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Whitlock v. Hilander Foods - 308 Ill. App. 3d 456, 241 Ill. Dec. 847, 720 N.E.2d 302 (1999)


If a plaintiff establishes that the encroachment was deliberate or intentional, he need not show that he will suffer substantial immediate harm from the violation of his property right.


Plaintiff, Jonathan Spafford Whitlock, as land trustee, was the one holding the title to property directly south of property on which defendant, Hilander Foods, Inc., has long operated a grocery store. Recently, Hilander built an addition to the store. The south retaining wall of the addition was on Hilander’s property, but the underground footings of the wall encroached on Whitlock’s property. When Whitlock complained, Hilander assured him that it would agree to compensate Whitlock for the encroachment. However, defendant Hilander later refused to do so.

Plaintiff Whitlock sued for a mandatory injunction compelling defendant Hilander to remove the encroachment and for other relief. Defendant's answer admitted that the footings were on plaintiff's land, but it denied that plaintiff had objected to the encroachment. Defendant also asserted the defenses of laches, waiver, and estoppel, alleging that plaintiff had known of defendant's plans and did not object as the construction was taking place. The trial court granted defendant summary judgment, holding that as a matter of law, plaintiff was guilty of laches; and on the merits, plaintiff could not make out a sufficient case for a mandatory injunction. Plaintiff appealed, arguing that the trial court erred in concluding that the encroachment on plaintiff’s property was not intentional.


Was the encroachment by the defendant on plaintiff’s property not intentional?




The Illinois Court of Appeals held that the trial court erred in concluding that the encroachment on plaintiff's property was not intentional. It was undisputed that the footings encroached on plaintiff's property and that, at some point, plaintiff told defendant that he would not simply accept the encroachment. Defendant knew that it was appropriating plaintiff's property and pressed ahead anyway. According to the appellaate court, the trial court erred in holding that plaintiff's delay in bringing the suit barred it from obtaining relief. The question turned on factual and equitable issues that ought not to have been resolved by summary judgment. There was at least a factual issue of whether defendant contributed to the delay by incorrectly assuring plaintiff that he would be compensated for the encroachment.

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