Rule 23 order filed                    NO. 5-07-0108
March 5, 2008;
Motion to publish granted                 IN THE
April 7, 2008.
                              APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

MAKANDA TOWNSHIP ROAD DISTRICT,                    ) Appeal from the
a Public Corporation, Acting by and Through        ) Circuit Court of
Danny D. Williams, Highway Commissioner            ) Jackson County.
of Makanda Township,                               )
                                                   )
     Plaintiff-Appellee and                        )
     Cross-Appellant,                      )
                                       )
v.                                     ) No. 02-CH-29
                                       )
DEVILS KITCHEN WATER DISTRICT,         )
a Public Water District,               )
                                       ) Honorable
    Defendant-Appellant and            ) Kimberly L. Dahlen,
    Cross-Appellee.                    ) Judge, presiding.
________________________________________________________________________

        JUSTICE DONOVAN delivered the opinion of the court:

        Makanda Township Road District (Road District) sought injunctive relief, damages,

and fines against Devils Kitchen Water District (Water District) involving certain water lines

under Road District's roadways. The parties filed cross-motions for a summary judgment,

and the trial court granted Road District's motions for a summary judgment with regard to

the counts of the complaint seeking a declaratory judgment, injunctive relief, and the

abatement of a nuisance. The rest of the claims were tried in a bench trial, at which time the

court assessed fines and penalties against Water District. Water District appeals, and Road

District cross-appeals the amounts of fines and civil penalties assessed. Township Officials

of Illinois, an organization serving Illinois townships, has filed an amicus curiae brief on

behalf of Road District.

        Road District maintains roads within Makanda Township, located in Jackson County.


                                               1
Water District has statutory authority to place water mains as a proper use of highways,

along, on, under, and across any highway. 70 ILCS 3705/9 (West 2000). Based on this

authority, Water District had previously established a water main along Wagon Wheel Road,

located within Makanda Township. Water District also installed a water line along Autumn

Ridge Road, which runs between Williamson County and Makanda Township. Prior to

installing the water line on Autumn Ridge Road, Water District obtained a permit from the

Williamson County highway commissioner, but not from Makanda Township, because Water

District believed the new water line was only in Williamson County.

       On February 15, 2000, the highway commissioner for Road District sent a letter to

Water District concerning the water line along Wagon Wheel Road. The letter indicated that

the road was to be resurfaced and that the water line must be relocated to a minimum of 18

feet from the centerline of the roadway. Water District responded that it needed a copy of

the engineer's plans of the proposed improvements to allow Water District to evaluate where

to locate, and at what depth to locate, its water main. No engineering drawings were

provided, and Water District did not move the water line. On June 28, 2000, Road District

sent another letter advising Water District of its intentions to work on Wagon Wheel Road.

Water District again stated its position and set out a water main relocation request policy and

procedure. Water District essentially believed that the current location of its water lines did

not interfere with any proposed road improvements and that no relocation of its lines was

necessary. No work has been done on Wagon Wheel Road to this date.

       After the installation of the Autumn Ridge Road water line in 2001, substantial rains

in the spring of 2001 created extensive water flow over the road. The damage was repaired

by a private contractor at the request of Road District without any notification to Water

District. After the repair work was completed, Road District sent Water District a letter

listing the damages incurred and requesting reimbursement. No monies were sent.


                                              2
       By a summary judgment, the trial court established that the Water District was

required to move its water mains based on the request of the highway commissioner. The

court did not order damages for the repair of flood damage, however, because the repair was

within Williamson County. The court did, however, determine that there would be a $50 fine

for the placement of the water line on Wagon Wheel Road without permission and for Water

District's refusal to remove the line. The court also ordered a penalty of $1 per day, per line,

from December 25, 2001, until the two water lines were moved. Water District appeals,

contending that the court's rulings in favor of Road District constitute an abuse of the court's

discretion.

       "When the parties file cross-motions for summary judgment, they concede the absence

of a genuine issue of material fact and invite the court to decide the questions presented as

a matter of law." American Family Mutual Insurance Co. v. Niebuhr, 369 Ill. App. 3d 517,

521, 860 N.E.2d 436, 440 (2006). A summary judgment is appropriate if there is no genuine

issue of material fact and the moving party is entitled to a judgment as a matter of law.

Chatham Foot Specialists, P.C. v. Health Care Service Corp., 216 Ill. 2d 366, 376, 837

N.E.2d 48, 54 (2005). Appellate review is de novo. Chatham Foot Specialists, P.C., 216 Ill.

2d at 376, 837 N.E.2d at 55.

       The underlying issue here requires a reconciliation of two competing statutory

schemes. The first gives the appropriate highway authority the right to control the use of its

roadway rights-of-way by water districts, sewer districts, and various utility companies to

deliver services to their customers. 605 ILCS 5/1-101 et seq. (West 2000). The second

grants water districts the right to lay pipe under and along public roads. 70 ILCS 3705/0.01

et seq. (West 2000). The question then becomes what happens when a water district and road

district disagree over where to locate a pipeline in order to accommodate road improvements

and repairs.


                                               3
       It must first be recognized that a highway commissioner's right to regulate its

roadways for the safety and well-being of the public derives from the state's police power.

