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                                  Appellate Court                            Date: 2016.01.28 09:13:15
                                                                             -06'00'




                   Sorrells v. City of Macomb, 2015 IL App (3d) 140763



Appellate Court       DUANE SORRELLS and MILDRED SORRELLS, Plaintiffs-
Caption               Appellants, v. THE CITY OF MACOMB, a Municipal Corporation,
                      Defendant-Appellee (DK Linde Construction, Inc., Defendant).



District & No.        Third District
                      Docket No. 3-14-0763



Filed                 October 23, 2015
Rehearing denied      November 30, 2015



Decision Under        Appeal from the Circuit Court of McDonough County, No. 07-CH-38;
Review                the Hon. Rodney Clark, Judge, presiding.



Judgment              Affirmed.




Counsel on            Stanley L. Tucker (argued) and Carissa Ann Bryant, both of Hartzell,
Appeal                Tucker & Hartzell, of Carthage, for appellants.

                      Bhairav Radia (argued), of O’Halloran, Kosoff, Geitner & Cook LLC,
                      of Northbrook, for appellee.




Panel                 JUSTICE CARTER delivered the judgment of the court, with opinion.
                      Justices Lytton and Schmidt concurred in the judgment and opinion.
                                             OPINION


¶1       Plaintiffs, Duane and Mildred Sorrells, filed a complaint against defendant, DK Linde
     Construction, Inc. (DK Linde), for flooding that occurred on their property allegedly caused by
     DK Linde developing the adjacent property. Plaintiffs amended the complaint to add a claim
     for inverse condemnation against defendant, the city of Macomb (City), who owned the streets
     that had been developed by DK Linde. The trial court granted the City’s section 2-615 motion
     to dismiss the plaintiffs’ inverse condemnation claim with prejudice. 735 ILCS 5/2-615 (West
     2012). The plaintiffs appealed the dismissal of their inverse condemnation claim. We affirm
     the trial court’s judgment.

¶2                                              FACTS
¶3                             I. Original Complaint Against DK Linde
¶4       On August 30, 2007, plaintiffs filed a one-count complaint for an injunction against DK
     Linde, who was developing a residential complex adjacent to their property known as the
     Scotch Pine Planned Unit Development (Scotch Pine). Plaintiffs alleged that nonpercolating
     surface water had naturally drained from defendant’s property onto their property until 1997
     when DK Linde installed a detention basin that altered the natural flow of the surface water
     drainage. Since the installation of the basin, DK Linde acquired additional property to develop
     Phase 2 of Scotch Pine, which included a new and expanded detention basin and drain. The
     plaintiffs alleged that DK Linde diverted the natural flow of water and caused an increased
     amount of surface water to drain onto their property. Plaintiffs requested that DK Linde be
     enjoined from unreasonably increasing the surface water that drained onto their land and that
     DK Linde be ordered to install and maintain appropriate drainage facilities.
¶5       After DK Linde answered the complaint, plaintiffs filed a motion for partial summary
     judgment with the affidavit of plaintiff, Duane Sorrells, attached thereto. Sorrells attested to
     the allegations of the complaint and attested to the fact that defendant had moved the point at
     which water discharged onto plaintiffs’ land. In response, DK Linde filed the affidavit of the
     engineer who had planned the development. The engineer attested that: (1) defendant did not
     unreasonably divert water; (2) the rate of surface water flow onto plaintiffs’ land would
     decrease; (3) the discharge from Scotch Pine had not been relocated; (4) the development
     complied with applicable engineering standards and the subdivision ordinance; and (5) the
     defendant’s storm water management plan did not alter the point of discharge.

¶6                    II. Amended Complaint Against DK Linde and the City
¶7       On March 15, 2012, with leave of court, plaintiffs filed an amended complaint, alleging
     two additional counts against DK Linde and two counts against the City. In count II against
     DK Linde, the plaintiffs alleged that the construction of Phase 2 of Scotch Pine would
     unreasonably discharge water onto their property that had not previously drained onto their
     property and the drainage system, as designed, would create an unnatural channel on their
     property and cause an increase of surface water that was diverted from other drainage basins to
     flow toward their land. For count II, plaintiffs requested a permanent injunction against DK

