or conferring power on the agency by express reference adopts the provisions of this Act. In the event that the Administrative Review Act is applicable, other statutory, equitable or common-law modes of review are not employed to review such a decision. (See Ill. Rev. Stat. 1971, ch. 110, par. 265.) Whereas here the Administrative Review Act is not applicable to review a decision of an administrative officer, other statutory, equitable or common-law modes of review remain available.

The appellate court for the fifth district specifically considered this issue in Mills Prairie Community High School v. Miller, 15 Ill.App.3d 87, 303 N.E.2d 603, and said:

“Since the School Code does not provide for administrative review when a regional superintendent approves a petition, it was appropriate in this case for the appellants to seek a writ of certiorari and to ask for an injunction against further proceedings * * * »

The appellants in their motion to vacate our order of dismissal concede the statutory framework above indicated but urge that Public Act 77— 604 amending section 11 — 6 of the School Code is unconstitutional in that it provides for administrative review only in the event of a denial of the petition by the regional superintendent. We are not so persuaded. We see no constitutional infirmity in providing for administrative review of an order denying a petition and leaving review of an order approving a petition to other remedies. The legislative authority over school districts with reference to the taking of school facilities, the creation of districts, changing of boundaries, is sufficiently broad to provide for such legislative discretion. The scope of the legislative will has been described in People v. Deatherage, 401 Ill. 25, pp. 31-32, 81 N.E.2d 581, as follows:

“* * ® With or without the consent of the inhabitants of a school district, over their protests, even without notice or hearing, the State may take the school facilities in the district, without giving compensation therefor, and vest them in other districts or agencies. The State may hold or manage the facilities directly or indirectly. The area of the district may be contracted or expanded, it may be divided, united in whole or in part with another district, and the district may be abolished. All this at the will of the legislature. The property of the school district’ is a phrase which is misleading. The district owns no property, all school facilities, such as grounds, buddings, equipment, etc., being in fact and law the property of the State and subject to the legislative will. People ex rel. Taylor v. Camargo School Dist., 313 Ill. 321, and cases cited therein.”

More recently, the Illinois Supreme Court said:

“It is provided in section 2 of article II of the constitution of the State of Illinois that ‘No person shall be deprived of life, liberty or property, without due process of law.’ Any school district established under enabling legislation is entirely subject to the will of the legislature thereafter. With or without the consent of the inhabitants of a school district, over their protests, even without notice or hearing, the State may take the school facilities in the district, without giving compensation therefor, and vest them in other districts or agencies. The State may hold or manage the facilities directly or indirectly. The area of the district may be contracted or expanded, it may be divided, united in whole or in part with another district, and the district may be abolished. All this at the will of tire legislature. The ‘property of tire school district’ is a phrase which is misleading. The district owns no property, all school facilities, such as grounds, buildings, equipment, etc., being in fact and law the property of tire State and subject to the legislative will. A school district has no such property right of which it might be deprived in violation of section 2 of article II of the State constitution. (People v. Deatherage, 401 Ill. 25.) Section 4B — 6 provides a complete, clear, and certain procedure for detaching territory from any school district and annexing it to an existing adjacent community unit school district. The constitutional objection urged by plaintiffs is not well taken.” People ex rel. Dixon v. Community School District, 2 Ill.2d 454, pp. 465-466, 118 N.E.2d 241.

Accordingly, we hold that Public Act 77 — 604 is not unconstitutional and that this court as well as the circuit court was without jurisdiction upon administrative review. The motion to vacate the order dismissing this appeal accordingly is denied.

SIMKINS, J., concurs.

Mr. PRESIDING JUSTICE TRAPP

dissenting:

In granting administrative review to petitioners but denying such to objectors, this statute violates the equal protection and due process provisions of the Illinois and United States Constitutions.

In Hecker v. Illinois Central R.R. Co., 231 Ill. 574, 83 N.E. 456, the Supreme Court examined the provisions of the Civil Practice Act conceming appeals from the appellate court and held that it was unconstitutional as to the provision which granted appellee an appeal to the supreme court but denied such appeal to an appellant. It was said that the legislature cannot allow an appeal to one party from an adverse decision and deny it to another.

In Funkhouser v. Randolph, 287 Ill. 94, 122 N.E. 144, a statute authorizing organization to a special drainage district included a provision that a court’s finding that the district should be organized was conclusive as to objectors but was not conclusive upon the petitioners if the findings were against them. Holding the provision void, the court said:

“The restrictions on such appeal or writ of error on the review of the facts found are only against the defendants in case the finding is against them. Unilateral restrictions of this character on the right of review are repugnant to the constitutional provisions guaranteeing every person equal protection of the law. Every citizen has a right, under such guaranties, to insist that his rights of life, liberty and property shall be determined by the same rules which settle and determine similar rights of others.” 287 IE. at 105.

We can perceive no distinction by reason of the form of judicial review provided in the statute.

To meet the standards of equal protection, the statutory distinctions drawn must have some relevance to a purpose of reasonable classification. (Rinaldi v. Yeager, 384 U.S. 305, 16 L.Ed.2d 577, 86 S.Ct. 1497.) In Lindsey v. Normet, 405 U.S. 56, 31 L.E.2d 36, 92 S.Ct. 862, an Oregon statute upon forcible entry and retainers required that a tenant who wished to appeal an adverse judgment must post bond in twice the amount of rent due and forfeit the entire amount if the judgment was affirmed. It was held that such provision had no reasonable relationship to any valid state objective and violated due process. In North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072, it was said that if appellate review is established, it must be free of unreasoned distinctions that can only impede open and equal access to the courts.

In People v. Sholem, 238 Ill. 203, 87 N.E. 390, the statute did not provide for an appeal by the attorney general from an order of a county judge assessing the inheritance tax. The court said:

“A statute which was so framed that literally it is only available to one of the parties to review the proceedings should be so construed as to extend to the other party the same means for the correction of errors. The right to review should be held reciprocal rod alike demandable by either party. [Citation.] The legislature had the power to regulate appeals and writs of error, but in so doing it has no right to discriminate between the parties and allow to one party an appeal from an adverse decision and not allow it upon equal terms to the other. [Citation.] If the legislature intended the provision in section 11 to permit an appeal only by the persons interested in the property of the estate assessed, then that provision, under these authorities, would be unconstitutional.” 238 Ill. at 208-209.

If the Legislature, by this statute, intended that administrative review should be available only to petitioners, upon these authorities the statutory provision is unconstitutional.

The cited Mills Prairie opinion did not undertake to consider the issue of constitutionality raised here. Again, the principal opinion has not undertaken to discover any rational, relevant or reasonable basis for distinguishing between petitioners and objectors for purposes of administrative review.

The motion to vacate the order of dismissal should be granted.


author: Mr. JUSTICE SIMKINS

text:
    Scattering Fork Drainage District et al., Plaintiffs-Appellants, v. Richard B. Ogilvie et al., Defendants-Appellees.
    (No. 12399;
    Fourth District
    May 2, 1974.

      Rehearing denied June 5, 1974.

