text:
    Lawrence Karpiel, Plaintiff-Appellant, v. LaSalle National Bank of Chicago, as Trustee Under Trust No. 29295, et al., Defendants-Appellees.
    Gen. No. 69-124.
    Second District.
    January 27, 1970.

      Gomberg, Missner & Schaps, of Chicago, for appellant.

      Diver, Ridge, Brydges & Bollman, of Waukegan, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

An action brought under the Scaffolding Act was dismissed under Supreme Court Rule 103(b) because of negligence of the plaintiff in failing to serve summons on the beneficiaries of the defendant trust within a reasonable time.

The appeal raises the narrow issue of whether a trial court exercises lawful discretion in dismissing a suit when attorneys for the plaintiff have been admittedly negligent in failing to serve summons within a few days short of 14 months after the filing of an amended complaint, but with no showing that substantive rights of the defendants have been prejudiced by the delay.

The original complaint was filed on June 15th, 1967, against the LaSalle National Bank of Chicago, as Trustee, alleging an incident of June 23rd, 1965. Summons was promptly served and two special appearances were filed by the Bank, by two different law firms, one of which is the same law firm now representing the beneficiaries of the trust. The special appearances were stricken and the bank ordered to plead and answer interrogatories. In lieu of a formal answer to the interrogatories, one of the attorneys for the trust furnished the names and addresses of the beneficiaries to the plaintiff on September 27th, 1967. On October 13th, 1967, an amended complaint was filed dismissing the bank as trustee and substituting Herbert H. Heyman and Howard M. Landau as parties defendant. Summons was issued for the first time against these defendants on December 5th, 1968, and served December 23rd, 1968. Both defendants filed a special appearance requesting dismissal of the suit under Supreme Court Rule 103, attaching affidavits which showed that both Heyman and Landau were, at all times, listed in the Chicago telephone directory and were amenable to service of summons.

Plaintiff filed a counteraffidavit setting forth that the attorneys for the trustee bank and the attorneys for the defendant beneficiaries are also the attorneys for an insurance company which indemnifies both the individual defendants and the bank as trustee. The counter-affidavit further set forth that since the case would not be tried under normal circumstances for some time, there was no prejudice by the delay in serving summons on the amended complaint.

The plaintiff’s attorneys have admitted that they can offer no excuse for failure to serve summons on the amended complaint except an office error. The record clearly supports the finding of the trial court that plaintiff failed to show reasonable diligence to obtain service as required under Supreme Court Rule 103 (b). The only defense made by the counteraffidavit of plaintiff is that the same insurance company represented the defendant trust and the subsequently served beneficiaries, Hey-man and Landau, and that, therefore, there was knowledge of the filing of the suit when summons was served on the original complaint, so that justice and fairness require a hearing on the substantive merits of the case.

Prevention of intentional delay in the service of summons which would postpone service for an indefinite time after a statutory period of limitations has run, was a primary reason for the passage of Supreme Court Rule 103(b) and its predecessors. The rule, however, is not based upon the subjective test of intent but rather upon one of reasonable diligence. Caliendo v. Public Taxi Service, Inc., 70 Ill App2d 86, 88, 217 NE2d 369 (1966). The rule also has an essential purpose in promoting the expeditious handling of suits by giving trial courts wide discretion to dismiss when service is not effected with reasonable diligence. Actual knowledge of the suit on the part of defendants will not prevent a lawful exercise of such discretion when, under all the circumstances, a trial court finds a plaintiff has failed to exercise reasonable diligence in effecting service. Sullivan v. Nissen Trampoline Co., 82 Ill App2d 1, 4, 226 NE2d 649 (1967).

Plaintiff argues that our opinion in DeCicco v. Reed, 77 Ill App2d 349, 222 NE2d 346 (1966), requires a reversal here upon the lack of showing of any substantive prejudice to defendants by the delay. We cannot agree. In DeCicco, we upheld the discretion of the trial judge in refusing to dismiss a suit when the delay was caused by plaintiff’s failure to call up a motion to dismiss an original complaint, since the defendant had the same right to have the matter set for hearing as did the plaintiff. After the motion was disposed of, service of summons was promptly made after the filing of the second complaint. Here the amended complaint was filed substituting the beneficiaries of the trust as parties defendant on October 13th, 1967, and summons was issued for the first time on the amended complaint on December 5th, 1968, with service on December 23rd, 1968, approximately a year and a half after the statute of limitations would have run from the date of the June 23rd, 1965 incident. During all of the almost 14 months after charging the proper parties, plaintiff knew exactly where defendants could be served and the failure to obtain timely service was in no way caused or contributed to by the defendants.

The decision does not support plaintiff’s argument that timely knowledge of the nature of a suit by a defendant automatically entitles a plaintiff to avoid the sanction of dismissal. Such knowledge is merely a factor, among others, in determining whether a court has properly exercised its discretion in its finding as to whether there has been reasonable diligence in obtaining service.

The finding of the trial court that plaintiff did not exercise reasonable diligence under all the circumstances is amply sustained by the. evidence and we will not substitute our judgment for that of the trier of facts. Harvey v. Lippens, 87 Ill App2d 368, 368, 231 NE2d 613 (1967); Kohlhaas v. Morse, 36 Ill App2d 158, 162, 163, 183 NE2d 16 (1962).

The judgment below is affirmed.

Affirmed.

DAVIS, P. J. and MORAN, J., concur.

       Ill Rev Stats 1967, c 110A, § 103 (Supreme Court Rule 103). Alias Writs; Dismissal for Lack of Diligence.
      (b) Dismissal for Lack of Diligence. If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed with or without prejudice on the application of any defendant or on the court’s own motion.


source: Caselaw Access Project

license: Public Domain

text:
    Lena Smith, Plaintiff-Appellant, v. Frank P. Smith, Defendant-Appellee.
    Gen. No. 11,129. (Abstract of Decision.)
    Fourth District.
    February 2, 1970.
    John A. Lambright, of Danville, for appellant; no appearance for appellee.
   Opinion by PRESIDING JUSTICE CRAVEN. Not to be published in full.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John R. Cox, Defendant-Appellant.
    Gen. No. 11,149.
    Fourth District.
    February 2, 1970.

      Albert E. Hurt, Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   SMITH, J.

We review this case for the third time. See 74 Ill App2d 342, 220 NE2d 7 and 87 Ill App2d 243, 230 NE2d 900. On the two previous occasions the defendant was sentenced to serve a period of ten to thirty years in the penitentiary for burglary. The sentence we now review was for fifteen to thirty years.

On this appeal, the defendant raises three basic assignments of error. First, that the trial court, over objection, refused to receive in evidence an exhibit consisting of a record of the commitment for mental treatment of witness Hall and the fact that Hall was a psychopathic person. It is urged that this should have been admitted as affecting the credibility of the witness and had it been admitted, the jury would have believed the defense witness as to some of the events rather than Hall and thus acquitted the defendant. Secondly, the defendant takes the position that his sentence is excessive and there was no basis or justification for an enhanced penalty on his third conviction. Thirdly, the evidence does not support his conviction beyond a reasonable doubt.

On the issue of the psychopathic personality of the witness, our Supreme Court discusses this problem in People v. Nash, 36 Ill2d 275, 222 NE2d 473, and refused to hold that it was error to deny the psychiatric examination of a witness to determine whether or not he was a psychopath and at p 279 stated:

“It is well established that if a witness has the capacity to observe, recollect and communicate, he is competent. (People v. Dixson (sic), 22 Ill2d 513. [177 NE2d 224].) A psychopath has the capacity to observe, recollect and communicate and is therefore a competent witness. The question is whether it is permissible to show that he is a psychopath in order to impeach his credibility. . . .
“. . . It would seem unnecessary to raise the issue of whether a witness is a psychopath, from which a jury could infer that he possesses the characteristic of untruthfulness, when direct evidence of a witness’s reputation for truthfulness is admissible. . . . We hold that the trial court did not err in denying defendant’s petition for psychiatric examination of Triplett to determine whether Triplett was a psychopath.”

The record in this case indicates that Hall testified that he had been in need of mental treatment, had received it from September 14, 1966, until about two and one-half weeks before he testified and ended up in the security hospital at Chester. It was argued to the jury and they had knowledge of the fact he had been so treated. Thus the jury could and did consider that question on the credibility of the witness. As pointed out in Nash, it is the fact itself that the jury considers and not the type, character or quality of the mental disability of the witness. The admissibility of the evidence is for the trial court; its weight is for the jury. There was no error in the denial of the exhibit into evidence.

This case proceeded to trial on February 5, 1968. At noon on February 6, the trial was in progress and the defendant absented himself from the trial. A motion for continuance was denied, search was made for the defendant, including calls to hospitals, sheriffs’ offices, police stations, etc., and about a year later he was apprehended and returned to the trial court for sentencing. At the time of the sentence, he stated that his reason for leaving the trial was that he was under considerable stress and blacked out. The trial proceeded in his absence and the court found that he had knowingly waived his constitutional right to be present for trial. Whatever may have been the defendant’s disability when he failed to return to the courtroom, it does not appear from the evidence in this record nor does it appear that it required more than one year to recover from the blackout. The defendant’s explanation for his courtroom absence has a somewhat hollow ring. To hold otherwise furnishes every defendant on bond with a readymade basis for a mistrial, absent a compelling reason for such absence.