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       Linde. In count III against DK Linde for negligence, plaintiffs realleged the allegations of
       count II and that defendant’s trespass and other conduct would damage their property. For
       count III, plaintiffs requested money damages.
¶8         In count IV for inverse condemnation against the City, the plaintiffs alleged that DK Linde
       was developing a residential complex adjacent to the their property called Phases 1 and 2 of
       Scotch Pine, which included the installation of residential structures, streets, lawns, drainage
       ways, and other improvements, with the streets having been dedicated to the City. Plaintiffs
       alleged that the surface water from the streets and the development on Phase 1 was directed
       into unnatural channels on their land and that the surface water from Phase 2 had not
       previously drained naturally onto their land. Plaintiffs claimed that the drainage design would
       cause water from the development to unreasonably discharge from two storm water detention
       basins onto their property where there had been no natural drainage, causing erosion, creating
       an unnatural channel and increasing the amount of surface water drainage.
¶9         Plaintiffs further alleged that the City failed to follow applicable drainage standards,
       engineering standards, and ordinances in approving the construction and design of Phases 1
       and 2. Plaintiffs alleged that the unnatural and diverted drainage of surface water had and
       would in the future result in a permanent, continuing, and substantial physical interference
       with the use and enjoyment of their land, amounting to a taking of a drainage easement by the
       City for its streets and public ways, which would continue in the future as further streets and
       public ways were developed in Phase 2. Plaintiffs claimed that the taking was “by invasion by
       taking drainage rights and by permanently taking [their] lands due to an increase in the water
       level of plaintiffs’ lake.” Plaintiffs requested, inter alia, money damages for damage to their
       land not taken and an order of mandamus requiring the City to initiate condemnation
       proceedings for the portion of their property that had been taken. In count V, plaintiffs alleged
       negligence against the City based on the City’s alleged breach of duty to refrain from altering
       the natural flow of water.
¶ 10       In response, the City filed a motion to dismiss counts IV and V pursuant to section 2-619 of
       the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)). The City argued, inter alia, that
       the plaintiffs’ claim regarding Phase 1 should be dismissed pursuant to the applicable one year
       statute of limitations. The City also argued that it was immune from liability under section
       2-104 of the Local Governmental and Governmental Employees Tort Immunity Act (Illinois
       Tort Immunity Act) (745 ILCS 10/2-104 (West 2012)) (providing immunity to a local public
       entity for issuing a permit, license, certificate, approval, or similar authorization), section
       2-105 of the Illinois Tort Immunity Act (745 ILCS 10/2-105 (West 2012)) (providing
       immunity to a local public entity for the failure to inspect or for an inadequate or negligent
       inspection), and section 2-103 of the Illinois Tort Immunity Act (745 ILCS 10/2-103 (West
       2012)) (providing immunity to a local public entity for adopting or failing to adopt an
       enactment or failing to enforce a law).
¶ 11       In support of its motion to dismiss, the City provided the affidavit of Ed Basch, who had
       been the community development coordinator for the City. According to Basch’s affidavit, the
       City would transmit proposed engineering plans to a professional engineer for review. The
       engineering plans for Phase 1 were prepared by McClure Engineering, Inc., and reviewed by
       Benton & Associates, Inc., who found the Phase 1 drainage calculations complied with the
       Macomb Municipal Code and Illinois drainage requirements. The city council approved the
       final subdivision plans for Phase 1. The engineering plans for Phase 2 were prepared by

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       McClure Engineering and reviewed by Hutchison Engineering, Inc., who offered suggestions
       for improvements to the detention basin. The city council approved Phase 2 in a 5 to 3 vote.
¶ 12       The trial court granted the City’s motion to dismiss “on the immunity grounds,” with leave
       granted to plaintiffs to amend their complaint.

¶ 13                                  III. Second-Amended Complaint
¶ 14       The plaintiffs filed a second-amended complaint, asserting claims of inverse condemnation
       in count IV and negligence in count V. In response, the City filed a section 2-619 motion to
       dismiss, attaching the Basch affidavit in support thereof.
¶ 15       On July 17, 2013, the trial court found that the City was immune from tort liability for the
       alleged negligence count, which was dismissed with prejudice. The trial court also dismissed
       the inverse condemnation count, with leave granted to amend, if possible, to allege that “it is
       the streets in and of themselves that’s causing the taking not th[e] entire subdivision.” The
       plaintiffs filed a motion for the trial court to reconsider its dismissal of counts IV and V, which
       the trial court denied.