      John H. Armstrong and Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellants.
    William J. Scott, Attorney General, of Springfield (William P. Ryan, Assistant Attorney General, and James S. Parker, Special Assistant Attorney General, of counsel), for appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Plaintiffs-Appellants Scattering Fork Drainage District in the County of Douglas and State of Illinois, a body politic and corporate, Bruce T. Williams, and John Warfel, appeal from a judgment of the circuit court of Douglas County which dismissed each count of their amended complaint with prejudice. The trial judge’s ruling and the reasons in support thereof are embodied in the record in the form of a comprehensive written opinion. It appears that he found that each count of the complaint failed to state a cause of action upon which injunctive relief could be based. The trial judge stated at the conclusion of die opinion, “Plaintiffs’ theories are ingenious; however, the Court believes the complaint to be insufficient to allege any reason tohy the named officials should be enjoined from executing the proposed agreement.” (Emphasis added.)

The complaint in question consists of nine counts. Each of diese counts have, in common, the following factual averments: The Congress of the United States, by virtue of Public Law 89-298, approved Oct. 27, 1965, authorized the construction of a water reservoir project, to be known as the Lincoln Reservoir, to be located on the Embarras River and which would be spread over portions of the Counties of Coles, Douglas and Cumberland. The Act authorized the United States Corps of Engineers to enter into an agreement with the State of Illinois whereby the Corps would construct the reservoir. Congress will not provide funding for the project until the State of Illinois enters into an agreement with the Federal government concerning the subjects of water supply and recreation as they relate to the project. The State must also agree to make certain financial commitments in order to receive Federal funds.

Each count of the complaint asserts that the described agreements would violate the Constitution of the State of Illinois and infringe other rights of the plaintiffs. Plaintiffs allege that they have no adequate remedy at law, that they will suffer irreparable damage and seek an injunction restraining defendants from entering into the agreements with the Federal Government.

The State of Illinois enabling legislation concerning the Lincoln Reservoir is to be found in the following statutes: Public Act 76-2540, Laws of Illinois, page 1040, which provides in pertinent part:

“Section 1. The Department of Public Works and Buildings is designated as the State agency to work with the Federal Government toward development of the Lincoln Reservoir Project on the Embarras River in general conformity with the provisions of ‘Interim Report No. 2, Wabash River Basin Comprehensive Study, Indiana, Ohio and Illinois’, prepared by the Louisville District, U.S. Army Corps of Engineers. The Department shall work in close cooperation with other units of State government toward rapid implementation of the project.
Section 2. The Department is authorized to enter into agreements with the Federal Government to provide for financial contributions toward the water supply, recreation, and stream flow regulation aspects of the multiple purpose Federal project, subject to the appropriation of funds by the General Assembly and the approval of the Governor.
# # #
Section 6. No contract may be entered into, nor any obligation incurred for any expenditure from the appropriation made by this Act without the approval in writing of the Governor.”

Ill. Rev. Stat. 1971, ch. 19, par. 1111, provides:

The Department of Conservation is authorized to enter into and carry out agreements with any agency of the United States Government to insure the performance of the items of non-federal participation involved in the acquisition of land, development, operation and maintenance of improvements of the Lincoln Reservoir on the Embarras River for the purpose of making certain portions of it suitable for public outdoor recreation utilization, including the management of fisheries and wildlife, as set forth in House Document No. 298, First Session, 89th Congress of the United States of America.”

The Department of Transportation is successor to the Department of Public Works and Buildings. Ill. Rev. Stat. 1971, ch. 19, sec. 126d, provides:

“In the execution of the powers herein granted and the duties vested in the Department of Transportation, it may, when so authorized and directed by the General Assembly, co-operate and enter into agreements with the proper agencies of the United States government, Municipal corporations of this State, political subdivisions and persons and associations, for the formulation of plans, and for the construction of any and all improvements for the control of destructive floods, and for the conservation, regulation, development and utilization of water, waterways, and water resources in the State of Illinois. Such agreements may assign to the several cooperating agencies particular projects or portions of projects for the purposes herein stated and may provide for joint understandings for said purposes and for contributions to execute any work agreed upon with any other of the above mentioned agencies in the State of Illinois to carry out the provisions of the Act.”

The plaintiff in Counts I, II and III of the complaint is the Scattering Fork Drainage District, organized under provisions of the Illinois Drainage Code (Ill. Rev. Stat. 1971, ch. 42).

The plaintiff in Counts VII, VIII and IX is John Warfel who is the owner of 80 acres of land situated in Douglas County.

The plaintiff in Counts IV, V and VI is Bruce Williams whose status is alleged to be that of a citizen of the State of Illinois and a resident of Douglas County.

The various counts of the complaint may be summarized as follows:

Count I. Scattering Fork Drainage District alleges that execution of the agreements would result in the construction of the reservoir by the Corps of Engineers, that frequent artificial flooding would ensue causing damage to this plaintiffs drains and property, and further that the agreements cannot be entered into without consent of this plaintiff.

Count II. Scattering Fork Drainage District further alleges under Illinois law modification or destruction of this plaintiff's drains may not be accomplished by any entity other than plaintiff without consultation with plaintiff or an adjudication by a court that such other entity acts with legal authority in performing such modifications or destruction.

Count III. Scattering Fork Drainage District further claims that the agreements will require the State of Illinois to insulate the Federal Government from water damage claims resulting from construction of the project and limit the liability of the State of Illinois to the District since the ensuing damages will be compensable under Federal law which provides for less compensation than does the law of the State of Illinois.

Count IV. Plaintiff Bruce Williams claims that the Embarras River “* * * is unique economically, ecologically, aesthetically and recreationally and constitutes a valuable asset of the people of the State of Illinois, is irreplaceable, and constitutes part of the healthful environment of the people * * * including plaintiff.” That plaintiff has “as a citizen of Illinois, a general property right to and interest in a healthful environment which includes preservation of the Embarras River as it presently exists generally and a particular right and interest because plaintiff hunts game and wildlife whose survival * * * is dependent entirely upon continued existence of the said river as it presently exists and because plaintiff will not be able to continue said activities of recreation if defendants act as they are planning to * * *."

Count V. Plaintiff Bruce Williams alleges that the property rights and interests (described in Count IV, supra) are within the protection of the Environmental Control Act of Illinois (Ill. Rev. Stat. 1971, ch. 111½, sec. 1001 et seq.) and that defendants have failed to comply with the provisions of the Act and threaten future lack of compliance.

Count VI. Plaintiff Bruce Williams alleges that his property rights (described in the above summary of Count IV) cannot be destroyed, modified or damaged without either consultation with the plaintiff or a valid adjudication by a court of competent jurisdiction that defendants may so act with proper legal authority.

Count VII. Plaintiff John Warfel alleges that if the agreements are signed and the reservoir constructed the drain tiles on his lands will be artificially flooded, thus rendered inoperable, with resulting crop damage and diminished value of the lands. He also alleges (as plaintiff Scattering Fork alleged in Count III of the complaint) that under the agreements in question the State of Illinois would be required to insulate the Federal Government from water claim damage caused by construction of the project and that same agreements limit the liability of the State of Illinois to this plaintiff to the amount of compensation authorized by the Congress of the United States which is allegedly less than the amount allowable under Illinois law.

• Count VIII. Plaintiff John Warfel alleges that his property cannot be subjected to taking, alteration, modification or damage without his consent.

Count IX. Plaintiff John Warfel alleges that his property cannot be taken, damaged, etc., without consulting him or, in the alternative, without a court adjudication that the defendants or other persons or entities have legal authority to so act.

We agree with defendants that the grounds for relief relied upon by plaintiffs fall within four general propositions.

The first proposition is that before defendants enter into agreements with the Federal government for the construction of Lincoln Reservoir they must obtain the consent of plaintiffs or secure court adjudication establishing their legal authority to so act.

