author: JUSTICE EARNS

text:
    MARK W. SNELLING, Plaintiff-Appellant, v. ELMER LOGSDON RIVER CONSTRUCTION COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 83—3
    Opinion filed November 17, 1983.
    Robert J. Hillebrand, of Belleville, for appellant.
    Edward J. Szewczyk, of Donovan, Hatch & Constance, P.C., of Belleville, for appellee Elmer Logsdon River Construction Company.

      Goldstein and Price and Daryl F. Sohn, both of St. Louis, Missouri, for appellee ContiCarriers and Terminals, Inc.
   JUSTICE EARNS

delivered the opinion of the court:

Plaintiff, Mark W. Snelling, appeals from the judgment of the circuit court of St. Clair County granting defendants’ motions for summary judgment in an action for personal injury brought pursuant to the Merchant Marine Act of 1920 (46 U.S.C. sec. 688 (1976)), commonly known as the Jones Act, and the general maritime law.

The following factual account is substantially based on plaintiff’s deposition testimony filed as part of the record on appeal. The sole question is whether the trial court erred in finding that there are no issues of material fact for a jury to decide on the issue of plaintiff’s status as a seaman.

Snelling was injured on March 1, 1978, while employed by defendant, Elmer Logsdon River Construction Company (Logsdon) on the Illinois River near Beardstown. He was a member of a three-man crew assigned to sweep and clean out barges owned by defendant Conti-Carriers and Terminals, Inc. (ContiCarriers). While climbing a ladder to leave the cargo compartment of a cleaned barge, plaintiff fell from the ladder to the bottom of the compartment and sustained injuries. Plaintiff’s third amended complaint alleged that Logsdon was negligent in failing to provide him with a safe place to work and sought to invoke the provisions of the Jones Act. The complaint also sought recovery against ContiCarriers under general maritime law for alleged unseaworthiness of the vessel.

As against each defendant a finding of liability is possible only if plaintiff was a “seaman” at the time of his alleged injury. The question as to whether an individual is a “seaman” depends largely on the facts of the particular case and the activity in which that individual was engaged at the time of his injury. (Desper v. Starved Rock Ferry Co. (1952), 342 U.S. 187, 96 L. Ed. 205, 72 S. Ct. 216.) The trial court found that the plaintiff was not a seaman and therefore could not benefit from the provisions of the Jones Act and further that plaintiff could not bring a cause of action against either defendant for breach of the warranty of seaworthiness. We affirm.

Logsdon operates a harbor service, fleeting, short haul towing, lock assistance and barge cleaning operation on the Illinois River near Beardstown. As part of its barge cleaning service, Logsdon contracts with river carriers to sweep and clean cut residual cargo from the bottom of their off-loaded barges.

Plaintiff’s deposition established that at sometime prior to the middle of September 1977, he made a “verbal application” to one of Logsdon’s secretaries for a position as a deck hand on one of Logs-don’s tugboats. He testified, “At the time I applied for river work I had no river work — no river experience.” No written application was filed, nor did anyone at Logsdon notify him or gather more information regarding his interest in becoming a deck hand for Logsdon’s operations.

Meanwhile in mid-September 1977, plaintiff began employment as a deck hand and oiler for a company named Material Service. He had no further contact with Logsdon, other than “just shooting the bull” with friends there, until just before March 1, 1978, when he received a call from Logsdon requesting his services beginning March 1, 1978. Snelling reported to work at Logsdon’s office at approximately 7 a.m. on March 1, 1978. There, he first received instructions about the nature of his duties from the dispatcher. He testified that he was assigned to sweep and clean out the bottom of the off-loaded barges. When asked to describe the job he had by title or duties, plaintiff responded, “barge cleaner.” Also, although he had no prior experience in that capacity, he was put in charge of the three-man barge cleaning crew. Plaintiff apparently was given information from someone at Logsdon sufficient for him to conclude that his employment would be sporadic. He stated that the arrangement was for Logsdon to call “when he needed me.” At that time he was still regularly employed by Material Service but was in a period of 21 days off-duty between periods of 21 days on-duty that his schedule required.

Snelling and his two fellow barge cleaners were transported from Logsdon’s office area to barge No. CNC220B, owned by defendant ContiCarriers, via the motor vessel Sprigg, owned and operated by Logsdon. The cleaners had been at work cleaning No. CNC220B for about 21k hours when plaintiff fell from the ladder while leaving the cargo hold. The cleaning of that barge had been completed and the three-man team was preparing to wait for the Sprigg and, in the words of the plaintiff, “go, I guess, to another barge [,] I don’t know.”

Snelling returned to work at Logsdon after a six-month medical leave and worked as a deck hand for three days. He quit working after realizing he was unable to continue because of his injury.

“In deciding whether a plaintiff’s status as a seaman presented a jury question, the authorities under the Jones Act have been virtually unanimous in applying the following three-part test to various sets of facts: (1) that the plaintiff was injured upon a vessel in navigation, (2) that the plaintiff was aboard that vessel primarily to aid in navigation, and (3) that the plaintiff had a more or less permanent connection with that vessel or with a specific group or fleet of vessels. [Citations.]” (Berry v. American Commercial Barge Lines (1983), 114 Ill. App. 3d 354, 359, 450 N.E.2d 436, 440.)

We agree with plaintiff’s statement in his reply brief that he had no permanent connection with any ContiCarrier barge or fleet of barges at the time of his injuries. Hence, it would appear that one of the essential elements of the established test is not satisfied. But plaintiff argues that he was a seaman by virtue of the fact that he was hired as a seaman initially and that his duties on the first day of employment just happened to include a temporary assignment as a barge cleaner. Under such circumstances, the plaintiff would be assigned to all the vessels in the Logsdon fleet in the same manner as he was when he returned to employment as a deck hand, six months later. Plaintiff’s affidavit purports to support this argument by stating that Logsdon “makes no division of duties among his employees to do seaman duties as well as other duties.”

Plaintiff’s argument in this respect cannot be sustained. The question concerns his duties and permanency at the time of his accident. The law covers only seamen in being, not probable or expectant seamen. (Desper v. Starved Rock Ferry Co. (1952), 342 U.S. 187, 96 L. Ed. 205, 72 S. Ct. 216.) “This means that the employee must be a seaman at the time his claim arises; the fact that he was once a seaman and that either he or his employer intend some day for him again to become one do not suffice to tint with blue water status all the events that happen in between ***.” (Guidry v. South Louisiana Contractors, Inc. (5th Cir. 1980), 614 F.2d 447, 453.) Plaintiff testified that he had no permanent assignment to work on the Sprigg and that he was simply on that vessel in order to get to and from the office and ContiCarrier’s barge. In fact, he had no assignment at all. His deposition clearly shows that he was not a deck hand. He was employed only as an “as needed” barge cleaner and then only when he was otherwise available in a period of 21 days off from Material Service.

We conclude that there is nothing in the record to support a finding that Snelling had a permanent connection with Logsdon’s vessels. “Whether a person is a seaman is normally a question of fact for the trier, but the issue may be resolved by summary judgment where the undisputed material facts establish as a matter of law that an individual is not a Jones Act seaman.” (Jones v. Mississippi River Grain Elevator Co. (5th Cir. 1983), 703 F.2d 108, 109.) Here the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences. Therefore, this question should be answered as a matter of law. (Berry v. American Commercial Barge Lines (1983), 114 Ill. App. 3d 354, 450 N.E.2d 436; Ardoin v. J. Ray McDermott & Co. (5th Cir. 1981), 641 F.2d 277, appeal after remand (5th Cir. 1982), 684 F.2d 335.) Snelling was a casual worker whose duties included work of a nature that seamen might perform, but his performance of those duties did not make him a Jones Act seaman.

Affirmed.

HARRISON, P.J., and JONES, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH HANSON, Defendant-Appellant.
    Fifth District
    No. 83—130
    Opinion filed December 8, 1983.

      Randy E. Blue and Dan Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Gerald A. Sims, Jr., State’s Attorney, of Pinckneyville (Stephen E. Norris and Mark A. LaRose, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE EARNS

delivered the opinion of the court:

Eenneth Warren Hanson was convicted after a bench trial in the circuit court of Perry County of unlawful possession of firearms and firearms ammunition within five years of having been convicted of a felony or within five years of release from the penitentiary. (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 3.1(a)(3).) He was sentenced to seven months in prison. He appeals from his conviction on three grounds, contending that (1) the court erred in denying his motion for automatic substitution of judge provided by section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114— 5(a)); (2) the court abused its discretion in denying defendant’s motion for a continuance for the purpose of obtaining a material occurrence witness; and (3) the court abused its discretion in denying defendant’s motion for a continuance to allow his retained counsel to prepare for trial.

This case arose from a dispute on March 9, 1982, between a tavern keeper and an exotic dancer. Hanson, the tavern keeper, refused to pay the dancer for her evening’s work. It was alleged by the dancer and a customer who had come to her aid that Hanson threatened them with a shotgun or rifle as they approached the back door of the tavern where they thought Hanson would give the dancer her money. Although a sheriff’s deputy investigated the incident, no gun was found.

