Daily Development for Thursday, February 8, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

DIRT doesn't publish much that is targeted directly at agricultural issues, but here's a good one. Obviously, the facts could arise wherever there's a bridge over a public drainage canal, but editor suspects that the best cases are going to be in agricultural areas, like this one.

EMINENT DOMAIN; INVERSE CONDEMNATION: A drainage district has a duty to maintain, repair or replace a bridge, capable of sustaining modern farm equipment, that ordinarily provides access to landlocked property created by a drainage ditch.

Peters v. O'Connor, 725 N.E.2d 391 (Ill.App. 3 Dist. 2000).

In 1990 a local drainage district ("District") dredged a drainage ditch separating Peters's farmland into two parcels of 54 acres on one side and 17 acres on the other. In dredging, District, which had an easement in the land alongside the ditch, placed soil and other excavation product on Peters' land beyond the easement, which caused the slopes of the ditch to erode, which in turn caused damage to the bridge. Since the bridge was Peters' only access to the 17 acres, that property became useless to Peters when the bridge could no longer accommodate the weight of his equipment.

In 1993 the Appellate Court ruled that the District had an obligation to repair the bridge pursuant to the Illinois Drainage Code (Act) (70 ILCS 605/125 (West 1998))the Act) and the court ordered Appellee to pay just compensation to Peters due to the taking of the 1.65 acres of land outside its easement that it had covered with dredged material.

Peters filed this suit when the District failed to repair the bridge, and his suit further asked for damages for crop loss for the 17 landlocked acres from 1992 through 1998. The District counterclaimed requesting that the court order Peters to convey to it the 1.65 acres, as it claimed it had obtained a property right in that land, while Peters asserted that he had been paid only for injury to it.

The trial court found that the earlier appeals court decision had given the District an easement, ordered the District to repair of replace the bridge and denied Peters damages, stating that Peters had not provided sufficient evidence of his damages.

On the issue of the duty to repair the bridge, the District had argued that it had no duty to bring the bridge up to a standard necessary to support Peter's latest (and heavier) farm equipment. The court, relying on People ex rel. Speck v. Peeler, 290 Ill. 451, 125 N.E.306 (1919), found that the bridge in fact was a public benefit even though it served only Peters, since the public as a whole benefits from the creation of drainage ditches. Therefore, the public must contribute to the cost of maintaining District bridges through the levying of taxes. Thus, the court held that the Act requires a district that has landlocked a portion of a farmer's land to provide a bridge or passageway to the landlocked property. Since legislature had determined that the building of such bridges is a substitute for an inverse condemnation action relating to the severed property, the court held that the statute required that the bridge be capable of sustaining modern farm equipment. Otherwise, there would be no point in restoring access to the severed farm land.

Additionally, the court found that the trial court's ruling with respect to Peters's claim for damages was against the manifest weight of the evidence, and should be reversed. The Court stated that absolute mathematical certainty is not required to fix the amount of damages. Therefore, Peters had provided sufficient evidence of his loss when he averaged the crop yield from the 54 acres between 1992 and 1998 to determine what the yield would have been from the 17 acres had he been able to farm them, less any costs associated with the farming of them.

Finally, the Court affirmed the circuit court's ruling that the earlier appellate court decision had intended to give District an interest in the land, not just to compensate for damages. It based its decision on the size of the award that Peters had received, which roughly corresponded to the total value of the acreage. Thus, the trial court did not err when it granted the District an easement in the 1.65 acres with a right to its continued use.

Comment: It is difficult to know what in this opinion is based upon the Illinois statute and what is common law. But the concept that a party with an obligation to provide access must increase its commitment as the needs of the benefitted part increase is an interesting notion from whatever vantage we view it. Here, of course, the bridge was already damaged, and the only concern was what standards would be used to repair it. But what if the bridge was functioning perfectly well, but Peters' agricultural activities had changed over time, so that a stronger or wider bridge was required to provide practical access to the severed parcel? Would the District have the duty to build a whole new bridge?

The editor suspects that the answer should be "no." The District has the responsibility to anticipate in a reasonable fashion the future needs of the benefitted party when it builds its bridge, but the District thereafter ought to be entitled to amortize its investment, and any improvements ought to be paid for by the party seeking them.

But the court's analysis of the statute may in fact go beyond this. It states that "the Act specifically requires the District to continue to reconstruct and maintain at least one 'proper passageway' to the landlocked property. . . In short, if farmers are unable to access their land with necessary farm equipment due to the District's failure to maintain its bridge in a fashion that will allow it to accommodate modern farm equipment, then farmers have effectively been denied passage to their land as if the bridge did not exist."

Is this a duty to upgrade bridges continually as new farm equipment becomes part of the production cycle? Hmmmmm.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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