Plaintiff Scattering Fork Drainage District, in support of this proposition, cites the following sections of the Drainage Code (Ill. Rev. Stat. 1971, ch. 42):

12-7. This section makes it a misdemeanor to wilfully obstruct, injure or destroy any covered drain constructed through the lands of others or any other drain, levee, drainage structure or pumping plant, whether private, mutual or district. It further provides that anyone who wilfully cuts or breaches any private mutual or district levee is guilty of a felony. Fines and imprisonment for the commission of these offenses are specified in the statute. This section also provides for the recovery of civil damages resulting from commission of the prohibited acts.
3- 1. Provides that drainage districts may be formed to construct and maintain drains, levees, etc. for agricultural, sanitary or mining purposes.
1-2. This section contains definitions of words and phrases used in the Illinois Drainage Code.
1-4. Establishes tlie jurisdiction of the Circuit Court pertaining to the organization and operation of drainage districts.
4- 34. Provides that commissioners of a drainage district are officers of the court and as such are under control of the court and that reports and petitions filed and verified by a majority of the commissioners shall be presumed to be correct.
6-4. Authorizes commissioners of a drainage district, subject to approval of the court, to enter into contracts with highway authorities or railroads for the construction of levees and may permit highways or railroads to operate over and across such levees, etc.
12-19. Provides that the commissioners shall “cooperate” in the exchange of information pertaining to drainage with commissioners of other districts and with local, State and Federal governments operating in fields relating to drainage.
3-24. Provides that a drainage district is a body politic, that it may sue, be sued and have the right to enter into contracts.

Plaintiff also cites the following sections of Ill. Rev. Stat. 1971, ch. 5:

127.7. Provides that any body politic organized under the provisions of the Soil and Conservation Act may take over by lease, purchase or voluntary agreement any flood prevention, etc., project located within its boundaries and undertaken by the United States or the State of Illinois with the consent of the United States or the State of Illinois or to act as agent in the acquisition, construction, operation, etc., of the project.
127.7A Provides that any soil conservation district organized under the Act has authority to cooperate and effectuate agreements with agencies of government and to plan and construct projects relating to preservation of the renewable natural resources of water, wildlife, etc. and for the control of floods, etc.

We do not perceive that any of the above citations bears any discernible connection with, or relation to, the issue of the necessity' of consent to be obtained from plaintiff Scattering Fork Drainage District prior to entering into the agreements in question. Numerous other statutes and cases are cited under various subheadings of the proposition with reference to the necessity of consent, consultation and prior court approval. It would unduly lengthen this opinion to discuss each of the subheadings which are lettered (a) through (t). A few examples will suffice.

Plaintiffs maintain that the statutory power granted to the Department of Conservation does not authorize the threatened acts of the defendants here. In support of this contention various sections of Ill. Rev. Stat. 1971, ch. 127, sec. 63a5 et seq. are cited. These deal with the authority of the Department to take steps to prevent pollution of the rivers, lakes and streams within the State, protection of forests, etc. Nowhere, in the statute cited, is there a grant of authority to the Department to enter into the agreements in question. This argument totally ignores the express legislative grant to the Department contained in the above cited provision of Ill. Rev. Stat. 1971, ch. 19, par. 1111. The same observation is pertinent as applied to a similar contention relative to the authority of the Department of Transportation.

Plaintiffs also urge that property already devoted to a public use (i.e., the Drainage District) cannot be condemned without a specific grant of authority from the Legislature, citing Department of Public Works & Buildings v. Ells, 23 Ill.2d 619. In Ells the Department of Public Works of the State of Illinois sought to condemn lands owned by a local school district. The supreme court held precisely what plaintiffs say it held. Here, however, the defendants do not seek to condemn any of the lands in question, nor does the State of Illinois. If, as and when the Lincoln Reservoir is constructed the Federal government will do the taking, and its authority to condemn is not questioned.

We agree with the holding of the trial court that the complaint does not allege facts or reasons establishing, or tending to establish, the necessity for either consent or consultation with plaintiffs or, as a prerequisite to their exercise of authority granted under the statute, the adjudication of that authority prior to entering into the agreements in question.

Plaintiffs’ next proposition is that the defendants should be restrained from entering into the agreements for the construction of the reservoir because compensation to property owners under a Federal condemnation proceeding is less than they would receive under the law of the State of Illinois and some damages compensable under State law are not compensable under Federal law.

The plaintiffs’ argument here is to the effect that “The United States acting pursuant to its navigation power does not have to compensate rights recognized by private state law on the theory that such rights are the creature of state law only and are all subject to the overriding Federal interest which may be asserted at any time.”

Plaintiffs assert that the Federal government, in the construction of the Lincoln Reservoir, is proceeding under the navigation power and then develops the argument that certain damages so occasioned are not compensable under the law of this State. The argument is bottomed entirely upon the premise that the navigation power of the Federal government is threatened to be employed. What impels this conclusion is not set forth in the brief or argument. We note that there is no such allegation in the complaint. Defendants maintain that the purpose of the reservoir is flood control and that the Federal government does not act pursuant to its navigation power. Assuming, without deciding, that certain elements of damage compensable under State law are not compensable under a Federal taking the plaintiffs state no cause or reason, and cite no authority which precludes the defendants from exercising the specific legislative grant of authority to enter into the proposed agreements. They do not contend that the legislature exceeded its authority in enacting the enabling legislation or that the legislation is unconstitutional, only that the defendants should not exercise the authority. The defendants here are not seeking to exercise the power of eminent domain, only to enter into agreements as expressly authorized by the legislature.

Plaintiffs cite no authority which establishes that they have a right to be compensated under State law or, a right to force the taking to be accomplished under the State exercise of its power of eminent domain.

The next proposition is urged by plaintiff Bruce T. Williams who maintains in Count IV of the complaint that the acts of the defendants sought to be enjoined are in violation of article XI of the 1970 Constitution which guarantees to him a healthful environment. Article XI provides:

“ARTICLE XI
ENVIRONMENT
Sec.
1. Public Policy — Legislative Responsibility.
2. Rights of Individuals.
§ 1. Public Policy — Legislative Responsibility
The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. The General Assembly shall provide by law for the implementation and enforcement of this public policy.
§ 2. Rights of Individuals
Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as fire General Assembly may provide by law.”

As previously noted plaintiff alleges that the Embarras River is “* * * unique economically, ecologically, aesthetically and recreationally * * * and constitutes part of the healthful environment of the people * * * including plaintiff.” Count IV further alleges that as a citizen of the State of Illinois he has "* * * a general property right to and interest in a healthful environment which includes preservation of the Embarras River as it presently exists generally and a particular right and interest because plaintiff hunts game and wildlife whose survival for that purpose [emphasis added] is dependent entirely upon continued existence of the said River as it presently exists because plaintiff will not be able to continue said activities of recreation if defendants act * * *."

Motions to dismiss or strike a pleading admit facts well pleaded but not conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (Pierce v. Carpentier, 20 Ill.2d 526, 531, 169 N.E.2d 747.) Plaintiff’s allegation that the Embarras River is unique economically, ecologically, aesthetically and repreationally is a conclusion, it is totally unsupported by any specific allegations which in any way point to or remotely tend to establish its alleged uniqueness. Plaintiff’s allegation that he has a “general property right” is likewise conclusionary. Plaintiff’s brief departs from the “general property right” language of Count IV of the complaint in his argument concerning this count. Rather he urges that, “It is essential to note that Mr. Williams alleges two separate interests * * « The first is his general interest in the continued existence of the Embarras River * * The complaint, as above noted, does not state any underlying fact or specifics which establish a “general property interest” in plaintiff. Neither do we find any citation of authority which supports the assertion.