See North Park Public Water District v. Village of Machesney Park, 216 Ill. App. 3d 936,

940, 576 N.E.2d 849, 852 (1990). A water district's rights are, on the other hand, statutory.

Accordingly, our courts have determined that no matter how legitimate a water district's right

to lay pipe under or along public roadways may be, that right must remain subordinate to the

state's inherent right to manage the public roads for the public good. North Park Public

Water District, 216 Ill. App. 3d at 940-41, 576 N.E.2d at 852-53; see also Greater Peoria

Sanitary & Sewage Disposal District v. Baise, 234 Ill. App. 3d 622, 626, 600 N.E.2d 75, 78

(1992).

       By statute, a water district has the absolute right to place water lines along township

roads. 70 ILCS 3705/9 (West 2000). A water district does not, however, have the power to

dictate where along the road its lines will be placed. A water district possesses nothing more

than a mere license, a right to use the public right-of-way for its water mains. North Park

Public Water District, 216 Ill. App. 3d at 938, 576 N.E.2d at 851. Only a township is

charged with the overseeing and maintaining of township roads and protecting the public

safety on these roads. See 605 ILCS 5/6-201.2 (West 2000). Accordingly, a water district

must first obtain permission from the appropriate authority and must relocate its lines at its

own expense, when requested to do so by the appropriate highway authority in order to

accommodate repairs and improvements or otherwise facilitate the safe and effective

operation of public roads. 605 ILCS 5/9-113 (West 2000); see North Park Public Water

District, 216 Ill. App. 3d at 941, 576 N.E.2d at 853. Here, Water District had a legal duty

to seek authorization from Road District prior to placing pipelines under or along any

roadway in Makanda Township. The fact that Water District obtained a permit from

Williamson County does not mean that a permit did not also have to be acquired from


                                              4
Makanda Township when the roadway fell within both jurisdictions. Likewise, Road District

had the authority to insist Water District move its lines if needed for improvement of the

roadways. Road District has the power and authority to direct the relocation of water mains

located within the right-of-way, and that authority is not conditioned by or subject to the

authority of Water District to determine the suitability of the highway commissioner's plans.

Accordingly, Road District was not required to submit engineering plans to Water District,

and Water District had no authority to determine the adequacy of the plans of the highway

commissioner. Again, since Water District holds only a license, it does not have a statutorily

created property right allowing it to dictate the location of its water lines. Water District,

therefore, should have moved its lines after its receipt of Road District's notice. Accordingly,

we find no error with respect to the trial court's rulings in this instance. We also find no fault

with the imposition of fines and penalties or the amounts imposed. See 605 ILCS 5/9-117

(West 2000). A trial court's decisions to impose a fine, provided that the fine is not

mandatory, and set the amount thereof within the range specified are entitled to great

deference and will not be overturned absent an abuse of discretion. See Dombrowski v. City

of Chicago, 363 Ill. App. 3d 420, 432-33, 842 N.E.2d 302, 312-13 (2005). Water District

here exhibited a long history of ignoring Road District's numerous requests to relocate its

water lines so various improvement projects could be undertaken. As a result of Water

District's refusal to cooperate, no road improvements have been made to date, and the safety

of the public has been ignored.

       For the aforementioned reasons, we affirm the judgment of the circuit court of Jackson

County.



       Affirmed.




                                                5
GOLDENHERSH and WEXSTTEN, JJ., concur.




                             6
                                             NO. 5-07-0108

                                                IN THE

                                     APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      MAKANDA TOWNSHIP ROAD DISTRICT,                  ) Appeal from the
      a Public Corporation, Acting by and Through      ) Circuit Court of
      Danny D. Williams, Highway Commissioner          ) Jackson County.
      of Makanda Township,                             )
                                                       )
            Plaintiff-Appellee and                     )
            Cross-Appellant,                    )
                                            )
      v.                                    ) No. 02-CH-29
                                            )
      DEVILS KITCHEN WATER DISTRICT,        )
      a Public Water District,              )
                                            ) Honorable
          Defendant-Appellant and           ) Kimberly L. Dahlen,
          Cross-Appellee.                   ) Judge, presiding.
___________________________________________________________________________________

Rule 23 Order Filed:        March 5, 2008
Motion to Publish Granted:  April 7, 2008
Opinion Filed:              April 7, 2008
___________________________________________________________________________________

Justices:             Honorable James K. Donovan, J.

                 Honorable Richard P. Goldenhersh, J., and
                 Honorable James M. Wexstten, J.,
                 Concur
___________________________________________________________________________________

Attorney         P. Michael Kimmel, Gilbert, Kimmel, Huffman, Prosser & Hewson, Ltd., 102
for              Orchard Drive, P.O. Box 1060, Carbondale, IL 62903-1060
Appellant
___________________________________________________________________________________

Attorneys             Gregory A. Veach, Attorney at Law, 3200 Fishback Road, P.O. Box 1206,
for                   Carbondale, IL 62903-1206 (for Makanda Township Road District)
Appellees
                 David O. Edwards, Colin M. Haley, Giffin, Winning, Cohen & Bodewes, P.C., One
                 West Old State Capitol Plaza, Myers Building, Suite 600, Springfield, IL 62701
                 (Amicus Curiae brief for Township Officials of Illinois)
___________________________________________________________________________________