In People v. Baze, 43 Ill2d 298, 253 NE2d 392, our Supreme Court had occasion to consider the question of enhanced or increased penalties after the reversal of a prior conviction. It referred to North Carolina v. Pearce, 395 US 711, 23 L Ed2d 656, 89 S Ct 2072, in which it was held that only identifiable conduct of the defendant occurring after the time of the original sentence may be considered in increasing the sentence on a retrial. In Baze, at p 303, the Court stated:

“In the absence of an affirmative showing of identifiable conduct on the part of defendant occurring after the original sentencing, on which the increased sentence was based, the imposition of the heavier sentence on retrial here violated the constitutional right to due process of law.”

The trial judge in this case was the third judge to try it. The two previous judges had each imposed a ten- to thirty-year sentence. It is urged on this appeal that a codefendant, who was tried separately, was sentenced from two to ten years while this defendant received a sentence of ten to thirty years twice and fifteen to thirty years here. Modern penology subscribes to the philosophy that the punishment should fit the offender and not merely the crime. The lesser sentence of a codefendant standing alone does not impeach the sentences of the defendant.

The record here clearly establishes the absence of the defendant from the trial without any suggestion of an appropriate reason or justification for such extended absence. In addition, the recommendations of the State’s Attorney and the trial judge contained in the report to the Parole Board as required by statute (Ill Rev Stats 1967, c 108, § 203) recited previous felonies and the previous record of this defendant and in addition stated:

“To compound his criminal tendencies he absented himself from the Circuit Court of Macon County during and in the midst of the 3rd trial of this cause . . . and has been absent from this jurisdiction until apprehended in Peoria, Illinois in February, of this year, a time lapse of over one year. In view of this record and our conclusion that he is a criminal recidivist, we strongly recommend that he not be seriously considered for parole.”

In Pearce, 23 L Ed2d 656, 670, the United States Supreme Court discusses the question of whether or not the increased sentence after retrial was a result of vindictiveness on the part of the trial judge. It there stated:

“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

The record of the defendant’s felonies previous to the first sentence establishes him as a recidivist. The identifiable conduct of the defendant occurring after the first sentence identifies him as somewhat contemptuous or at least disrespectful of the courts and judicial process and the one-year lapse of time perhaps characterizes him as a fugitive from justice. This, in our judgment, is identifiable conduct on the part of the defendant occurring after the original sentence, which bears directly on the probability of rehabilitation by a short sentence. There seems to be little basis in this record for any conclusion that either the original or this sentence is excessive or that this enhanced sentence is unwarranted.

However, it does appear that the defendant has been incarcerated for more than twenty months up to and including August 21, 1969, on this specific charge and perhaps since then. Proper credit for such incarceration is administratively allowed in accordance with Ill Rev Stats 1967, c 38, § 119-3.

There is no merit in the contention that the evidence fails to establish the guilt of the defendant beyond a reasonable doubt, in the alleged error in instructions nor in the denial of motions filed by the defendant concerning a conflict of interest with his attorney. We have carefully reviewed them and they are without merit. He was represented by the same counsel on this as well as all prior occasions and well represented. He has had a fair trial. Accordingly, other than as herein indicated, the judgment of the trial court is affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    William J. Nemanich and Roy C. Anderson, Plaintiffs, v. Long Grove Country Club Estates, Inc., an Illinois Corporation, Robert J. Anderson, Marian S. Anderson, and “Unknown Owners,” Defendants. Robert J. Anderson, Marian S. Anderson and Long Grove Country Club Estates, Inc., an Illinois Corporation, Counterclaimants-Appellants, v. Roy C. Anderson and William J. Nemanich, Counterdefendants-Appellees.
    Gen. Nos. 69-132, 69-133. (Consolidated.)
    Second District.
    February 2, 1970.

      Snyder, Clarke, Dalziel, Holmquist & Johnson of Waukegan, for appellants.
    Donald T. Morrison, of Waukegan, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The appellants prosecute this appeal from an order of the Circuit Court of Lake County entered May 21, 1969, that dismissed their amended counterclaim.

On January 20, 1969, the plaintiffs, pursuant to leave of court, filed an amended complaint to foreclose two mortgages on certain lots in Long Grove Country Club Estates. The defendants moved to dismiss the amended complaint on the grounds that there was an appeal pending before this court from a judgment entered in favor of the plaintiff, Roy Anderson, against Long Grove Country Club Estates, Inc. (hereafter called Long Grove) for a breach of a sales contract that involved the same property in the foreclosure. The motion was denied and the defendants answered the complaint and filed a counterclaim that was itself subsequently amended. The original foreclosure suit was eventually dismissed when the amounts due the plaintiffs were paid in full.

The amended counterclaim was brought in seven counts based, for the most part, on the earlier action for breach of contract. That suit had been brought by Roy Anderson and others against Long Grove and Robert Anderson for the breach of a contract to purchase 337 acres of land from the plaintiffs. The complaint alleged, among other things, that Robert Anderson had wrongfully diverted assets from Long Grove to his own use and otherwise mismanaged the corporation to induce a breach of the sales contract and sought judgment against both parties. The trial court in that suit entered judgment against Long Grove in the amount of $252,800 but found that Robert Anderson had previously been absolved from personal liability by an agreement between the parties. Count I of the counterclaim stated that Roy Anderson had thus maliciously prosecuted Robert Anderson in that he knew the allegations as to misuse of corporate funds and personal liability were false and that as a result Robert Anderson was damaged in that he was unable to profitably sell real estate subject to lis pendens and that the threat of a personal judgment impaired his credit and resulted in a substantial loss of income.

Ordinarily, malicious prosecution suits are founded on criminal prosecutions and are not favored in the law. Shelton v. Barry, 328 Ill App 497, 507, 66 NE2d 697. Under Illinois law, an action for malicious prosecution of a civil suit cannot be maintained unless the plaintiff can show some special injury. Caspers v. Chicago Real Estate Board, 58 Ill App2d 113, 118, 206 NE2d 787. The rule has been stated in Schwartz v. Schwartz, 366 Ill 247, p 250, 8 NE2d 668, as follows:

“[An action] for malicious prosecution of a civil suit without probable cause cannot be maintained where the action upon which it is grounded is an ordinary civil action, begun by summons and not accompanied by arrest of the person or seizure of his property, or by special injury not necessarily resulting in any and all suits prosecuted to recover for like causes of action. . . . The ground for the rule is, that courts should be open to litigants for the settlement of their rights without fear of prosecution for calling upon courts to determine such rights.”

Although Count I does allege the other necessary elements of an action for malicious prosecution, it clearly lacks any allegations of special injury. The fact that Roy Anderson filed a lis pendens notice and that Robert Anderson’s credit was impaired as a result of the pending litigation could not be construed as “. . . special injury not necessarily resulting in any and all suits prosecuted to recover for like causes of action.” Accordingly, we conclude that Count I of the amended counterclaim was fatally defective and properly dismissed by the trial court.

Count II charged that Roy Anderson was guilty of abuse of process in the earlier action. Judgment had been entered against Long Grove on March 25, 1968, and execution issued on April 2. After post-trial motions were denied, a notice of appeal was filed on May 23 and on June 4 the trial court entered an order that extended the period to file a supersedeas bond to July 15. Long Grove alleged that Roy Anderson did on June 27 “. . . with malicious intent, and with an ulterior purpose” cause a notice of sheriff’s sale to be posted on their place of business and serve citations to discover assets on other creditors to induce the holders of other mortgages to commence foreclosure.

An action for abuse of process can only be maintained where there is an ulterior purpose and the process is used in a manner that is not proper in the regular prosecution of the proceeding. Ammons v. Jet Credit Sales, Inc., 34 Ill App2d 456, 462, 181 NE2d 601. Count II does contain sufficient allegations as to the first element in that it states that the process was used to induce other creditors to harass the defendants and force the loss of their property. The appellants contend further that the use of the notice and citations was clearly improper since they were issued after the notice of appeal had been filed and before the expiration of the time period in which they were permitted to perfect supersedeas. Although they are unable to cite any authority, the appellants argue that the only logical interpretation of Supreme Court Rule 305 (Ill Rev Stats 1967, c 110A, par 305) is that a notice of appeal of itself operates as a supersedeas until the expiration of the time in which the supersedeas is to be perfected.

Paragraph (a) of Rule 305 states:

“Supersedeas in the Trial Court. An appeal operates as a supersedeas if the notice of appeal is filed within 30 days after the judgment appealed from becomes final and if within that 30-day period, or any extension of time provided for in this paragraph, a bond in a reasonable amount to secure the appellee is approved by the circuit court and filed.”

The contention of the appellants contradicts the clear language of the Rule that an appeal operates as a supersedeas only if filed within 30 days and a bond is filed and approved. If execution or other supplementary proceedings are commenced within the 30-day period, or extensions, an appellant need only utilize the remedies provided in section 70 of the Civil Practice Act (Ill Rev Stats 1967, e 110, par 70) to quash the proceeding as was in fact done in this case.

Since it is not contended that either the notice of sheriff’s sale or the citations were otherwise improper, we perforce must agree that Count II was properly dismissed since it failed to state a cause of action.