Plaintiff next asserts “There can be no dispute that the condition of the river as it presently exists and as alleged * * * is a part of the ‘healthful environment’ referred to in section 1 of article XI of the 1970 Constitution. This statement in the brief is also unsupported by authority as is the conclusion pleaded unsupported by fact. Assuming, however, that the statement that there is no doubt, in fact establishes the proposition plaintiff’s status is that of a hunter of “game and wildlife” a recreation which he alleges, he will be unable to pursue if the project is constructed. We agree with the trial that the alleged causal connection between the destroying of the habitat of the game and wildlife to be hunted and the right to a healthful environment is too remote to warrant the relief sought.

In Count V of the complaint, plaintiff Bruce T. Williams maintains that the property rights and interest (described in the discussion of Count IV, supra) are within the protection of the Environmental Control Act of Illinois and maintains that the defendants have failed to comply and threaten future lack of compliance with the provisions of the Act. The acts and omissions alleged to be violations of the Environmental Protection Act are contained in paragraph 16 of Count V and are as follows:

(a) Defendants have failed to consult with the Environmental Protection Agency or the Pollution Control Board before entering into agreements on water supply and recreation with the United States with regard to Lincoln Lake Reservoir project.

(b) Defendants have failed to obtain the approval of the Environmental Protection Agency or the Pollution Control Board before entering into agreements on water supply and recreation with the United States with regard to Lincoln Lake Reservoir project.

(c) Defendants and all of them have failed to request and refuse to participate in a hearing before the Environmental Protection Agency or the Pollution Control Board at which plaintiff could present his claim of damages for destruction of his property interests.

(d) Defendants and all of them have failed to take into consideration the considerations and the characteristics and qualities' of the Embarras River specified in paragraphs 13 and 14 herein-above in undertaking to execute and effectuate water supply and recreation agreements with the United States regarding Lincoln Lake Reservoir project.

It is to be noted that the complaint makes no specific reference to specific sections of the Act allegedly violated by the recitals contained in said paragraphs.

In his brief plaintiff first alleges that section 1002(a) (v) has been violated. That section of the Act provides:

“[t]hat it is the obligation of the State Government to manage its own activities so as to minimize environmental damage; to encourage and assist local governments to adopt and implement environmental-protection programs consistent with this Act; to promote the development of technology for environmental protection and conservation of natural resources; and in appropriate cases to afford financial assistance in preventing environmental damage; and * * *.”

We find no allegation in the above paragraphs of the complaint which allege a violation of said section 1002(a) (iv).

Plaintiff next argues in his brief that section 1015 of the Act has been violated. This section provides that owners of public water supplies shall submit plans and specifications to the agency and obtain written approval before construction of any proposed water supply installations. While paragraph (b) of the complaint alleges that the defendants have failed to obtain the approval of the EPA before entering into agreements on water supply, liberally construed, it is arguable that this charges a violation under section 1015. However, as the trial judge noted, there is no allegation that the defendants or indeed the State of Illinois is the owner of the project in question. We further note that section 1015 applies to “public water supplies”. Under the provisions of section 1003 (j) a public water supply is defined (so far as is pertinent here) to include reservoirs “* * * actually used or intended for use for the purpose of furnishing water for drinking or general domestic use in incorporated municipalities; or unincorporated communities where 10 or more separate lots or properties are being served or intended to be served; State-owned parks and memorials; and State-owned educational, charitable or penal institutions.”

We note that the complaint does not allege that the reservoir in question is a public water supply within the meaning of the Act. Plaintiff disposes of that problem by a statement in his brief to the effect that a Lincoln Lake reservoir is such a public water supply or reservoir within the meaning of section 1003 (j).

He further argues in his brief that Count V of the complaint alleges that one of the purposes for the construction of the reservoir is to provide a “public water supply”. We see no reference to public water supply. There is a reference in paragraph 9 of the complaint to “the subjects of water supply” but this scarcely imports an allegation that the reservoir is a public water supply within the meaning of the definition contained in section 1003(j), supra. In his brief, plaintiff also argues that section 1012(b) of the Act is violated. This section prohibits the construction, installation or operation of any equipment, facility, vessel or aircraft capable of causing or contributing to water pollution without a permit granted by the agency. The brief asserts that the reservoir is capable of contributing to water pollution. We find no such allegation in the complaint. We agree that Count V fails to state a cause of action.

The injunction heretofore entered in this court is hereby dissolved and the judgment of the trial court is affirmed.

Judgment affirmed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Norman L. Avery, Defendant-Appellant.
    (No. 73-234;
    Fifth District
    May 14, 1974.

      Robert E. Farrell and Michael J. Rosborough, both of Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    Michael J. Henshaw, State’s Attorney, of Harrisburg, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant was indicted for the offense of forgery on March 29, 1973. On May 21, 1973, he was charged by criminal complaint with the offense of deceptive practices, and at the same proceedings he pled guilty to both charges. After the trial court accepted the pleas of guilty, the State’s Attorney informed the court that a plea agreement was agreed upon to the effect that if the defendant would plead guilty to both forgery and deceptive practices, the State would recommend sentences of probation for 3 years for the crime of forgery and 1 year in the State Penal Farm for deceptive practices. The trial court accepted the guilty pleas and sentenced the defendant in accordance with the plea agreement.

This appeal is from the forgery conviction.

The sole contention of the defendant is that the trial court did not comply with Supreme Court Rule 402(b) in that it was not adequately determined that the defendant’s plea was voluntary.

After the plea agreement was stated in open court the following colloquy occurred:

“COURT: * * * Are you satisfied with the negotiated plea agreement that your counsel has entered into on your behalf and do you understand and agree to the terms of that agreement?
DEFENDANT: Yes, sir.
COURT: Was there any force or threat or promises apart from the agreement used to obtain your plea of guilty?
DEFENDANT: No. sir.”

The court then proceeded to admonish the defendant of several rights. The following colloquy then occurred:

“COURT:And you’re making this plea of guilty as to these charges voluntarily and as a result of your own decision?
DEFENDANT: Yes, sir.
COURT: Have any promises of any kind other than the plea agreement been made to you or have any threats or coercion been made to you by the State’s Attorney, your attorney, or any other person to induce you to enter a plea of guilty?
DEFENDANT: No. sir.”

While portions of the record cited above, standing alone, do constitute compliance with Rule 402(b), the defendant asserts that the following excerpt from the record requires a finding that 402(b) was not complied with:

“COURT: Do you understand that if any promises other than the plea agreement have been made to you by anyone they would not in any way be binding upon the court?
DEFENDANT: No, sir.
COURT: Now, listen. Do you understand that if any promises other than the plea agreement have been made to you by anyone they would not be binding upon this court?
DEFENDANT: Yes, sir.”

The defendant asserts that when the tidal judge said, “Now, listen,” and then asked the same question a second time, he was admonishing the defendant to give the “right answers”.

In this court’s opinion, the phrasing of the court’s question could have easily confused the defendant. His original negative answer literally meant, “No, I don’t understand * * but in the defendant’s mind the answer may have meant, “No, the promises would not be binding upon the court.” The trial court probably realized that the defendant may have been confused by the question. Considering the complete record, the court asked the question a second time, not as a “cue” to the defendant to givé the “right” answers, but in an attempt to clarify the question. The trial court was justified in accepting the defendant’s second answer. That portion of the record relied upon by the defendant for his appeal did not taint the prior compliance with Rule 402(b).

