text:
    THE PEOPLE ex rel. JOHN A. BARRA, State’s Attorney of Peoria County, Plaintiff-Appellant, v. STEPHEN WAYNE WIEBLER, Defendant-Appellee.
    Third District
    No. 3—84—0030
    Opinion filed September 6, 1984.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Mark A. Rose, of Hatcher & Rose, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The State appeals from the trial court’s order denying its petition for vehicle forfeiture. We affirm.

The defendant, Stephen W. Wiebler, pleaded guilty to charges of unlawful delivery of a controlled substance. (Ill. Rev. Stat. 1983, ch. 561/2, par. 1401.) Subsequently, the State filed under section 36 — 1 et seq. of the Criminal Code of 1961 (hereinafter the statute) (Ill. Rev. Stat. 1983, ch. 38, par. 36—1 et seq.) for forfeiture of the defendant’s van. Title to the van is registered to both the defendant and Walter Brothers’ Harley-Davidson (hereinafter Walter Brothers’).

The vehicle forfeiture statute provides, in relevant part, for seizure by the State of a vehicle used with the knowledge and consent of the owner in the commission of the offense of unlawful delivery of a controlled substance. (Ill. Rev. Stat. 1983, ch. 38, par. 36—1.) However, under section 36 — la, the State is required to release a seized vehicle to a described lienholder or secured party upon his showing that his interest is bona fide and was created without actual knowledge that the vehicle was used or was to be used in the commission of the offense charged. (Ill. Rev. Stat. 1983, ch. 38, par. 36—1a.) If the State’s Attorney does not remit the seized vehicle for any reason, the statute provides that he shall bring an action for forfeiture of the vehicle. At the hearing on forfeiture, the State must show by a preponderance of the evidence that the vehicle was used in the commission of an offense covered by the statute. Under section 36 — 2, the owner of the vehicle or any person whose right, title or interest is of record may then show by a preponderance of the evidence that he “did not know, and did not have reason to know” that the vehicle was to be used in the commission of the relevant offense. Ill. Rev. Stat. 1983, ch. 38, par. 36—2.

In the instant case, the State filed an amended forfeiture complaint which alleged that the van in question was used with the owner’s knowledge and consent in the commission of the offense of unlawful delivery of a controlled substance. The complaint further alleged that at all relevant times the owners of the van were the defendant and Walter Brothers’. The defendant is employed by Walter Brothers’, a sole proprietorship owned by the defendant’s father. In the instant case, the father and Walter Brothers’ are treated as interchangeable entities.

In the trial court, the parties focused on their differing interpretations of the statutory sections and on the question of actual ownership of the van. The court received stipulated evidence that the father was unaware of the defendant’s criminal activities. The defense argued that under the statute the State cannot secure forfeiture from a co-owner who did not have knowledge of the criminal conduct in which the co-owned vehicle was involved. The defense also presented evidence of the father’s actual ownership of the van. The State argued, on the other hand, that an actual co-owner without knowledge of the criminal use of the vehicle cannot defeat forfeiture if another co-owner knew of the relevant criminal conduct. The State also argued that the father was not an actual owner. The State did not address in any manner whether the defendant’s father had reason to know of the defendant’s criminal conduct.

The trial court found that the defendant and his father were actual co-owners of the van. The court also found that the van was used in the commission of the crime of unlawful delivery of a controlled substance. Thirdly, the court found that the father did not have knowledge that the van was being used in the commission of a crime. The court made no findings on whether the father had reason to know that the vehicle was to be so used. The court dismissed the State’s forfeiture petition, based on its determination that the forfeiture was objected to by an innocent co-owner.

On appeal the State presents alternative arguments that either the defendant’s knowledge must be imputed to the father or that the father was not an actual owner capable of defeating forfeiture. We address the arguments in turn.

In its first argument, the State maintains that the instant statutory scheme contemplates that one joint owner’s knowledge that a vehicle was being used for the commission of a criminal offense must be imputed to all other joint owners. The State asserts that the imputed knowledge satisfies the statutory requirement that the owner “knew or should have known” of the criminal conduct. In the instant case, according to the State, given the defendant’s knowledge and notice that the vehicle was being used for criminal purposes, Walter Brothers’ is incapable of establishing that it did not know and did not have reason to know of the van’s use.

In response, the defendant argues that section 36 — 2 of the statute evidences a legislative intent to prevent forfeiture when a described party in interest, such as the father in the instant case, shows that he had neither actual knowledge nor reason to know of the relevant criminal conduct. The defendant also argues that the State has waived its imputation argument by not raising it in the trial court.

Initially, we find that the State has not waived its imputation argument. The State’s phrasing on appeal is changed from that which it presented to the trial court. However, the argument is substantially equivalent to the State’s position in the trial court. We therefore address its merits. We are aware of no case authority addressing the argument presented.

The State correctly argues that when a vehicle is registered to more than one person, the persons named in the title are statutorily presumed to be joint tenants of the vehicle. (Ill. Rev. Stat. 1983, ch. 951/2, par. 3—107.1.) The State reasons, then, that in the context of the instant statute, notice to one of several joint owners or joint tenants should be considered as notice to all owners of title. Accordingly, the State theorizes that the defendant’s knowledge and notice of criminal use of the van must be attributed to the father. In the State’s analysis, had the legislature intended for co-owners to be able to interrupt or prevent a forfeiture, co-owners would have been included in section 36 — la’s provisions whereby a lienholder or secured party without knowledge may effect release of a seized vehicle. We disagree.

We note initially that in support of its imputation argument, the State relies on non-Illinois authority which we find unpersuasive. The State correctly observes that section 36 — la excludes co-owners, such as the father in the instant case, from the category of persons who can effect a release of a seized vehicle by showing their interest is bona fide and was made without actual knowledge of the seized vehicle’s connection to criminal conduct. Section 36 — 2, however, plainly allows a joint titleholder of record to show at a forfeiture hearing that he neither knew nor had reason to know of the vehicle’s connection to criminality. The plain language of the statute evidences a legislative intent to provide a joint tenant with the opportunity to prove he should not be charged with another joint tenant’s guilty knowledge. That legislative intent is inconsistent with the imputation of knowledge which the State urges us to find.

In the alternative, the State argues without authority that the trial court erroneously found that Walter Brothers’ was an actual owner of the van. At the hearing on the State’s petition, the court received evidence that checks drafted on Walter Brothers’ business account had paid for the purchase of the van plus repairs, tires, licensing, and insurance for the vehicle. Additionally, the court received evidence that the van was used for Walter Brothers’ business as well as for the defendant’s personal purposes. There also was evidence that both the defendant and his father referred to the van as the defendant’s.

The State argues that the evidence overcame the prima facie evidence of joint ownership and established that the defendant was the actual and sole owner of the van. Accordingly, the State argues, the father had no actual interest which he could assert to defeat the forfeiture.

We need not address the validity of the State’s premise that if Walter Brothers’ was only a nominal title holder and not a “true owner,” it cannot challenge the forfeiture. There was ample evidence to support the trial court’s finding that Walter Brothers’ was, in fact, a true owner. We find no error in the trial court’s finding and will not reverse it on appeal.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT and HEIPLE, JJ, concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    CLARENCE ALDON BODINE, Respondent-Appellee, v. JOAN ELIZABETH BODINE et al., Petitioner-Appellant.
    Third District
    No. 3—83—0817
    Opinion filed September 6, 1984.
    Susan Dawson-Tibbits, of Prairie State Legal Services, Inc., of Peoria, for appellant.
    Gary T. Rafool, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal is taken by petitioner-appellant, Joan Bodine (now Joan Meginnes), from a judgment of the circuit court of Tazewell County dismissing a petition for a rule to show cause against respondent-appellee, Clarence Bodine. On appeal, petitioner argues that the trial court’s decision to dismiss the petition for rule to show cause is against the manifest weight of the evidence. For the following reasons, we reverse the trial court’s decision.

The parties’ marriage was dissolved on August 18, 1976. Custody of their two minor children was awarded to petitioner subject to respondent’s visitation rights. Prior to the dissolution, respondent purchased a trailer for residential use by petitioner and the children. The dissolution decree provided that respondent was to continue making payments on a loan for the trailer and in lieu of paying child support directly to respondent, $40 per week of the amount of the loan payment was to be credited as child support until the loan was paid off, whereupon he was to pay directly to petitioner the sum of $20 per week per child until each child attained the age of 18 years or was emancipated.

Subsequent to the dissolution of marriage, petitioner married William Kline, and she and the children moved from the trailer. In February 1977, petitioner requested respondent consent to an adoption of the parties’ children by herself and Kline. Subsequently, respondent agreed to the adoption, appeared ex parte before a judge, and executed the consent. However, no decree of adoption was ever entered.

In January 1979, petitioner caused a criminal nonsupport action to be brought against respondent by the State’s Attorney’s office which was thereafter dismissed. On June 8, 1979, the parties’ youngest child died. He was buried in the Kline family plot with the name “Joseph Kline” on the tombstone on his grave. The death certificate, however, lists the child’s name as “Joseph Bodine.” The marriage of petitioner and Kline was dissolved in January 1981. The following July, petitioner commenced this action by filing a petition for rule to show cause and for modification of decree for divorce. The petition asked for a rule to show cause against respondent for his failure to pay child support and also for an order which would increase his child-support obligation. Respondent answered, asserting that his execution of the consent for adoption was a defense to the rule to show cause.