Count III charged that the counterdefendants were guilty of malicious and wrongful impairment of property in that on April 4, 1968, they filed a separate suit in the nature of a creditor’s bill to set aside various conveyances made by Long Grove on the grounds that the conveyances were made without consideration and to hinder the collection of the judgment obtained March 25, 1968, in the breach of contract action. The appellants argue that at the time the second suit was instituted the judgment was not final and that it was brought to prevent the sale of other real estate owned by Long Grove and to induce the foreclosure of mortgages held by other creditors. In support of this claim, the appellants rely solely on the case of Ammons v. Jet Credit Sales, Inc. cited earlier.

In the Ammons case, a void garnishment demand was made upon the plaintiff’s employer prior to the entry of any judgment. The trial court dismissed a multicount complaint on the grounds that none of the counts stated a cause of action. On appeal, the court of review expressed favor with a count based on malicious and wrongful impairment of property in that the plaintiff’s employment was jeopardized and credit impaired as a result of the defendant’s action but affirmed the trial court on the basis that the demand was void on its face and not actionable.

There appears to be little or no similarity between the Ammons case and the facts before us. There is no authority cited for the contention that the counter-defendants were precluded from the commencement of any other action until post-trial proceedings were concluded, notice of appeal filed and supersedeas perfected. The tort of malicious and wrongful impairment of property, like any other tort, must be based on the commission of a civil wrong. Since it does not appear in Count III that the counterdefendants had committed a wrong, their alleged motives are irrelevant.

Count IV is likewise called malicious and wrongful impairment of property but more properly should be designated malicious interference with contract since it appears to be based on an alleged interference with Long Grove’s business relations with Chicago Title & Trust Company. On August 16, 1968, a supersedeas of the judgment entered in the earlier action was perfected with this court that required Long Grove to deposit the sum of $1,600 with the clerk for each lot sold by it. A writ issued by the clerk of this court provided that the appeal was made a supersedeas and was “to operate as a suspension of the execution of the judgment . . . and is to be obeyed by all concerned.” Count IV alleges that the counterdefendants, in violation of the supersedeas order and writ, did represent to Chicago Title and Trust that the judgment lien was not removed and as a consequence it was necessary to make additional indemnification deposits to have title insured to property sold by Long Grove. They ask that the court issue an injunction requiring the counterdefendants to execute “all waivers of judgment liens which shall be requested by Chicago Title and Trust Company in connection with the sale of lots under the procedures established by the Second District, Appellate Court” and for actual and punitive damages,

Although the appellants' position on this point is not clear or supported by any authority, they apparently contend that the supersedeas created a duty on the counterdefendants to waive or release any lien rights created by their judgment. This interpretation would greatly expand the accepted definition of a supersedeas which generally operates against the enforcement of a judgment and not against the judgment itself. Gumberts v. East Oak Street Hotel Co., 404 Ill 386, 389, 88 NE2d 883. The purpose of a supersedeas is to stay all future proceeding and to restrain an appellee from affirmative action to enforce his judgment but does not impair the validity or effect of the judgment itself. Western United Dairy Co. v. Miller, 40 Ill App2d 403, 412, 189 NE2d 786. In any event, we are unable to perceive how the counter-defendants are involved in the policy of Chicago Title and Trust Company in regard to the insurance of the title to the lots owned by Long Grove. Certainly there is nothing in the order of this court that could, even by implication, impose the duty on the counterdefendants to execute waivers or other documents as requested by Chicago Title. Therefore, we agree that Count IV did not state a cause of action and was vulnerable to a motion to dismiss.

In Count V Robert Anderson charged Roy Anderson with the intentional infliction of emotional distress. It is alleged that Robert was the president and majority shareholder of Long Grove at the time the notice of sheriff’s sale was posted on their place of business, the citations were served on other creditors and the interference with the sale of their property occurred. As a result of these deliberate acts and the representations that he was near bankruptcy, Robert Anderson states that he “suffered severe mental pain and anguish, feared the loss of his personal assets, was embarrassed by business acquaintances, was impaired in the conduct of his usual and normal business, and lost large sums of money.”

Count V is based on the case of Knierem v. Izzo, 22 Ill2d 73, 174 NE2d 157, wherein the Supreme Court recognized the intentional infliction of emotional distress as actionable even where no physical injuries were present. In that case, the defendant threatened to the plaintiff that he would kill her husband and fulfilled the threat. The court concluded that the plaintiff had a cause of action even though she suffered no bodily, but only mental or emotional, suffering.

The Knierem case is not applicable here since, as we have discussed, the countercomplaint fails to allege the commission of a civil wrong by the counterdefendants. Since, we have concluded that there was no basis for an action for malicious prosecution, abuse of process, or the other alleged torts, the mental distress or anguish of Robert Anderson is of no significance. Caspers v. Chicago Real Estate Board, supra.

Counts VI and VII for slander of title and trespass to real property respectively were dismissed without prejudice by the trial court. Since they were not included in the original counterclaim, their addition by amendment was a matter of discretion with the trial court and will not be reviewed except for manifest abuse. Lowrey v. Malkowski, 20 Ill2d 280, 285, 170 NE2d 147. We find no such abuse in this instance.

For the reasons stated, the order of the trial court should be affirmed.

Affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: MB. JUSTICE DAVIS

text:
    Merchants National Bank of Aurora, etc., et al., Plaintiffs-Appellants, v. City of Aurora, Illinois, etc., Defendant-Appellee, and Glen E. Lamphere, et al., Interveners-Appellees.
    Gen. No. 69-62.
    Second District.
    February 5, 1970.

      Goldsmith, Dyer, Thelin & Schiller, of Aurora, for appellants.
    William J. Foote, Corporation Counsel, and O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellee.
   MB. JUSTICE DAVIS

delivered the opinion of the court.

This is a suit to declare the City of Aurora zoning ordinance void as applied to the plaintiffs’ land. The ordinance presently restricts the use of the land to single-family residences, and the plaintiffs seek to use the property for the operation of a gasoline service station. The trial court entered judgment against the plaintiffs and upheld the validity of the ordinance as applied to this particular property. The plaintiffs contend that the judgment was contrary to the weight of the evidence, and that the trial court erred in denying their motion to reopen the proofs to admit further evidence following the judgment.

The plaintiffs’ land is at the northwest comer of the intersection of Bangs Street and Ashland Avenue in the City of Aurora, and is improved with a two-bedroom, single-family residence. The other comers at the intersection are being utilized for commercial uses. There is a gasoline service station at the southwest corner; a small shopping or convenience center at the southeast corner; and a tavern and several other commercial uses at the northeast corner.

The entire block in which the plaintiffs’ property is located is devoted to single-family residential use. Bangs Street is a rather narrow, north-south, residential-type street, without curbs and gutters. Ashland Avenue is an east-west street, and while it is without curbs and gutters in this area, it is a more principal thoroughfare. As extended westerly, it is one of the streets within the city which has a bridge crossing the river which divides the city, but it ends approximately three blocks east of the subject property, at a city park and lake.

The plaintiffs’ property is located on a potential dividing line for land use in the immediate area. To the north and west, the land use is almost exclusively residential. Across Ashland Avenue to the south, is the aforesaid gasoline service station, and the land immediately to the west of it is also zoned for commercial use. The gasoline station site was originally swampland and considerable fill and support was required before it could be utilized for any purpose. The land adjoining it is of the same character. The north side of Ashland Avenue, westerly from the plaintiffs’ property, is residential. The north side of Ashland Avenue, across Bangs Street and to the east, is commercial for two blocks.

The east side of Bangs Street — in the block immediately across from the block in which the plaintiffs’ property is located — is all devoted to commercial use. In addition to the tavern and liquor store, there is a beauty shop, driver’s license bureau, and a body and sandblasting shop. The latter is at the northerly end of the business development and is across from the plaintiff’s house. All of the buildings are set back considerably from the street.

All of the property in the immediate area is either at the edge of, or outside of, the city limits. Much of the commercial zoning across the streets in question, was the result of county action. The plaintiff, John Diederich, built his house in 1953. He then also owned the property on the northeast corner of the intersection— the property on which the tavern is located. He obtained the change in zoning on that property, from farming to business, in 1949. The other properties on the east side of Bangs Street had been zoned by the county, for business use, since 1937. The zoning of the property on the southeast corner of the intersection— that being used as a convenience shopping center— was changed by the county, from farming to business, in 1955. This also was changed at the request of Diederich, who then owned the land. The gasoline station was also zoned by the county for the commercial use.

The plaintiffs’ property was valued at $20,000 for residential purposes, and at $35,000 if it could be used for a gasoline filling station. Most of the homes in the same block as the subject property were valued at $20,000 or more. The property immediately north of the subject property is in the county and is zoned for farming. To the north of that, on the north corner of the block fronting on Bangs Street, is a vacant lot, which is approximately 84 x 82 feet. It, likewise, was zoned for business by the county.

The land immediately north of the plaintiffs’ property is improved with a single-family residence. Recently, its owner applied to the county for a change from farming to business zoning. The request was denied. The plaintiffs’ property was outside the city limits in 1966, and at that time they sought business rezoning from the county, but were denied such zoning.