On April 14, 1982, Hanson was charged with two counts of aggravated assault with a deadly weapon and one count of unlawful possession of firearms and firearms ammunition. The court appointed the public defender who represented defendant through numerous hearings over a period of months. On April 19, 1982, and September 7, 1982, Hanson was ordered to appear at readiness calls before Judge Bastien, the presiding judge of Perry County. On October 4, 1982, a jury docket was filed which set Hanson’s case for trial on October 25, 1982. At a hearing on October 5 before Judge Bastien, defense counsel requested a continuance to the “next jury docket” in order to locate an occurrence witness who had moved to Oklahoma. The court denied the motion on the ground that there was no realistic possibility of finding the witness in spite of the defendant’s diligence. After granting a defense motion to sever counts, the court asked the State which of the severed counts it wished to try “during this jury session.” When the State elected to try the assault charges, the court said that Hanson’s case would be set down for immediate trial. By the end of the October 5 hearing, Hanson knew that his trial on the two counts of assault was set for October 25. On October 25, Hanson was granted another continuance.

A jury docket filed on January 10, 1983, again set Hanson’s case for trial. On January 17, 1983, Hanson moved for a substitution of judges as provided in section 114 — 5(a) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(a).) The motion was denied because, as Judge Bastien later explained in an affidavit, the motion came “after the 10 day period prescribed by statute.” On the first day of trial, on January 31, Judge Bastien denied Hanson’s motion for a continuance so that Hanson’s private counsel, retained only that morning, could prepare for trial. The court also denied a similar motion by private counsel made later that same day, but he permitted both defense counsel to participate actively in the trial. Hanson was convicted on the single count of unlawful possession of firearms.

We first consider whether a motion for substitution under section 114 — 5(a) is timely when it is filed only after the defendant’s trial is set before the same judge for the second time. We find that it is not timely under the circumstances in this case.

To enhance the impartiality of the judicial process, the legislature has provided that:

“Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge *** on the ground that such judge *** [is] so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion.” (Ill. Rev. Stat. 1981, eh. 38, par. 114 — 5(a).)

This provision is to be construed liberally in order to promote rather than defeat the right to a substitution. However, the defendant must bring himself within the statutory requirements before he has a right to a substitution of judges. (People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710.) He must file his motion within 10 days after his cause has been “placed on the trial call of a judge” or within 10 days of the date he can be charged with knowledge of the assignment of his cause to a trial judge. People v. Samples (1982), 107 Ill. App. 3d 523, 437 N.E.2d 1232; People v. Oatis (1979), 69 Ill. App. 3d 736, 387 N.E.2d 1052.

If the jury docket of January 10, 1983, had been the only notice to Hanson to appear at trial before Judge Bastien, there would be no doubt that the motion filed on January 17 brought Hanson within the 10-day limit. However, Hanson’s trial had been previously set on the jury docket of October 4. He thus had the same kind of notice in October that he would appear before Judge Bastien as that to which he responded in January with a motion for substitution. The notice given by the October 4 jury docket was confirmed at Hanson’s appearance before Judge Bastien on October 5 where he was told his trial on two counts of aggravated assault would be “set down” on the October jury setting. Inasmuch as Judge Bastien was the presiding judge of Perry County and Hanson had appeared before no other judge in this matter, the events of October 4 and 5 gave Hanson notice that Judge Bastien would hear his case. (See People v. Aldridge (1981), 101 Ill. App. 3d 181, 427 N.E.2d 1001; People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710.) This case is to be distinguished from People v. Samples (1982), 107 Ill. App. 3d 523, 437 N.E.2d 1232, where we held that the local practice in Williamson County, where a certain judge heard all criminal cases unless ill or unavailable, was not the equivalent of the contemplated statutory notice of assignment to a particular judge.

Hanson does not argue the grounds for his January motion arose after October. Indeed, his affidavit of January 21, offered in support of a motion for substitution under section 114 — 5(c), shows that the grounds alleged as the basis of Judge Bastien’s prejudice would have been equally true in October. We think that the October 4 jury docket set the 10-day clock running, and Hanson let his time for substitution of judge run out.

We turn now to a consideration of the trial court’s denial of defendant’s motions for continuance to obtain an occurrence witness from Oklahoma and to permit retained counsel to prepare for trial. All motions for continuances are addressed to the discretion of the trial court and will not be overturned in the absence of abuse of that discretion. (People v. Kane (1980), 81 Ill. App. 3d 641, 401 N.E.2d 1310; People v. Peterson (1979), 70 Ill. App. 3d 205, 387 N.E.2d 951.) A defendant seeking a continuance to produce a witness must present facts showing diligent efforts to make the witness available. (People v. Boyce (1977), 51 Ill. App. 3d 549, 366 N.E.2d 914.) When the defendant first moved in September 1982 for a continuance to obtain testimony from' the barmaid on duty, an alleged occurrence witness who had moved to Oklahoma, the court denied the motion. While seeming to recognize the defendant’s diligence, the court nevertheless observed that Hanson had been unable to produce the telephone number of the witness’ parents who were believed to live in Pinckneyville, Perry County. The court concluded that there was no reasonable chance that the witness would be located in time for the October trial.

Only shortly before the second trial was to begin in January, 1983, was the defendant able to find the witness’ address, although his attorney had told him for several months they needed it. Hanson testified that his counsel had the address three weeks before writing to the witness. The witness had not responded to the letter at the time of trial. In the absence of any facts to show the diligent pursuit of the missing witness and considering the length of time the case had been pending, we do not see that the trial court abused its discretion in denying the second motion for a continuance to obtain the witness from Oklahoma.

Nor do we think the trial court abused its discretion in denying a continuance for substitution of counsel when that motion was first made on the morning of trial and after the public defender had represented the defendant for 10 months without complaint from the defendant. The record shows that Hanson retained counsel only on the morning of the January 31 trial. A defendant is entitled to counsel of his own choice, but he may not use this right to frustrate the effective prosecution of his case. (People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736, cert, denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94.) The trial court is to consider all the circumstances in deciding whether to grant or deny a continuance for substitution of counsel. (People v. Gray (1981), 96 Ill. App. 3d 757, 422 N.E.2d 45.) His denial of the motion will not be cause for a reversal of a conviction unless it appears that the defendant’s rights were prejudiced. (People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736, cert, denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94.) Where a competent public defender actively represented Hanson for 10 months and private counsel was allowed to work with the public defender at trial in a lengthy and vigorous defense, we find that the trial court properly exercised its discretion in balancing the defendant’s right to counsel against the State’s right to insist on the prompt and effective administration of justice. People v. Langdon (1979), 73 Ill. App. 3d 881, 392 N.E.2d 142.

The judgment of the circuit court of Perry County is hereby affirmed.

Affirmed.

Welch, P.J., and HARRISON, J., concur.


author: JUSTICE UNVERZAGT

text:
    THE COUNTY OF LAKE, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Second District
    No. 83—3
    Opinion filed December 12, 1983.

      Fred L. Foreman, State’s Attorney, of Waukegan (Gary Neddenreip and Gerald P. Callaghan, Assistant State’s Attorneys, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, and Mohan, Alewelt & Prillaman, of Springfield (William J. Barzano, Jr., Assistant Attorney General, of counsel), for respondents.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Browning-Ferris Industries of Illinois, Inc. (B.F.I.), petitioned for review of site location approval conditions for a regional pollution control facility with the Pollution Control Board (PCB), pursuant to section 40.1 of the Environmental Protection Act (Act) (Ill. Rev. Stat., 1982 Supp., ch. 11IV2, par. 1040.1). B.F.I. sought review by the PCB of 16 of 25 conditions imposed on its sanitary landfill by the Lake County Board (County Board) pursuant to section 39.1 of the Act (Ill. Rev. Stat. 1981, ch. IIIV2, par. 1039.1, amended to Ill. Rev. Stat., 1982 Supp., ch. IIIV2, par. 1039.2). The Environmental Protection Agency (Agency) intérvened in support of B.F.I. before the PCB.

The PCB*s order partially or completely struck 14 conditions, amended one and affirmed another. The County Board appealed here for a direct review of the PCB’s order.

B.F.I. owns and operates a 74.3-acre solid waste disposal site known as Site No. 2 in an unincorporated area of Lake County, Illinois. The site is located approximately 2,000 feet east of the northeast corner of Ninth Street and Green Bay Road, near the village of Winthrop Harbor and the city of Zion. B.F.I. received its operational permit for Site No. 2 from the Agency on December 23, 1981. Under the permit, Site No. 2 was allowed to “handle general municipal solid waste excluding all liquids, sludges and hazardous waste.”

Adjacent to Site No. 2 on its western border lies Site No. 1. Site No. 1 is also owned and operated by B.F.I. It is a 71-acre landfill which is permitted as a landfill for special and hazardous waste. Site No. 1 and Site No. 2 are separated by 10 feet of clay.

B.F.I. decided to expand Site No. 2 by adding special wastes, as defined by the Act to the landfill. (Ill. Rev. Stat. 1981, ch. llD/a, par. 1003(aa), amended to Ill. Rev. Stat., 1982 Supp., ch. llP/a, par. 1003(ff).) Although hazardous wastes are included within the definition for special waste, B.F.I. specifically deleted hazardous waste from its request and sought to add only special, nonhazardous waste.