At a subsequent hearing, petitioner testified, inter alia, that prior to her remarriage, respondent visited their children at least once a week; however, after her remarriage he stopped seeing them on a regular basis. She also testified that respondent required her to sign papers divesting any interest she may have had in the trailer to him before he would sign the consent. She further stated respondent told her that the judge whom he had appeared before to sign the consent had told respondent that until the adoption was finalized, respondent still had an obligation to support the children. Petitioner stated that about a month after the adoption was to have become final, she notified respondent that the adoption was not going to be completed, and since that time she has made numerous requests of respondent to pay child support.

Respondent testified he did not tell petitioner that the judge had told him that signing the consent would not relieve him of his duty to support the children, but in fact the judge told him he had no further parental rights or duties after signing the consent and it would be as if he had no children at all. He stated he saw the children regularly before signing the consent, but based on what the judge had told him he did not see the children again because he felt he did not have the right to do so. He also testified that petitioner never asked him specifically for child support, and he denied asking her to sign the title of the trailer over to him before he would sign the consent.

The trial court found the existence of an agreement between the parties such that petitioner would forego claims for child support in return for respondent’s refraining from exercising his visitation rights and his execution of the consent for the adoption. The trial court further found that respondent had performed his part of the bargain and ruled that his obligation to pay child support had been extinguished. The petition for rule to show cause was dismissed and the petition to increase child support denied.

It is the general rule in Illinois that child support payments become a vested right as they accrue and cannot be unilaterally terminated by the party paying the support. (Matzen v. Matzen (1979), 69 Ill. App. 3d 69, 387 N.E.2d 14.) Modification of child support payments is a judicial function which is to be administered solely by the court and at its discretion. (Jozwick v. Jozwick (1979), 72 Ill. App. 3d 17, 390 N.E.2d 488.) In Matzen, we stated the exceptions to this general rule as follows: “In the proper case, however, courts will give effect to an agreement between the parties to waive or reduce payments, or courts will apply the doctrine of equitable estoppel.” (Matzen v. Matzen (1979), 69 Ill. App. 3d 69, 72, 387 N.E.2d 14, 16.) In the present case, it is petitioner’s contention that the parties never entered into an agreement whereby she waived payments and that the defense of equitable estoppel does not apply.

First, with respect to an agreement to waive support payments, respondent argues that there was such an agreement, i.e., he signed the consent for the adoption in return for petitioner’s waiving future support payments. In support of this contention, respondent relies primarily on Anderson v. Anderson (1964), 48 Ill. App. 2d 140, 198 N.E.2d 342. While there are some factual similarities between Anderson and the present case, we are not persuaded by the Anderson court’s ruling because it was not a ruling as to whether or not there actually was an agreement. The court remanded the case because the trial court had sua sponte entered a contempt order, while the petitioner had only sought a judgment for alleged arrearages.

A review of the record in the present case fails to disclose any agreement between the parties as would allow respondent to forego paying his support obligation. The trial court erred in finding such an agreement, which was against the manifest weight of the evidence.

Second, with respect to respondent’s equitable estoppel defense, a different situation arises. Equitable estoppel occurs where the voluntary conduct of one party precludes that party from asserting rights against another person who has, in good faith, relied upon such conduct to change his position for the worse. (Matzen v. Matzen (1979), 69 Ill. App. 3d 69, 387 N.E.2d 14.) The test to determine the applicability of equitable estoppel is whether the conduct of the petitioner-mother, as shown by all the circumstances of the case, was sufficient to justify the conclusion that the enforcement of the decree as to unpaid support would be unjust and inequitable to the respondent-father. Martin v. Comer (1975), 25 Ill. App. 3d 1038, 324 N.E.2d 240.

It appears that in those cases which have allowed an equitable credit against support arrearages, the essential element of detrimental reliance was present, i.e., the court found that the respondent-father relied upon the petitioner-mother’s conduct indicating her willingness to give up or modify her right to custody or support. See Strum v. Strum (1974), 22 Ill. App. 3d 147, 317 N.E.2d 59; Martin v. Comer (1975), 25 Ill. App. 3d 1038, 324 N.E.2d 240.

In the present case, respondent contends that by signing the consent to the adoption, he ceased visitation with his children, which was to his detriment. He also argues that petitioner is estopped because she never brought up the issue of child support in any conversations between the parties. As to this latter argument first, equitable estoppel cannot be created based on the sole fact of the petitioner’s failure to make a demand for child support upon the respondent. (Jozwick v. Jozwick (1979), 72 Ill. App. 3d 17, 390 N.E.2d 488.) As to the former argument, upon remand the trial court may find some detrimental reliance from the time of the signing of the consent to some later point in time; however, once respondent received notice that the adoption proceedings were never completed, he could no longer be expected not to exercise his visitation rights.

Finally, it should be noted that an adoption will not relinquish a natural parent’s obligation to support the child if the adoptive parent is unable to do so. (Dwyer v. Dwyer (1937), 366 Ill. 630, 10 N.E.2d 344.) Respondent argues that this no longer reflects the law in Hlinois. We disagree. Respondent contends that Dwyer applied to the adoption statute only as it was written at the time of that case, but that it no longer applies to the present adoption statute. The recent case of In re Adoption of Schumacher (1983), 120 Ill. App. 3d 50, 458 N.E.2d 94, in discussing the present adoption statute stated that a “natural parent may be required to support the child if the adoptive parent is unable to do so. ***” Respondent’s claim that this statement was obiter dicta in the Schumacher case does not refute it as the law in Hlinois. Respondent has failed to provide any authority to the contrary. Since this is the present law with regard to completed adoptions, no less can be said for the mere signing of a consent to an adoption.

For all of the foregoing reasons, the judgment of the circuit court of Thzewell County is reversed and remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

BARRY and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE ALLOY

text:
    IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, Petitioner-Appellant, v. WILLIAM H. HOFFMAN et al., Defendants-Appellees.
    Third District
    No. 3—83—0664
    Opinion filed August 6, 1984.
    Rehearing denied October 11, 1984.

      Dennis R. Fox, of Califf, Harper, Fox, Dailey & Slover, of Moline, for appellant.
    Samuel S. McHard and Donovan S. Robertson, both of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, for appellees.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Iowa-Illinois Gas and Electric Company (hereinafter utility) appeals from the judgment of the circuit court, entered after jury verdict in this eminent domain action. In the action, the jury determined the amount of damages, as compensation to the landowners for the utility’s acquisition of a perpetual easement across their farm for the construction and maintenance of high voltage electric transmission lines. The focus of the issues on appeal is the jury’s determination that fair and reasonable compensation for damages to the remainder of the property, as a result of the presence of the transmission lines and structures, was $57,119.50, or $355 per acre. The utility raises issues concerning the instructions and as to evidentiary rulings of the court.

The utility filed its condemnation action against the landowners in 1982. Authorization for the condemnation proceedings had been given by the ICC, for the purpose of acquiring a right-of-way along and across the landowners’ farm, to construct, operate and maintain a 345 KV electric transmission line. The easement to be acquired runs across the farm in an east-west direction and is 150 feet wide, 3,200 feet long, containing 11 acres of land. The total farm acreage is 172 acres. The evidence indicated that two large H-frame structures will be constructed on the farm, from which the 345 KV lines will be suspended. The structures are to be 1271/2 feet tall and lllxk feet tall, respectively.

The landowners filed their cross-petition, seeking compensation for damages to their property outside of the easement strip that would be caused by the presence of the two structures and the transmission lines. The total acreage in the remainder of the farm is 161 acres. The utility did not contest that some damage to the remainder would occur, but it did dispute the amount of such damages. The central dispute at trial was the amount of damages to the remaining 161 acres occasioned by the presence of the easement, with structures, on 11 acres.

The utility’s appraisal experts put the amount of damages to the remainder at $10 and $20 per acre. Both experts noted as the basis for the damage assessment the inconvenience in farming around the two large support structures to be placed on the easement. Testifying on behalf of the landowners were two appraisers, as well, in addition to one of the plaintiffs, Darrel Hofer, and a neighboring farmer. Tom Kilcoin, one of the landowners’ appraisers, testified to his opinion that damages to the remainder of the farm were about $700 per acre. Kilcoin felt that such a reduction in market value of the farm would result from the imposition of the easement. He based his assessment, in part, upon his findings that prospective farm buyers, other farmers, do not like such easements on the property. Steve Relander, the other appraiser for the landowners, gave his opinion that the amount of damages to the remainder would be $300 per acre. Relander’s opinion was based, in part, upon a comparable sale of another Knox County farm in April 1983 which had a utility easement on it.

Testimony from Darrel Hofer, one of the appellees, focused upon the problems in having the easement and support structures on the property. Among the problems specified were: (1) difficulty farming around the power poles; (2) the presence of weeds and growth around and under the poles; and (3) interference from the lines upon electrical monitors on his farm equipment.