The plaintiffs’ witnesses testifed that the rear of the plaintiffs’ property, which is landscaped with shrubbery, was the most suitable division line between the business and residential zoning; that the uses presently being made of the other properties at the intersection where the plaintiff’s property is located, dictated the character of the plaintiffs’ property; that its highest and best use was for commercial purposes, which included a gasoline filling station; and that such use would not adversely affect the values of the other residential properties in the block.

The defendant’s evidence indicated that Bangs Street was a proper dividing line between business and residential uses, and that the use sought by the plaintiffs would depreciate the value of the various other residential properties in the block from between $2,000 to $6,000 each.

Factually, this is a close case. The four corners of the intersection of Bangs Street and Ashland Avenue, with the exception of the plaintiffs’ property at the northwest corner, are devoted exclusively to commercial uses, as is the other side of Bangs Street facing the plaintiffs’ property. The block in which the plaintiffs’ property is located is devoted entirely to residential uses. This is so, notwithstanding the fact that at the other end of the block — still in the county — one lot is zoned for business use. However, this lot is vacant; apparently, its small size has deterred its use for business purposes. The county has recently refused to further expand the business use classification in this area by declining to rezone the property adjoining that of the plaintiffs. Thus, the plaintiffs’ property appears to be right at the corner of the residential district and it is surrounded by business uses.

The factors to be considered in a rezoning case are well known. See: Tillitson v. City of Urbana, 29 Ill2d 22, 27, 193 NE2d 1 (1963); Myers v. City of Elmhurst, 12 Ill2d 537, 543, 544, 147 NE2d 300 (1958). The business uses being made of nearby properties are, for the most part, the result of the plaintiffs’ initiative. The business classifications of these properties are not the product of a recent trend or direction in the use to be made of land in this area, but, rather are the result of the county zoning classification which has existed for some time. This does not appear to be the type of case in which recent trends or developments can dictate the reasonableness or unreasonableness of the zoning classification of the plaintiffs’ property.

Interestingly,- the plaintiffs built and lived in their house on Bangs Street which was nearby the business uses which they had created. Consequently, the argument which they now make — that the property is not suitable for residential use because of the surrounding businesses — is somewhat diluted. First Nat. Bank of Skokie v. Chicago, 25 Ill2d 366, 369, 185 NE2d 181 (1962); Bolger v. Village of Mount Prospect, 10 Ill2d 596, 602, 141 NE2d 22 (1957).

The plaintiffs’ own witnesses testified that the property had a value of $20,000 as residential property. Apparently, it is not totally unsuitable for such use. The fact that the property is located on a street that may be somewhat heavily traveled does not render invalid its single-family zoning classification. River Forest State Bank & Trust Co. v. Maywood, 23 Ill2d 560, 563, 179 NE2d 671 (1962); Wehrmeister v. County of Du Page, 10 Ill2d 604, 609, 141 NE2d 26 (1957); Kellett v. County of Du Page, 89 Ill App2d 437, 443, 231 NE2d 706 (1967). Also, the circumstance that this property might be less desirable for residential use than other neighboring properties, because of the commercial use across the street, does not render the zoning ordinance confiscatory. Bolger v. Village of Mount Prospect, supra; Wehrmeister v. County of Du Page, supra. The fact that the property would be more valuable if it were zoned to permit a gasoline service station thereon, does not, standing alone, indicate that the zoning ordinance is confiscatory and unreasonable. Elmer Clavey, Inc. v. City of Highland Park, 75 Ill App2d 464, 470, 220 NE2d 93 (1966); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964). This normally is the case.

It seems to us that the testimony of the defendant’s witnesses, as to the damage which would be sustained by the neighboring residential properties in the block, is very credible. All zoning classifications must start and stop somewhere. The plaintiff’s own witnesses seem to concede that the borderline of business zoning in this area is at the plaintiffs’ property. It is their opinion that the proper borderline, however, is at the rear of this property. We believe that if the dividing line were so placed, it would only invite further intrusion into the residential zoning classification in the block in which the plaintiffs’ property is located; and that Ashland Avenue and Bangs Street represent a more natural and beneficial boundary line for use purposes. Bennett v. City of Chicago, 24 Ill2d 270, 273, 181 NE2d 96 (1962).

The defendants certainly are aided by the presumption favoring the validity of the existing zoning ordinance. The burden imposed upon the plaintiffs is to establish by clear and convincing evidence that the ordinance, as applied to their property, is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare. Bennett v. City of Chicago, supra, 273, 274; Kellett v. County of Du Page, supra, 442.

It is not enough for the plaintiffs to establish that “the property could reasonably be classified as plaintiffs wish, nor indeed that the court would classify it otherwise.” Kellett v. County of Du Page, supra, 442.

The courts are not to act as super zoning boards. Where there is room for a legitimate difference of opinion concerning the reasonableness of the ordinance, the legislative judgment is conclusive. Vedovell v. City of Northlake, 22 Ill2d 611, 615, 177 NE2d 124 (1961); Mutz v. Village of Villa Park, 83 Ill App2d 1, 11, 226 NE2d 664 (1967); Koplos v. City of Rockford, 62 Ill App2d 268, 273, 274, 210 NE2d 629 (1965). Such is the case here, and the trial court was thus correct in refusing to declare the zoning ordinance confiscatory and unreasonable.

We are of the opinion that the trial court did not err in refusing to reopen the proofs subsequent to judgment. Suffice it to say that the supposed new evidence related to property at the corner of Ashland Avenue and Union Street, which is east of Bangs Street and the plaintiffs’ property. We have indicated that at this location the apparent determination of the legislative body that Bangs Street is an appropriate dividing line is not unreasonable. Further, the new zoning ordinance as to that property — which is the new evidence that the plaintiffs seek to introduce — was merely the result of the city annexing the property under a zoning ordinance which would permit the continued business use made of the property under the county zoning ordinance. The fact that this property had been zoned for a business use by the county was already in evidence before the court.

We find no error in the judgment of the trial court and its judgment must be affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank M. Stankovich, Defendant-Appellant.
    Gen. No. 69-64.
    Second District.
    February 5, 1970.

      Errett 0. Graham and Sidney Z. Karasik, of Chicago, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, and A. E. Botti, Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

At issue in this case are the following questions: Whether there was sufficient foundation for the introduction of radar evidence of speeding; whether the radar unit was functioning properly at the time; and whether the defendant was proven guilty beyond a reasonable doubt.

The defendant was charged with driving 76 m. p. h. in a posted speed zone of 55 m. p. h., on Route 64 near Pearl Street in the Village of Glendale Heights. At the place in question, Route 64 is a straight four-lane highway, with some inclines and declines in its surface.

Ray W. Markham, a police officer of the Village, was the principal witness for the State. He testified that on the date in question, at 9:10 p. m., he was on routine traffic duty in this area; that his car was parked next to Route 64 facing east, about 300 feet east of Pearl Street, with the radar cone pointed west; that the unit was set to pick up eastbound,traffic; that he was conducting a radar check on eastbound traffic on Route 64; that he observed an automobile approaching the squad car, travelling rapidly in an eastbound direction in the outer lane of Route 64; that as the car entered the radar beam, its speed, as indicated on the radar meter, was at 76 m. p. h.; that this speed was observed for 200 to 300 feet; and that he activated the lock switch, which locked the meter at 76 m. p. h.

As the defendant’s car proceeded eastward, the police gave chase immediately, and when the defendant’s car stopped for the stop light at Glen Ellyn Road, the police car approached, and the officers signalled him to pull off the highway, which he did. Officers Markham and Thien, and the defendant had a conversation while standing between the police car and the defendant’s car. Officer Markham testified that he asked the defendant if he was aware of the speed limit in this area and the defendant replied that it was 65 m. p. h., or better; that he, Markham, informed the defendant there were several signs in the area posting the maximum speed limit at 55 m. p. h.; that he asked the defendant if he knew how fast he was travelling and the defendant said 63 m. p. h.; and that he asked the defendant if he was watching his speedometer and the defendant said he was not, but that he was driving 63 m. p. h.

Officer Markham further testified that he informed the defendant that the police car had been parked on the highway; that the officers had observed his car approach, had measured its speed on the radar, and he was travelling 76 m. p. h.; and that the defendant stated this was not possible in that he was driving 63 m. p. h. Markham also stated that no other traffic was present as the defendant’s car came within the beam of the radar, although two other cars had previously gone eastward in the center traffic lane.

The testimony and exhibits established that the police car was stationed at the bottom of a slight hill across the highway from a Chevrolet agency, and that business buildings were on both sides of North Avenue, which was in the area where the radar check was made on the defendant’s car.

Officer Markham also testified that the radar machine had been in use for three hours prior to the “clocking” of the defendant’s car, and that it “was more than warmed up.” He stated that the unit was always allowed to warm up for twenty to thirty minutes before it is used; that after the warm-up period, the battery test button is pressed and if it indicates over 20 m. p. h. the unit “is sufficiently warmed up.”

He further stated that on this occasion, the radar was tested by means of a tuning fork which is preset to give off vibrations of 65 m. p. h.; that the fork is activated by striking it against a solid object and it is then held perpendicular to the radar transmitting head; that the vibrations from the fork cause a speed reading on the radar meter; that if the meter reads 65 m. p. h. it is properly calibrated; that this procedure of testing was followed by the officers on the evening in question, shortly prior to 9:10 p. m., and about 6:00 p. m.; that on each occasion the meter read 65 m. p. h.; that no other tests were made; and that the tuning fork which was used, came with the radar unit.

