Petition for Writ of Certiorari — Bieneman v. Chicago

S Court, UL

88-1497 FILED

MAR 13 1988

Iu The JOSEPH F. SPANIOI,, JR.

CLERK

Supreme Court of the United tes

@®ctober Werm, 1988

LAWRENCE C. BIENEMAN, on his own behalf

and on behalf of all persons similarly situated,

Petitioners,

v.

THE CITY OF CHICAGO; EUGENE SAWYER, in his

official capacity as Acting Mayor of the City of

Chicago; HOWARD STANBACK, in his official

capacity as Commissioner of the Department of

Aviation of the City of Chicago; AMERICAN

AIRLINES, INC.; DELTA AIRLINES, INC.;

NORTHWEST AIRLINES, INC.; OZARK AIRLINES,

INC.; TRANS WORLD AIRLINES, INC.; UNITED

AIR LINES, INC.; and, USAIRLINES, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOSEPH V. KARAGANIS

A. BRUCE WHITE

KATHLEEN M. DONAHUE

ELLEN LoIs ZISOOK

KARAGANIS & WHITE LTD.

414 North Orleans

Suite 810

Chicago, Illinois 60610

(312) 836-1177

Attorneys for Petitioners

Pandick Technologies, Inc., Chicago © (312) 236-0200

i

QUESTION PRESENTED

Where a municipality takes an interest in real prop-

erty and the owner sues directly under the Fifth Amend-

ment for just compensation, does Wilson v. Garcia, 471 U.S.

261 (1985), compel application of the state’s personal injury

statute of limitations when state law under the identi-

cal state constitutional just compensation provision would

apply the limitations period for adverse possession?

PARTIES TO THE PROCEEDINGS BELOW

Plaintiff in the District Court and appellant in No. 88-

2399 was Lawrence C. Bieneman, on his own behalf and

on behalf of all persons similarly situated.

Defendants in the District Court and appellees in No.

88-2399 were: The City of Chicago; Eugene Sawyer, in his

official capacity as Acting Mayor of the City of Chicago;

Howard Stanback, in his official capacity as Commissioner

of the Department of Aviation of the City of Chicago;

American Airlines, Inc.; Delta Airlines, Inc.; Northwest

Airlines, Inc.; Ozark Airlines, Inc.; Trans World Airlines,

Inc.; United Airlines, Inc.; and, USAirlines, Inc.

il

TABLE OF CONTENTS

Page

by pe ey fo ey 5 | ir rr er i

PARTIES TO THE PROCEEDINGS BELOW ........ i

pe LP Be gF Uipy 0 ty et -. Si a ili

PRO OR nc sas ces d wesw keen cu eean 2

I TEEIUE 6c ks Siw ah 0 he bk we ew eee Oe 2

CONSTITUTIONAL PROVISIONS AND STATUTES

Lk te > se [ea eane wn rare arere sen) = 2

vot g SS lg io i es) oo? S| a een 3

i Ser eee errr er pr nr te 3

B. The Proceedings Below .... 2.66 cas wv c eae ee 4

1. Plaintiff’s Initial Complaint ............. 5

2. The First Amended Complaint ........... 7

3. Proceedings In The Court Of Appeals ...... 8

REASONS FOR GRANTING THE WRIT ......... 9

A. The Decision Below Is In Direct Conflict With

The Law Applied By Illinois Courts On Identical

CARINE oo kk 5 na 040 So ee eee 9

B. The Limitations Period Applied To Taking

Claims Under Tlinois Law ..... 66.6 cncuedn 10

C. There Is Nothing In Either Wilson Or ood-

man That Mandates Use Of The Persona! Injury

Statute Of Limitations To Govern A Direct Fifth

Amendment Action For Just Compensation ..... 15

RINE, nn ch kn cee sande een ee 17

ili

TABLE OF AUTHORITIES

Cases: Page

Aylmore v. City of Seattle, 100 Wash. 515, 171 P. 659

OO 11

Batten v. United States, 306 F. 2d 580 (10th Cir. 1962),

cert. Gentea, 371 U.S. 966 (1968) ................ 13

Brazos River Authority v. City of Graham, 163 Tex.