The jury heard the conflicting evidence as to the damage to the remainder and returned its verdict in the amount of $57,119.50, or $355 per acre, as the amount of damages to the remainder. The utility appeals from this award. Other pertinent facts will be set forth, as necessary, during the treatment of the issues on appeal.

The initial issue is whether evidence of the unsightliness of the transmission line structures on the property was properly admitted into evidence before the jury. The utility argues that unsightliness is not a proper element of damages, citing as a principal basis to some early twentieth century Illinois Supreme Court cases and a recent appellate decision. (Illinois Power Co. v. Wieland (1927), 324 Ill. 411, 155 N.E.272; Illinois Power & Light Corp. v. Peterson (1926), 322 Ill. 342, 153 N.E. 577; Commonwealth Edison Co. v. Danekas (1982), 104 Ill. App. 3d 907, 433 N.E.2d 736.) The court, in the Danekas case, found a limited exception to the rule against the admissibility of such evidence, where the highest and best use for the property to be burdened was a residential use. (104 Ill. App. 3d 907, 913.) In the case at bar, the testimony indicated that the highest and best use of the property was for agricultural purposes. The utility now contends that the court erred in refusing to instruct the jury, by its submitted instruction, that the unsightliness of the structures was not a proper element of damages and should not be considered in their assessment of damages. The landowners argue, to the contrary, that their expert brought forth the unsightliness of the structures only as it bore on the reduction in market value to the prospective buyers of the farm and that, as such, it was properly in evidence before the jury. We agree. The rule of law adopted in the early cases grew out of the established principle that damages only be awarded for physical disturbance of a right belonging to the landowner. (City of Winchester v. Ring (1924), 312 Ill. 544, 553; Illinois Power Co. v. Wieland (1927), 324 Ill. 411, 414-16.) The cases almost uniformly determined that the unsightliness of the structures, being an offense to the sensibilities of the owner, was not a compensable damage. (Contra, Board of Trade Telegraph Co. v. Darst (1901), 192 Ill. 47, 50, 61 N.E. 398.) The courts’ rejection of unsightliness as a compensable element of damages was also based upon a conclusion that such damage was speculative and largely unquantifiable. It is also useful to note that those early cases arose during the time of the immensely beneficial rural electrification program, with burdens and benefits to the rural public as a whole. In addition, they dealt with poles of considerably less dimension than the 345 KV towers involved in the instant case. As this court noted in Central Illinois Public Service Co. v. Westervelt (1976), 35 Ill. App. 3d 777, 781-82, 342 N.E.2d 463, aff’d (1977), 67 Ill. 2d 207, 367 N.E.2d 661, whatever can be shown to adversely affect market value is admissible. There we noted that the focus was not properly upon the offense to the owner’s sensibilities, but rather upon the effect of the unsightliness upon the public, and specifically a purchasing public, as it affects market value. In the instant case, the evidence presented and accepted by the trial court as admissible was that the unsightliness of the structures, along with other factors, would have a detrimental effect upon the market value, what a willing purchaser would be willing to pay for the property. We find that the evidence of unsightliness, as related to market value and the appraisal testimony, was properly admitted at the trial. In response to the utility’s argument about highest and best use, we find it makes little rational difference whether the highest and best use of the property was for residential purposes or for agricultural purposes. There is no reasonable basis for concluding that unsightliness shown to have a detrimental effect upon the market value of residential property is compensable, but unsightliness shown to have a detrimental effect upon the market value of agricultural property is not compensable. The one damage is not more inherently speculative or elusive than the other. Appraisers can determine both and be cross-examined as to their methods. Owners, whether of residential property or of agricultural property, are entitled to compensation for damages occasioned by the presence of such structures. Where properly established, the adverse effect of the unsightliness of such structures upon the market value is as valid and proper an element of damage as any other. The extent and amount of such damage is a.matter for expert testimony to set forth and for the jury to ultimately decide. We believe the Illinois Supreme Court’s movement away from the “no-compensation rule” of the twenties and early thirties was a reasonable and necessary one (Central Illinois Public Service Co. v. Westervelt (1977), 67 Ill. 2d 207, 367 N.E.2d 661), and we find no rational basis to limit the new rule to situations involving residential land only. We do not read the Westervelt case, which affirmed our decision, to indicate that the court would not apply the rule of compensation in cases where proper evidence indicated that unsightliness had an adverse effect upon the market value of agricultural land. In so concluding, we respectfully disagree with the Second District in the Danekas case.

We find no error in the court’s refusal to give petitioner’s instruction No. 19, nor in the admission of testimony relating to unsightliness as it affected the market value of this farm property.

The next issue concerns the refusal by the trial judge to give two instructions tendered by the utility setting forth the general rule that damages are not recoverable which are altogether speculative and uncertain. The trial judge, in admitting the evidence and refusing the instruction, obviously concluded that the evidence was not speculative and uncertain. We agree with the trial judge. The utility’s specific objection is to evidence indicating: (1) that the transmission lines would interfere with the electrical monitoring devices on the farm equipment; and (2) that a hog is a very stressful animal and that noise from the lines would likely produce stress in the hogs on the farm. While conceding that Darrel Hofer was properly qualified as an expert with regard to certain aspects of the hog farming operation on the property, the utility argues that his testimony about the above matters was beyond his expertise. We disagree. The record indicates that Hofer had been a hog farmer for approximately 28 years. His testimony concerning the stressful nature of hogs and the effect of noise stress upon their well-being, as well as the hog operation and its income, was within his competence. His lifetime experience raising hogs provided sufficient expertise for him to testify on this subject, and we find no necessity of calling an additional expert upon noise and its effect on hogs. There is no question that danger to livestock and its effect upon market value is for the jury’s assessment, based upon such evidence. Similarly, Hofer’s experience with the effects of other, lower voltage transmission lines upon farm monitoring equipment was sufficient to support his testimony as to the effects of these 345 KV lines on similar equipment. It was not necessary to call another expert to explain, technically, how the interference would be caused. Hofer was not outside of his expertise, gained from experience, in testifying to the effects of the presence of the transmission lines on his hog operation and his farm vehicles’ monitoring equipment. These aspects of damages were not of the same speculative and uncertain nature as those in the cases relied upon by the utility.

Objection is also presented by the utility to Hofer’s testimony concerning the costs of improvements on the property, and it is urged that such evidence was improperly admitted and prejudicial. Hofer testified that he had made improvements to the property in excess of $100,000 since 1978 and 1979. This evidence did have a relevance to the market value of the property, as it was affected by those improvements. While we agree with the utility that such evidence might cause some confusion for the jury, we think no sufficient prejudice arose from the admission of this evidence. There is no indication that the jury added the value of the improvements to the figures already set forth for market value. Evidentiary matters are within the broad discretion of the trial judge, as is conceded, and we find no abuse of discretion in the court’s rulings on this testimony. Additionally, we would note the established rule that in condemnation proceedings, where there is conflicting evidence of value, a jury’s award, within the range of values testified to, will not be disturbed unless there has been a clear and palpable mistake, or the verdict is the result of passion and prejudice. (Department of Public Works v. Klehm (1973), 56 Ill. 2d 121, 306 N.E.2d 1; Central Illinois Public Service Co. v. Westervelt (1977), 67 Ill. 2d 207, 367 N.E.2d 661.) Nothing in the record here indicates that the jury’s verdict was the result of prejudice or passion, and no clear and palpable mistake has been shown.

The final issue concerns the testimony of the landowner’s witness, Allan Fuhr, on rebuttal. The utility argues that the court abused its discretion in permitting Fuhr to testify, because he had not been disclosed as an expert witness prior to the trial. The question of appropriate sanctions is one for the sound discretion of the trial court. The critical focus in the instant case is upon the use of witness Fuhr by the landowners. He was not called in their case-in-chief, as an expert, which would clearly have violated their previously disclosed list of experts, which did not include him. He was only called on rebuttal, for the purpose of responding to testimony from the utility’s witness Robert Baecke. Baecke had testified to his observations concerning the effect of the 345 KV lines on radio transmissions, and upon the impact of the power lines on the market value of the property. In his testimony, Baecke indicated that he had talked with Fuhr on the latter question. On rebuttal, Fuhr testified to problems he encountered, personally, in operating monitoring devices and radio equipment under power lines. He also testified to the inconvenience in farming around the utility line structures, as experienced by him on his own farm property. His testimony concerning the effects of the lines on market value was in rebuttal to Baecke’s testimony, which in part was based upon alleged conversations with Fuhr on the same subject. We find Fuhr’s testimony to be proper rebuttal, and no abuse of discretion in the decisions of the trial judge. In light of the limited use of his testimony, we will not reverse the court’s decision permitting him to testify, despite his not having been disclosed prior to trial. We note, in this regard, that the trial court gave an express and specific instruction to the jury, limiting the scope of Fuhr’s testimony to rebuttal matters. Under all the circumstances, we find no error in his admitted testimony and the court’s rulings thereon.