Officer Markham further testified that the radar unit was made by the Reynaldi Company, which conducted indoctrination and training classes for police officers to familiarize them with its operation; that he attended such classes, as well as a one-day familiarization session given by the Lombard Police Department in 1967; that the engine of his automobile was idling at the time, but he had been instructed that this would not interfere with the correct operation of the radar; that the unit, for proper operation, should be located on a straightaway; that a steep hill would limit the range of the unit, but there would be an indication on the meter as to speed within a given area as the vehicle approached; that in case of a slight hill, as in this instance, there is a slight deviation on the radar; that electrical and electronic devices can interfere with the correct operation of the radar; that the maximum range of this radar unit was between one-fourth and one-half mile; and that it was set at one-half of its maximum with its field being 200 to 300 feet.

Officer Thien testified, and his testimony was essentially the same as that of Officer Markham.

It is undisputed that the tuning fork, in question, was in the possession of Officer Markham, and that it had been tested, other than when manufactured, only when the radar unit was sent in to the company for its periodic test. The police officers never tested the tuning fork. The evidence was in conflict with reference to whether the defendant asked to see the radar meter and whether Officer Markham refused his request. Markham stated that no request was made and the defendant stated that such request was denied.

The defendant was accompanied by his wife at the time, and they were familiar with the streets of the area. Mrs. Stankovich testified that she was a speedometer watcher; that the speed of their car was under 55 m. p. h. at all times; and that this was the reading on the speedometer. She also said that her husband was “sort of surprised” when the officers in the police car motioned him to pull over; and that he did not state how fast he had been driving.

The defendant testified that he operated radar units in the navy, that radar can be affected by neon lights, high frequency transmitters, and spark-gap modulations from the spark plugs of an automobile, and he identified certain radio antenna, transmitting equipment and neon signs in the area from picture exhibits of area buildings. He further testified that he was driving 55 m. p. h. at the time in question; that he neither told the officers that he had been driving at a speed of 63 m. p. h., nor that the speed limit was 65 m. p. h.; and that he knew the speed limit was 55 m. p. h. He further stated that the spreading of the tines of a tuning fork, or the pushing of them together, will alter the vibrations of the fork.

The threshold question in this ease is whether there was sufficient foundation for the introduction of the radar evidence of speeding. In People v. Barbic, 105 Ill App2d 360, 367, 244 NE2d 626 (1969), in considering this question, we quoted from People v. Abdallah, 82 Ill App2d 312, 226 NE2d 408 (1967), at page 315:

“The ‘radar’ device presently in common use by law enforcement agencies for the determination of speeds of moving vehicles, . . . operates on the Doppler principle, that is, the emission of a continuous electromagnetic wave which enables the speed of a target object to be determined by measuring the difference in frequency between the wave emitted from the radar device and the wave reflected from the object. Kooper, The Scientific Reliability of Radar Speedometers, 33 NCL Rev 343. It is presently so well settled that the Doppler principle is an accurate means of determining the speed of a moving object that a court may take judicial notice thereof; and expert testimony is unnecessary to establish the usefulness of the method. (Citations.) ”

Following this quotation, we stated:

“This court also takes judicial notice of the accuracy of such radar devices generally in determining the speed of a moving object, subject to the necessary proof as to the accuracy and proper operation of the particular device under consideration.”

In People v. Abdallah, supra, 316, 317, the court considered the questions of whether an officer is qualified to testify relative to the accuracy of a radar unit where the tuning fork used to test its accuracy has not been tested by the officer operating the unit; and whether an officer who operates such unit is qualified to do so where he has little or no knowledge of the scientific principles involved in its operation. It stated:

“Defendant maintains that the tuning fork used to test the accuracy of the radar device was itself untested for accuracy and that therefore the operator was not qualified to testify to the accuracy of the device. We disagree. The officer testified that he made several tests with the tuning fork prior and subsequent to the time defendant passed into the radar field, and that the meter on each occasion showed a reading of 65 miles per hour. The officer further testified that it was his opinion the radar unit was working properly, that there was no outside interference which could have influenced the reading, and that only defendant’s automobile was within the zone of the radar beam at the time the meter showed a reading of 79 miles per hour. The officer had been instructed in the operation of the radar device and had five and one-half years on-the-job experience in its use. We are of the opinion that there was sufficient proof of the accuracy of the radar unit for the trier of fact to find defendant guilty of speeding based solely upon the reading taken from the radar unit.
“Defendant maintains that the arresting officer was ‘wholly unqualified to operate any radar set under any circumstances,’ because he had no knowledge of the scientific principles involved in the operation of a radar instrument, had no knowledge of the frequency or power output of the instrument, and had no knowledge of the scope of the radar beam, and the like. The operator of a radar instrument does not have to be an expert in the science or theory underlying the functions of the instrument. It is sufficient that he is familiar with the device and its operation, the evidence of which presents a question of weight and credibility for the jury.”

Under the circumstances of this case, we believe that there was sufficient foundation for the introduction of the radar evidence of speeding. The testimony was adequate, if believed, to establish the qualifications of officer Markham as an operator of the unit, and the accuracy of the device. People v. Cash, 103 Ill App2d 20, 22, 242 NE2d 765 (1968).

The very least that can be said of the evidence of the State is that it presented an issue of fact as to the proper operation and the accuracy of the radar unit. It was properly warmed up before being placed in operation. It was twice tested by the tuning fork which was sold as an integral part of the radar unit for use in testing the unit; one of such tests was made shortly before the defendant’s car entered into the radar field and the other was made about three hours prior to that time; and on the occasion of each test, the radar meter showed a reading of 65 m. p. h.

We are also of the opinion that there was sufficient proof of the accuracy of the radar unit and of its proper operation for the trier of the fact to find the defendant guilty of speeding upon the reading taken from the unit.

The trial court was the trier of the fact issue in this case. He saw the witnesses, heard them testify and had the opportunity of determining their credibility, not only from their testimony, but also from their general demeanor on the witness stand, the inflection of their voices and from other emotional and physical reactions to questions propounded, to an extent not available to this court from an examination of the cold written record. It was his prerogative to believe or disbelieve the witnesses and to weigh their testimony.

In this case, the substantial testimony was that the radar device was accurate, although there was a possibility of error in its accuracy; and that it was being operated properly by a qualified police officer. Where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631 (1964); People v. Barbic, supra, 370, 371.

Reviewing courts in Illinois will not reverse a judgment of conviction on the ground that the evidence failed to sustain the judgment unless there is a reasonable and well-founded doubt as to the guilt of the accused and the judgment is palpably contrary to the weight of the evidence. People v. Lobb, 17 Ill2d 287, 294, 161 NE2d 325 (1959); People v. Prohaska, 8 Ill2d 579, 589, 134 NE2d 799 (1956); People v. Stangeland, 76 Ill App2d 77, 80, 220 NE2d 748 (1966); People v. Booher, 73 Ill App2d 226, 229, 230, 218 NE2d 779 (1966). Such doubt does not exist in the case at bar. Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    The Board of Education of Community High School District No. 88, DuPage County, Illinois, Plaintiff-Appellant, v. The Perkins & Will Partnership, a Partnership, Ruberoid Company, a Corporation, Peerless Insurance Company, a Corporation, Defendants-Appellees. On Appeal of The Board of Education, Plaintiff-Appellant.
    Gen. No. 69-71.
    Second District.
    February 5, 1970.

      Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, and Kenneth S. Jacobs, of Villa Park, for appellant.
    Tom L. Yates, Frederic L. Goff and Carl E. Abrahamson, of Chicago, for appellees.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal arises from an order of the trial court dismissing one count of plaintiff’s complaint which is founded in negligence. Another count, not dismissed and still pending, is based upon a breach of contract.

On July 10, 1956, the plaintiff, Board of Education of Community High School District #88, entered into a contract with the architectural firm of Perkins & Will, referred to herein as defendant, to design and supervise the construction of a new high school. Plans and specifications were submitted to the plaintiff in September, 1957, and on October 15, 1957, the contracting firm of Joseph J. Duffy Company (Duffy) was awarded a construction contract.

On February 1, 1966, the plaintiff filed suit against the defendant and Duffy, alleging certain defects in construction. Process was served immediately upon the defendant, but the plaintiff either did not attempt or was unable to serve Duffy. Thereafter the defendant filed a third-party complaint against Duffy seeking indemnity in the event of liability and, in this instance, service was had upon Duffy.

Duffy filed a motion to dismiss the original action on the grounds that there had been lack of diligence in service, and also, to dismiss the third-party complaint on the grounds that the action against the defendant was barred by the statute of limitations. The trial court granted both motions.

An appeal by the defendant, from that portion of the order dismissing the third party complaint, was decided by this Court in the case of Board of Education of High School Dist. No. 88 v. Joseph J. Duffy Co., 97 Ill App2d 158, 240 NE2d 5 (1968). The plaintiff, however, did not appeal. In the previous appeal, wherein the dismissal was affirmed, it was stated at page 162:

“We conclude, therefore, that no third-party action would lie against Duffy to indemnify Perkins for liability arising out of plaintiff’s negligence count, inasmuch as said count is barred by limitations. The rationale of this decision would authorize the trial court to dismiss the complaint against Perkins insofar as the negligence theory is concerned.”