¶ 16                                   IV. Third-Amended Complaint
¶ 17       On August 5, 2013, plaintiffs filed a third-amended complaint, alleging an inverse
       condemnation claim against the City in count IV. Plaintiffs alleged that they owned real estate
       adjacent to land on which DK Linde was developing a residential complex known as Phases 1
       and 2 of Scotch Pine, which included “residential structures, street, lawns, drainage ways, and
       other improvements, which streets have been dedicated to the City.” The surface water from
       the streets and the development on Phases 1 and 2 was being channeled and directed, by the
       streets, into unnatural channels onto their land and surface water from Phase 2 had not
       previously drained naturally onto their land. Plaintiffs alleged the water from the development,
       including from the streets, was channeled and directed by the streets to unreasonably discharge
       from two storm water detention basins onto the land: (1) where there had been no natural
       drainage channel; (2) where their land would be eroded into an unnatural channel on their
       property; (3) at a point where there had not been any natural drainage or runoff from Phase 2;
       (4) causing increased discharge from the streets due to the construction of residential facilities,
       streets and sidewalks, which would have ordinarily percolated into the soil, and from rooftops
       draining into the streets; (5) with the flow of surface water having never previously before
       flowed toward plaintiffs’ land; (6) with the unreasonable and improper artificial drainage from
       the development and streets causing damage to their lake, dam, and other structures on
       plaintiffs’ land; and (7) with the ditches and drainage facilities on Phases 1 and 2 unreasonably
       increasing the surface water drainage onto their land.
¶ 18       Plaintiffs further alleged that in approving the construction and design of Phases 1 and 2,
       the City failed to follow applicable drainage standards, engineering standards, laws and
       ordinances, and failed to consider the damage to plaintiffs’ land. Plaintiffs claimed that the
       unnatural and diverted drainage of surface water in increased amounts, which was diverted
       onto their land by the streets, resulted in a “permanent, continuing and substantial interference
       with [their] use and enjoyment of their land, amounting to a taking of an interest in plaintiffs’
       property without compensation.” The plaintiffs claimed that the City: (1) discharged surface
       water from the streets and other locations onto their land that “would not normally flow upon


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       plaintiffs’ lands”; (2) diverted surface water from the streets “in channels other than natural
       drainage channels”; (3) failed to comply with City ordinances; (4) caused flooding on their
       property; (5) failed to correct defects in the design and construction of the streets; and (6) by
       way of the streets, unreasonably increased the flow of surface water from the development
       onto their land “beyond a range consistent with the policy of reasonableness of use which led
       initially to the good-husbandry exception.” Plaintiffs claimed that the City had taken a
       drainage easement and drainage rights, and “the unreasonable and unauthorized discharge of
       surface water and increase thereof from the defendant’s streets” had and will cause damage to
       other property that was not taken. For relief, plaintiffs requested, inter alia, money damages
       and an order of mandamus requiring the City to initiate condemnation proceedings.
¶ 19        On September 20, 2013, the City filed a section 2-619.1 combined motion to dismiss count
       IV of the third-amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil
       Procedure (Code). See 735 ILCS 5/2-615, 2-619, 2-619.1 (West 2012). On January 17, 2014,
       the trial court noted that the third-amended complaint was not specific as to the streets being
       the cause of the alleged taking and the plaintiffs “continued to attempt to bootstrap the entire
       subdivision into the complaint and the City enjoys certain immunities in relation to the fact that
       this was a private subdivision.” The trial court granted the City’s section 2-615 motion to
       dismiss count IV with prejudice, finding count IV failed to state a cause of action for inverse
       condemnation. Thereafter, the trial court denied the plaintiffs’ motion to reconsider but
       granted their request for a finding that there was no just reason to delay an appeal pursuant to
       Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Plaintiffs appealed.