The appellee landowners seek to raise another issue, respecting the entry into possession of the property by the utility during the pendency of this suit. Since the taking was not appealed, the trial court granted the utility the right to enter upon the land, conditioned upon their filing of sufficient surety bond. Bond in the amount of $79,000 was filed and approved. Later, we denied the landowners’ motion for a stay. There has been compliance with section 7—125 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 7—125). Moreover, this issue, and another sought to be raised by the appellees, are not properly raised, since no petition for cross-appeal has been made.

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

Affirmed.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE HEIPLE

text:
    CITIZENS UTILITIES COMPANY OF ILLINOIS, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    No. 3—84—0088
    Opinion filed August 31, 1984.
    Daniel J. Kucera, of Chapman and Cutler, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Philip Willman, Assistant Attorney General, of counsel), for respondents.
   JUSTICE HEIPLE

delivered the opinion of the court:

On July 16, 1979, the Illinois Environmental Protection Agency (IEPA) filed a four-count complaint with the Pollution Control Board (the Board) against Citizens Utilities Company of Illinois (Citizens) arising out of the operation of its West Suburban No. 1 sewage treatment plant in Bolingbrook. Count IV of the complaint charged Citizens with violating the operation and maintenance standards contained in its NPDES permit, Rule 601(a) of the Board relating to maintenance of facilities, and sections 12(a) and 12(f) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 1111/2, pars. 1012(a), (f)). After extensive hearings before the Board’s hearing officer, the Board ordered, inter alia, a $1,000 penalty against Citizens pursuant to violations of its permit and the Board’s rules alleged in count IV. It is from this penalty alone which Citizens appeals.

West Suburban No. 1 treats municipal waste, primarily from sewer connections located in Bolingbrook. The basic operation of the plant begins with the influx of the sewage into two primary tanks. Solids settle to the bottom of the tanks, while floating materials rise to the top. Wooden planks called flights are chain-driven along the bottom and top of the primary tanks. Settled solids, or sludge, are pushed along the bottom into hoppers for further treatment. The flights then rotate up to skim the surface and push scum to the end for removal. Sewage then flows into an aeration tank, where it is bubbled with air and metabolized by the biomass. From there the sewage flows into five secondary tanks, where flights similar to those in the primary tanks operate. Flow from the secondaries passes either to a polishing lagoon or a chlorine contact tank for disinfection prior to discharge to Lily Cache Creek. Any sludge removed from the primaries or secondaries is either transferred to aerobic digesters or returned to earlier stages for additional treatment.

Citizens was granted an NPDES permit to operate the plant and discharge wastewater by IE PA in 1975. The permit sets forth various limitations on the contents of effluents that Citizens is allowed to discharge. Primarily at issue here are the operation and maintenance standards set out in section 3 of the permit:

“3. Facility Operation and Quality Control
All waste collection, control, treatment and disposal facilities shall be operated consistent with the following:
(a) At all times, all facilities shall be operated as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants.
* * *
(d) The permittee must provide optimum operation and maintenance of the existing waste treatment facility to produce as high a quality of effluent as possible.”

Also applicable here are the Board’s rules concerning operation and maintenance. Rule 601(a) provides:

“All treatment works and associated facilities shall be so constructed and operated to minimize violations of applicable standards during such contingencies as flooding, adverse weather, power failure, or maintenance, through such measures as multiple units, holding tanks, duplicate power sources, or other such measures as may be appropriate.”

On February 28, 1979, IEPA sent Jack Barnette, an emergency response specialist, to West Suburban No. 1 to conduct a compliance evaluation inspection. Barnette’s report, which was admitted as an exhibit in the hearing before the Board, found that both primary tanks were out of service due to breaks in the chains that power the flights. One secondary tank was found to be out of service due to a broken flight. Barnette further observed what he believed to be sludge 600-700 feet downstream from the outfall pipe to Lily Cache Creek, although he could not testify with any degree of certainty that the alleged sludge emanated from the plant.

Further inspections were conducted on June 25 and July 2-3. The former was characterized as a “reconnaissance” inspection by Ted Denning, an engineer with IEPA and Barnette’s supervisor. Denning accompanied Barnette on this inspection. Barnette alone inspected the plant on the latter dates. Numerous deficiencies were cited. At least one primary tank was still out of service. Scum removal was “poor.” Solids were seen passing over the weirs in the secondary tanks. Excessive foam was observed in the aeration tank, and the chlorine tank was found to be “quite dark.”

These observations were related in similar fashion at the hearings before the Board. On cross-examination, both Barnette and Denning based their conclusions of excessive scum, excessive foam, poor scum removal and a dark tank on their experience in inspecting other such facilities. While both recounted numerous ways in which the operation and maintenance deficiencies might cause the system to discharge an unacceptable quality of effluent, neither could testify with much certainty as to actual adverse environmental impact which could be causally related to system breakdown. Furthermore, both witnesses exhibited a certain degree of ignorance as to exactly what components were out of service at what times. Finally, neither witness seemed particularly familiar with how the plant actually functioned in the absence of the inoperative components.

At issue in this case is the liability of a permittee for alleged violations based upon mechanical breakdowns. The record is not entirely clear as to the causes of the breakdowns, nor does it reflect any valid justifications for the failure to remedy these conditions promptly. However, it is our opinion that the testimony elicited does not suffice to sustain the penalty imposed by the Board.

While it is undoubtedly true that the operation and maintenance at West Suburban No. 1 was unsatisfactory in several respects, it does not follow that Citizens has violated its permit or the Board’s rules. Close scrutiny of each of these standards reveals that the evidence presented was insufficient to support the conclusions of the Board.

Taking the permit first, it is apparent that the import of Conditions 3(a) and 3(d) is founded upon operation and maintenance to prevent water pollution. It is apparently the position of IEPA and the Board that unsatisfactory conditions which could potentially lead to water pollution are sufficient to premise violations upon. The problem with this position is that without reference to actual, resulting pollution, the conditions are too vague for rational enforcement. Use of such terms as “efficiently as possible” and “optimum operation and maintenance” without reference to the ability or inability of the plant to operate free of unacceptable discharges renders these standards meaningless.

The nature of the testimony given by IEPA witnesses Barnette and Denning illustrates the problem. Without referring to objective standards, both witnesses based their conclusions of faulty operation and maintenance upon visual observations and comparisons with other plants observed in the past. No reference to any objective standards regarding acceptable amounts of scum or sludge in the secondary clarifiers or chlorine contact tank is attempted. Furthermore, witness Denning’s conclusions are based on the more or less hypothetical effects upon the effluent which may result from certain components being out of operation. However, nothing in either witness’ testimony establishes a causal link between unsatisfactory operation and maintenance and any improper discharges into the creek.

Equipment failure is an unavoidable consequence of running a sophisticated operation such as West Suburban No. 1. However, without a substantial failure of any backup processes causing adverse environmental impact, equipment incapacity alone cannot serve as a basis for the violations charged.

IEPA attempts to avoid this problem by claiming that the result of such an interpretation would impose an impossible burden of proof. The response to this is that the burden is self-imposed. Had the Board rules or permit outlined unacceptable operation and maintenance practices with any specificity (e.g., setting minimum acceptable downtime for components or amounts of sludge or scum in the treatment process), then the process of proof would not be so arduous. However, by linking unacceptable operation and maintenance only to actual, resulting pollution, the IEPA has in effect forced itself to do the kind of “before breakdown-after breakdown” analysis of the plant’s performance that it finds so burdensome.

IEPA cites Mystik Tape v. Pollution Control Board (1975), 60 Ill. 2d 330, 328 N.E.2d 5, for the proposition that violations for pollution can be imposed without specific standards being promulgated by the Board, as long as prohibited conduct is found. Mystik Tape is inapplicable. There was in fact a standard in this case, but proof of its violation was not forthcoming. The standard here is adverse environmental impact caused by unsatisfactory operation and maintenance. Assuming the “efficient operation” type of language to be sufficiently clear to be legally enforceable standing alone, a violation would have been appropriate were the standards not premised upon actual pollution caused.

People v. Keeven (1979), 68 Ill. App. 3d 91, 385 N.E.2d 804, is cited to show that actual pollution is not a condition precedent to the finding of a violation. Keeven is distinguishable in two respects. First, Keeven was an injunctive action to force a potential polluter to apply to the IEPA for various permits. Obviously, actual pollution could not be shown at that stage. Thus, the proceedings involved in this case are sufficiently different so as to render any connection dubious. Second, and more importantly, the asserted holding of Keeven is irrelevant to this case since there is a standard of actual pollution present here. The permit and Board rules are the sources of the very standards that IEPA asserts need not be met.

This court’s opinion should not be taken as condonation of Citizens’ conduct in this matter. It is clear that the conditions prevailing at West Suburban No. 1 were far from ideal for handling potential pollutants. However, the power of a government agency to impose violations must be carefully circumscribed where it seeks to enforce standards of its own creation. The speculative nature of the testimony put forth by the IEPA’s witnesses is in itself support for careful review of violations based thereon.

For these and the foregoing reasons, the decision of the Pollution Control Board is reversed.

Reversed.