The trial court complied with Supreme Court Rule 402(b) and consequently the judgment of the Circuit Court of Saline County is affirmed.

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin O. Pohle III, Defendant-Appellant.
    (No. 74-2;
    Fifth District
    May 15, 1974.
    Robert E. Farrell and James R. Streicker, both of Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

On June 22, 1973, two separate indictments were returned in the Circuit Court of St. Clair County charging the defendant with the burglary of a filling station and of a residence. On September 10, 1973, with the legal assistance of a member of the Public Defender’s staff, the defendent changed his plea to guilty and the trial court after accepting the plea set a sentencing hearing for October 1, 1973. The guilty plea was not negotiated.

There is no quarrel with the court proceedings before, during or after the plea of guilty entered by the defendant. He was adequately represented by counsel, and. the trial court properly admonished him as to the law and the consequences of his plea. The defendant’s sole contention is that the concurrent sentences imposed are excessive and should be reduced.

The pre-sentence report and the proceedings at the sentencing hearing on October 15, 1973, reveal the defendant at that time was 18 years of age and had dropped out of high school a couple of years earlier and had held various jobs. The report also shows that, although he had been arrested several times before, there was only one conviction and that was for criminal treaspass to land for which he was fined $20. Defendant was dishonorably discharged after 6 months in the Army for going AWOL on two occasions. After his plea of guilty and before the sentencing hearing, defendant was issued two tickets for an incident during which a shotgun was discharged in the rear of the filling station where he was working. The disposition of this case is not known and is not in the record.

In mitigation, defendant showed that he had been working and had enroUed at Bailey Technical School in St. Louis for a year’s course as a mechanic. The pre-sentence report refers to defendant’s prior juvenile record, but there is nothing to suggest that there had been any other conviction except for the criminal trespass to land.

The defendant argues that his case is a proper one for sentence reduction because of his youth, lack of violence, good family relations, career plans and lack of any serious record. The State has filed a brief which amounts to a demurrer to the appellant’s brief.

There is no question that the Unified Code of Corrections applies in this case. The defendant was afforded a sentencing hearing in conformity with section 1005 — 4—1 of the Unified Code. As burglary is a Class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term, which shall not be greater than one-third of the maximum set by the court. The maximum term cannot exceed 20 years for a Class 2 felony.

The offenses which constituted the two burglaries encompassed one night during which a filling station and a house were broken into and cartons of cigarettes, three guns and an electric blanket were taken. Two companions accompanied the defendant during the burglaries. All of this property was recovered. No one suffered any personal injury or loss. Under these facts the nature and circumstances of the offense do not warrant a minimum term greater than 1 year.

The history and character of the defendant must next be examined by the trial court in determining whether or not the minimum term should exceed 1 year. The evidence before the court at the sentencing hearing shows that the defendant is young, from a broken home, a high-school dropout who has worked at various jobs and has been convicted once for criminal trespass to land. Records of previous arrests which have not led to convictions should not be considered in aggravation or in justifying a greater minimum term than 1 year. (People v. Bowlin, 133 Ill.App.2d 837; People v. Jackson, 95 Ill.App.2d 193.) The statute is extremely clear that unless the nature and circumstances of the offense and character of the defendant warrant a higher minimum term, the minimum term “shall be one year”. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3).

In People v. Hogue, 1 Ill.App.3d 881, the defendant was 28 years old, divorced and had a prior conviction for disorderly conduct. He pled guilty to burglary and was sentenced to 3 to 10 years in the penitentiary. Upon this record this court reduced Hogue’s sentence to 16 months to 4 years. The following language from People v. Harpole (1968), 97 Ill. App.2d 28, is also cited in People v. Cooke, 117 Ill.App.2d 296; People v. Collins, 123 Ill.App.2d 138; People v. Turner, 129 Ill.App.2d 24:

“The purpose of modern-day penology is the rehabilitation of the offender. That sentence which has the greatest potential of restoring the offender to a useful and productive place in society while at the same time adequately punishing the offender for his misconduct and safeguarding the public from further offenses is the one which should be imposed.”

Therefore, in light of the philosophy expressed in the Harpole case and followed in subsequent opinions and the fact that the statutory criteria have not been met, we believe this case warrants a reduction in sentence. The judgment of conviction is affirmed, and the trial court’s sentence of 3 to 9 years in the penitentiary is reduced to 1 year to 3 years.

Judgment affirmed as modified.

G. MORAN, P. J., and EBERSPACHER, J., concur. .


author: Mr. JUSTICE CREBS

text:
    Bertha Gill, Plaintiff-Appellee, v. James F. McCollum, Defendant-Appellant.
    (No. 74-8;
    Fifth District
    April 17, 1974.

      Rehearing denied May 20, 1974.

      Glenn & Logue, of Mattoon, for appellant.
    Robert F. A. Stocke, of Louisville, and William R. Todd, of Flora, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiff filed suit in the Circuit Court of Clay County to enjoin defendant from using a well on her land for disposal of salt water from other leases and for damages. After a hearing, the injunction was granted. This case is an interlocutory appeal from an order entered on December 5, 1973, temporarily enjoining the defendant from injecting disposal salt water from adjoining leases into the oil well in question.

The well in question was drilled in May 1973 to the Aux Vases formation. Defendant claims it is a producing well from that formation, while plaintiff claims it is a dry hole. No oil has been sold from the lease. There are tanks on the lease which contain a mixture of oil and salt water, but defendant was unable to state how much of the fluid was oil. It is undisputed that defendant obtained a permit to convert the well into a combination oil and disposal well; that a packer was inserted above the Aux Vases formation and below the Cypress formation. This permits pumping from the Aux Vases formation and injection of salt water in the Cypress formation. At the time of the hearing defendant was injecting salt water pumped from the Aux Vases and salt water from three other leases he owned into the Cypress formation. Since there was no attempt to produce the Cypress formation, it was admitted that it was of no benefit to plaintiff to inject salt water from other leases into the well.

Defendant’s position is that the right to use this well for the disposal of salt water from other leases is granted to him by the terms of the lease.

The relevant provisions of the lease are as follows:

“(1) Lessor, in consideration of ONE DOLLAR ($1.00) in hand paid, receipt of which is hereby acknowledged, and of the royalties herein provided and of the agreements of the Lessee, herein contained, hereby grants, leases and lets exclusively unto Lessee for the purpose of investigating, exploring, prospecting, drilling, mining and operating for and producing oil, liquid hydrocarbons, all gases and their respective constituent products, injecting gas, waters, other fluids and air into subsurface strata, laying pipe lines, storing oil, building tanks, ponds, power stations, telephone lines, and other structures and things thereon to produce, save, take care of, treat, manufacture, process, store and transport said oil, liquid, hydrobons, gases and their respective constituent products and other products manufactured therefrom together with the rights of ingress and egress thereto or to other land , under Lease to Lessee. * * *
(2) Subject to the other provision herein contained, this Lease shall remain in force for a term of one year from this date [called primary term’] and as long thereafter as oil, liquid, hydrocarbons, gas, or their respective constituent products or any of them is produced from said land or land with which said land is pooled; provided, however, that for injection purposes this Lease shall continue in full force and effect only as to the subsurface strata or stratas into which such injections are being made together with such surface privileges as may be necessary or desirable to continue such injections.”