Since the time that B.F.I. initially received the site approval for Site No. 2 from the Agency, the General Assembly passed Senate Bill 172 (also known as Public Act 82 — 682), effective November 12, 1981, amending the Environmental Protection Act (Ill. Rev. Stat., 1982 Supp., ch. Illx/2, par. 1039.2), to transfer the responsibility for hearing and approving site location suitability permits for regional pollution control facilities from the EPA to the relevant locality, in this case, the County Board. The statute requires the County Board to conduct a public hearing on the site location application and conditions approval of the application on proof that the proposed site meets certain statutory criteria. The statute also enables interested parties to obtain review of the County Board decision before the PCB. Ill. Rev. Stat., 1982 Supp., ch. IIIV2, pars. 1039.2,1040.1.

Although Site No. 2 was an existing regional pollution control facility at the time Senate Bill 172 became law, B.F.I. was required to follow the new procedures. The amendments provided for county board approval for a new regional pollution control facility which has as one definition: “a permitted regional pollution control facility requesting approval to store, dispose of, transfer or incinerate, for the first time, any special or hazardous waste.” (El. Rev. Stat. 1981, ch. lll1^, par. 1003(t), amended to Ill. Rev. Stat., 1982 Supp., ch. lll1/2, par. 1003(x).) B.F.I. was seeking permission to add special nonhazardous waste for the first time to Site No. 2, which meant that B.F.I. had to obtain approval from the County Board before the Agency would grant a permit. In accordance with the new provisions of the Act, B.F.I. filed its request for site location approval with the County Board.

A Lake County Regional Pollution Control Hearing Committee (Committee) was appointed pursuant to a County Board resolution. The Committee conducted public hearings on B.F.I.’s request for site location.

The County Board was required to approve the site location suitability for Site No. 2 only in accordance with the six criteria set out in section 39.2(a). The section provides:

“(a) The county board of the county or the governing body of the municipality *** shall approve the site location suitability for such new regional pollution control facility only in accordance with the following criteria:
(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, saféty and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain as determined by the Illinois Department of Transportation, or the site is flood-proofed to meet the standards and requirements of the Illinois Department of Transportation and is approved by that Department;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; and
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows.” Ill. Rev. Stat., 1982 Supp., ch. llD/z, par. 1039.2(a).

Following the hearings, the Committee presented its findings to the County Board in a written report. The Committee found that four of the six criteria of section 39.2 were satisfied by B.F.I. They were those found in subparagraphs (i), (iii), (iv), and (vi). However, in order to meet the criteria of subparagraphs (ii) and (v), certain conditions were imposed on B.F.I. The Committee stated:

“That provided the following provisions are followed by the applicant, introduction of special waste to the site will not be detrimental to the public health, safety, and welfare, and there will be no increase in the danger to the surrounding area from fire, spills, or other operational accidents.”

The report went on to list 25 conditions, lettered A(i-x) through X, and an unnumbered proviso (Proviso).

The County Board adopted the Committee report in a resolution which granted approval to B.F.I. for the introduction of special, nonhazardous wastes to Site No. 2. The resolution stated “that subject to all such conditions the County Board grants its’ approval ***” and attached the Committee report to its resolution.

B.F.I. filed a petition for review of site location approval conditions with the PCB. The petition asked the PCB to delete 16 of the conditions that were contained in the County Board’s approval resolution. The objected to conditions are:

“C. That the Lake County Health Department shall have the right to conduct unannounced inspections and investigations on site at all reasonable times for the purpose of ensuring that the public health, safety and welfare will be protected.
E. That the Lake County Health Department shall have the right to inspect manifests on all incoming wastes and to sample those wastes.as may be necessary to ensure that all special wastes received at the site are permitted and disposed of as designated.
G. That the Lake County Health Department shall have the right to discuss specific disposal methods with the Landfill Supervisor and make recommendations as may be necessary to control any nuisances associated with the disposal of special wastes.
H. That the Lake County Health Department and the Lake County Department of Building and Zoning shall have the right to discuss with the Landfill Supervisor and may require additional measures for controlling: rodent infestation, flies, birds, dust, odors, blowing and erosion problems.
I. That the Lake County Health Department shall receive from applicant copies of all quarterly monitoring well results. In addition, the Lake County Health Department shall have the right to discuss with the applicant and may require additional monitoring reports, wells and/or devices for local ground water, surface water and air.
K. That the applicant shall provide on-site at all times special wastes are received a chemist who shall have a bachelor of science degree in chemistry and at least two years experience in the field of chemical analysis. Said chemist shall test the contents of wastes brought to the site to ensure that the contents of each load are consistent with manifest forms and that only permitted wastes are deposited on the site. Said chemist shall certify on each manifest form the contents of each load and the site where such contents are deposited.
The minimum tests to be run on site shall be as follows: color, turbidity, smell, Ph, flash point. The Lake County Health Department shall have the right to discuss adequacy of testing with the applicant and may require additional tests to be routinely performed. Special testing may be required at off site labs at the direction of the Lake County Health Department.
M. That the applicant shall meet the water quality goal of the 208 Areawide Water Quality Management Plan for northeastern Illinois by reducing by 50 percent pollution loads in the stormwater runoff.
N. That the applicant shall notify the Lake County Health Department prior to the commencement of any pumping of water off-site; the Health Department shall have the right to test said water for pollutants before pumping begins.
O. That the applicant shall contact the Lake County Health Department whenever the liquid to waste ratio on any given day reaches a level of 10 gallons of liquid to one cubic yard of solid. If the inspection demonstrates problems, the Lake County Health Department may close the site to any additional liquids. Also, daily logs shall be sent to the Lake County Health Department on a monthly basis for its review, to insure compliance with this condition.
P. That if the drainage plan indicates that stormwater will be diverted from Lake Michigan watershed, the applicant shall obtain the necessary state permits for such a diversion.
S. That the applicant, after receiving the approval of property owners, shall test the water from all drinking wells within 500 feet of the site on a quarterly basis and report results to the Lake County Health Department.
T. That the applicant shall sound the gas vents on a quarterly basis in order to determine the level of liquid in the landfill’s excavated trench. This should be done during the operation of the facility and for three years after closing of the site. If the level reaches ten feet, then the operator shall begin weekly monitoring. A lowering of the level through pumping and treatment shall be required if water levels continue to rise.
V. That, upon receiving a special waste permit for the site from the Illinois Environmental Protection Agency, the applicant shall pay a fee of $1,000 per year to the Lake County Health Department to cover the costs of said Department’s inspection program as set forth herein; said fee shall be adjusted each year to cover actual cost as determined by said Health Department.
W. That prior to accepting special wastes at the site, the applicant shall provide proof of financial responsibility to the County of Lake in the form of a pre-paid bond, escrow fund agreement, or a pre-paid insurance policy to provide funds for environmental clean-up to correct existing and prevent further environmental damage caused by special wastes leaving the site. Said bond, escrow agreement or insurance policy shall be in an amount not less than $3,000,000.00 for a period of not less than 20 years after closure of the site and shall provide for payment to a person authorized by the County of Lake to determine and execute the remedies necessary to correct existing and prevent further environmental damage caused by special wastes leaving the site.
X. That the foregoing conditions shall become conditions of any permits issued by the Illinois Environmental Protection Agency and shall be enforced by the Illinois Environmental Protection Agency.” Proviso
“It is therefore the recommendation of the Lake County Regional Pollution Control Hearing Committee that the request of the applicant for site approval be granted subject to the foregoing conditions provided, however, that all court reporter fees, costs of transcription of record, and publication costs in connection with said hearing be paid by the applicant.”

The Agency filed a motion to intervene before the PCB, which was granted. The primary emphasis of the Agency’s position before the PCB, and in this appeal, concerns only Condition X.

The PCB made its determination regarding each of the 16 conditions as briefly summarized:

Condition X:

The County Board lacked the authority under section 39.2 to interject itself into the Agency permitting and enforcement system by requiring that its site approval conditions be included in an Agency permit and enforced thereby. The condition was stricken.

Conditions E, K, O, T and I:

The common reason for striking these conditions was because they involved technical subject areas which historically are within the province of the Agency. Condition I was affirmed in part since B.EI. did not challenge the requirement found in the first sentence, i.e., that B.F.I. provide the Lake County Health Department with copies of all quarterly monitoring well results.

Condition C:

Senate Bill 172 did not give the Lake County Health Department independent authority for investigation of Site No. 2. The health department already has power to investigate under other statutes so that “C” is merely a restatement of existing law. It was deleted by the PCB.

Condition G was affirmed by the PCB. While Condition H was also found to be within the sphere of county interest, the words “may require” were changed to “to recommend.” This change was to insure that there would be no conflict with permit conditions.

Conditions M, N, and P:

Although drainage conditions were found to be within the sphere of local interests by the Board, Condition M was beyond the scope of section 39.2. That part of “N” requiring notification before pumping water off-site was affirmed. The remainder was stricken because it invaded an area within the Agency’s purview. “P” was stricken as superfluous.

Condition S:

This condition was deleted because it was too vague and there was no support in the record for a 500-foot limit.