SCOTT and STOUDER, JJ., concur.


text:
    BROWNING-FERRIS INDUSTRIES, INC., Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    No. 3—84—0026
    Opinion filed September 10, 1984.
    Dorothea O’Dean and Stewart R. Winstein, both of Rock Island, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Michael L. Shevick, Assistant Attorney General, of counsel), for respondents.
   JUSTICE HEIPLE

delivered the opinion of the court:

Petitioner, Browning-Ferris Industries of Iowa (BFI), appeals from orders of the Pollution Control Board denying its applications for the transfer and granting of certain permits sought in connection with the operation of a landfill in Rock Island County. We reverse.

On March 5, 1981, James Kiesow and Melvin Mohr of Rock Island applied to the Illinois Environmental Protection Agency (IEPA) for a permit to develop a solid waste management site. The site was to be located in the city of Milan, Rock Island County.

The application from Kiesow and Mohr listed five sources of waste to be stored at the site: residential, commercial, nonhazardous industrial, nonhazardous agricultural and municipal sludge. On August 28, 1981, the applicants were granted a development permit. The permit provided in pertinent part:

“This permit is granted to handle general refuse excluding all hazardous wastes ***.”

The permit also contained the following special condition:

“No wastewater treatment sludges or water treatment sludges shall be received at the site for disposal unless a supplemental permit shall have been received from the Agency.”

Ultimately, an operating permit was granted to Kiesow and Mohr on February 9, 1983, which incorporated by reference the terms of the development permit.

Prior to the issuance of the operating permit by IEPA, Kiesow and Mohr applied in December 1982 for two supplemental waste stream permits. No. 822958 was an application to dispose of domestic wastewater sludge from the village of Milan. No. 822959 was an application to dispose of fly ash from the John Deere Harvester Works. Supplemental permits were issued for these waste streams on February 25, 1983, and March 8, 1983, respectively. It is now the position of IEPA that these permits were erroneously granted.

Concurrent with the events described above, BFI had been negotiating through its agents for the purchase of the site from Kiesow and Mohr. On February 18, 1983, BFI and Kiesow and Mohr signed a letter of intent for the sale of the site. On March 8, 1983, the parties reduced their understanding to a formal agreement. The agreement clearly evidences BFI’s intent to acquire all necessary permits by transfer or original application for conducting a full-scale landfill operation.

Ultimately, the IEPA denied transfer of the supplemental permits and applications for eight additional supplemental permits. (It had, however, approved the transfer of the operating permit.) IEPA’s position was predicated upon two sections of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1001 et seq.). Section 39(c) of the Act provides:

“*** no permit for the development or construction of a new regional pollution control facility may be granted *** unless the applicant submits proof to the Agency that the location of said facility has been approved by the County Board of the county if in an unincorporated area, or the governing body of the municipality when in an incorporated area, in which the facility is to be located in accordance with section 39.2 of this Act.” (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1039(c).)

Section 3(x) of the Act defines a “new regional pollution control facility” as:

“(1) a regional pollution control facility initially permitted for development or construction after July 1,1981; or
* * *
(3) a permitted regional pollution control facility requested approval to store, for the first time, any hazardous or special waste.” Ill. Rev. Stat. 1983, ch. 1111/2, par. 1003(x).

IEPA contends that the applications filed in December 1982 to handle wastewater treatment sludge and fly ash were a request by Kiesow and Mohr to store for the first time a special waste, thus rendering it a “new” facility within the meaning of the Act. Since no local siting approval had been obtained, IEPA denied transfer of the granted permits to BFI, as well as denying all other applications for supplemental waste stream permits to handle special wastes. Upon appeal to the Pollution Control Board, these denials were affirmed. It is from this decision which BFI appeals.

We cannot countenance IEPA’s position. The weakness in their argument stems from the relationship created between IEPA and Kiesow and Mohr in the permitting process. Kiesow and Mohr made it abundantly clear in their applications that the site was intended to handle special wastes. The permits issued limited Kiesow and Mohr to “general refuse excluding hazardous waste.” Furthermore, the special conditions attached listed two particular special wastes for which supplemental permits must be sought. The Act does not define “general refuse,” so the use of this term by IEPA does not explicitly limit the permittee’s right to handle special wastes. We believe that the permits implicitly approve the site’s ability to handle special wastes while not explicitly permitting a particular stream. Had the permit read “refuse, excluding hazardous wastes and special wastes pending approval of applications for particular streams,” then the applications in question here would clearly be requests for approval for the first time to handle special wastes.

IEPA contends that the term “general,” while not statutorily based, should be interpreted as meaning the opposite of “special” in this context. While this is the commonly understood meaning of both words, one cannot interpret them in a vacuum. The addition of the condition forbidding hazardous wastes to the allowance of general refuse is a tacit exclusion of special wastes from the class of forbidden objects. This follows from the maxim of construction inclusio unius est exclusio alterius. Adding the fact that the special condition referred specifically to permits for particular special waste streams, it is clear that “general” as used here should be interpreted not in opposition to “special,” but rather in its usual sense of “all except that which is specifically excluded from the class.”

This construction in no way interferes with the legislative policy inherent in the statute. The siting approval provision protects the public interest in having significant changes in land use subject to scrutiny by its elected representatives. Here, it is clear that BFI’s predecessors made a fair disclosure to IEPA that it would seek to handle special wastes. Furthermore, the local authorities were on notice as to the substances to be handled. In fact, the village of Milan, the site of the plant, had contracted with Kiesow and Mohr to handle its wastewater treatment sludges. Thus, it is plain that the policy of reserving local authorities’ rights to oversee land use is in no way threatened by this interpretation.

Thus, we remand to the Pollution Control Board with the instruction that the applications be referred to the relevant authorities at the IEPA for consideration on their merits.

Reversed and remanded.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
    DANNY L. KEMPER, Plaintiff-Appellant, v. McDOUGAL-HARTMANN COMPANY et al., Defendants-Appellees.
    Third District
    No. 3—83—0596
    Opinion filed September 6, 1984.

      James E. Bowles, of Goldfine & Bowles, P.C., of Peoria, for appellant.
    Steven A. Wakeman, of Strodel, Kingery & Durree, Associates, of Peoria, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Danny Kemper was injured when his motorcycle crashed into an excavation in the center of West Washington Street in East Peoria, Illinois, about 1:30 a.m. on May 19, 1978. Plaintiff filed suit against defendant McDougal-Hartmann Company, the contractor for the street-widening project involved, alleging that improper warnings were posted at the construction site. Following a jury trial, judgment was entered on the verdict in favor of defendant, and plaintiff has appealed. Two issues are raised: (1) Was the evidence sufficient to support the verdict in favor of defendant, and (2) Were the improper closing argument statements of defendant’s counsel so prejudicial that plaintiff was denied a fair trial.

McDougal-Hartmann entered into a contract with the city of East Peoria to widen West Washington Street and to install new curbs, and under the terms of the contract, the contractor was responsible for the installation and placement of barricades and for the channeling of traffic safely through the construction area. West Washington Street was to be kept open to two-way traffic at all times. The contract also specified that traffic control was to be done in accordance with “U-2 Standard,” a portion of the standard specifications for traffic control adopted by the State of Illinois Department of Transportation.

At the time of the accident in question, the street had been widened so that it consisted of two lanes in each direction. However, the inside lane of the eastbound lanes had been blocked off because of a construction hole about 35 feet long, 11 feet wide, and 3 to 4 feet deep. Defendant placed numerous lighted reflectorized barricades to mark the hazards of the construction area and to channel eastbound traffic around the hole. There were signs in advance of the construction area warning, “ROAD CONSTRUCTION AHEAD,” “DETOUR AHEAD,” and “KEEP RIGHT.” Traffic was channeled into the right-hand lane of the two eastbound lanes by means of the signs and by an arrangement of barricades which tapered to the right side of the excavation.

Plaintiff testified that on the night in question he had worked late as a helper in an auto salvage yard, that he was on his way to the home of one of his fellow employees, that he had taken a longer route than necessary because it was a nice evening for a ride on his motorcycle, that he saw some barricades which he thought were outlining the curb, that he assumed the road was being widened and proceeded to drive down the center of the eastbound lanes,-and that he then saw a railroad tie placed across the road. He was approximately five feet away when he saw the tie and was unable to stop. He plunged into the excavation, and his motorcycle landed on top of him. He stated that he saw no warning signs and no barricades in front of the excavation.

Other witnesses did see advance warning signs and also were able to describe the arrangement of barricades. These witnesses included the project engineer, the job superintendent, and the investigating police officer. Additionally, there was disputed testimony as to whether plaintiff had consumed alcoholic beverages prior to the accident. Plaintiff denied having had any alcoholic drinks, but the police officer testified that in his opinion plaintiff was intoxicated, and the emergency room nurse who attended plaintiff made a written note that plaintiff said he had had three beers.

In challenging the verdict entered in favor of defendant, plaintiff first argues the verdict was contrary to the manifest weight of the evidence. For the purpose of this argument, plaintiff characterizes the evidence as establishing violations of the safety standards required under the construction contract. For example, plaintiff says that the evidence “clearly shows” that 50% of the barricade flashers were not operating at the time of the accident, that defendant made an improper partial lane closing, that improper warning signs were used, and that the taper in front of the excavation was not 10 times longer than the width of the excavation (as required by the safety manual) but was only 50 feet in length.