Since the primary purpose of an oil and gas lease is to obtain production the above provisions must be read with this purpose in mind. The injection must have some relation to the primary purpose of obtaining production. Since in this case there was none, the injunction was properly granted.

Judgment affirmed.

G. MORAN, P. J., and CARTER, J., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Larry Jackson, Petitioner-Appellant.
    (No. 73-179;
    Fifth District
    May 20, 1974.

      Robert E. Farrell, Deputy Defender, of Mt. Vernon (Robert E. Davison, of State Appellate Defender’s Office, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Philip G. Feder, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant was indicted in 1967 in St. Clair County for murder. Pursuant to plea negotiations the defendant pled guilty to voluntary manslaughter and on July 8, 1968, was sentenced to a term of not less than 10 years nor more than 20 years in the penitentiary. On December 29, 1972, the defendant filed a pro se post-conviction petition, which was amended in February, 1973, by court-appointed counsel.

The evidentiary hearing on the post-conviction petition was held in April, 1973, but the post-conviction petition was denied. It is from this denial that the defendant appeals. The only issue presented by the appellant in his brief for review is whether the trial judge in the post-conviction hearing improperly relied upon information outside the record which was prejudicial to the defendant’s cause for relief.

The original lawyer appointed to represent defendant became ill and one of his associates was appointed to carry on. There is some suggestion that the original lawyer had promised defendant that he would get probation if he would plead guilty; however, this was not raised in the appeal.

In the amended petition before the court at the evidentiary hearing the defendant raised the issue that he was not advised of his right to appeal and his right to a transcript. However, an examination of appellant’s brief suggests that he has abandoned those points. The brief concentrates on the conduct of defendant’s lawyer and his quality of representation at the hearings before and after the plea of guilty.

In a post-conviction hearing the real issue is whether the petition when liberally construed in favor of the petitioner and taken as true, makes a showing of imprisonment in violation of the Federal or State constitutions. If a post-conviction petition shows a denial of any substantial constitutional rights, a hearing must be held on the petition. The right of appeal in a criminal case and the denial of a transcript are not per se constitutional questions.

Both from the insufficiency of the petition itself and the subsequent testimony elicited at the hearing, it seems that the suggestion of the guilty plea by both attorneys was entirely justified under the circumstances and did not amount to coercing the defendant into pleading guilty. People v. Williams, 44 Ill.2d 334.

The other allegation in the amended petition was that the attorney who represented defendant when he pled guilty had promised the defendant that he would receive probation on such a plea. This was refuted by the court-appointed attorney in his direct examination at the hearing. There were no affidavits attached to the defendant’s petition concerning this allegation or any other allegations and no reason given why they were not attached.

During the hearing held in April, 1973, counsel for defendant at the close orally moved to amend the petition by inserting a paragraph indicating that “the quality of representation that the defendant received was not in accordance with that prescribed by the Federal and State Constitutions”. The court granted the amendment.

The defendant has failed to cite in his brief any authority that the behavior of his attorney amounted to actual incompetence. At any rate, the evidence of incompetence adduced at the hearing fell far short of substantiating the allegation that was attached to the petition by counsel. The defendant’s attorney on cross-examination of court-appointed counsel attempted to prove the incompetency. In People v. Dudley (1970), 46 Ill.2d 305, 308, the supreme court held:

“In order for a defendant to establish incompetent representation by appointed counsel, he must demonstrate ‘actual incompetence of counsel, as reflected by the manner of carrying out his duties as a trial attorney’; and it must further appear that substantial prejudice results therefrom, without which the outcome would probably have been different.”

Nowhere in the record is there any evidence to substantiate the charge asserted by defendant’s attorney at the evidentiary hearing.

We now come to the point raised by defendant in his brief, whether the trial judge’s reliance upon information outside the record is prejudicial. Assuming the judge relied on evidence not in the record to find defendant’s attorney competent, that evidence did not unduly prejudice Jackson because he never made a case at the evidentiary hearing that the attorney was, in fact, incompetent and that that incompetence directly resulted in Jackson’s conviction. The record contains testimony by the defendant’s attorney that he was licensed to practice law in Illinois and Missouri and “that he successfully defended felons in Federal Court and in the State of Missouri”.

The credibility of the testimony is a matter for the trial judge to determine and unless something appears to show that the determination by the trial judge was manifestly erroneous, the trial judge, who had an opportunity to see and to hear each witness, should be upheld. (People v. Alden, 15 Ill.2d 498; People v. Davies, 10 Ill.2d 11.) Only two witnesses testified, the defendant and his court-appointed attorney. Their testimony, plus the failure of any affidavits to be attached to the petition, was more than ample grounds for the trial judge to dismiss the petition.

The defendant’s post-conviction petition brought no showing of any violations of defendant’s constitutional rights; therefore, the judgment of the Circuit Court of St. Clair County dismissing the defendant’s post-conviction petition is affirmed.

Judgment affirmed.

G. MORAN, P. J., and CREBS, J., concur.


text:
    Charles McCann, Adm’r of the Estate of Ethel McCoy, Deceased, Plaintiff-Appellant, v. Atlas Laster et al., Defendants-Appellees.
    (No. 73-298;
    Fifth District
    April 10, 1974.

      Rehearing denied May 21, 1974.

      Theodore V. Bradley, of Murphysboro, for appellant.
    Douglas A. Ingold, of Land of Lincoln Legal Assistance, Inc., of Carbondale, for appellees.
   Mr. JUSTICE CARTER

delivered the opinion of the court;

The plaintiff, Charles McCann, as administrator of the estate of Ethel McCoy, deceased, filed a suit to quiet title and for “incidental relief”. Ethel McCoy at the time of her death was the owner of a piece of property in Carbondale, Illinois, and left surviving two sons and two daughters. Letters of administration were issued to Charles McCann on July 17, 1969.

The Classic Leasing Company obtained a tax deed on the property in question as a result of a judgment entered by the Circuit Court of Jackson County on October 22, 1970, in case No. 70-Law (Tax)-261. This judgment was not appealed. The Classic Leasing Company conveyed the property by quitclaim deed to Atlas Laster, Sr., and Rosella Laster. This suit to quiet was filed by the plaintiff on March 20, 1972.

The Lasters and Classic Leasing Company were the only defendants who entered an appearance, and they filed separate motions to dismiss the complaint. These motions were granted by the trial judge after several hearings and subsequent hearings on motions to reconsider. The record shows that on August 9, 1973, the trial judge denied plaintiff’s prayer for reconsideration of his original order for dismissal and the case was dismissed. From this order the appeal was perfected.

Plaintiff’s complaint asked that the tax deed issued by the county clerk be declared null and void and that the subsequent deed obtained by the Rasters be declared null and void. The basis of the complaint is that a tax deed was issued by an order of the Circuit Court of Jackson County without any legal notice to the heirs of the deceased or the administrator of the estate of Ethel McCoy.

Section 266 of the Revenue Act (Ill. Rev. Stat. 1971, chap. 120, sec. 747), states in part:

“Tax deeds issued pursuant to this Section are incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. However, relief from such order may be had under Section 72 of the ‘Civil Practice Act’, * *

In Buschmann v. Walsh, 120 Ill.App.2d 242, 245, 256 N.E.2d 882, plaintiffs brought two actions to set aside the same tax deed. One was a suit in equity to quiet title and the second was by motion pursuant to section 72 of the Civil Practice Act. The court stated in the Buschmann case, “* * * a suit in chancery to quiet title is not the proper proceeding in which to consider a collateral attack upon a judgment of the county court issuing a tax deed.” The case of Freisinger v. Interstate Bond Co., 24 Ill.2d 37, 179 N.E.2d 608, is cited.