After our decision, the defendant presented the trial court with a motion to dismiss the remaining counts of the original complaint. The court declined to dismiss the breach of contract count but did dismiss the negligence count. The plaintiff appeals the decision which dismissed the negligence count against the defendant.

The position of the defendant is that our former decision, and particularly the language previously quoted, requires us to affirm the dismissal.

We believe that our former decision, read as a whole, does not so require. In the former case we had before us only the matter of the third-party complaint between the defendant and the contractor, Duffy. The plaintiff was not a party to that appeal. However, in that decision we conditioned our opinion when we said at page 161:

“Insofar as the plaintiff’s claim against Perkins is based on alleged negligence, the claim would be barred by the statute of limitations if such defense were not waived, notwithstanding that the negligence may not have been discovered until recently before the filing of the suit. As applicable here the period of limitations commences when the negligent act takes place, and is not tolled by the plaintiff’s ignorance of his injury. Simoniz Co. v. J. Emil Anderson & Sons, Inc., 81 Ill App2d 428, 437-438 (1967); Mosby v. Michael Reese Hospital, 49 Ill App2d 336, 341-342 (1964).” (Emphasis added.)

At page 163, we further stated:

. . and in the instant case the statute of limitations prevents Perkins from being liable in negligence, assuming Perkins does not abandon that defense(Emphasis added.)

We did not decide the waiver question because that was not presented to us. Indeed, the party who would have the right to allege waiver, that is, plaintiff, was not even before us.

In opposition to the motion to dismiss filed by the defendant, the plaintiff filed the affidavit of one Jack A. Monts, Director of Business Affairs for the plaintiff during the time in controversy. Attached to the affidavit were copies of correspondence covering the period January, 1960 through November, 1962. The affidavit and correspondence shows continuing efforts to resolve the various defects and controversies. We do not decide that these efforts constitute a waiver of the statute of limitations. We do decide, however, that the affidavit and correspondence present a question of fact as yet unresolved and it is fundamental that plaintiff is entitled to have its day in court on that question. We conclude, therefore, that the case must be reversed and remanded to the trial court to determine the factual question of whether or not there has been a waiver of the statute of limitations.

Following the submission of the original briefs in this case, the plaintiff has favored us with a supplemental brief citing a case very recently decided by our Supreme Court. The case of Rozny v. Marnul, 43 Ill2d 54, 250 NE2d 656 (1969) is cited to us because, the plaintiff argues, the case changes the rule of law in Illinois with reference to the time at which a cause of action accrues and begins the running of the statute of limitations. While a decision on this point is not absolutely necessary, we deem it appropriate to speak on the point for the guidance of the trial court to which this case is returned.

In Rozny, the Supreme Court was concerned with a surveyor’s plat which proved erroneous. The error was not discovered until after the statute had run. However, suit was brought well within the statutory period if computation was made from the time of discovery. Thus the question was clearly presented — did the cause of action accrue at the time of the surveyor’s negligence or did it accrue at the time of the discovery? The plat in question contained the language, “This plat of survey carries our absolute guarantee for accuracy. . . .” The Court also found a declaration of policy by the Legislature, made, it must be admitted, after the fact situation in question arose, when in the 1967 session of the General Assembly, section 30 of the Limitations Act (Ill Rev Stats 1967, c 83, § 24g) was amended to provide a four-year limitation on actions against surveyors for errors in the making of a survey. It specifically provided that a cause of action accrued “. . . after the person claiming such damages actually knows or should have known of such negligence, errors or omissions.” Thereupon the Court adopted the so-called “discovery” rule and said, at page 72:

“We accordingly hold, in keeping with the more recent authorities and the legislative policy manifested by our General Assembly, that the statute of limitations does not bar plaintiffs’ recovery, because their cause of action ‘accrued’ when they knew or should have known of the defendant’s error and they clearly brought suit within 5 years of that time.”

The question presented to us is, should the discovery rule, as announced in the Rozny case, apply to all cases or should we adhere to the former rule which provided that the cause of action “accrued” when the negligence occurred. See Simoniz Co. v. J. Emil Anderson & Sons, Inc., supra.

It seems to us that the application of the discovery rule to all causes of action is such a broad and sweeping change in the law as to be beyond the power of the Courts. It is a matter of policy best decided by the Legislature. We recognize that in some states this burden has been accepted by the Courts, but we believe that it should not be accepted by this Court.

Such a change could cause grave consequences. For example, we need only cite the case of Rosenau v. City of New Brunswick, 51 NJ 130, 238 A2d 161. In that case the city bought sixty water meters from a manufacturer in 1942. In 1950 it installed one of these meters in the plaintiff’s home. In 1964 the meter broke and caused property damage. The statute of limitations in New Jersey, at the time, provided that suits for property damage had to be brought within six years after the cause of action “accrued.” The New Jersey Court held that it had power to determine when a cause of action accrued and it applied the discovery rule. In short, even though the negligence had occurred prior to 1942, a cause of action which had lain dormant for 22 years, could be brought. The rationale of the decision was that one of the elements of the plaintiff’s cause of action was damage and until the damage occurred, the cause of action was not complete. This is not a particularly helpful rationale because we can conceive of situations where the damage would occur and complete the tort and yet the plaintiff would not discover the damage until after the statute had run.

It seems to us, however, that if the statute of limitations has any justification, it is to lay controversy at rest. If we were to follow the reasoning in the Rosenau case, a person would never know the extent of their liability.

We distinguish the Rozny case on the following basis. First, there was an express and absolute guarantee by the surveyor, which is not true in this case. Second, the very nature of the surveyor’s product is such that it cannot be easily checked by his customer, which, likewise, is not true in the present case. Third, by the time the case was decided by the Supreme Court, the Legislature had declared the policy of Illinois with reference to that type of action which, also, is not true in the instant case. The rationale of the Rozny decision was set forth by our Supreme Court when it said, at page 70:

“The basic problem is one of balancing the increase in difficulty of proof which accompanies the passage of time against the hardship to the plaintiff who neither knows nor should have known of the existence of his right to sue. There are some actions in which the passage of time, from the instant when the facts giving rise to liability occurred, so greatly increases the problems of proof that it has been deemed necessary to bar plaintiffs who had not become aware of their rights of action within the statutory period as measured from the time such facts occurred. (Citations omitted.) But where the passage of time does little to increase the problems of proof, the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue.”

It is our opinion that the Court, by the above language, did not intend to apply the discovery rule to all cases including those arising under section 15 of the Limitations Act (Ill Rev Stats 1967, c 83, § 16) but only made such rule applicable to the case before it. It is our further opinion that, in the factual situation of the instant case, the passage of time does increase the problems of proof and, in keeping with the Legislative intent and previous cases interpreting this section, the right of action accrued from the time the facts occurred rather than when discovered.

This case, is therefore, reversed and remanded to the trial court to determine the facts regarding the waiver of the statute of limitations and to further proceed in accordance with this opinion.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Dorothy Bolf, Plaintiff, v. Jeff D. Wise, d/b/a Superior Catering, Defendant, Third-Party Plaintiff-Appellant, and Pickering Sheet Metal, Inc., a Foreign Corporation, Third-Party Defendant-Appellee.
    Gen. No. 69-125.
    Second District.
    February 5, 1970.

      O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellant.
    Matthews, Jordan, Dean and Suhler, of Aurora, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

Dorothy Bolf, the plaintiff, filed suit against Jeff D. Wise, doing business as Superior Catering, the defendant, for injuries she allegedly sustained when the overhead door of the defendant’s catering truck fell on her. Wise answered, and also filed a third-party complaint against Pickering Sheet Metal, Inc., stating that it was the manufacturer and seller of the truck; that the alleged injury to the plaintiff was caused by the active negligence of Pickering; and that Wise was entitled to indemnity from Pickering on the basis of its active negligence or breach of warranties, or under the theory of strict liability.

Pickering entered a special appearance and filed a motion to strike the third-party complaint on the grounds that it was not subject to the jurisdiction of the court in that it did not have sufficient contacts under section 17 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 17) to have submitted thereto. The trial court sustained this contention, and dismissed the third-party complaint. Wise perfected this appeal and here contends that the pleadings establish that Pickering was subject to the jurisdiction of the Illinois courts in this litigation.

The third-party complaint alleged that Pickering, a California corporation, manufactured and sold the truck in question to Wise, directly or through its dealer, Supreme Catering of Chicago, knowing it was to be used by Wise in Illinois. George Brickman, Vice-President of Pickering, executed an affidavit in support of its motion which stated that Pickering is a California corporation with its only place of business in Los Angeles, California; that it is engaged in the manufacture of special truck bodies for the use of caterers; that it does not own or control any sales outlets in Illinois, but makes its distribution by selling directly to independent contractors who, in turn, resell to caterers; and that the truck in question was sold to Superior Catering Company of Chicago for the purpose of resale by them.