Deepa wee Oe C1GGl) 2... www wee eee 11

Chattanooga Foundry & Pipe Works v. Atlanta, 203

EO a 15

City of Jacksonville v. Schumann, 167 So.2d 95 (Fla.

rr 11

DiSanto v. City of Warrenville, 17 Ill. Dec. 289, 59

Ill. App.3d 931, 376 N.E.2d 288

gg cn vc eee ee eee 11, 18, 14

Faulk v. Missouri River & N.W. Ry., 28 S.D. 1, 132

pk aa ee ce st 11

First English Evangelical Lutheran Church of Glen-

dale v. Los Angeles County, 482 U.S. 304, 107 S.Ct.

ee a ew tees ccc e ee 3, 9

Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct.

EL SS passim

Greater Westchester Homeowners Association v. City

of Los Angeles, 26 Cal.3d 86, 160 Cal. Rptr. 733,

603 P.2d 1329 (1979), cert. denied, 449 U.S. 820

a eg oy 4 2 sp ts tee eee ces 4.5

Griggs v. Allegheny County, 369 U.S. 84

a 4,5, 7, 10, 11

iv

Cases: Page

Highline School District No. 401, King County v. Port

of Seattle, 87 Wash.2d 6, 548 P.2d 1085 (Wash.

SS. So SN ee ee aCe ee aie Oe ee eR 11

Horn v. City of Chicago, 403 Ill. 549, 87 N.E.2d 642

(1949), appeal dismissed, 338 U.S. 940 (1950) ..... 13

Johnson v. Railway Express Agency, 421 U.S. 454

CRI ee Crate aren eta ae ae ae aa is See ace Ne 15

Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d

ee Renee) oa eo ee aes Ee eee ee 11, 12

Krueger v. Mitchell, 112 Wis.2d 88, 332 N.W.2d 733

CR er a elgg en a ace a NEE 5

Love v. Postal Telegraph-Cable Co., 221 N.C. 469, 20

Oe Bet Ci ike es ee reece oes 11, 12, 13

Luedtke v. County of Milwaukee, 521 F. 2d 387 (7th

ee aoe ee ee ee Se Pose ak 5, 7,8

Owen v. City of Atlanta, 157 Ga.App. 354, 277 S.E.2d

338 (1981), aff’d, City of Atlanta v. Owen, 248

Ga. 299, 282 S.E.2d 906, cert. denied, 456 U.S. 972

CD eis oe a Oe eae er ae aes 5

Owens v. Okyre, __ U.S. __, 109 S.Ct. 573 (1989) ... 16

People ex. rel. Markgraff v. Rosenfield, 383 Ill. 468,

Bee Ey. 2): rea ea 11, 14, 15

Petersen v. Port of Seattle, 94 Wash.2d 479, 618 P.2d

| ERE ee ENP eran a meri ara Beer irra a 11

Rosenthal v. City of Crystal Lake, 171 Ill.App.3d, 428,

525 N.E.2d 1176, 121 Ill. Dec. 869 (2nd Dist.

SN sess ae ae Sas reg the Ge ea ack ee wie ee cane 11

Cases: Page

Ruck v. Midwest Hunting and Fishing Club 104

Ill.App.2d 185, 243 N.E.2d 834 (2nd Dist. 1968) ... 11

Runyon v. McCrary, 427 U.S. 160 (1976) .......... 15

Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d

ke 1 PR Pia ea aaa ont REA rare oe ia Ry AE eas 11

Ursin v. New Orleans Aviation Board, 506 So.2d 947

(La.Ct.App.), rev’d on other grounds, 515 So.2d 1087

ME RE he oe seca ante St ee Ee 5

Village of Palatine v. Dahle, 385 Ill. 621, 53 N.E.2d

cn Pt «| SEE eid OO ome Me dea oreo ANSI fens SN A 11

Wilson v. Garcia, 471 U.S. 261 (1985) ........ passim

Constitutional Provisions

U.S. Const. amend. V ............cccccuc; passim

U.S. Const. amend. XIV .................. passim

at. COMO. OE. BN. 80 oo vn ks va bck a hee ak: 2

Statutes

Be Mie LRN) kok eben ka ea ee 2

Se ete i ah eae ee ee ee 2

OE Soe A PLAN See 3, 7, 8,9

Ill. Rev. Stat. ch. 110, Sec. 18-101 ........ 2, 3, 11, 13

Ill. Rev. Stat. ch. 110, Sec. 18-202 .............. ie

Other Authorities

Lewis, A Treatise on the Law of Eminent Domain in

the United States, Section 966 (3d ed. 1909) ....... 12

| ree

In The

Supreme Court of the United States

@rctober Term, 1988

LAWRENCE C. BIENEMAN, on his own behalf

and on behalf of all persons similarly situated,

Petitioners,

Vv.

THE CITY OF CHICAGO; EUGENE SAWYER, in his

official capacity as Acting Mayor of the City of

Chicago; HOWARD STANBACK, in his official