Plaintiff gives no credence to the testimony of defendant’s witnesses, who stated that the signs, barricades, lights and flashers and other traffic control devices were properly in place, visible, and working at the end of the workday before the accident and at the beginning of the workday the next morning. The project engineer testified that the barricades used were in conformity with applicable safety standards and were arranged in the required 10-to-l taper leading traffic away from the hazard. This testimony, as well as that of other witnesses, supports defendant’s claim that the excavation was adequately marked. The State specifications for controlling traffic around a construction site expressly provide for modification to permit “a reasonable reduction” of certain requirements and also authorize the exercise of engineering judgment and discretion in making adaptations, provided that the general principles and standards are followed. Some modification was clearly required here, since the U-2 standard applied to construction areas which block the right lane of traffic rather than the inside lane. Hence, there was ample evidence to support a finding that defendant did not violate the safety standards set out in the U-2 specifications, as modified to meet the requirements of this particular situation.

It is a basic rule of law that a reviewing court, when considering whether a verdict was contrary to the manifest weight of the evidence, must view the evidence in the light most favorable to the appellee (here, defendant) to determine whether the verdict was palpably erroneous and wholly unwarranted. (Lynch v. Board of Education (1979), 72 Ill. App. 3d 317, 390 N.E.2d 526.) Here, the evidence was sharply contradictory concerning safety violations, but we must view it in the light most favorable to defendant. In doing so, we conclude that plaintiff is not entitled to a new trial on the ground that the verdict was contrary to the manifest weight of the evidence.

Plaintiff also argues that the jury must have found that the sole proximate cause of the accident was plaintiff’s own negligence. Plaintiff insists that such a finding was erroneous and would indicate that the jury was prejudiced by certain improper and inflammatory remarks made by defendant’s attorney during closing arguments so that he was denied a fair trial. Plaintiff reasons that prejudice must have occurred, since the evidence of his intoxication was conflicting and since the evidence indicated that defendant was guilty of safety violations. We cannot agree with plaintiff’s analysis.

We have carefully reviewed the closing arguments of the parties. On nine occasions during an argument lasting 1 hour and 15 minutes, the court sustained plaintiff’s objections to defendant’s arguments. Several of the objections occurred when counsel stated “I believe ***» or think ***.” When these statements are viewed in context, most of them appear to be a manner of speaking rather than an attempt to assert counsel’s beliefs into the trial. Near the end of the argument, defendant’s counsel described an incident when he broke his arm but did not sue anybody because it was his own fault. This statement was stricken, but defense counsel persisted in pointing out that plaintiff has to bear the responsibility for his own negligence. A few moments later, counsel commented, “People have been crying to get intoxicated drivers off the roads ***.” This, too, was stricken, and the jury was instructed to disregard it. The court also instructed the jury that they were not to consider the closing arguments of counsel as evidence.

Plaintiff argues that the trial court had a duty to inject itself into the proceedings sufficiently to see that the litigants received a fair trial and, where necessary, to act promptly to stop misconduct. Plaintiff relies upon Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249, where the court said:

“In a clear case this court will reverse a judgment because of improper conduct and prejudicial statements of counsel even though the trial court has sustained objections thereto, rebuked counsel, and directed the jury to disregard such statements.” (8 Ill. 2d 293, 313, 134 N.E.2d 249, 259.)

We do not disagree with the general principle enunciated in Belfield, and though we do not condone defense counsel’s remarks in the case before us, we cannot characterize this as “a clear case” of improper argument so prejudicial as to deny plaintiff a fair trial.

The trial court was in a far better position than a reviewing court to determine the extent of any prejudicial effect of improper arguments that were objected to and stricken. We cannot say that the improper remarks here were as inflammatory as those complained of in Belfield, where counsel referred to the opposing parties as “thieves,” “usurpers,” and “defrauders” with absolutely no basis in the evidence for lumping all parties in one- category. Giving consideration to the totality of the closing arguments here, we believe the trial court did not abuse its discretion in refusing to order a new trial.

For the reasons stated, we affirm the judgment of the circuit court of Peoria County.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
    HENRY C. McMILLIN et al., Plaintiffs-Appellants, v. ECONOMICS LABORATORY, INC., Defendant-Appellee and Third-Party Plaintiff-Appellant (William M. Gibbons, Trustee, Third-Party Defendant-Appellee).
    Third District
    No. 3—83—0751
    Opinion filed August 28, 1984.
    Rehearing denied October 11, 1984.

      Louis R. Bertani, Thomas R. Wilson, and John L. O’Brien, all of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellants.
    Theodore J. Jarz, of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellee Economics Laboratory, Inc.
    Emery D. Curlee, of Chicago, for cross-appellee William M. Gibbons.
   JUSTICE SCOTT

delivered the opinion of the court:

Henry C. McMillin, Barrdy B. Reddy, and Eleanor H. Bennett, plaintiffs, filed suit against the defendant, Economics Laboratory, Inc., a Delaware corporation, for declaratory judgment, injunctive relief, ejectment and damages for a continuing trespass upon plaintiffs’ real estate resulting from the defendant’s construction and maintenance of a railroad spur track thereon. The defendant filed a complaint against William M. Gibbons, who is trustee for the property of the Chicago, Rock Island and Pacific Railroad Company, hereinafter referred to as the Rock Island Railroad, for indemnification of damages, if any were awarded to the plaintiffs. After bench trial the court found legal title to the real estate in question to be vested in the plaintiffs and awarded nominal damages of $1. The trial court denied all other relief prayed for by plaintiffs and further denied relief to the third-party plaintiff, Economics Laboratory.

The factual situation from which this appeal emanated is somewhat involved; however, from the evidence adduced at trial, it is undisputed that the real estate in question is a strip of land 50 feet wide and l7/s miles long. It consists of rough terrain, is unimproved and unfenced. A rough roadway is on the property as well as a number of large water-filled holes. With the exception of a small garden planted on it by Charles McMillin shortly after he purchased the property, it was never utilized for any other purpose by the McMillin family. This strip of land lies south of and adjoins the south right of way of the land of the third-party defendant, Rock Island Railroad. The spur track being complained of was constructed to run from the Rock Island right of way across the strip claimed by the plaintiffs, then across other land to the industrial plant site of the defendant Economics Laboratory.

For purposes of this appeal the pertinent portion of the history of the strip of land which plaintiffs claim to own commenced in the year 1939. In that year Charles McMillin, father of the plaintiffs, purchased the land and thereafter paid property taxes on it until his death in 1955. Charles McMillin died intestate and left as his heirs Fannie McMillin, his wife, and three children, the plaintiffs Henry C. McMillin, Barrdy B. Reddy and Eleanor H. Bennett. In 1968 the decedent’s widow conveyed her interest in the real estate to the aforenamed children. The children, being the plaintiffs, have at all times since they acquired the real estate paid the taxes on it.

The evidence further established that in 1968 the plaintiffs, for consideration, granted a pipeline easement to Caterpillar Tractor Company. Previously, in approximately 1963, the plaintiffs, for consideration, granted the use of the real estate for a period of one year to a business known as Construction Aggregates Corporation. During this one-year period, Construction Aggregates attempted to bar access to the real estate by installing a chain across the only accessible entrance way, which was at the west end of the real estate. Construction Aggregates also posted a “No Trespassing” sign at this location.

All the plaintiffs are nonresidents of the State of Illinois, and none of them ever resided in the Joliet area, where the real estate with which this case is concerned is located. At the time of this trial Henry resided in Michigan, Barrdy in Florida, and Eleanor in Pennsylvania. Throughout the years, the plaintiff Henry C. McMillin, and on several occasions the husband of the plaintiff Barrdy B. Reddy, would drive by the real estate and on a number of occasions would refasten the cable across the Bush Road access and would repost the “Keep Out” or “No Trespassing” signs. It was in 1980 that the plaintiffs first learned that a railroad spur track had been constructed across the strip of real estate. After discovering the spur track the plaintiff Henry C. McMillin, his brother-in-law and apparently Barrdy B. Reddy, went to the plant of the defendant Economics Laboratory and complained of the spur track and attempted to discuss the matter. Their complaint was forwarded to the legal department of the corporate headquarters of the defendant. Not hearing from anyone associated with the defendant, the plaintiff McMillin twice attempted to talk by telephone to the president of the defendant corporation in an an effort to get together with someone and in his words “make a deal.” He first talked to a lady secretary and later to a member of the defendant’s legal department; however, neither call resulted in the obtaining of any acts on the part of the defendant pertaining to negotiations aimed at settling the dispute.

In 1971 the defendant Laboratory purchased a plant site (70 acres) which is located south of the strip of real estate which the plaintiffs claim to own. Upon this site a plant and other facilities were constructed. The plant manufactures solvents such as soaps, detergents and degreasers. Some of the products manufactured by the defendant require the shipping or transportation of highly reactive chemicals which are difficult, hazardous and expensive to ship by truck, and consequently such chemicals are transported by tank railroad cars across the spur track. The spur track is used to transport approximately 70 cars per month to and from the plant of the defendant. At the time of the trial of this case, the defendant employed approximately 500 people.