Conditions V, W, and the Proviso:

All three conditions were stricken by the Board. Section 39.2 does not authorize the County Board to assess costs or impose financial responsibility. There is no basis in the record for the amount of financial responsibility and the time period imposed in “W.” Besides, the Agency cannot require a bond (this prohibition is modified as it relates to hazardous wastes), and the County Board cannot do what the Agency is prohibited from doing.

A petition for review by this court of the PCB’s order was filed by the County Board pursuant to Supreme Court Rule 335 and section 41 of the Environmental Protection Act. (87 Ill. 2d R. 335; Ill. Rev. Stat., 1982 Supp., ch. llV-lz, par. 1041.) The County Board has appealed the PCB’s decision on only 10 of the conditions: C, E, I, H, K, O, N, V, W and X.

The issues presented for review are:

(1) Whether section 39.2 gives the County Board the power to impose technical conditions on site location suitability approval.
(2) Whether the County Board can require as a condition to site location suitability approval that the Agency issue a permit which incorporates the County Board’s site approval conditions and requires enforcement of those conditions by the Agency.
(3) Whether the conditions the County Board sought to impose on site location suitability approval were properly stricken by the PCB.
(4) If the conditions are found to be invalid by this court, does the County Board’s resolution constitute a denial of site location suitability approval.

The PCB determined that the County Board did not have the authority under section 39.2 to impose technical conditions on siting approval. This finding was based on its interpretation of the legislative intent behind section 39.2 and the concept of a unified, statewide program of environmental protection. It determined the Agency retained its jurisdiction over the technical aspects of landfill design, construction and operation. It found that section 39.2 allowed the County Board to review matters which were traditionally local in nature. The PCB delineated “spheres of interest” between the Agency and local authorities.

On appeal, the County Board asserts it has exercised only the authority granted it under section 39.2. That section allows the County Board to regulate by permitting the County Board to impose conditions in siting approval. As long as those conditions are in keeping with the six statutory criteria, including conditions which relate to the design and operation of a landfill, the County Board claims it is within its authority. The County Board arrives at this conclusion by arguing that section 39.2 is clear and unambiguous and, therefore, legislative history does not have to be considered.

B.EI. claims that section 39.2 changed prior law only to the extent that the County Board can approve location. It attempts to validate this conclusion by arguing legislative intent; a comparison of section 39.2 with sections 39(a), 41(b), and 36(a) (Ill. Rev. Stat., 1982 Supp., ch. llli/a, pars. 1039.2, 1039(a), 1041(b); Ill. Rev. Stat. 1981, ch. HV-k, par. 1036(a)); the general purpose of the Act for a unified, statewide program; prior decisions of the Board; and a lack of relevance between the conditions and the siting approval.

While the PCB referred to E, K, O, T, and I as the “impermissible ‘technical’ conditions,” the County Board has sought review on only E, K, O and the second sentence of I (which was stricken). B.EI. contends that Conditions C, H and the second phrase of N (also stricken) are technical conditions. The issue was recently decided in City of East Peoria v. Pollution Control Board (1983), 117 Ill. App. 3d 673.

There, the Tazewell County Board denied siting approval to Waste Management for expansion of a landfill. Upon review before the PCB, it was determined that the denial was based upon a finding by the Ta-zewell County Board that the proposed design, location and operation of the landfill would not protect the public health, safety and welfare. The PCB ruled that the county board could not address “highly technical issues” in this area and had acted beyond its authority. After concluding that the county board went beyond section 39.2, the PCB conducted its own de novo consideration of the “highly technical details.” The PCB overruled the county board and granted approval for the site.

On appeal, it was determined that the county board had the jurisdiction to consider the public health ramifications of the landfill’s design. This authority was granted by virtue of the unambiguous language of section 39.2(a). Since the PCB incorrectly interpreted the law, it incorrectly applied the wrong standard of review by conducting a de novo hearing. The PCB’s finding was thus invalid. The appellate court remanded the cause to the Board for consideration under the proper standard since the invalid order was not subject to administrative review. The court stated that section 39.2(a)(ii) was an “unequivocal statutory directive to consider the public health ramifications of the proposed landfill’s design ***.’’ The PCB’s position was found to be inconsistent with the “express, unambiguous language of the statute.” 117 Ill. App. 3d 673, 678.

The statute provides that siting approval can be granted only in accordance with the six criteria. The criteria include:

“(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; ***.” (Emphasis added.) (Ill. Rev. Stat., 1982 Supp., ch. HV-k, pars. 1039.2(a)(ii), (v).)

The language provides that local governmental units can take into consideration the technical details relating to design and operation of a landfill. Conditions can be imposed “to accomplish the purposes” of section 39.2 which means that local authorities can impose “technical” conditions on siting approval. (Ill. Rev. Stat., 1982 Supp., ch. HV-k, par. 1039.2(e).) We see no reason to depart from the decision in the City of East Peoria case and will adhere to it.

Therefore, as to Conditions C, E, H, K, and 0, and the second sentence of both I and N, we remand them to the PCB for review of the County Board’s findings and conclusions.

The PCB struck Condition X, which required that the Agency adopt the County Board’s conditions in a permit and enforce those conditions. It based this decision on a finding that the County Board did not have the authority under section 39.2 to interject itself into the Agency permitting and enforcement system.

The County Board contends that Condition X is not an attempt to issue a permit. There is no usurption of Agency permitting authority. The County Board claims that Condition X is the means by which it can enforce its conditions; without it, the County Board’s conditions are an “exercise in futility.” By requiring that the Agency adopt and enforce the conditions, the concept of a unified, statewide program of environmental control is promoted. The County Board also points out that the Agency permitting authority derives from the county siting approval.

Although B.F.I. argues against the imposition of Condition X, the strongest opponent of the condition is the Agency. It provided the PCB with sufficient reasons to strike the condition when it intervened in the matter. On appeal, we believe its arguments are persuasive and are adopted by this court.

Historically, the Agency has the exclusive authority to issue a permit. The PCB is not vested with this power. (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541.) The PCB may not require the Agency to adopt procedures or impose procedures on it for the issuance or transfer of permits. (Village of Hillside v. John Sexton Sand & Gravel Corp. (1982), 105 Ill. App. 3d 533.) Nor can the Agency issue a permit subject to local laws and zoning ordinances of non-home-rule governmental units. (Carlson v. Village of Worth (1975), 62 Ill. 2d 406.) Of course, recent legislation has modified Carlson so that local authorities have a voice in site location suitability approval. Ill. Rev. Stat., 1982 Supp., ch. lll1^, pars. 1039(c), 1039.2.

The language of section 39.2 does not vest the County Board with permitting authority. Any conditions the County Board imposes are not to be “inconsistent with regulations promulgated by the Board.” (Ill. Rev. Stat., 1982 Supp., ch. lll1^, par. 1039.2(e).) Since the PCB is not empowered to act in the permitting process (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541; Village of Hillside v. John Sexton Sand & Gravel Corp. (1982), 105 Ill. App. 3d 533), the County Board is also so limited. The County Board cannot attempt to do what the PCB cannot.

Also, the County Board is limited to imposing conditions which “accomplish the purposes of this Section,” referring to section 39.2. (Ill. Rev. Stat., 1982 Supp., ch. lll1^, par. 1039.2(e).) The Agency has broader authority to impose permit conditions which are “necessary to accomplish the purposes of this Act,” referring to the Environmental Protection Act. (Ill. Rev. Stat., 1982 Supp., ch. 1111/2, par. 1039(a).) When read together, the sections suggest that the Agency maintains its authority to issue permits. The scope of authority granted the County Board is restricted.

Condition X would also require enforcement of the conditions by the Agency. The financial and technical burdens imposed upon the Agency as a result would be great. The imposition of Condition X is an attempt by the County Board to issue a permit. By requiring the Agency to adopt and enforce its conditions, the County Board has usurped the exclusive power of the Agency to grant or deny a permit. Sections 39(c) and 39.2 have not delegated the Agency’s authority in this area to the County Board. Ill. Rev. Stat., 1982 Supp., ch. IIIV2, pars. 1039(c), 1039.2.

This result does not leave the County Board without a remedy. The power to impose conditions under section 39.2(e) implies a power to enforce them. (Ill. Rev. Stat., 1982 Supp., ch. lllVa, par. 1039.2(e).) The County Board can enforce its conditions in an action before the PCB as provided in sections 31(b) and 33(a). The broad language in those sections states that:

“Any person may file with the Board a complaint *** against any person allegedly violating this Act ***.” (Ill. Rev. Stat., 1982 Supp., ch. IIIV2, par. 1031(b).) also
“[T]he Board shall issue and enter such final order, or make such final determination, as it shall deem appropriate under the

circumstances.” (Ill. Rev. Stat. 1981, ch. HV-k, par. 1033(a).) Siting approval conditions are imposed by virtue of the authority of the Act. A violation of a condition properly imposed under this authority is a violation of the Act. The County Board then is left with the “private remedies” (Ill. Rev. Stat. 1981, ch. IIIV2, par. 1002(b)) afforded under these sections.

The County Board seeks review on two remaining conditions which were deleted or modified by the PCB: V and W. Each condition is addressed separately. In reviewing the PCB’s determination of these conditions, the proper standard of review is the manifest weight of the evidence. Ill. Rev. Stat., 1982 Supp., ch. IllV2, par. 1041; Mathers v. Pollution Control Board (1982), 107 Ill. App. 3d 729.