¶ 20                                           ANALYSIS
¶ 21       On appeal, plaintiffs argue that the trial court erred in granting the City’s section 2-615
       motion to dismiss count IV of their third-amended complaint for failure to state a claim for
       inverse condemnation. Plaintiffs claim that the allegations were sufficient wherein they alleged
       a taking by the City of a drainage easement to drain surface water onto their land, channeled by
       the City’s streets, in unreasonable amounts, and in an unnatural channel.1 The City argues the
       allegations were insufficient to support plaintiffs’ claim of a governmental taking. The sole
       issue presented for review is whether the plaintiffs’ allegations were sufficient to establish a
       cause of action for inverse condemnation.
¶ 22       This court reviews de novo an order granting a section 2-615 motion to dismiss. Pooh-Bah
       Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). A section 2-615 motion to
       dismiss challenges the legal sufficiency of a complaint based on defects apparent on the face of
           1
            Under Illinois common law, a landowner has a duty to refrain from increasing the natural flow of
       surface water onto the property of an adjacent landowner. Van Meter v. Darien Park District, 207 Ill. 2d
       359, 369 (2003) (citing Templeton v. Huss, 57 Ill. 2d 134, 141 (1974)). When surface water falling or
       coming on one tract naturally descends upon the other, the owner of the higher (dominant) land has a
       natural easement in the lower (servient) tract. Mileur v. McBride, 147 Ill. App. 3d 755, 758 (1986). The
       owner of an upper field cannot construct drains or ditches to create new channels for water in a lower
       field. Templeton, 57 Ill. 2d at 138-39 (quoting Peck v. Herrington, 109 Ill. 611, 619 (1884)). However,
       under the “good husbandry” exception, the owner of dominant land may increase or alter the flow of
       water upon a servient estate as may be required by good husbandry. Id. at 139. Nonetheless, the
       good-husbandry exception is limited to that which is incidental to the reasonable development of the
       dominant estate. Id.; Bollweg v. Richard Marker Associates, Inc., 353 Ill. App. 3d 560, 575 (2004).

                                                      -5-
       the complaint and should not be granted unless it is clearly apparent that no set of facts can be
       proven that would entitle the plaintiff to relief. Id. The critical inquiry in determining whether a
       pleading should be dismissed pursuant to section 2-615 is whether the allegations, when
       construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action
       upon which relief may be granted. Kanerva v. Weems, 2014 IL 115811, ¶ 33. Thus, we must
       determine whether the allegations in count IV of the third-amended complaint, construed in the
       light most favorable to the plaintiffs, were sufficient to establish a cause of action for inverse
       condemnation.
¶ 23        Both the United States Constitution and the Illinois Constitution prohibit the taking of
       private property for public use without just compensation. Hampton v. Metropolitan Water
       Reclamation District of Greater Chicago, 2015 IL App (1st) 132317, ¶ 12 (opinion not
       released for publication in the permanent law reports and is subject to revision or withdrawal).
       Specifically, the fifth amendment of the United States Constitution prohibits private property
       from being “taken for public use, without just compensation.” U.S. Const., amend. V. The
       Illinois Constitution provides, “[p]rivate property shall not be taken or damaged for public use
       without just compensation.” Ill. Const. 1970, art. I, § 15. The same provision was stated in the
       1870 Illinois Constitution. Ill. Const. 1870, art. II, § 13.
¶ 24        Eminent domain is a state’s sovereign power to take private property for public use, subject
       to the constitutional requirement that just compensation be paid. City of Edwardsville v.
       County of Madison, 251 Ill. 265, 266 (1911). In an eminent domain proceeding, the
       condemning body files a condemnation action under the Eminent Domain Act (735 ILCS
       30/1-1-1 et seq. (West 2012)) to officially take real property from its owner. 735 ILCS
       30/10-5-5 (West 2012).
¶ 25        In an inverse condemnation proceeding, the property owner initiates an action to obtain an
       order of mandamus to compel the government to file a condemnation claim. Herget National
       Bank of Pekin v. Kenney, 105 Ill. 2d 405, 411-12 (1985). There is a distinction between
       property that has been physically taken and property that has been damaged. Patzner v. Baise,
       133 Ill. 2d 540, 546-47 (1990). Where no part of the land is taken, a property owner cannot, by
       mandamus, compel proceedings under eminent domain. Id. at 547; Granite City Moose Lodge
       No. 272 v. Kramer, 96 Ill. 2d 265, 270-71 (1983); People ex rel. Pratt v. Rosenfield, 399 Ill.
       247, 250-51 (1948) (overruling by United States Supreme Court, in part, recognized in
       Hampton, 2015 IL App (1st) 132317, to the extent the Pratt holding is that a temporary
       flooding can never constitute a compensable taking under the Illinois Constitution); Rigney v.
       City of Chicago, 102 Ill. 64, 71-72 (1881); Rothschild v. Baise, 157 Ill. App. 3d 481, 483
       (1987).
¶ 26        The addition of the word “damaged” in the 1870 Illinois Constitution, now found in the
       1970 Illinois Constitution, provided for compensation to property owners whose property was
       “injuriously affected” by government action but there had not been a government taking.
       Rigney, 102 Ill. at 66; see also Citizens Utilities Co. of Illinois v. Metropolitan Sanitary District
       of Greater Chicago, 25 Ill. App. 3d 252, 255-57 (1974) (providing the word “damaged” within
       the 1870 constitution means some direct physical disturbance of a property right which gave
       the property additional value, the disturbance of which causes special damage in excess of that
       sustained by the general public). Before the addition of the word “damaged” to the Illinois
       Constitution, a landowner had no relief for property damage that was caused by a public
       improvement unless there was an actual physical invasion of the land itself. Horn v. City of

