                                      2019 IL App (5th) 180403
            NOTICE
 Decision filed 09/05/19. The
 text of this decision may be             NO. 5-18-0403
 changed or corrected prior to
 the filing of a Petition for
 Rehearing or the disposition of
                                              IN THE
 the same.
                                   APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
______________________________________________________________________________

KASKASKIA LAND COMPANY, LLC,                    )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellant,                      )     Fayette County.
                                                )
v.                                              )     No. 17-L-11
                                                )
THE VANDALIA LEVEE AND DRAINAGE                 )
DISTRICT,                                       )     Honorable
                                                )     Kevin S. Parker,
      Defendant-Appellee.                       )     Judge, presiding.
______________________________________________________________________________

         JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
         Presiding Justice Overstreet and Justice Moore concurred in the judgment and opinion.

                                          OPINION

¶1       The question in this appeal is whether a cause of action for inverse condemnation is

cognizable when a quasi-governmental entity acquires a prescriptive flood easement over private

property due to the inaction of previous landowners over a long period of time. In related litigation

between the two parties to this appeal, this court held that the defendant, the Vandalia Levee and

Drainage District (VLDD), acquired a prescriptive flood easement over an island in the Kaskaskia

River, which includes property owned by the plaintiff, the Kaskaskia Land Company, LLC (KLC).

The easement arose as a result of previous landowners’ failure to maintain the island’s levees over

a lengthy period of time before KLC acquired any property on the island. KLC filed a petition for

inverse condemnation, asserting that it was entitled to just compensation for the “taking” of an


                                                 1
interest in its property. The trial court granted VLDD’s motion to dismiss, holding that (1) KLC

failed to file a counterclaim for inverse condemnation during the protracted litigation between

these parties over the existence of the easement and (2) there is no cognizable claim for inverse

condemnation based on a prescriptive easement that arose before the owner acquired an interest in

the property. KLC appeals, arguing that both of the court’s holdings were in error. We affirm.

¶2                                   I. BACKGROUND

¶3     This case comes to us after a long and complicated history of litigation involving the parties

to this appeal as well as additional related parties. VLDD is a levee and drainage district. Levee

and drainage districts are considered quasi-public entities. See Bradbury v. Vandalia Levee &

Drainage District, 236 Ill. 36, 43 (1908). VLDD maintains a system of levees and drains that

protect 12,000 acres of farmland near the Kaskaskia River.

¶4     KLC owns land on Pecan Island, a small island in the middle of the Kaskaskia River. KLC

acquired its interest in Pecan Island property from a business entity that was wholly owned and

controlled by Fred Keck, one of the defendants in the original related litigation. KLC is owned and

controlled by Patricia Emerick, the widow of Keck’s friend and business associate, Tim Emerick.

The transfer of Pecan Island property from a Keck-controlled entity to KLC took place while the

original litigation involving that property was pending. At that time, KLC was owned and

controlled by Tim Emerick and Keck’s son, Jon Keck.

¶5     Until 1943, Pecan Island was at least partially protected from flooding by a system of

levees. However, those levees were damaged in a 1943 flood, after which time, the Pecan Island

Levee District was disbanded, and Pecan Island remained subject to regular flooding for a period

of more than 40 years.




                                                 2
¶6      In 1988, Fred Keck began purchasing property on Pecan Island. Soon after he began

purchasing the property, Keck began to repair the Pecan Island Levee District’s nonfunctioning

levees, raise the heights of those levees, and build new levees. At some point, he also began to

transfer his ownership interest in his Pecan Island property to various entities, most of which were

owned and controlled by Fred and Jon Keck and Tim Emerick, including KLC.

¶7      In 2008, VLDD filed a lawsuit against Fred Keck and Parish Holdings, LP. (We note

parenthetically that although Keck did have an interest in Parish Holdings, it was the one entity

involved in the underlying litigation that was not fully owned and controlled by either the Kecks

or Tim Emerick.) However, as the litigation proceeded, additional entities were added as

defendants when it was discovered that Keck had transferred interest in his Pecan Island property

to those entities.