Condition V:

The condition essentially requires B.F.I. to pay the County Board’s health department inspection costs on a yearly basis. The Board struck the condition because section 39.2 did not grant the County Board the power to impose fees.

Section 39.2 does not specifically grant the power to assess fees against an applicant. The County Board argues that such authority is implied by the authority to inspect. No finding was made that section 39.2 grants the County Board the authority to inspect in the instant case because B.F.I. agreed to inspections and the county health department has inspection authority already. Ill. Rev. Stat. 1981, ch. HV-k, par. 20cl3.

Regardless of a power to inspect, the imposition of a fee is not a reasonable and necessary condition in order to accomplish the purposes of section 39.2. (Ill. Rev. Stat., 1982 Supp., ch. IIIV2, par. 1039.2(e).) Any relationship these have toward carrying out the purposes of this section are too remote to come under the provision for conditions. If the legislature intended such a power, it could have been more specific. To extend section 39.2 to allow Condition V would go beyond the confines of the statute. The PCB’s determination to strike “V” is upheld.

Condition W:

Condition W provides for proof of financial responsibility by B.F.I. The PCB struck “W” because the County Board cannot accomplish what the Agency is prohibited from doing. There was no support in the record for the amount and time period decided. Also, there were no standards to govern who would receive the money and execute the remedies.

The condition was properly struck for a number of reasons. Section 39.2 does not specifically grant the County Board the authority to require financial responsibility. Nor does it specifically prohibit the County Board from doing so. However, other considerations indicate that the authority cannot be implied.

Financial responsibility is not part of the six criteria to be considered in granting approval. It is only indirectly related to (v) but not sufficiently to find that it is implied. Ill, Rev. Stat., 1982 Supp., ch. llV-lz, par. 1039.2(a)(v).

The Agency is prohibited from requiring a bond or other security as a condition for a permit. (Ill. Rev. Stat., 1982 Supp., ch. lll1^, par. 1039(a).) This provision indicates the legislative intent that bonds or other financial security are not allowed. The legislature has specifically provided an exception for RCRA permits in section 39(d). (Ill. Rev. Stat., 1982 Supp., ch. IIIV2, par. 1039(d).) Absent a clear intent to the contrary, no exception has been made for a county under section 39.2.

The time limitation imposed by the condition is arbitrary. There was no evidence to support a 20-year period. Testimony at the hearing indicated that B.F.I. would be responsible for the site up to three years after closure. B.F.I.’s brief presents a PCB regulation that requires B.F.I. to monitor the site for three years after closure. The County Board’s argument that a 20-year period is reasonable and necessary in light of the problems associated with inactive landfills in other parts of Lake County is insufficient to allow the condition.

The amount of $3,000,000 is also arbitrary. The County Board argues that the amount does not have to be supported by the record because it is a common fact that landfill cleanup costs are high. Although this fact may be true, it does not support the amount imposed.

Overall, the County Board overstepped its authority in Condition W. The PCB’s finding is affirmed.

In summary, the PCB’s order concerning Conditions V, W and X are affirmed. Conditions C, E, H, I, K, N and O are remanded to the PCB for reconsideration.

The last issue raised by the County Board is whether its resolution amounts to a denial of siting approval if the conditions imposed are stricken. The County Board claims that it does. It admits that it did not make an express finding that B.F.I. did not satisfy all six criteria, but that is the effect of its decision. In the alternative then, the County Board asks that the cause be remanded to Lake County for a determination of whether the site will meet sections 39.2(a)(ii) and (v). Ill. Rev. Stat., 1982 Supp., ch. lll1^, pars. 1039.2(a)(ii), (v).

We determine that we need not address this issue since the cause is being remanded in part.

Affirmed in part and remanded.

SEIDENFELD, P.J., and HOPE, J., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT LEE SPICE, Defendant-Appellant.
    Fourth District
    No. 4—83—0055
    Opinion filed December 8, 1983.

      Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Robert Lee Spice, appeals from his conviction of burglary. The defendant argues on appeal that the trial judge erred in failing to entertain the defendant’s request for appointment of new counsel and in instructing the jury. The defendant seeks a reversal of his conviction and a remand for new trial. We affirm.

On March 23, 1981, the defendant was charged by information with one count of burglary. A public defender had been appointed on March 12, 1981, to represent the defendant. On May 27, 1981, the defendant made a request by letter that he be permitted to dismiss the public defender and receive representation by another attorney. That letter read in pertinent part:

“Hon: Judge of the Court
I Robert Lee Spice wish to dismiss my court appointed attorney Bruce Beeman!. And request another attorney from the Bar Ass. I feal [sic] my rights to a fair trial, will be violated, if I go to court with him!.. [Sic.] I’ve only seen him twice!. [Sic.] Once on Aprile [sic] 15th, and the second time was May 27th 1981.

It is unclear from the record whether the trial court judge ever saw that letter. The letter was filed with the clerk on May 27, 1981. The court took no action on the letter, and the cause proceeded to trial. Not again until this appeal did the defendant express dissatisfaction with his counsel.

On March 11, 1981, the defendant gave the police a written statement which was introduced by the State without objection as evidence at the defendant’s trial. In that statement the defendant indicated that he and another man, Marvin Barnes, had gone to the victim’s residence on January 9, 1981. According to the statement, the two men agreed on and executed a plan that Barnes would “break into a house” and that Spice was not going to go in “but would stand outside to watch for the police and *** help sell the stuff we got.” The defendant’s statement continues to say that neither man had permission to enter the house.

At the close of the trial the court instructed the jury. Among the instructions given were the following:

“A person commits the crime of burglary who, without authority, knowingly enters a building or any part thereof with intent to commit theft.” (People’s Instruction No. 9, based on Illinois Pattern Jury Instruction (IPI), Criminal, No. 14.05 (2d ed. 1981).)

and

“To sustain the charge of burglary, the State must prove the following propositions:.
First: That the defendant or one for whose conduct he is legally responsible entered a building; and
Second: That the defendant or one for whose conduct he is legally responsible did so with intent to commit the crime of theft.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.” People’s Instruction No. 10, based on IPI Criminal No. 14.06 (2d ed. 1981).

When the prosecution offered its instruction No. 10, the defense objected on the grounds that the instruction was modified in the second paragraph. The defense offered no alternative instruction and the court gave both instructions as the prosecution offered them.

The jury returned a guilty verdict and the court entered judgment thereon.

We first address the issue raised as to the defendant’s letter to the court regarding his dissatisfaction with his public defender. The defendant cites two cases for his proposition that when a defendant has raised the question of the adequacy of representation by an appointed attorney, the protections of the sixth amendment require that the trial court significantly inquire into the reasons for the request. Neither of those cases, United States v. Morrissey (2d Cir. 1972), 461 F.2d 666, and People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247, supports a requirement that, when a trial court receives a letter such as the one at issue here, the court must respond to the letter or hold an evidentiary hearing to inquire into the defendant’s claim of ineffectiveness of his court-appointed counsel.

If the defendant’s letter was not received and read by the trial court before it was filed by the clerk, the letter here was like the written motion for a new trial filed by the defendant in People v. Stewart (1952), 412 Ill. 106, 105 N.E. 725. In that case the defendant argued as a basis for appeal that the trial court erroneously refused to rule upon the written motion. Our supreme court held that:

“A motion is an application to the court, and the mere filing of it in the office of the clerk is not of itself a sufficient application. It must be brought to the attention of the court ***.” People v. Stewart (1952), 412 Ill. 106, 108,105 N.E. 725, 726.

Even if the court did receive the defendant’s letter, it was not, as the defendant contends, incumbent on the court to investigate into the effectiveness of the defendant’s counsel. The Federal courts have held harmless a trial judge’s failure to inquire formally into a defendant’s request for new appointed counsel if there is no suggestion that such an investigation would reveal reasons justifying substitution. (McKee v. Harris (2d Cir. 1981), 649 F.2d 927, 933.) The defendant’s allegation that he’d seen his public defender only twice did not rise to a level of seriousness demanding the court’s investigation.

The defendant argues further that the record of the representation which' the defendant received, when viewed as a whole, supports his contention that the court incorrectly failed to act on the defendant’s letter. We disagree. After writing the letter in question, the defendant did not state or renew any complaints regarding his attorney’s performance. The record shows that the defense attorney was familiar with case materials and that he represented the defendant with knowledge of the defendant’s decision not to challenge any prospective jurors or present any evidence.

We find no error in the trial judge’s failure to act on the defendant’s letter.

We now turn to the issue of the jury instructions. The offense of burglary in Illinois includes as an element that entry be made “without authority.” (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a).) Thus it is that IPI Criminal provides as the second of three elements in the issues instruction for burglary: “That the defendant did so without authority.”

The People’s Instruction No. 10 given to the jury in the instant case did not include that element of lack of authority. The giving of the instruction, therefore, was erroneous. “It is the State’s duty to prove the essential elements of a charged crime, and these elements must be made known to the jury.” (People v. Worsham (1975), 26 Ill. App. 3d 767, 770, 326 N.E.2d 134, 137.) The issue remaining on appeal, then, is whether the error in the instructions requires reversal and remandment for a new trial. (People v. Stromblad (1978), 74 Ill. 2d 35, 39, 383 N.E.2d 969, 971.) We find that it does not.