Our “long arm” statute, sections 16 and 17 of the Civil Practice Act, subjects a person to the jurisdiction of Illinois courts if, among other things, he either transacts any business within this State or commits a tortious act therein. (Ill Rev Stats 1967, c 110, pars 16,17(1) (a), (b)). Sections 16 and 17 reflect a conscious purpose to set forth the “minimal contacts” necessary to satisfy the requirements of due process in imposing jurisdiction, having the force and effect of personal service of summons within this State, over a nonresident defendant. Nelson v. Miller, 11 Ill2d 378, 389, 143 NE2d 673 (1957); Keats v. Cates, 100 Ill App 2d 177, 186, 187, 241 NE2d 645 (1968). In order for a tortious act to subject a nonresident manufacturer to the jurisdiction of an Illinois court, it is necessary that the act cause an injury, and that the injury occur within this State. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill2d 432, 176 NE2d 761 (1961). The incidents of contact with this State, in a case based upon the transaction of business, are not tested by any stricter standard than those in which jurisdiction is obtained by reason of a tortious act. Ziegler v. Hodges, 80 Ill App2d 210, 215, 224 NE2d 12 (1967).

We believe that Gray, supra, is determinative of the issue before us. In Gray, the plaintiff brought suit against Titan Valve Manufacturing Company, and others, for injuries she sustained in Illinois when a water heater exploded. Titan claimed that its only connection with the case was that it sold completed valves to American Radiator & Standard Sanitary Corporation, outside of Illinois; and that American, also a defendant, then assembled the water heater and sold and shipped it into Illinois. Titan stated it did no business and had no agents in Illinois.

In Gray, at page 436, the court held that the “tortious act” as used in section 17 of the Civil Practice Act occurs where the injury takes place. It then pointed out that in order to obtain a binding judgment against one not served with process within the State, there must be certain minimum contacts with the State and a reasonable method of notification. Titan claimed it did not have sufficient minimum contacts with the State. The record did not disclose whether Titan had done any other business in Illinois, either directly or indirectly; it only disclosed that Titan’s valve was manufactured in Ohio, incorporated in a hot water heater in Pennsylvania by American, and in the course of commerce, the water heater was sold to a consumer by another entity in Illinois, where the injury occurred. The Supreme Court rejected the contention that a given volume of business is the only way in which a nonresident can become subject to the jurisdiction of the courts of this State, and stated at page 438: “Since the International Shoe case was decided the requirements for jurisdiction have been further relaxed, so that at the present time it is sufficient if the act or transaction itself has a substantial connection with the State of the forum.”

The Supreme Court recognized that commercial transactions today touch a number of states. Manufacturers often, if not customarily, distribute their products in the chain of commerce through a number of middlemen, sometimes independent and sometimes not. Such circumstance is not critical in determining whether a manufacturer may be subject to the jurisdiction of the court. Where there is no claim by a manufacturer that the ultimate sale or use of its product within this State is an isolated or exceptional case, it is reasonable to assume that its commercial transactions result in substantial use and consumption within this State. To this extent, such manufacturer has derived a benefit, albeit indirect, from the laws of this State. “As a general proposition, if a corporation elects to sell its products for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products.” Gray v. American Radiator & Standard Sanitary Corp., supra, 442.

The facts in Gray closely parallel those in this case. Admittedly, Pickering sold its completed product to a Chicago distributor for resale by it. It obviously contemplated resale in Illinois to an ultimate consumer by its Chicago distributor. The connection or contacts with this State are even more apparent than in Gray, where the manufacturer of the valve — a component part of the assembled product — was held subject to the jurisdiction of the court in connection with an injury caused by the product after it reached the ultimate consumer in this State.

The courts of the forum in which Pickering is located have treated this question similarly, and have held that the determination of whether there have been sufficient minimal contacts to justify imposing jurisdiction over a nonresident manufacturer depends upon “commercial actuality” or “economic reality,” and not mechanical tests. If an injury is suffered from a product, which was sold or used within the state, and such sale or use generates gross income for the manufacturer, and the generation of such income is not so fortuitous or unforeseeable as to negative the existence of an intent on the manufacturer’s part to bring about such a result, then a manufacturer has engaged in economic activity sufficient to justify the imposition of jurisdiction over it. Buckeye Boiler Co. v. Superior Court of Los Angeles County, — Cal2d —, 80 Cal Rptr 113, 120, 458 P2d 57 (1969). Also see: Annotation 19 ALR 3d 13.

Jurisdictional limitations are imposed to provide a standard of fairness and reasonableness with reference to when and where one may be required to defend a legal action. The action in the case at bar is based upon an injury suffered by the plaintiff in this State. The substantive rights of the litigants will be governed by the laws of this State; and witnesses, on the issues of injury, damages and many of the other elements relating to the occurrence, are Illinois oriented. By virtue of all of these circumstances, the courts of the place of injury usually provide the most convenient forum for the trial.

The defendant, Wise, claims to have been drawn into the litigation by reason of a defective door which was fabricated by Pickering. There are compelling reasons why Wise should be permitted to have this determination made in the principal action, and not be compelled to later sue Pickering in California in the event a judgment is entered against him.

When a foreign manufacturer’s product causes injury in this State under circumstances such that it is apparent that he knowingly sold or intended the sale or use of the product within this State, or that this was not unforeseeable or the result of a mere fortuitous use, then it is not unreasonable to hold the manufacturer answerable in this State for any damages resulting from the product on the basis of having committed a tortious act within the State (Gray v. American Radiator & Standard Sanitary Corp., supra), or because of having transacted business within the State (Buckeye Boiler Co. v. Superior Court of Los Angeles County, supra).

Pickering’s sale to the Chicago distributor, with the ultimate resale, use and injury in Illinois, seems to us to clearly subject it to the personal jurisdiction of the Court, and it was error to dismiss the third-party complaint. Inasmuch as the trial court dismissed the third-party complaint in this case, the judgment is reversed and the cause is remanded to the Circuit Court of Kane County with directions to deny the motion to dismiss and for further proceedings in conformity with this opinion.

Reversed and remanded with directions.

ABRAHAMSON and MORAN, JJ., concur.


author: PER CURIAM.

text:
    City of Peru, et al., Plaintiffs-Appellants, v. City of LaSalle, et al., Defendants-Appellees.
    Gen. No. 69-34.
    Third District.
    February 9, 1970.

      Louis Olivero, of Peru, for appellants.
    J. Paul Aplington and J. D. Hurley, Jr., of LaSalle, for appellees.
   PER CURIAM.

The cause before us originated as an action for injunction instituted by the City of Peru to restrain the City of LaSalle from draining water through a storm drain from the city limits of the City of LaSalle into a ravine which ultimately drained onto property belonging to the City of Peru. At the close of all the evidence offered for plaintiff, the court entered an order dismissing plaintiff’s complaint. Plaintiff City of Peru has appealed.

On appeal in this Court the City of Peru contends (1) that there must be a natural watercourse on land in LaSalle (as the dominant owner) which drains the dominant land onto the servient land of Peru at a particular point, and that in absence of such natural watercourse, defendant does not have the right to drain its land through the drain tile onto the land owned by the City of Peru; and (2) that because a combined storm and sanitary sewer system of the City of LaSalle has carried a substantial part of the storm water from the disputed area to the east rather than allowing it to go west to the City of Peru, for a period of more than 20 years, an easement by prescription was thereby created, or that an estoppel arises in favor of the City of Peru to prevent such water which has been diverted to the east for such period, to now be diverted and cast upon the land owned by the City of Peru.

The area in question is located within the City of LaSalle and was developed for urban purposes since 1906. In the course of the development of this land the City of LaSalle has constructed combined drains in the sanitary sewer system to also collect and dispose of storm water in the area. Five witnesses testified for the plaintiff as to the history of the water disposal in the City of LaSalle in the area. The disputed area is bound on the north by Gunn Avenue, on the east by Creve Coeur Street, on the south by Eleventh Street in LaSalle (called Shooting Park Road in Peru) and on the west by Chartres Street. The area comprises about 3 acres.

A Mr. Pattelli, Superintendent of Public Works in LaSalle, who has lived in the area for 18 years, testifled that the combination storm and sanitary sewers of the City of LaSalle carry the water in an easterly direction away from Peru. He also testified that he never observed a draw going toward the west. The mayor of Peru, Donald Baker, testified that he had never seen a natural watercourse in the area in question. Henry Mayer, a civil engineer, testified that he did not observe any watercourse in the area under dispute. Mr. Mayer also testified that the contour map introduced in evidence showed the area as being flat. Exhibits admitted into evidence showed combination storm sewers flowing in a southeasterly direction across the area referred to. There was no showing of any combination sewer in the City of LaSalle which had an outlet onto property in the City of Peru. Mr. Mayer also testified that he observed no natural watercourse draining water from LaSalle to Peru.

The mayor of LaSalle, a Mr. Gunia, testified that in 23 years as an alderman he knew of no storm sewer that discharged LaSalle water onto any property located in Peru. Mr. Rummens, Director of Public Works for the City of Peru, testified that in his opinion there was no natural watercourse in the area bounded by the streets referred to in LaSalle. It was also indicated that the City of LaSalle combined storm and sanitary sewers were not able to carry all the surface and storm water whenever there is a rain of one-half inch or more; that the City of LaSalle sewer system does not carry all the surface water in the area in question.