Further facts as well as other matters which occurred at trial will be set forth as the same become pertinent to the determination of the issues presented in this appeal.

We first direct our attention to the argument of the defendant-cross-appellant, Economics Laboratory, that the plaintiffs failed to prove that they had title to the property in question. It is apparent that defendant does not deny that in the 1930’s Charles McMillin was the successful bidder for the property at public auction. It is the defendant’s contention, however, that at the time Charles McMillin received a deed from the Chicago and Illinois Valley Railroad Company, the law of our State required prior approval of sale from the Illinois Commerce Commission and such approval was not obtained and hence the sale was void. In support of this contention the defendant relies on the statutory language in section 27 of “An Act concerning public utilities” (Ill. Rev, Stat. 1939, ch. 1112/3 par. 27) and the cases of National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919, and Chicago & North Western Ry. Co. v. Illinois Commerce Com. (1970), 130 Ill. App. 2d 352, 264 N.E.2d 745. The factual situations presented in the cited cases are in no way similar to those presented in the instant case; however, we quarrel not with the defendant’s statement that the purpose of the statutory requirement that approval by the Commerce Commission of a sale of the property of a public utility is to assure that the public interest in the use of the property is protected when the utility attempts to dispose of it. We are, however, of the opinion that the defendant’s argument as to Commerce Commission approval or lack of approval in the instant case is indeed tenuous. While an approval or consent of the Commerce Commission was not sought nor received which specifically described and related to the property in question, the Commerce Commission was not only involved in the sale but in fact directed that the Chicago and Illinois Valley Railroad dispose of the property. On May 14, 1934, pursuant to a Commerce Commission order, the railroad (C. & I.V.), a predecessor in the chain of title to the plaintiffs, discontinued its operation between Joliet and Depue, Illinois, and surrendered all its franchises except its corporate charter. On July 13, 1934, the Commerce Commission by order authorized the railroad (C. & I.V.) to dispose of its assets, one of which is the property claimed by the plaintiffs. To now hold that the deed received by Charles McMillin many years ago is void because approval of his purchase of the property was not obtained from the Commerce Commission when that regulatory body authorized and directed its sale would result in an absurdity. A former member of the Bar of Illinois, Abraham Lincoln, in describing a certain judge, said that he would hang a man for blowing his nose in the street, but he would quash an indictment if it failed to specify which hand he blew it with. In short, this court will not elevate meaningless technicalities over substance.

The plaintiffs claim, and rightfully so, that even if their father’s deed to the property was insufficient, they are nevertheless the rightful owners by virtue of adverse possession. The plaintiffs’ claim is predicated upon the statutory provisions relating to seven years’ payment of taxes with color of title and possession. Ill. Rev. Stat. 1983, ch. 110, par. 13—109, effective July 1,1982.

The defendant attacks the plaintiffs’ claim of possession because the property was not fenced, no improvements were made on it, and it was unoccupied and was visited by the plaintiffs at only irregular intervals. Enclosure of land is not necessary to constitute possession. (Kerr v. Hitt (1874), 75 Ill. 51; McLean v. Farden (1871), 61 Ill. 106.) The plaintiffs posted “No Trespassing” signs and attempted to prevent invasion of their property by barring the only entrance to it by the use of a steel cable. The possession necessary to constitute adverse possession is not required to be fuller than the character of the land admits. (Chicago Title & Trust Co. v. Barley (1936), 363 Ill. 197, 1 N.E.2d 846.) Our supreme court has stated:

“Neither actual occupancy, cultivation nor residence is necessary to constitute actual possession of land. Where property is so situated as not to admit of permanent useful improvements; the continued claim of the party, evidenced by public acts of ownership such as he would exercise over property which he claimed in his own right and would not exercise over property which he did not claim, may constitute actual possession.” Burns v. Curran (1918), 282 Ill. 476, 480, 118 N.E.2d 750, 752. See also Gochenour v. Logsdon (1940), 375 Ill. 139, 30 N.E.2d 666.

The record discloses that the plaintiffs or one of them viewed the property, reattached the steel cable and reposted the “No Trespassing” sign when as nonresidents they came to Illinois, which was almost yearly. It is noted that the spur track was discovered by the plaintiffs some years after it had been constructed; however, the nature of the land, its terrain and inaccessibility required a physical walk on the property before there could be an awareness of the spur track. The plaintiffs demonstrated their claim of dominion and ownership by granting for a consideration a year’s use of it in 1963 to a business known as Construction Aggregates Corporation, and in 1968 for consideration they granted a pipeline easement to Caterpillar Tractor Company. The record further discloses that the plaintiffs, and/ or their father and mother, paid the real estate taxes on the property from 1940 to the date of the trial, a period of 43 years.

The plaintiffs met in full the statutory requirements necessary to establish ownership by adverse possession.

The defendant further asserts that the property was abandoned. The reasons set forth in support of plaintiffs’ claim of title by adverse possession serve equally well to negate the defendant’s claim of abandonment. If the same had been abandoned, the property would have escheated to the county in which it is located. (Ill. Rev. Stat. 1981, ch. 49, par. 3.) The record is barren of any evidence that the defendant contacted or attempted to contact any governmental entity before, during or after the time the spur track was constructed.

The trial court correctly held that title to the real estate was vested in the plaintiffs.

The plaintiffs argue that the trial court’s decision, the effect of which was to refuse to restore them to possession of all their rights in the property, is against the manifest weight of the evidence. The plaintiffs sought injunctive relief which the trial court denied. The record is clear that when the defendant Laboratory purchased the plant site, it knew that a spur track was essential to its operation. From several sources the defendant knew that there was a 50-foot gap in the uninterrupted contiguous spur track right-of-way from its plant to the right-of-way of the Rock Island Railroad. Rock Island Railroad in 1970 warned the defendant that there was some missing ownership. An examination of legal descriptions received by the defendant from Rock Island shows that the defendant had a right-of-way up to the south line of the plaintiffs’ land and north of the plaintiffs’ land, but not across the land. A design engineer for the defendant testified that he knew of the gap in the title and referred the matter to the company’s legal department. The gap was apparently not taken seriously, since the defendant did not on its own seek other easements, nor did it request any further assistance from Rock Island regarding easements or clearances.

Testimony from employees of the defendant establish that no effort was made to find the owners of the 50-foot-wide strip of land over which the spur track was to be constructed. The defendant conducted no title search, nor were the real estate tax records checked, which would have readily disclosed the identity of the missing owners. Representatives of the defendant were not only loath to discuss the matter of a trespass with one of the owners, but in fact refused to discuss the matter. There was an aborted effort to settle the matter which we will later address, but such effort to settle occurred some 10 to 11 years after the spur track was constructed and continuously used by the trespasser. The trial court determined that the defendant was a trespasser but an unintentional one and awarded nominal damages in the sum of $1.

Reflecting upon the evidence and applying the applicable law, it is the conclusion of this court that the trial court was in error in finding the trespass of the defendant to be unintentional. This court has addressed the issue of whether an encroachment or trespass is intentional or unintentional in the case of Stroup v. Coda (1965), 65 Ill. App. 2d 396, 212 N.E.2d 518, and Malchow v. Tiarks (1970), 122 Ill. App. 2d 304, 258 N.E.2d 811. In Malchow it was stated:

“For an encroachment to be intentional, it must be either deliberate or in willful disregard of the rights of the adjoining property owner. Nitterauer v. Pulley, 401 Ill. 494, 82 N.E.2d 643. Such an encroachment will be regarded as deliberate when made after due warning. Arola v. Nigro, 16 Ill. 2d 46, 156 N.E.2d 536. Willful disregard of the adjoining property owner’s rights may result from culpable negligence, that is, the failure to take ordinary and reasonable precaution to ascertain the boundary line. Nitterauer v. Pulley, supra.” 122 Ill. App. 2d 304, 312, 258 N.E.2d 811, 815.

We will not reiterate the facts; however, the defendant’s failure to take ordinary precautions pertaining to the ownership of the plain-' tiffs’ tract of land after due warnings from Rock Island and after having knowledge that there was a gap in the easement which was needed for the spur line all serve to elevate the defendant’s conduct to that of a wilful, intentional trespass. We are mindful of the general rule of law that a mandatory injunction is an extraordinary remedial process which is not a matter of right, but may be granted only upon the exercise of sound judicial discretion in cases of great necessity. (Ambassador Foods Corp. v. Montgomery Ward & Co. (1963), 43 Ill. App. 2d 100, 192 N.E.2d 572.) This court has not been loath to approve the issuance of a mandatory injunction in trespass cases. (Taubert v. Fluegel (1970), 122 Ill. App. 2d 298, 258 N.E.2d 586; Pliske v. Yuskis (1980), 83 Ill. App. 3d 89, 403 N.E.2d 710.) In the instant case, the defendant’s trespass has been continuous since 1972. It is continuing at the present time and may well continue for an untold number of years. The plaintiffs are entitled to a mandatory injunction which will abate the trespass on their property and restore to them their possessory rights.

The plaintiffs further assign as error the trial court’s refusal to admit their evidence as to compensatory and punitive damages. Having determined that injunctive relief is the proper remedy in this case, we deem it unnecessary to address this issue.