The defendant cites Stromblad in support of his proposition that the court’s failure here to instruct the jury on a necessary element requires reversal, regardless of the sufficiency of the evidence at trial. His reliance is inappropriate. The instruction defect in Stromblad was the omission from the definition of obscene material of the phrase “utterly without redeeming social value.” That misinstruction caused the jury to lack a crucial tool for determining whether the prosecution had proved the defendant guilty of the obscenity offense charged. Additionally, whether material is so “utterly without redeeming social value” as to be obscene is a determination which is particularly susceptible to differing interpretations of facts. In this case the error was not on so critical a point.

As our supreme court has held, even though error may have been committed in giving an instruction, it will not always justify reversal when the evidence on the question raised is clear. (People v. Jones (1979), 81 Ill. 2d 1, 9, 405 N.E.2d 343, 346.) In Jones, the court found that the jury had been misinstructed as to the mental state element. The court found the error to be harmless, however, basing its decision on the clear evidence of the requisite mental state and the accuracy of other instructions given the jury.

In the instant case, as in Jones, the element in question is one on which there is clear and unchallenged evidence. The defendant’s statement to the police acknowledged that neither he nor his partner had permission to enter the victim’s residence. The victim testified that she had not given the defendant authority to enter. Furthermore, the defendant neither presented any evidence of his own, nor challenged any evidence presented on the authority issue.

The jury found that the defendant was accountable for an entry of a building with the intent to commit theft. We conclude that the error in the jury instruction was harmless. Having so decided, we need not rule on whether, as the defendant argues, the error in the issues instruction was redeemed by the giving of the correct definitional People’s Instruction No. 9.

For the foregoing reasons, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE WEBBER

text:
      In re TY STYK HARRISON, a Minor (The People of the State of Illinois, Petitioner-Appellant, v. Beverly Harrison, Respondent-Appellee).—In re A. B. HARRISON, a/k/a Billy Harrison, a Minor (The People of the State of Illinois, Petitioner-Appellant, v. Beverly Harrison, Respondent-Appellee).
    Fourth District
    Nos. 4—83—0692, 4—83—0693 cons.
    Opinion filed December 15, 1983.
    James R. Benson, State’s Attorney, of Paxton (Robert J. Biderman and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Paul R. Wilson, Jr., of Rantoul, for appellee.
    Sue A. Gibson, of Dilks, Rodeen & Gibson, of Paxton, guardian ad litem.

   JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents a novel question which has not been entirely answered in this State so far as we know: does a natural parent have the right to counsel on appeal when his parental rights have been adjudicated in a case involving their termination?

Both minors had been adjudicated neglected and dependent, Billy by the circuit court of Iroquois County, and Ty Styk by the circuit court of Ford County. In each case the Guardianship Administrator of the Department of Children and Family Services of the State of Illinois was appointed guardian of the minors with power to place them in foster care. Ultimately Billy’s case was transferred to Ford County and the State’s Attorney there filed petitions in each case seeking to terminate parental rights and to empower the Guardianship Administrator to consent to adoption. The cases were consolidated for hearing, and the trial court appointed Mr. Paul R. Wilson, Jr., as counsel for the mother, Beverly Harrison. The natural fathers of the minors did not appear at any stage of any of the proceedings and were defaulted.

The trial court held an extensive evidentiary hearing on the petitions and denied the prayers thereof. The State then appealed. Mr. Wilson filed a motion in the trial court seeking to be appointed counsel on appeal. That motion was denied there. He then filed a similar motion in this court.

Because of the gravity and novelty of the question, we took the motion with the case and ordered the parties to brief it, to argue the motion first, and in the event of its allowance, to be prepared to go forward immediately with argument on the merits. This was done; we now allow the motion and appoint Mr. Wilson as counsel for Beverly Harrison on appeal; and we affirm the order of the trial court.

Respondent has argued that she is entitled to counsel on appeal under both the Constitution of the United States and the Constitution of Illinois of 1970 as a matter of due process and equal protection. She also argues statutory grounds.

A Federal case, extensively cited by both parties (Lassiter v. Department of Social Services (1981), 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153), dealt with the question of counsel on the trial level. In that case the minor had been adjudicated neglected and custody was awarded to the Department of Social Services. The mother was afterwards convicted of a homicide and sentenced to a term of 25 to 40 years’ imprisonment. The Department then petitioned to terminate parental rights. The mother was served but took no action in connection with the case, although she had retained counsel to overturn her criminal conviction. The trial court refused to appoint counsel for her in the termination proceeding, finding that there was no averment that she was indigent, that she had had ample time to secure a lawyer, and that her failure to do so was without just cause.

The Supreme Court held that due process did not require the appointment of trial counsel in every instance. It noted that the petition to terminate contained no allegation of neglect or abuse upon which criminal charges might be based. No expert witnesses were called to testify, and the case was relatively uncomplicated. The evidence strongly favored the termination and the presence of counsel could not have made a determinative difference. Under these circumstances the court held that it was not error to refuse to appoint counsel.

However, the court did not entirely foreclose the possibility of appointment of counsel on due process grounds, but rather left the matter to be determined by the States on a case-by-case basis.

Respondent argues, and we agree, that the instant case is factually inapposite to Lassiter. Respondent presented a vigorous defense and prevailed in the trial court. She then further argues that by virtue of the State appeal, she has as much at stake in this court as she did in the trial court, and therefore due process requires the appointment of counsel. The argument is attractive, but since Lassiter was concerned only with trial counsel, we feel it would be presumptuous of us to expand its scope to appeal counsel, especially since such an amorphous concept as due process is involved.

A number of our sister States have considered the matter and have held on due process and equal protection grounds that there is a constitutional right to counsel and a record for appeal in a termination of parental rights case. See, e.g., State ex rel. Heller v. Miller (1980), 61 Ohio St. 2d 6, 399 N.E.2d 66; Reist v. Bay County Circuit Judge (1976), 396 Mich. 326, 241 N.W.2d 55; In re Brehm (1979), 3 Kan. App. 2d 325, 594 P.2d 269.

The State, in this appeal, relies on two of our supreme court’s decisions. However, they too, like Lassiter, deal with the question of counsel at the trial level.

In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 338 N.E.2d 862, was concerned with the presence of counsel at the time of execution of adoption consents. The supreme court held that there was no constitutional right to counsel at that stage, especially since the statute required that the consent be executed before a judge.

People v. Lackey (1980), 79 Ill. 2d 466, 405 N.E.2d 748, was a per curiam supervisory order dealing with a conflict of counsel at the trial level. In that case the court did say, “Unlike most criminal cases, there is no constitutional right to counsel in this case.” (79 Ill. 2d 466, 468, 405 N.E.2d 748, 749.) Hoffman was cited as authority for this proposition. However, in the next sentence the Lackey court went on to say, “There is, however, express provision for the appointment of ‘the Public Defender or such other counsel as the case may require’ when requested by an indigent party. (Ill. Rev. Stat. 1977, ch. 37, par. 701-20(1).)” 79 Ill. 2d 466, 468, 405 N.E.2d 748, 749.

The underlying rationale of both Hoffman and Lackey, in our opinion, is that the presence of a statutory provision (i.e., the presence of a judge in Hoffman, and the requirement of counsel in Lackey) obviated the necessity of addressing the constitutional issue. This is altogether in keeping with the doctrine (more honored in the breach than in the observance in recent times) that if a court may dispose of a case on some other ground, the constitutional issue will be avoided.

A leading case on the subject is City of Detroit v. Gould (1957), 12 Ill. 2d 297, 146 N.E.2d 61. In that case the city of Detroit, Michigan, sued in the circuit court of Cook County, Illinois, for personal property taxes owed by the defendant. The defense was that no judgment had been obtained for them in Michigan upon which the full faith and credit clause of the Federal Constitution might operate. The supreme court rejected the theory and allowed the suit on the basis of comity, and said:

“This cause comes to this court upon a constitutional question: Must the courts of Illinois give fall faith and credit to the taxing statutes of the State of Michigan? Having determined that upon principles of comity, the Illinois court should hear the plaintiffs’ action, it becomes unnecessary for us to determine if the constitutional provision also requires the circuit court of Cook County to hear the cause. A constitutional question should not be decided if the cause can be determined on other grounds. People ex rel. Downs v. Scully, 408 Ill. 556; Winston v. Zoning Board of Appeals, 407 Ill. 588; People v. Metcoff, 392 Ill. 418; People v. Chiafreddo, 381 Ill. 214.” 12 Ill. 2d 297, 304, 146 N.E.2d 61, 65.

The reason for the rule is apparent. A common law constitutional decision, as distinguished from a decision on the constitutionality of a statute, becomes a not-so-subtle piece of judicial legislation and may be altered or repealed only by either a constitutional amendment or by an overruling by the court itself. The wisdom of the decision may not stand the test of time, or as the French say, “Autre temps, autres mores.” The law, being a constantly emerging creature, must remain flexible and alive. A common law constitutional decision leads to embalming it and endless efforts to distinguish, if it no longer suits changing conditions.