¶8      VLDD alleged in its complaint that Keck’s levees raised flood heights upstream from

Pecan Island, thereby damaging VLDD’s levees. VLDD requested damages and injunctive relief

on the basis of three theories. It asserted that the Pecan Island levees (1) constituted a nuisance,

(2) violated a prescriptive easement, and (3) violated the civil law of drainage. The trial court

explicitly found that before Fred Keck began rebuilding the Pecan Island levees, the island was

subject to “regular if not annual flooding.” However, it found that none of VLDD’s theories were

supported by applicable law, and it further found that VLDD failed to prove that the Keck levees

caused the damage to its levees. The court therefore entered judgment for Keck and the other

defendants.

¶9      This court reversed that ruling. We found that VLDD demonstrated both that it had

acquired a prescriptive flood easement over Pecan Island and that the defendants’ conduct




                                                 3
constituted a nuisance. We also found that VLDD demonstrated that the damage to its levees was

caused by the Pecan Island levees.

¶ 10   In finding that a prescriptive flood easement was established, we emphasized the evidence

that Pecan Island flooded regularly for a period of over 40 years. We noted that for a prescriptive

flood easement to arise, the property must flood for a period of 20 years or more. See Meyers v.

Kissner, 149 Ill. 2d 1, 11 (1992) (explaining that a prescriptive flood easement arises when the

property at issue has been subject to adverse and uninterrupted flooding for a period of 20 or more

years with the knowledge and acquiescence of the owners).

¶ 11   In finding that the defendants’ conduct constituted a nuisance, we emphasized that the

defendants had engaged in conduct that was unreasonable. We explained that they “purchased

property known to be subject to flooding to use for farming and hunting. They then built or rebuilt

levees around the perimeter of Pecan Island without making any attempt to determine whether the

levees would adversely impact neighboring properties.” Vandalia Levee & Drainage District v.

Keck, 2012 IL App (5th) 100564-U, ¶ 43. We also noted that they did not comply with a statutory

requirement to apply for a permit from the Illinois Department of Natural Resources prior to

constructing new levees. See 615 ILCS 5/29a(a) (West 2008). We remanded the matter to the trial

court to assess damages and to determine the scope of the injunctive relief to be ordered.

¶ 12   On remand, VLDD filed a motion to add additional parties as defendants, including KLC.

The trial court granted the motion. The court subsequently entered an injunction ordering KLC

and Parish Holdings to remove portions of the Pecan Island levees. KLC appealed that injunction

to this court, arguing that (1) judgment against it was void because it was a necessary party that

was not joined as a defendant until after the original trial proceeded to judgment and (2) this court’s




                                                  4
finding of a prescriptive easement constituted a “taking” requiring just compensation under the

eminent domain provisions of both the state and federal constitutions.

¶ 13   On appeal, we rejected the first of these arguments, finding that (1) KLC’s interest was

adequately represented by the other defendants in the original litigation and (2) the circumstances

surrounding the transfer of Pecan Island property to KLC from a Keck-controlled entity made it

virtually impossible for VLDD to have discovered KLC’s interest any earlier than it did. We

suggested that KLC’s eminent domain argument was likewise without merit, noting that we were

aware of no cases finding just compensation to be required “in the context of a prescriptive

easement found to have come into existence through 20 or more years of adverse use long before

the landowner acquired title.” Vandalia Levee & Drainage District v. Keck, 2015 IL App (5th)

140302-U, ¶ 38. We explained that “[t]his is not surprising given the nature of a prescriptive

easement.” Id. However, we found it inappropriate to address the issue because although KLC

raised eminent domain as an affirmative defense in that case, it did not file a counterclaim seeking

just compensation. Id. ¶ 39.

¶ 14   Thereafter, KLC filed the inverse condemnation petition at issue in this appeal. At the time

it did so, the original litigation remained pending before the trial court for a determination of the

amount of damages to be awarded. In KLC’s inverse condemnation petition, it argued that this

court’s determination that VLDD had acquired a prescriptive flood easement over Pecan Island

property constituted a “taking” for which KLC was entitled to just compensation.

¶ 15   VLDD filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure

(735 ILCS 5/2-619 (West 2016)). VLDD argued that KLC’s complaint should be dismissed

because the issues raised by KLC were involved in another pending action between the same

parties. See id. § 2-619(a)(3). It further argued that because the operative facts had already been


                                                 5
determined adversely to KLC in the original litigation, its claim for inverse condemnation was

barred by principles of res judicata. See id. § 2-619(a)(4). VLDD also argued that KLC’s claim

was barred by other affirmative matters. See id. § 2-619(a)(9). VLDD noted that the prescriptive

flood easement came into existence long before KLC acquired property on Pecan Island. It also

alleged that the properties were subject to a federal flow easement. That easement was recorded in

1965, and the owners of the affected property were paid just compensation from the federal

government at that time. A copy of the recorded easement was attached to the motion.