Mr. Mayer, the civil engineer, testified, however, that the natural flow of surface water in the area being drained, was to the ravine in the City of Peru. The mayor of Peru, on cross-examination, also stated that the water falling in the area in question would naturally flow west to the ravine. Mr. Pattelli also testified that there was a sewer inlet on the west borderline of LaSalle which emptied into the ravine in Peru. He also stated that during a rain of over one-half inch, the water runs through a watercourse in the area in question to the south side of Eleventh Street in LaSalle and, eventually, into the ravine in Peru. The testimony of Mr. Mayer was to the effect that water which falls in the area bounded by the four streets referred to, would naturally find its way to the ravine in the City of Peru as part of the “watershed” draining into the ravine. He defined a “watershed” as being “an area of tributary from which the water would run off to a particular point.” He testified, however, that there was no defined watercourse across the area in question.

Although it was not clear as to the ultimate purpose of the LaSalle 30-inch tile, it appeared that the 30-inch tile drain of LaSalle was designed to empty into a creek in the ravine which went into the City of Peru. The point where the tile would empty is not owned by the City of Peru but the creek in the ravine would eventually flow through land owned by the City of Peru. At the close of the evidence for plaintiff, defendant moved to dismiss the plaintiff’s complaint and this motion was granted.

It is apparent from the record that the land in the City of LaSalle would ordinarily be the dominant land that would drain into the ditch which traversed the City of Peru. Both parties agree that the early .Illinois case of Peck v. Herrington, 109 Ill 611, is one of the leading cases on the question of surface drainage. In that case, Peck owned the higher land and put in a tile to drain a pond on his higher land into a natural watercourse on his land which eventually flowed onto plaintiff’s land. The court of review described the problem as follows (at page 617):

“It also appears, from the evidence, that the tile-drain which Peck proposed to put in when the injunction was served, extended from ‘A’ to ‘C,’ where the water would be discharged in the natural channel where the surface water had run for many years. The point ‘C,’ which appellant designed as the outlet for the tile-drain, was on his own land, and a distance of more than a half-mile from Herrington’s land. Under such circumstances, did appellant Peck have the right to tile-drain the ponds, and turn the water therein in the channel which had for a number of years carried off the surface water?”

The court further stated (at page 618):

“We now come to the main question in the case. Had Peck the right to drain the water from the ponds and discharge the same on his own land in the channel which carried the surface water from his land to that owned by Herrington?”

The court allowed Peck to drain his land upon the land of the servient owner and stated (at page 619):

“It may also be regarded as a well-settled rule that the owner of the upper field cannot construct drains or ditches so as to create new channels for water in the lower field, but he may make such drains, for agricultural purposes, on his own land, as may be required by good husbandry, although by so doing the flow of water may be increased in a regular, well-defined channel, which carries water from the upper to the lower field.
“. . . we are of the opinion that he had the right to tile-drain the ponds, and carry off the water in the natural channel leading from ‘A’ to T,’ although the flow of water would thereby be increased. . . . “. . . and so long as the water was discharged in the regular channel leading from the land of Peck to that of Herrington, he has no legal ground of complaint. The natural flow of the surface water was not changed by the drainage. It may have been increased, but such increase of water was a burden which the location of the two tracts of land demanded should be borne by the owner of the lower tract of land.”

The rules with respect to drainage established at common law and specified in the case of Peck v. Herring-ton, supra, have not been changed by the applicable Illinois statute (1967 Ill Rev Stats, c 42, §2-1), which provides “Land may be drained in the general course of natural drainage by either open or covered drains. When such a drain is entirely upon the land of the owner constructing the drain, he shall not be liable in damages therefor.” In the case of Lambert v. Alcorn, 144 Ill 313, 33 NE 53, the court stated (at page 327):

“Since the decision by this court of the case of Peck v. Herrington, the Legislature has enacted a law, embodying substantially, in statutory form, the rule established in that case.”

It is contended, however, by plaintiffs in this cause, that the dominant owner under Illinois law may only lay artificial tile lines on such dominant property and collect water by tiles and drains if there is a natural watercourse on the dominant land, which natural watercourse empties into the servient land. Plaintiff asserts that there is no such watercourse in the cause before us. Defendant contends that it is not important to show a natural watercourse existing on the dominant land.

In discussing what is a natural watercourse, the court in Lambert v. Alcorn, 144 Ill 313, 33 NE 53, at 324, stated:

“If the conformation of the land is such as to give to the surface water flowing from one tract to the other a fixed and determinate course, so as to uniformly discharge it upon the servient tract at a fixed and definite point, the course thus uniformly followed by the water in its flow, is a watercourse, within the meaning of the rule applicable to that subject. Doubtless such watercourse can exist only where there is a ravine, swale or depression of greater or less depth, and extending from one tract onto the other, and so situated as to gather up the surface water falling upon the dominant tract and to conduct it along a defined course to a definite point of discharge upon the servient tract. But it does not seem to be important that the force of the water flowing from one tract to the other has not been sufficient to wear out a channel or canal having definite and well marked sides or banks. That depends upon the nature of the soil and the force and rapidity of the flow. If the surface water in fact uniformly or habitually flows off over a given course, having reasonable limits as to width, the line of its flow is, within the meaning of the law applicable to the discharge of surface water, a watercourse.”

In Montgomery v. Downey, 17 Ill2d 451, 162 NE2d 6, where the court allowed the dominant landowner to change the channel on his land, the court cautioned (at page 461):

“. . . provided, of course, that in making the change he does not cast upon the lands of an adjoining proprietor water which did not in the natural course of drainage flow upon such adjoining premises.”

An attempt was made by plaintiff to establish that the City of LaSalle had drained surface water in the area in dispute through the city sewers which had been in existence for many years and that these sewers carried the waters in an easterly direction rather than in a westerly direction toward the City of Peru. Plaintiff contends that such activity for many years should prevent the City of LaSalle from now diverting water to the west on an estoppel theory. It appears, however, that what plaintiff is really attempting to argue is that the City of Peru has obtained what amounts to a prescriptive right or equitable right not to have water from the City of LaSalle (which had been diverted for such a long period of time in an easterly direction) to now be cast upon the City of Peru, even though the natural flow of surface water is from La Salle to Peru. Such prescriptive right has been recognized by the Illinois courts for many years. In Montgomery v. Downey, 17 Ill2d 451, 162 NE2d 6, the court stated (at page 458):

“It has long been settled in this State that the owner of land which by reason of its elevation is servient to, and provides natural drainage for, the surface waters of higher lands may, by prescription, obtain an easement to free his land of the natural burden. Thus, as to surface water drainage, it may be said that the dominant land has a benefit and the servient land a burden and that, by the construction of a levee or other barrier to the natural drainage, the owner of the servient land may, if such obstruction is maintained for the prescriptive period, reverse the benefit and burden situation in that the servient land becomes benefited by being kept free of surface waters, and those waters are backed up upon the dominant land, thereby burdening it.”

Other cases supporting such principle are Beechley v. Harms, 332 Ill 185, 163 NE 387; Broadwell Special Drain. Dist. No. 1 v. Lawrence, 231 Ill 86, 83 NE 104. Since both parties are municipalities, they would stand respectively in the same position on this issue as if they were nonpublic entities (Elser v. Village of Gross Point, 223 Ill 230, 242, 79 NE 27; City of Northlake v. City of Elmhurst, 41 Ill App2d 190, 190 NE2d 375).

In a municipal area surface water may be gathered, in absence of a physical watercourse, but such surface water can only be delivered to a point where in the state of nature it would have found its way down to the servient land. When an area is subdivided or improved with houses or streets, the original conformation of the land may be changed, but if surface water flowing in the area is still drained into the same point of discharge where it would normally have found its way, the servient landowner cannot complain.

In the light of our observations (referring to drainage rights as limited by possible prescriptive rights), we do not find in the record any specific indication as to whether or not the existing combined sewer and storm water system was to be abandoned by the City of LaSalle nor does the record clearly indicate how much water, which would flow from the area in question, was in fact carried by the existing sewer system. The record also fails to disclose the purpose of the 30-inch drain referred to or the nature of storm water flow of water into the drainage ditch which goes through the City of Peru. The record likewise does not disclose how much usage or drainage of surface water was in fact handled by the combined storm and sewer system, but indicates only in general terms, that there was such diversion, and that when there was over % inch of rain the surface water would follow a natural course into the ditch and through the City of Peru.

On the basis of the record, therefore, we must conclude that the trial court correctly refused to grant injunctive relief. Nothing herein contained, however, should be construed as determining whether or not the City of Peru has acquired any prescriptive rights by reason of the diversion of the drainage waters through the storm and sewer system. Such prescriptive rights would be limited to the amount of diversion which had actually been established and not involve surface water which would not have been so diverted. We likewise have not made a determination as to possible obligations of the City of LaSalle with respect to maintenance in the event of clogging, etc. of the drainage ditch in the City of Peru as such problems may develop (Savoie v. Town of Bourbonnais, 339 Ill App 551, 559, 90 NE2d 645). When, as and if the problems herein referred to actually arise, or are established of record, a trial court will be in position to dispose of the issues on the basis of a specific showing of damage or potential damage or of the mutual or respective equitable rights to usage or protection from excessive usage as between the two municipalities.

Since the record failed specifically to show a right to injunctive relief at the time of hearing of this cause, we conclude that the order of the Circuit Court of LaSalle County was not improper. Such decree will, therefore, be affirmed.

Affirmed.