The history of the issuance of tax deeds and their subsequent collateral attack other than by appeal from the court order for judgment or motion under section 72 of the Civil Practice Act is well presented in McMillen v. Rydbom (1965), 56 Ill.App.2d 14. The supreme court in Cherin v. R. & C. Co. (1957), 11 Ill.2d 447, carefully and convincingly scrutinized the development of Illinois law both in the legislature and the courts in connection with the issuance of tax deeds. It has been uniformly and consistently held that in absence of appeal, the court order authorizing issuance of a tax deed stands as a valid judgment, subject to attack after 30 days, only by a petition filed under section 72 of the Civil Practice Act, in a proper case. This has been the law in Illinois for many years, and this court cannot realize any valid or justifiable reason in the appellant’s argument and brief for not following the law as well enunciated by our supreme and appellate courts.

The original pleading filed by the plaintiff is titled “Complaint to Quiet Title and For Incidental Relief”, and the last paragraph in the prayer asks that “the complaint be given such other and further relief as the court may deem equitable”. The above request cannot under any circumstances be treated as a request to proceed under section 72 of the Civil Practice Act. Section 72(2) states, “The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof.”

The plaintiff’s motion for reconsideration of order of dismissal among other requests asks that the court grant plaintiff leave to file an amended complaint. The court denied this motion and ordered that the cause be dismissed. The court was correct in dismissing the complaint without giving the plaintiff an opportunity to amend, because this complaint could not be amended to be a valid attack on a void tax deed; the deed can only be attacked by a section 72 action or by direct appeal from the order authorizing its issuance.

The judgment of the trial court dismissing the complaint of the plaintiff as against all the defendants is affirmed.

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James L. Burkett, Defendant-Appellant.
    (No. 71-39;
    Fifth District
    April 19, 1974.

      Rehearing denied May 27, 1974.

      Robert E. Farrell and Robert E. Davison, both of State Appellate Defenders Office, of Mt. Vernon, for appellant.
    Donald F. Conaway, State’s Attorney, of Carlyle, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

In August, 1968, the appellant was charged with two counts of burglary. He waived indictment and pleaded guilty to one count. The other was nolle pressed. He was sentenced to 5 years’ probation. In July, 1970, the State filed a petition to revoke defendant’s probation alleging that defendant attempted to burglarize a tavern. After a hearing on the petition to revoke, his probation was revoked and he was sentenced to 2 to 20 years in the penitentiary. In 1971 the defendant was granted leave to appeal the revocation of probation by this court. Later in 1971 he sought post-conviction relief. This was denied and has also been appealed. The issues in both appeals have been consolidated and are before the court. These issues are:

1. Whether defendant was properly admonished prior to the acceptance of his plea of guilty.

2. Whether the State met its burden of proof at the probation revocation proceeding.

3. Whether the sentence imposed upon defendant following revocation of probation is excessive.

The defendant maintains that he was not properly informed about the nature of the charge of burglary and that the maximum possible penalty was not properly explained to him. The record shows that during arraignment the elements of burglary were adequately stated by the judge. It is true that during the same proceeding and after nolle pressing one charge of burglary on motion of the State’s Attorney, the judge again informed the appellant of the charge and in this instance did not mention all the elements of burglary. However, both statements, the one in which the judge did state these elements and the one in which he did not, occurred as part of one process and within a few minutes’ time. It was as though all that was said was part of the same colloquy. Under the circumstances we do not see how the appellant could have been misled nor could have failed to have been informed. We hold, therefore, that there was an adequate explanation of the charge.

It is true that the original transcription in the record indicates an inadequate explanation by the judge of the maximum penalty. According to the record the judge stated that the penalty for burglary was “« 8 8 not jess qlan one year and with a maximum of a number of years.” This statement was found to have resulted from an error in transcription and should have read not less than 1 year “with a maximum of any number of years in the penitentiary.” In view of this correction in the record we must conclude that what the appellant heard was in accord with the penalty for burglary prior to the effective date of the Code of Corrections and was a proper explanation of the maximum penalty.

Appellant maintains that the State failed to prove by a. preponderance of the evidence at the probation revocation hearing that he was guilty of attempted burglary. The law is now established in Illinois that a violation of the conditions of probation need be proved by only a preponderance of the evidence (Ill. Rev. Stat. 1973, ch. 38, sec. 1005 — &—4(c)). Also, it is well settled that a defendant need not be indicted, prosecuted or convicted for the offenses which are the basis for revocation of probation (People v. Mosley, 2 Ill.App.3d 375; People v. Crowell, 53 Ill.2d 447). Appellant argues that in the instant case the State failed to show that the building allegedly sought to be entered contained anything which would be the subject of a theft, saying that there was no showing that the tavern was in operation or that it contained any property. It might have been an abandoned building. Also, appellant maintains that by failing to allege ownership of the tavern the State failed to show that defendant did not have authority to enter the tavern. At the probation revocation hearing the State produced evidence that the tavern had been broken into before, the last time quite recently, and that therefore the police had been observing it. In the small hours of the morning on July 27, 1970, two figures were observed approaching the tavern. Later they were observed crawling around on its roof, jumping to the ground and running away. Warning shots were fired and the suspects were instructed to halt. The suspects continued running, part of the time in view and part of the time out of the view of the police. The appellant was apprehended in a vacant lot near the tavern when he ran toward a policeman. The policeman testified that the appellant dropped a crowbar and a screwdriver when apprehended. Pry marks on a window of the tavern corresponded with the crowbar the appellant dropped. Appellant stated that he was living near the tavern and was walking to a filling station for a pack of cigarettes. Certainly in view of these statements from the record, of the fact that only a preponderance of evidence is necessary, and of the established rule that the defendant need not be indicted, prosecuted or convicted for attempted burglary, it was not unreasonable for the court to believe that the appellant was involved in an attempted burglary and that his probation should be revoked.

Appellant maintains that the sentence was excessive. Prior to the effective date of the Unified Code of Corrections the sentence for burglary was from 1 year to life in the penitentiary. In 1970 when the defendant’s probation was revoked, the sentence of 2 to 20 years was within the statutory limit. Under the Unified Code of Corrections, burglary is a Class II Felony for which the minimum term of imprisonment is 1 year and the maximum from 1 to 20 years. In view of People v. Shadowens, 10 Ill.App.3d 450, holding that an appeal from a probation revocation places the defendant under the terms of the new Code, we feel that this case should be remanded for a sentencing hearing and imposition of a sentence in accordance with provisions in that Code. We think this is particularly appropriate since under the new Code the minimum sentence must be 1 year unless the court, “having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term 9 9 (Ill. Rev. Stat., ch. 38, sec. 1005 — 8— 1(c)(3).) Also, in imposing the 20-year maximum sentence the trial judge said to the appellant, “now the maximum might be a little high, but that is within your control.”

For the above reasons, the cause is remanded to the Circuit Court of Clinton County with directions that the defendant be resentenced.

Affirmed in part, reversed in part and remanded with directions.

G. MORAN, P. J., and CREES, J., concur.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Jennie Rosemary Fancil, as Adm’r of the Estate of Jack Fancil, Deceased, et al., Plaintiffs-Appellants, v. Q.S.E. Foods, Inc., d/b/a Big John’s # 3, Defendant-Appellee.
    (No. 73-280;
    Fifth District
    April 17, 1974.