¶ 16   Although VLDD did not cite section 2-615, it also argued that KLC’s complaint was legally

insufficient. See id. § 2-615. More specifically, VLDD argued that a prescriptive easement is not

a “taking” for which just compensation is required. It noted that KLC’s claim for inverse

compensation was akin to a “regulatory taking” and argued that such claims are not actionable if

the regulation at issue serves a legitimate governmental interest and does not deprive the owner of

all economically viable use of the land. See Byron Dragway, Inc. v. County of Ogle, 326 Ill. App.

3d 70, 73 (2001) (citing Nollan v. California Coastal Comm’n, 483 U.S. 825, 834 (1987)).

¶ 17   The court granted the motion to dismiss in a written order. It took judicial notice of the

entire record in the still-pending original litigation, including this court’s decisions in both

previous appeals. The court found that KLC’s petition should be dismissed for two reasons. First,

the court noted that the “primary purpose” of a dismissal pursuant to section 2-619(a)(3) (735

ILCS 5/2-619(a)(3) (West 2016)) “is to avoid duplicative proceedings.” The court acknowledged

that counterclaims are generally permissive but found that dismissal was warranted under this

provision because KLC had chosen not to bring a counterclaim during more than nine years of

litigation between the parties over related issues in VLDD’s suit. Second, the court found no

authority to support a cause of action for inverse condemnation when a prescriptive easement arises


                                                6
through 20 or more years of adverse public use before the current owner acquired any interest in

the property. The court therefore dismissed KLC’s complaint with prejudice. This appeal followed.

¶ 18                                    II. ANALYSIS

¶ 19   On appeal from a trial court’s ruling on a motion to dismiss, we assume that all of the well-

pled allegations in the complaint are true. Ray v. Beussink & Hickam, P.C., 2018 IL App (5th)

170274, ¶ 12. A motion to dismiss should only be granted if there is no set of facts that can be

proven under which the plaintiff is entitled to relief. In re Marriage of Buck, 318 Ill. App. 3d 489,

493 (2000). In general, we review de novo a trial court’s ruling on a motion to dismiss. Schacht v.

Lome, 2016 IL App (1st) 141931, ¶ 33. However, the more deferential abuse-of-discretion standard

applies to a court’s decision on whether to dismiss a petition on the basis of section 2-619(a)(3).

Midas International Corp. v. Mesa, S.p.A., 2013 IL App (1st) 122048, ¶ 12.

¶ 20   KLC presents two issues for our review. First, it contends that the court abused its

discretion in dismissing the complaint based on KLC’s failure to raise the issue of eminent domain

as a counterclaim in the original litigation. KLC correctly notes that counterclaims are permissive,

as the court acknowledged. See 735 ILCS 5/2-608(a) (West 2016); Davis v. Lowery, 228 Ill. App.

3d 660, 662 (1992). KLC also points out that it could not have filed a counterclaim in the original

litigation until after it was added as a defendant in 2013. It therefore argues that the court abused

its discretion in dismissing the petition on this basis. Second, KLC argues that the court erred in

holding that its inverse condemnation claim was not cognizable. We disagree with KLC’s second

contention. Because our conclusion on this matter is dispositive, we need not address KLC’s other

arguments.

¶ 21   Both the United States Constitution and the Illinois Constitution give governmental entities

the power to take property for public use through eminent domain. U.S. Const., amend. V; Ill.


                                                 7
Const. 1970, art. I, § 15. However, the governmental entity must pay just compensation to the

property owner. City of Des Plaines v. Redella, 365 Ill. App. 3d 68, 74 (2006), overruled on other

grounds by Nationwide Financial, LP v. Pobuda, 2014 IL 116717, ¶¶ 29-40. Although most

eminent domain cases involve takings of an ownership interest in property, an easement is also a

type of interest in property. Specifically, it is a nonpossessory interest in the property of another.

Pobuda, 2014 IL 116717, ¶ 28. Thus, while a governmental entity can claim an express easement

through eminent domain, it must pay just compensation for that easement. Drainage

Commissioners of Drainage District No. 8 v. Knox, 237 Ill. 148, 151 (1908); see also Peters v.