We therefore decline to follow the constitutional approach, but we find a statutory basis for the appointment of counsel on appeal.

Section 1 — 20(1) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 20(1)) provides in pertinent part: “At the request of any party financially unable to employ counsel, the court shall appoint the Public Defender or such other counsel as the case may require.” Section 1 — 20(3) of the same Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 20(3)) provides in pertinent part: “Upon an adjudication of wardship of the court under Section 4 — 8, the court shall inform the parties of their right to appeal therefrom as well as from any other final judgment of the court.” (Emphasis added.) Unquestionably an order concerning the termination of parental rights is a final order and thus appealable. We can discern no logical nor rational reason why the legislature would provide for an admonishment concerning appeal but in the same breath deny counsel on appeal when counsel has been mandated at trial. Nor do we discern any qualitative difference between who may be appellant and who appellee in such a case. The statute superficially appears to be aimed at the parents as appellants, but again it would be illogical and irrational to allow counsel for the parents as appellants but deny it as appellees.

This statutory approach has been followed in some of our sister States. The Supreme Court of Iowa stated the matter in a succinct fashion:

“The conclusion is inescapable that the legislature intended to afford all persons coming before the juvenile court a full and complete review on appeal. This is particularly true in view of section 232.1, which provides that the chapter shall be liberally construed so that each child coming within the jurisdiction of the court will receive care and guidance that will conduce to his welfare and the best interests of the state. It must be assumed that this right of appeal, particularly in view of section 232.1, was not intended to be limited to those cases in which the minor child or his parents were financially able to afford such appeal. Certainly the legislature intended that the indigent child or the indigent parent should receive an appeal equal to that of the affluent one.
* * *
We see no reason why the appointment of counsel for plaintiff under section 232.28 should be construed to terminate when the hearing before the juvenile court was concluded. That section does not so provide; and when plaintiff was given the statutory right to appeal, it must have been contemplated that such an appeal would require the services of counsel. We hold therefore that the appointment of counsel to represent plaintiff should continue through all stages of the proceedings including an appeal as authorized by statute.” In re Chambers (1967), 261 Iowa 31, 34-35,152 N.W.2d 818, 821.

The California Courts of Appeal have arrived at the same conclusion under their statute. See In re Simeth (1974), 40 Cal. App. 3d 982, 115 Cal. Rptr. 617; In re Norma M. (1975), 53 Cal. App. 3d 344, 125 Cal. Rptr. 721.

Overarching all is the gravity of a termination of parental rights case. So far as the natural parents are concerned, the termination of parental rights is the equivalent of the death of the child. Even a convicted felon, absent any question of life imprisonment or a death sentence, may ultimately be restored to his family. It is totally inconsistent with the purpose and policy of the Juvenile Court Act stated in section 1 — 2 thereof (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 2) to deny the natural parents who are indigent the right to counsel on appeal.

As to the merits of the trial court’s order, it would unduly lengthen this opinion to recite in detail all of the facts elicited at the hearing. The State maintains that the order is against the manifest weight of the evidence. No other issue is presented for our scrutiny.

The rules of law in this area are well known. Evidence of unfitness must be proved by clear and convincing evidence. (In re Grotti (1980), 86 Ill. App. 3d 522, 408 N.E.2d 728.) The findings of the trial court are entitled to great deference by the reviewing court. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820.) A reversal must be based on a finding that the trial court’s determinations were against the manifest weight of the evidence. In re Gates (1978), 57 Ill. App. 3d 844, 373 N.E.2d 568.

We have examined the record with care and have concluded that the State failed in its burden of proof. The respondent is far from an ideal mother. As counsel • stated in oral argument, she would never win the Mother-of-the-Year award. However, this does not per se make her unfit. The record discloses that much of her difficulty was an inability to communicate with the Department of Children and Family Services (DCFS), a complaint not unusual in these cases. She indicated confusion as to why her children had been removed from her home and seemed uncertain as to what DCFS expected her to accomplish before she could regain custody. It is significant that the respondent was the only one to testify at the hearing. No one from DCFS offered any evidence to rebut respondent’s claims.

The trial court found respondent to be a passive person and that this trait accounted for her failure better to carry out her parental responsibilities. Her shortcomings are many, but even cumulatively they do not establish unfitness by clear and convincing evidence. A trial court’s finding of unfitness will not be reversed on appeal unless it is against the manifest weight of the evidence. (In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84.) A finding of fitness, by extension of logic, is entitled to the same deference.

The motion to appoint counsel on appeal is allowed and the order of the circuit court of Ford County is affirmed.

Affirmed.

MILLS, P.J., and GREEN, J., concur.


author: PRESIDING JUSTICE HARRISON

text:
      In re MARRIAGE OF PAMELA SCHAUFELBERGER, Petitioner-Appellee, and DOUGLAS SCHAUFELBERGER, Respondent-Appellant.
    Fifth District
    No. 82—709
    Opinion filed November 22, 1983.
    — Rehearingdenied December 23, 1983.

      James E. Ligman, of Kaucher and Ligman, of Belleville, for appellant.
    Meyer & Meyer, of Greenville, for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Douglas Schaufelberger (respondent) and Pamela Schaufelberger (petitioner) were married in 1974, and their marriage was dissolved by a judgment entered in the circuit court of Bond County on August 31, 1982. On appeal, respondent attacks that portion of the judgment relating to the division of property, arguing that the division constitutes an abuse of discretion, and that the record is devoid of evidence of the value of certain stock owned by respondent as nonmarital property. For the reasons which follow, we affirm the judgment of the circuit court.

In asserting that the property distribution made by the trial court constitutes an abuse of discretion, respondent specifically complains of that portion of the judgment ordering respondent to pay $53,000 to petitioner “as her equitable portion of the marital assets.” In reviewing a property distribution upon dissolution of marriage, we will find an abuse of discretion only where no reasonable person would take the view adopted by the trial court. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.) The evidence adduced at the hearing in this case indicated that, at the time the parties separated, they owned 5,000 bushels of stored corn and 10,000 bushels of stored soybeans. Respondent testified that the corn was sold at “$2.50 or $2.80” per bushel, and that the soybeans were sold for between $8 and $9 per bushel. Moreover, the parties owned 20 dairy cows at the date of separation, and respondent subsequently sold these cows for over $17,000. The combined proceeds from the sales of the crops and cows thus totaled over $100,000, and we cannot say that the court abused its discretion in awarding $53,000 to petitioner as her share of these marital assets. While respondent also asserts that the marital debts should be divided equally, the testimony established that nearly all of the debt stemmed from the purchase of farm equipment, and that respondent alone had signed the notes by which this debt was incurred. We note also that the proposed distribution submitted by respondent suggested that respondent be held liable for all of the debt incurred for the farm machinery, and that, in any event, petitioner’s need for kidney dialysis treatment three times weekly substantially limits her ability to earn enough income to be able to contribute to the payment of the debt. Compare In re Marriage of Clearman (1981), 97 Ill. App. 3d 641, 648, 423 N.E.2d 283, 288.

Respondent next contends that the absence of any evidence regarding the value of the stock awarded to him as nonmarital property compels reversal and remandment for a new hearing. We disagree. In In re Marriage of Cuisance (1983), 115 Ill. App. 3d 551, 450 N.E.2d 1302, the court held that the failure of a party to offer evidence as to the value of assets does not necessarily waive the right to appeal on this issue. The court in Cuisance reasoned that where there is no evidence in the record of the value of marital and nonmarital property, there is no basis upon which a reviewing court can evaluate a propriety of the trial court’s award of marital property. (115 Ill. App. 3d 551, 556.) A different conclusion was reached, however, in In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 448 N.E.2d 545. Noting that neither party had presented the court with solid evidence of the value of the property in question, the court in Smith nonetheless affirmed the property distribution of the trial court, stating:

“Reviewing courts cannot continue to reverse and remand dissolution cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. [Citations.] Remanding cases such as the one before us would only protract the litigation and clog the trial courts with issues which should have been disposed of at the initial hearing.” 114 Ill. App. 3d 47, 54-55.

In our view, the rationale articulated in Smith is particularly appropriate here. Evidence as to value of the stock could do nothing other than show that respondent’s financial worth is greater than that shown by the record in its current state, and we cannot see how such a showing could work to respondent’s benefit insofar as the division of marital property is concerned.

For the foregoing reasons, the judgment of the circuit court of Bond County is affirmed.

Affirmed.

WELCH and KARNS, JJ., concur.


author: JUSTICE TRAPP

text:
    LYLE NELSON, Trustee under the Last Will and Testament of A. V. Nelson, Deceased, Plaintiff-Appellant, v. ROBERT E. GUNDLOCK et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0149
    Opinion filed December 8, 1983.

      Walter L. Stodd, of Pontiac, for appellant.
    Law Offices of Sidney E. Smith, of Pontiac (James A. Cas son, of counsel), for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff Lyle Nelson brings this appeal from orders of the circuit court of Livingston County granting summary judgment for the defendants, Robert and Gladys Gundlock and Agnes Baker. Two controlling issues are presented for our review: (1) whether a question of fact exists as to defendants’ acquisition of a prescriptive right to flood plaintiff’s land; and (2) whether a servient landowner has a common law duty to remove natural accumulations of debris in a watercourse. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff is the owner of farm land lying to the east of defendants’ land and described as the northwest quarter of section 21, township 29 north, range 5 east. West of plaintiff’s land and servient thereto is defendants’ land described as the northeast quarter of section 20, in that township and range. Two watercourses form the basis for the present dispute: Baker’s Run, a perennial watercourse in the northern portions of the parties’ land which flows in a general southwest direction, and a drainage swale in the southern part of the parties’ land which travels from plaintiff’s land to the defendants’ land through a culvert under a township road.