      Rehearing denied May 28, 1974.

    Harlan Heller, of Mattoon, and Robert L. Douglas, of Robinson, for appellants.
    Edward Benecki, of Gosnell, Benecki & Borden, Ltd., of Lawrence-ville, for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiffs appeal from a judgment of the Circuit Court of Crawford County entered in favor of defendant and against plaintiffs after the dismissal of plaintiffs’ complaint on defendant’s motion.

Defendant was the owner and operator of a grocery store in Oblong, Illinois, at which plaintiffs intestate, Jack Fancil, a member of the Oblong city police force, was killed by a burglar on the night of June 1, 1970.

Plaintiffs complaint alleged that there had been several burglaries at the defendant’s store prior to the night in question and that the defendant knew of them; that decedent and other members of the Oblong police force inspected defendant’s premises each night for the purpose of protecting defendant’s property and that defendant knew of these inspections; that defendant had added a wire enclosure at the rear of the building for storing merchandise; that with knowledge of prior burglaries the defendant disconnected a vapor light that had been used to light the enclosure; that the enclosure was therefore dark; that defendant knew that danger to decedent and other officers was enhanced because of the unlighted entrance; that defendant

“(a) Negligently and carelessly failed and omitted to provide a suitable and adequate light in the area of the enclosure added to the Defendant’s premises when it knew that the premises had been the subject of burglaries.
(b) Negligently and carelessly disconnected the power to the light erected near the enclosure when it knew or in the exercise of ordinaiy care should have known that the safety of invitees was thereby imperiled.
(c) Negligently and carelessly disconnected the power to the light erected near the enclosure when it knew, or in the exercise of ordinaiy care should have known that its action would thereby provide an area of darkness in which burglars could conceal themselves from the view of officers of the law.
(d) Negligently and carelessly failed and omitted to keep the light provided within the interior of the enclosure lighted in the nighttime when it knew or in the exercise of ordinary care should have known that failure to light an area of darkness would be created within which burglars could conceal themselves.
# # #
(16) On June 1, 1970, the Plaint'fFs intestate went to the Defendant’s premises for the purposes of performing a security check.
(17) At the said time and place, and as a direct and proximate result of Defendant’s negligent and careless acts as aforesaid, burglars concealed themselves upon the premises on the south side of the Defendant’s building.
(18) As a direct and proximate result of the negligent and careless acts or omissions of Defendant, Plaintiff’s intestate was ambushed and attacked by the burglars while in the process of conducting a security check at the rear of Defendant’s premises.”

To impose liability for negligence upon a defendant, a plaintiff must show a duty, negligence, foreseeability, and proximate cause. The complaint alleged that the defendant knew of past burglaries, knew that police officers patrolled the building at night, knew that there was no access to the rear of the building by motor vehicle, and knew that if a mercury vapor light at the rear of the building was unlighted at night, areas of darkness would be created in which burglars could conceal themselves and endanger the safety of patrolling police officers, but nevertheless failed to light or disconnected the power to the light at the rear of the building.

In Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497, our supreme court held that a railroad company owed a duty to a passenger waiting on defendant’s platform for a train to protect her from criminal assault by a tramp or hobo. The decision was based on a requirement to exercise “ordinary care” to keep station buildings and appurtenances in a reasonably safe condition for use, coupled with a finding that the risk of assault by loitering tramps or hoboes was within the ambit of that requirement. The court described the duty as requiring defendant to afford protection to passengers from dangers to which it had knowledge or which, in the exercise of due care and diligence, it could have reasonably anticipated and provided against.

In Neering the court said at pages 374-75, 377:

“Defendant contends that it is not required to guard against injuries resulting from unusual or unexpected occurrences which could not have been reasonably anticipated, while plaintiff declares that she does not contend that defendant was required to guard against injuries resulting from unusual occurrences which could not be reasonably anticipated, but insists that it was a question of fact for the jury to determine whether or not, from all of the evidence, defendant failed to afford her the degree of protection required, from dangers of which it had knowledge, or which, in the exercise of due care and diligence, it could have reasonably anticipated and provided against. Apparently there is not dissent by either party from the above statements of the law.
ft ft ft
It is urged by the defendant that plaintiff had been using the station for a long time and had not been assaulted and that no assault by vagrants had been made on other passengers using the station, therefore the defendant had no knowledge and could not reasonably anticipate that vagrants or any other person would assault plaintiff. Of course, if defendant had known plaintiff would be assaulted, and made no effort for her protection, certainly there would have been a failure on its part to exercise reasonable and ordinary care. The question however, is, from the conditions which defendant permitted to exist around its station, could it reasonably anticipate that plaintiff might be assaulted and as a consequence observe reasonable precaution to prevent it. It is our judgment the conditions were such that defendant ought reasonably to have anticipated plaintiff might be assaulted and that there is some evidence that reasonable precaution was not taken for her protection.”

In Johnston v. Harris (1972), 387 Mich. 569, 198 N.W.2d 409, the Supreme Court of Michigan held that a complaint with allegations similar to this one stated a good cause of action. In Johnston a tenant was assaulted and robbed by an unknown youth lurking in a poorly lighted, unlocked vestibule in the defendant’s apartment building in a high crime area in Detroit inner city. The plaintiff offered proof of the dim lighting and continuously locked outer door of the vestibule, that the area was a high crime area, and sought through the testimony of a public lighting expert to show the relationship between poor lighting and the high incidence of night crime. The trial court directed a verdict for the defendant and the Michigan Court of Appeals affirmed on the ground that there was no adequate proof of proximate cause, but the Supreme Court of Michigan reversed, stating at pages 573-574:

“The Court of Appeals apparently treated the action as solely based on a theory that decedent’s failure to provide proper locks and lighting had resulted in plaintiff’s injuries. Viewed as such, a fatal logical void existed as to the element of proximate cause. However, to so narrowly view plaintiff’s pleadings and proofs is to wholly ignore the interwoven assertion that decedent was negligent in creating a condition conducive to criminal assaults.
The crux of plaintiff’s case was that in a high crime district it is reasonably foreseeable that inadequate lighting and unlocked doors would create conditions to which criminals would be attracted to carry out their nefarious deeds. Thus, on a theory not unlike that contemplated by sections 302B, 448 and 449 of 2 Restatement Torts 2d, pp. 88, 480 and 482, plaintiff asserted that decedent’s negligence consisted of enhancing the likelihood of exposure to criminal assaults by failing to provide adequate lighting and locks. Plaintiff argued, in effect, that decedent set a trap.
We are of the opinion that 2 Restatement Torts, 2d, § 442B, p. 469, cited by the Court of Appeals, is not applicable to the instant case. Rather, in point are §§ 302B, 448 and 449, supra.
Section 302B provides:
‘An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.’
Section 448 provides:
‘The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might he created, and that a third person might avail himself of the opportunity to commit such a tort or crime! (Emphasis supplied.)
Section 449 provides:
‘If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.’
The underlying significance of this element of foreseeability, recently discussed by us in Darns v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970), is apparent in the language of section 448 of the Restatement.
We note that a similar theory has been accepted in a number of quite dissimilar factual settings.”

We feel that under the rationale of Neering, Johnston, and the pertinent sections of the Restatement of Torts 2d, this complaint stated a good cause of action. Therefore, we reverse the trial court’s final order in bar of action and remand for further proceedings.

Reversed and remanded.

EBERSPACHER and CARTER, JJ., concur.