Milks Grove Special Drainage District No. 1, 243 Ill. App. 3d 14, 18 (1993) (noting the existence

of an express easement for which a drainage district paid just compensation to prior property

owners).

¶ 22   Inverse condemnation is a cause of action that allows a landowner to recover compensation

for the taking of property interests in circumstances where the governmental entity involved has

not initiated eminent domain proceedings. Byron Dragway, 326 Ill. App. 3d at 73. Inverse

condemnation cases generally involve what are known as “regulatory takings.” See Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1015 (1992); Byron Dragway, 326 Ill. App. 3d at 73-

74. A regulatory taking can occur in one of two ways. If a governmental regulation requires the

property owner to allow a physical incursion onto his or her property, this will be considered a

taking for which the property owner must be compensated. A regulatory taking will also occur if

a regulation deprives the owner of all economically beneficial use of the property. Lucas, 505 U.S.

at 1015. However, as we will discuss later, compensation is not required if a regulation proscribes

land uses that “were not part of [the owner’s] title to begin with.” Id. at 1027.




                                                  8
¶ 23   In resolving the question before us in this appeal, it is important to emphasize the nature of

the prescriptive flood easement involved in this case. A prescriptive flood easement arises when

(1) the property at issue has flooded for a period of 20 years or more, (2) the flooding is adverse

and uninterrupted, and (3) the flooding takes place with the knowledge and acquiescence of the

property owners. Meyers, 149 Ill. 2d at 11. Here, the regular flooding that took place for a period

well in excess of 20 years was caused by the natural flow of the Kaskaskia River when unimpeded

by perimeter levees on Pecan Island. VLDD does not claim a right to enter onto KLC’s property

to maintain levees or drains, and it does not claim a right to divert water to Pecan Island from the

lands it protects. It claims only the right to expect that Pecan Island property owners will continue

the long-established practice of not interfering with the natural flow of floodwater from the

Kaskaskia River.

¶ 24   In this regard, we believe this case is similar to cases involving prescriptive public

easements under the Illinois Highway Code. Under section 2-202 of the Highway Code, a private

road becomes a public highway if it has been used by the public for a period of 15 years. Redella,

365 Ill. App. 3d at 75 (citing 605 ILCS 5/2-202 (West 2002)). The effect of this statute is to create

a prescriptive easement for the public to use the road. Id. Although the statute requires only a 15-

year period of public use, the requirements necessary to establish a public highway easement by

prescription are otherwise identical to the requirements needed to establish any other prescriptive

easement. Id.

¶ 25   In Redella, the City of Des Plaines (City) filed a declaratory judgment action seeking a

declaration that Trailside Lane, a private road on land owned by the defendants, had become a

public highway pursuant to this provision. Id. at 71. The defendants filed a counterclaim requesting

a declaration to the contrary. Id. In the alternative, the defendants requested that the trial court


                                                 9
declare that the City must pay them just compensation for the fair market value of their ownership

interests in the road. Id. at 72. The City filed a motion for summary judgment, which the trial court

granted. Id.

¶ 26    On appeal, the defendants argued that the relevant statute “may not be interpreted to allow

the seizure of Trailside Lane by the City, a government entity, without compensation to the owners

of the easement property.” Id. at 74. The appeals court first rejected the defendants’ claim that the

declaration of a public highway constituted a seizure of their land. The court explained that “the

trial court’s ruling granted the City only a prescriptive easement over the road, not fee title to the

easement property itself.” Id. The court then addressed the question before us in this case—

whether the acquisition of a public prescriptive easement constitutes a “taking” under the state and

federal constitutions. Id.

¶ 27    In holding that the acquisition of the public highway easement at issue there did not

constitute a taking, the Redella court found two out-of-state cases persuasive. It noted that the New

Mexico Supreme Court held that “ ‘[t]he general rule is that acquisition of an easement by

prescription is not a taking and does not require compensation to the landowner.’ ” Id. (quoting

Algermissen v. Sutin, 61 P.3d 176, 185 (N.M. 2002)). The court also considered a Colorado

Supreme Court case involving the declaration of a public highway under a statute similar to the

one at issue in Redella. In summing up the Colorado court’s rationale, the Redella court explained

that the effect of the statute “was simply to require an owner desirous of retaining his interest in

the private road to prohibit continuous public use.” Id. at 75 (citing Board of County

Commissioners of Saguache County v. Flickinger, 687 P.2d 975, 984-85 (Colo. 1984)). The

Colorado court concluded that because the easement arose due to the landowners’ failure to do so

for a period of 20 years, application of the statute “ ‘did not constitute a governmental taking for


                                                 10
which compensation was required.’ ” Id. (quoting Flickinger, 687 P.2d at 984-85). The Redella

court agreed with this reasoning and held that just compensation was not required in the case before

it.