We have heretofore alluded to a settlement which during the course of the trial was entered into between the plaintiffs and the defendant, Economics Laboratory. The settlement provided that the defendant would pay to the plaintiffs the sum of $20,000 in exchange for a conveyance of approximately .5,000 square feet of property upon which the spur track was located. After the settlement had been entered into on May 5, 1983, the trial court entered an order of dismissal on the basis that all matters in controversy had been settled. Throughout the trial, of the three plaintiffs only Henry C. McMillin appeared in court, and he was the only plaintiff present at the settlement negotiations and the only plaintiff to approve the settlement. Subsequently a motion was filed by the plaintiffs to vacate the settlement order and hearing on this motion was commenced on June 23, 1983. The evidence disclosed that neither the plaintiff Henry C. Mc-Millin nor his attorneys had consent or authority from the remaining two plaintiffs to settle the case. After a full evidentiary hearing in which the plaintiff Henry C. McMillin, his sister Barrdy B. Reddy, her husband, and an attorney for the plaintiffs testified, the trial court requested that case law authority be submitted. After oral arguments the trial court vacated the order of dismissal on the grounds that the motion to vacate was timely and that there was a lack of authority on the part of plaintiff Henry C. McMillin or the attorney for the plaintiffs to compromise the claim.

The defendant Laboratory cites two cases in support of its contention that the trial court should not have vacated the dismissal order which was entered because of the settlement. (See Kalman v. Bertacchi (1978), 57 Ill. App. 3d 542, 373 N.E.2d 550, and Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 356 N.E.2d 837.) These cases, however, present a far different situation than that present in the instant case. In both Kalman and Sheffield, the trial court participated in and took an active role in effecting the settlements. In the instant case the trial court took no part in the negotiations for settlement. In the cases relied on by the defendant Laboratory, the parties involved in the settlement knowingly agreed to the terms of the settlement agreement, and in the Sheffield case the parties had given to their counsel express authority to settle the case. In the instant case the evidence discloses that the plaintiffs Reddy and Bennett had no knowledge of the settlement until after the dismissal order of May 5, 1983, had been entered. They had never authorized any settlement. The plaintiff Reddy testified that severe and serious pelvic injuries prevented her from participating in or being present at the trial. The record further discloses that the plaintiff Mc-Millin was under the impression that his sisters would go along with the settlement. The attorney for the plaintiffs was under the impression that the plaintiff McMillin had authority to settle the case. In short, a situation prevailed where two of the plaintiffs lacked knowledge and had not authorized a settlement. Based upon such evidence it cannot be concluded that the trial court abused its discretion. City of Des Plaines v. Scientific Machinery Movers, Inc. (1972), 9 Ill. App. 3d 438, 292 N.E.2d 154.

The defendant Laboratory brought a third-party action against Rock Island Railroad (third-party defendant) in which indemnity was sought if it (Economics Laboratory) should be found to be liable to the plaintiffs. With respect to this third-party action, the trial court found in favor of the third-party defendant Rock Island Railroad, thereby denying any indemnity relief. The defendant Laboratory as cross-appellant claims that the decision of the trial court was error.

A brief resume of facts which resulted in a contractual relationship between the defendant Laboratory and the Rock Island Railroad is as follows. In 1972 the defendant Laboratory entered into a written contract with the Rock Island Railroad. The contract related to the construction and operation of a railroad industrial track line between the main line of the railroad and the defendant Laboratory’s plant site. The defendant Laboratory agreed at its sole expense to employ a private contractor to construct the track from the Rock Island Railroad’s right-of-way to the end of the spur track on the defendant Laboratory’s property. As to this appeal the pertinent part of the contract is as follows:

“2. Before track is constructed, railroad shall procure all public authority and permission necessary for the construction, maintenance and operation of track. Railroad shall procure necessary easement from Chicago Gravel Company; lease from State of Illinois, Department of Public Works and Buildings, for crossing of Illinois and Michigan Canal; and permit from Commonwealth Edison Company for right to cross its right of way, all for a right of way to serve Industry with said Track ***.”

An examination of the foregoing provision in the contract discloses that the intent of the parties is clear and free from ambiguity. The Rock Island Railroad contracted to procure all public authority and permission necessary for the construction of the track. That no such public authority or permission was necessary and thereby not obtained does not detract from the clear intent of the parties. Evidence was adduced to the effect that frequently public authorization and permission to construct and maintain a line are necessary. It should be noted that obtaining right-of-way, whether in fee simple or by easement, is an interest in land. Obtaining public authorization and permission to construct and maintain is not. The contract recognized this distinction, since it specifically required that Rock Island Railroad procure an easement from the Chicago Gravel Company, a lease from the State of Hlinois for the crossing of the Illinois and Michigan Canal, and a permit to cross a right-of-way of Commonwealth Edison Company. Rock Island Railroad complied with the terms of the contract and submitted documents to the defendant Laboratory which clearly showed the presence of a strip of land from which no easement was obtained. This strip of land was the property of the plaintiffs. This matter of the gap in the right-of-way was submitted to the attorney for the defendant Laboratory, but the problem was ignored.

Assuming arguendo that the contract was ambiguous and evidence as to the conduct of the parties is to be considered in interpreting the ambiguity, it becomes abundantly clear that Rock Island Railroad was under no duty to discover the owners of the strip of land and obtain from them an easement. The contract was executed June 30, 1972. Over 19 months earlier on November 24, 1970, Rock Island Railroad warned the defendant Laboratory that there might be another landowner between the Rock Island right-of-way and the Illinois and Michigan Canal. Later, Rock Island Railroad furnished the defendant Laboratory with easements from Commonwealth Edison and Chicago Gravel Company, which were recorded on January 4, 1972. The Commonwealth Edison easement had a print attached clearly showing a strip of land, which is the plaintiffs’ land, lying between the Rock Island Railroad right-of-way line and the beginning point of the easement. The easement from the Chicago Gravel Company also notes the presence of the property owned by the plaintiffs. In a number of pieces of correspondence from officials and legal counsel for defendant Laboratory to Rock Island Railroad officials, the lack of an easement across plaintiffs’ property was ignored. The contract was executed by the parties after the defendant Laboratory had notice of information which disclosed that the plaintiffs’ land was to be crossed, yet no request was made of Rock Island Railroad to obtain an easement.

The trial court correctly held that Rock Island Railroad was not obligated to acquire an easement or right-of-way across the strip of land owned by the plaintiffs.

The Rock Island Railroad further asserts that the trial court erred when it vacated its judgment which dismissed the third-party complaint of the defendant Laboratory. The dismissal of the third-party complaint resulted from the court’s reasonable belief that the litigation had been settled. If the settlement had been a valid one, all causes of 'action asserted by the parties against each other would have been extinguished. Subsequently, it was determined by the court that a valid binding settlement had not been effected, and consequently the trial court put the parties back in the same position as they were prior to the aborted settlement. In order to do this, the court, inter alia, found it necessary to vacate its judgment dismissing the third-party complaint. In so doing no error was committed.

Both the defendant Laboratory and the third-party defendant Rock Island Railroad attempt to raise the issue that the settlement agreement, while not binding upon all the plaintiffs, was binding upon the plaintiff Henry C. McMillin. Several motions and objections thereto were filed and taken with the case. One is a motion filed by the plaintiffs to strike that portion of the brief of the third-party defendant Rock Island Railroad which relates to the enforcement of the vacated settlement agreement as against one of the plaintiffs, to wit, Henry C. McMillin. A response and objections were filed by the Rock Island Railroad and defendant Laboratory. The motion to strike filed by the plaintiffs is well taken. The defendant Laboratory did not list the issue in its notice of appeal nor raise the issue in its initial brief. The third-party defendant Rock Island Railroad did not file a cross-appeal on any issue in the case. The purported issue was not properly raised. A second motion taken with the case was one filed by the defendant Laboratory which seeks to strike a portion of the reply brief of the plaintiffs. The motion is grounded upon the allegation that the reply brief contains a statement of facts which is violative of Supreme Court Rule 341(g) (87 Ill. 2d R. 341(g)). An examination of the defendant Laboratory’s motion and objections filed thereto by the plaintiffs fails to disclose that there was a violation of Supreme Court Rule 341(g), and consequently the motion to strike is denied.

For the reasons set forth, the judgment of the circuit court of Will County is affirmed in part and reversed in part. The judgment of the circuit court which found in favor of the third-party defendant, William M. Gibbons, trustee of the property of Chicago, Rock Island and Pacific Railroad Company, and denied the relief sought in the third-party complaint filed by the defendant, Economics Laboratory, Inc., is affirmed. The award of nominal damages to the plaintiffs payable by the defendant, Economics Laboratory, Inc., is reversed, as is the denial of injunctive relief to the plaintiffs. This case is remanded to the circuit court of Will County with directions to issue a mandatory injunction directing Economics Laboratory, Inc., to cease using the spur track on the land of the plaintiffs and further directing that Economics Laboratory, Inc., remove the spur track, after which the land of the plaintiffs shall be restored by Economics Laboratory, Inc., to the status and condition that was in existence prior to 1972.

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

HEIPLE and BARRY, JJ., concur.