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       Chicago, 403 Ill. 549, 554 (1949). Section 15 of article I of the 1970 Illinois Constitution
       retained the addition of the word “damaged” and afforded a property owner in Illinois greater
       protection than its federal counterpart because the Illinois takings clause guarded against both
       a governmental taking of property and governmental damage to property. See, e.g., Hampton,
       2015 IL App (1st) 132317, ¶ 14; International College of Surgeons v. City of Chicago, 153
       F.3d 356 (7th Cir. 1998). Thus, where no taking of property has occurred, the property owner’s
       remedy for a governmental disturbance of a property right is an action at law for damages to
       recover compensation under the Illinois Constitution. Patzner, 133 Ill. 2d at 546-47; Pratt, 399
       Ill. at 250-51; Cuneo v. City of Chicago, 379 Ill. 488, 493 (1942); Rigney, 102 Ill. at 67;
       Euwema Co. v. McKay Engineering & Construction Co., 316 Ill. App. 650, 653 (1942).
¶ 27        There is “no magic formula” to determine, in every case, whether the government’s
       interference with property is a “taking.” Arkansas Game & Fish Comm’n v. United States,
       568 U.S. ___, ___, 133 S. Ct. 511, 518 (2012). Most takings claims turn on the specific facts of
       the case. Id. at ___, 133 S. Ct. at 518. Factors relevant to determining whether there has been a
       compensable taking are: (1) the duration of the physical invasion; (2) the degree to which the
       invasion was the intended or foreseeable result of authorized government action; (3) the
       character of the land and the owner’s reasonable economic expectations regarding the use of
       property; and (4) the severity of the interference. Id. at ___, 133 S. Ct. at 522; Hampton, 2015
       IL App (1st) 132317, ¶ 25.
¶ 28        In Arkansas Game & Fish, the United States Supreme Court focused on the factors of
       duration and foreseeability in holding that “government-induced flooding temporary in
       duration gains no automatic exemption from Takings Clause inspection.” The United States
       Supreme Court in Arkansas Game & Fish addressed its prior decision in Sanguinetti v. United
       States, in which it held there was no taking where the factors of foreseeability and causation
       were not present where the government did not intend to flood the land and had no reason to
       expect that flooding would result from the construction of its canal. Arkansas Game & Fish,
       568 U.S. at ___, 133 S. Ct. at 520 (citing Sanguinetti v. United States, 264 U.S. 146, 147-49
       (1924)). Also, the property in Sanguinetti was subject to seasonal flooding prior to the
       construction of the canal and the landowner failed to show that the causal connection between
       the construction of the canal and the increased flooding was anything other than pure
       conjecture. Id. at ___, 133 S. Ct. at 520 (citing Sanguinetti, 264 U.S. at 149).
¶ 29        After Arkansas Game & Fish, public improvements that cause a temporary accumulation
       of water on property may be considered to be a taking in some circumstances. See Hampton,
       2015 IL App (1st) 132317. Under the Illinois Constitution, a temporary flooding of property
       can give rise to either a taking or an action at law for damages, depending on the
       circumstances. See Ill. Const. 1970, art. I, § 15. Thus, the requirement within the Illinois
       Constitution that the government pay just compensation for property that has been either taken
       or damaged is satisfied with an action at law for damages where the property was damaged for
       public use but no part of the property was taken. See Patzner, 133 Ill. 2d at 546-47; Horn, 403
       Ill. at 559; Pratt, 399 Ill. at 250-51; Kane v. City of Chicago, 392 Ill. 172, 175 (1945); Catello
       v. Chicago, Burlington & Quincy R.R. Co., 298 Ill. 248, 256 (1921); Euwema, 316 Ill. App. at
       653.
¶ 30        In this case, the plaintiffs alleged that the streets were constructed by DK Linde and
       “dedicated” to the City. According to plaintiffs’ allegations, the City had taken the plaintiffs’
       property in the form of a “drainage easement” for the drainage of its streets. “It is well

