Whitlock v. Hilander Foods, Inc.

720 N.E.2d 302 (Ill.App.Ct. 1999)

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Nature of the Case

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Facts

P is the trustee of land. D operates a supermarket on its adjacent land. In September 1996, D built an addition to its store and the south retaining wall of the addition borders the north line of P's property. The footings for the south retaining wall encroached about 1.7 feet onto P's property. D assured P that it would agree to compensate him for the encroachment. D refused to do so. P sued and asked the court to order the removal of the footings, to enjoin D from constructing or maintaining improvements on P's property, and to require D to pay for past encroachments. D asserted the defenses of laches, waiver, and estoppel, alleging that P had known of defendant's plans and did not object as the construction was taking place. D claimed the new footings simply took the place of ones that had been there for the old south wall for 40 years without protest. P complained only after completion and spending $1.5 million, and that P's six-month delay in filing suit was unreasonable. Prior to suit, D offered $10,000 for settlement. P demanded $30,000 and $2,000 per year for 29 years. The trial court ruled for D and held that D’s encroachment was not the sort of 'intentional' interference against which plaintiffs could seek a mandatory injunction regardless of the balance of equities or hardships. P did not demand that they be removed but only that he be paid for the encroachment and the new footings simply took the place of the old ones and did not interfere with P's use of the property. It ruled that laches barred the suit for injunctive relief because P waited six months to bring the suit, meanwhile allowing D to construct the addition at a cost of $1.5 million. The court allowed P to proceed on a complaint for money damages, but P elected to forgo any suit for money damages.