¶ 28    We too find this reasoning persuasive. In the case before us, a prescriptive flood easement

arose because Pecan Island landowners failed to maintain the perimeter levees for a period well in

excess of 20 years. In so doing, they essentially granted a prescriptive flood easement to VLDD

and the property owners whose land VLDD’s drains and levees protect. In other words, a

prescriptive easement is a granting, not a taking. We do not believe compensation is required in

light of these principles.

¶ 29    It is also important to emphasize the time at which the prescriptive flood easement arose.

The trial court in the original litigation explicitly found that Pecan Island was subject to “regular

if not annual” flooding once its perimeter levees became nonfunctional. There is no dispute that

the levees became nonfunctional in 1943. Thus, the 20 years of flooding needed to establish the

easement passed, and the easement came into existence in the mid-1960s. KLC acquired an interest

in its Pecan Island property in 2010, long after the easement came into existence. Governmental

entities are not required to pay just compensation to assert a preexisting easement. Lucas, 505 U.S.

at 1028-29.

¶ 30    KLC’s claim that enforcement of the prescriptive flood easement constitutes a “regulatory

taking” is likewise meritless. The claim is defeated by three additional factors that limited the right

of Pecan Island property owners to build and maintain levees before KLC acquired an interest in

its property. First, as this court has recognized previously, building and maintaining the Pecan

Island perimeter levees constituted a nuisance. Second, Keck built new levees without first

obtaining a permit from the Illinois Department of Natural Resources, which violates the Rivers,


                                                  11
Lakes, and Streams Act. See 615 ILCS 5/29a(a) (West 2008). Third, the property is subject to a

recorded federal flow easement that requires approval of the Army Corps of Engineers before new

levee construction can occur.

¶ 31   Regulatory action does not constitute a regulatory taking and does not require just

compensation if it merely prohibits a use of the property that was already impermissible under

existing law, including nuisance principles. See Lucas, 505 U.S. at 1029-30. Here, the prescriptive

easement recognized by this court does no more than “expressly prohibit[ ]” uses of the Pecan

Island property that were “always unlawful.” (Emphasis in original.) Id. at 1030. Because these

restrictions were in place long before KLC acquired its property, the prescriptive easement does

not prohibit any use of the property that was not already impermissible when KLC acquired the

property. As such, the easement does not constitute a regulatory taking. Because the easement is

neither an actual taking nor a regulatory taking, VLDD is not required to pay compensation. We

therefore find no error in the court’s decision to dismiss KLC’s petition.

¶ 32                                 III. CONCLUSION

¶ 33   For the foregoing reasons, we affirm the order of the trial court dismissing KLC’s petition

for inverse condemnation.

¶ 34   Affirmed.




                                                12
                               2019 IL App (5th) 180403

                                    NO. 5-18-0403

                                       IN THE

                          APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT


KASKASKIA LAND COMPANY, LLC,                    )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellant,                      )     Fayette County.
                                                )
v.                                              )     No. 17-L-11
                                                )
THE VANDALIA LEVEE AND DRAINAGE                 )
DISTRICT,                                       )     Honorable
                                                )     Kevin S. Parker,
      Defendant-Appellee.                       )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:         September 5, 2019
______________________________________________________________________________

Justices:          Honorable Melissa A. Chapman, J.

                  Honorable David K. Overstreet, P.J., and
                  Honorable James R. Moore, J.
                  Concur
______________________________________________________________________________

Attorney          Ronald E. Osman, Ronald E. Osman & Associates, Ltd., 1602 West
for               Kimmel, P.O. Box 939, Marion, IL 62959
Appellant
______________________________________________________________________________

Attorneys         Penni S. Livingston, Livingston Law Firm, 690 Pleasant Ridge Road,
for               Fairview Heights, IL 62208; Emily E. Scott, Scott & Fiello Schwartz,
Appellee          LLC, 4509 N. Illinois Street, Suite 4, Swansea, IL 62226
______________________________________________________________________________