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       established that the government may not take an easement without just compensation.” Ridge
       Line, Inc. v. United States, 346 F.3d 1346, 1352-53 (Fed. Cir. 2003) (quoting United States v.
       Dickinson, 331 U.S. 745, 748 (1947), and Nollan v. California Coastal Comm’n, 483 U.S. 825,
       834 (1987)). However, plaintiffs alleged that the private development as a whole caused the
       alleged unreasonable amount of surface water to drain onto their land from the detention and
       drainage basins.
¶ 31        Specifically, plaintiffs alleged, “the water from the development, including from the
       streets, is being channeled and directed by said streets and is and will be unreasonably
       discharged from two Storm Water Detentions Basins onto Plaintiffs[’] [property].” At most,
       the allegations, taken as true, indicate that the increased drainage onto the plaintiffs’ land was
       for the benefit of both the private development and the public streets. Although temporary or
       permanent government-induced flooding can constitute a taking of property by flooding, the
       flooding as alleged in this case was induced by the private developers, not government action.
       Plaintiffs’ complaint makes clear that the water allegedly invading the plaintiffs’ property was
       drainage from two storm water detention basins or other drainage basins.
¶ 32        Thus, the allegations of count IV of the third-amended complaint are insufficient to support
       plaintiffs’ claim of a taking for public use where the alleged increased water drainage was
       coming from the entire development, including streets, through detention or drainage basins.
       The development was not a public property and the acceptance of the dedication of the streets
       inside the development does not give rise to a taking where the drainage was from the basins.
       In addition, plaintiffs failed to allege that the water draining from the development onto their
       land, in an unreasonable amount and unnatural channels, was the intended or foreseeable
       result, in whole or part, of the City’s actions rather than that of the development. See Bay
       Bottoms Drainage District v. Cache River Drainage District, 295 Ill. 301 (1920); Arkansas
       Game & Fish, 568 U.S. at ___, 133 S. Ct. at 522 (property loss is compensable as a “taking”
       only when the government intended to invade a protected property interest or the invasion was
       the direct, natural, or probable result of authorized activity as opposed to a resulting incidental
       or consequential injury (citing Ridge Line, Inc., 346 F.3d at 1355-56)).
¶ 33        Furthermore, condemnation cases traditionally arise from government action alone; not
       from multiple causes that would include actions of private actors, as in this case where the
       water was from the whole development flowing into detention basins. See, e.g., Patzner, 133
       Ill. 2d 540 (alleged a taking by the Secretary of Transportation where the Illinois Department
       of Transportation’s construction machinery parked on adjacent property caused the landowner
       to relocate his business); Herget, 105 Ill. 2d 405 (plaintiff sought a writ of mandamus to
       compel the Director of Conservation to undertake eminent domain proceedings for
       compensation where government caused plaintiff’s property to become submerged after it
       enlarged a lake); Granite City, 96 Ill. 2d 265 (property owner sought writ of mandamus to
       compel the Secretary of Transportation to institute eminent domain proceedings for the alleged
       taking and damaging of property due to construction of an adjacent roadway overpass); Pratt,
       399 Ill. 247 (landowners sought a writ of mandamus to require the city, mayor, members of
       city council, Illinois Central Railroad Company, and the Director of Public Works and
       Buildings of the State of Illinois to file a petition to determine damages allegedly caused by a
       change in grade that was made in connection with the removal of an old viaduct); Rigney, 102
       Ill. 64 (landowner brought suit against the city for damages to plaintiff’s land allegedly caused
       by the city’s construction of a viaduct or bridge). To constitute a government taking or


                                                    -8-
       compensable government action, the water overflow must be the result of a structure or action
       imposed by the governmental entity, even if after Arkansas Game & Fish it is only a temporary
       invasion of the property. Compare Herget, 105 Ill. 2d 405 (affirming trial court’s order for
       issuance of a writ of mandamus to compel eminent domain proceedings where the government
       submerged plaintiff’s land by enlarging a lake), with Sanguinetti, 264 U.S. 146 (no taking
       found because landowner failed to show that overflow onto his land was causally connected to
       the government’s canal construction rather than to increased seasonal flooding). In this case,
       the alleged flooding of the plaintiffs’ land was from the overflow of drainage and detention
       basins, not from the City’s actions.
¶ 34       Consequently, we find plaintiffs failed to state a cause of action against the City for inverse
       condemnation. We affirm the trial court’s section 2-615 dismissal of count IV of the plaintiffs’
       complaint for inverse condemnation.

¶ 35                                       CONCLUSION
¶ 36      The judgment of the circuit court of McDonough County is affirmed.

¶ 37      Affirmed.




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