Count I of plaintiff’s complaint concerns the second watercourse and alleges that defendants have constructed, within the last 20 years, a berm of earth or obstruction impeding the natural flow of water through the culvert, resulting in a flooding of plaintiff’s land. Counts II and III allege that defendants wrongfully allowed “trees, shrubs, grass, weeds, brush and other debris” to accumulate in the creek bed of Baker’s Run creek, causing water from Baker’s Run to accumulate on plaintiff’s property. In answer to count I, defendants raised as an affirmative defense that they had acquired a prescriptive right to flood plaintiff’s land, claiming that the berm referred to had existed for well over 20 years adversely to plaintiff’s rights. In response to counts II and III, defendants asserted, by way of affirmative defense, that the obstructions were only natural obstructions and denied any obligation to clean Baker’s creek of such. In separate orders, the trial court granted summary judgment for the defendants on all counts of plaintiff’s complaint.

To establish a prescriptive right to flood the lands of another, there must be a flooding for a period of 20 years which is both adverse and uninterrupted and with the knowledge and acquiescence of the landowner. (Wills v. Babb (1906), 222 Ill. 95, 78 N.E. 42; Montgomery v. Downey (1959), 17 Ill. 2d 451, 162 N.E.2d 6.) The record consisting of the pleadings, depositions, and affidavits, discloses that a material question of fact remains to be decided before these elements are established. There seems to be no question of fact that the obstruction or berm has been adjacent to the culvert for well over 20 years, but it remains to be decided whether this obstruction has caused any invasion of plaintiff’s rights for 20 years. The only affidavit filed in opposition to defendant’s motion for summary judgment which addresses this issue is that of plaintiff’s tenant, Russow, who states that “prior to the year 1977, the drainage water flowed through the culvert slowly, but did not back up and flood plaintiff’s land.”

Part of the problem with this issue stems from defendants’ erroneous belief that an easement need not invade another’s rights to commence the period of limitations. Defendants assert in their brief that the mere maintenance of the obstruction for 20 years, regardless of whether plaintiff’s land is flooded, is controlling in deciding whether a prescriptive right to flood is created. We disagree. Clearly, Wills and Montgomery indicate that an invasion of another’s rights must occur before the period of limitations commences to run. An argument similar to that made by the defendants was made in the case of Davis v. Louisville & Nashville R.R. Co. (1922), 147 Tenn. 1, 244 S.W. 483. In Davis, a dominant landowner brought suit against a railroad for flooding damages to his crops for the years 1916 and 1917. The evidence indicated that the railroad had constructed a bridge with a culvert and embankment in the late 1800’s over a watercourse leading to the Cumberland River, but it was not until approximately 1901 that the culvert became obstructed and flooded plaintiff’s land. The railroad argued that it had a prescriptive right to flood plaintiff’s land because the embankment and culvert had existed for more than 20 years, much as defendants argue here that their berm had been in existence for more than 20 years. The court’s response is pertinent to our inquiry here:

“The mere construction of the embankment did not constitute an entry upon the plaintiff’s property; it was of itself no trespass on or invasion of his rights; it was but use of his own property which became an invasion of the plaintiff’s rights upon the maxim ‘sic utere tuo ut alienum laedas’; it was but the maintenance of a private nuisance which of course afforded no right of action to plaintiff until actual injury resulted therefrom.
***
We conclude, therefore, that we cannot begin to count the prescriptive period from the date of the construction of the embankment, but that it must be counted from the date when experience showed the culvert to be insufficient. *** Before it can rely upon a presumption of a grant, it must be made to appear that at some period more than 20 years before plaintiff’s cause of action arose its embankment and culvert actually caused plaintiff’s land to overflow, and that this condition continued throughout the period.” 147 Tenn.. 1, 11-13, 244 S.W. 483, 486-87.

Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show that there is no genuine issue as to a material fact and that the movant is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c); McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 428 N.E.2d 739.) Since the affidavits, pleadings and depositions on file show that there is a material question of fact as to whether plaintiff’s land has been adversely and continuously flooded for a period of 20 years, we hold that the trial court erred in granting defendants’ summary judgment on count I of plaintiff’s complaint.

Counts II and III charge that defendants wrongfully allowed Baker’s Run to become obstructed with natural debris resulting in an overflow of water onto plaintiff’s land. Defendants denied that they had “wrongfully obstructed” Baker’s Run and set up as an affirmative defense that any obstructions were only obstructions occurring in the course of nature and denied any duty to remove such. Defendant Robert Gundlock’s affidavit states that neither he nor any other person took any steps to obstruct the flow of water in Baker’s Run creek. Plaintiff suggested in the trial court and asserts here that servient landowners, such as defendants, have a duty to remove natural obstructions from a perennial watercourse. We disagree.

In Geis v. Rohrer (1957), 12 Ill. 2d 133, 145 N.E.2d 596, the owners of a dominant estate sought a mandatory injunction to compel ser-vient landowners to excavate a natural watercourse which plaintiffs contended had been filled in as a result of defendants’ actions. There, the evidence indicated that one of the defendants had plowed along the waterway throwing dirt in it and had placed logs and other debris in and along the ditch. On appeal to the supreme court, the court commented that “[o]ur remaining inquiry, then, is to determine whether there is a reasonable basis for the chancellor’s finding that the defendants caused the obstruction *** and hence are subject to a duty to remedy the situation.” (12 Ill. 2d 133, 136, 145 N.E.2d 596, 598.) We read Geis as well as Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 411 N.E.2d 217, to indicate that either a negligent or intentional obstruction of a waterway so as to invade another’s interest in land will result in liability. In neither case, nor in any other case which we have found involving private landowners, has it been held that a servient landowner is absolutely liable to clean a watercourse. In fact, the contrary has been held.

In Savoie v. Town of Bourbonnais (1950), 339 Ill. App. 551, 90 N.E.2d 645, a dominant landowner brought suit against a town highway commissioner, a county, and adjoining landowners seeking a mandatory injunction to compel them to repair and maintain a drainage ditch which overflowed on plaintiff’s land as a result of its being filled with debris. In upholding the dismissal of the complaint, the appellate court stated:

“These cases do not hold that defendants may be compelled at their own expense to perpetually secure plaintiff’s property rights from the adverse forces of nature. ***
The law, on the contrary, recognizes that it is the duty of the owner of an easement to keep it in repair (Murtha v. O’Heron, 178 Ill. App. 347), and no obligation is generally imposed upon those whose lands are thus placed in servitude to make repairs. (Prescott v. Williams, 5 Mtc. (Mass.) 429, 39 Am. Dec. 688; 67 C.J. 908.) The proper remedy ordinarily is that the owner of the easement has the right to go on the servient tenement to keep the drain in repair (Wessles v. Colebank, 174 Ill. 618; Nixon v. Welch, 238 Iowa 34, 24 N.W. (2d) 476). Such an interpretation is consistent with our fundamental concepts respecting property rights whereby one owning property is expected to protect those rights himself, and the only duty of others is not to actively invade them.” (339 Ill. App. 551, 559, 90 N.E.2d 645, 650.)

See also Advising Farmers sec. 24.16, at 24 — 13 (Ill. Inst. Cont. Leg. Educ. 1983).

We do note that in Bay Bottoms Drainage District v. Cache River Drainage District (1920), 295 Ill. 301, 129 N.E. 152, the supreme court stated that drainage districts have a duty to keep district drains free from obstructions. This case is clearly inapposite, however, inasmuch as it was concerned with statutorially created drainage districts which have a statutory duty to keep their drains in operation and repair. (Ill. Rev. Stat. 1981, ch. 42, par. 4 — 15.) With respect to private landowners, the drainage code only imposes a duty not to intentionally or wilfully interfere with a ditch or natural drain. Ill. Rev. Stat. 1981, ch. 42, par. 2 — 12.

The complaint, affidavits and other matters on file in support of the defendants’ motion for summary judgment show clearly that the obstructions which existed were natural and not the responsibility of the defendants. (There is some suggestion in an affidavit of Robert Russell that a concrete ford obstructs Baker’s Run creek, but the uncontradicted affidavit of defendants’ surveying expert Krause indicates that the elevation of the concrete ford is much lower than the creek as it leaves plaintiff’s land.) Because there is no question of fact that the obstructions which existed occurred in a state of nature, and because we can find no support for. plaintiff’s suggestion that a servient landowner has a commonlaw duty to remove natural accumulations in a watercourse, we affirm the order of the trial court granting summary judgment for the defendants on counts II and III.

For the foregoing reasons, the order of the circuit court of Livingston County granting summary judgment for defendants on counts II and III is affirmed. The order granting summary judgment for the defendants on count I is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded for further proceedings.

MILLS, P.J., and MILLER, J., concur.