capacity as Commissioner of the Department of

Aviation of the City of Chicago; AMERICAN

AIRLINES, INC.; DELTA AIRLINES, INC.;

NORTHWEST AIRLINES, INC.; OZARK AIRLINES,

INC.; TRANS WORLD AIRLINES, INC.; UNITED

AIR LINES, INC.; and, USAIRLINES, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit in the above enti-

tled cause No. 88-2399.

2

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit in No. 88-2399 was rendered on

December 13, 1988. It is reprinted at page A-4 of the

Appendix.’

JURISDICTION

The judgment of the Court of Appeals in No. 88-2399

was entered on December 13, 1988. The jurisdiction of this

Court is invoked under 28 U.S.C. Section 1254(1). The

District Court had jurisdiction over the case pursuant to

28 U.S.C. Section 1331.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The constitutional provisions and statutes involved in

this case are:

1. The Just Compensation Clause of the Fifth

Amendment to the United States Constitution:

‘nor shall private property be taken for public

use, without just compensation.” U.S. Const.

amend. V.

2. The Just Compensation Clause of the [Illinois

Constitution: “Private Property shall not be

taken or damaged without just compensation as

provided by law.” I]. Const. art. I sec. 15.

3. The Illinois statute of limitations governing

actions to recover compensation for “takings” of

interests in real estate: “No person shall com-

mence an action for the recovery of lands, nor

make an entry thereon, unless within 20 years

after the right to bring such action or make such

1 Hereafter, page citations to the Appendix will be referred to

as a

3

entry first accrued....” Ill. Rev. Stat. ch. 110,

Sec. 13-101.

4. The Illinois statute of limitations for personal

injury actions: “Actions for damages for an injury

to the person... shall be commenced within 2

years next after the cause of action accrued... .”

Ill. Rev. Stat. ch. 110, Sec. 13-202.

STATEMENT OF THE CASE

This case involves the statute of limitations to be

applied when a political subdivision of a state takes an

interest in real estate and the property owner sues in

inverse condemnation directly under the Fifth Amendment

to the United States Constitution seeking just compensa-

tion for the taking.” In identical actions for recovery of just

compensation for a taking of real estate under the Illinois

Constitution, Illinois courts have ruled that the period of

limitations to be applied is the statutory period provided

by the state adverse possession statute — 20 years. Disre-

garding Illinois law, the Court of Appeals held that this

Court’s decisions in Wilson v. Garcia, 471 U.S. 261 (1985),

and Goodman v. Lukens Steel Co., 482 U.S. 656 (1987),

compelled the application of the state limitations period for

personal injury actions — two years.

A. The Facts

Petitioner Lawrence C. Bieneman (Bieneman) owns

and resides on real property near O’Hare Airport. The

2 The action for recovery of just compensation for the taking

of an interest in Petitioner’s real estate was not brought pur-

suant to the Civil Rights Statute of 1871, 42 U.S.C. Section 1983.

The acticn was brought directly pursuant to the cause of action

for just compensation created by the Fifth Amendment. First

English Evangelical Lutheran Church of Glendale v. Los Angeles

County, __U.S. __, 107 S.Ct. 2378, 2386 n. 9 (1987).

7

noise from over 700,000 annual aircraft operations at

O’Hare is so overwhelming that Bieneman and other area

residents cannot get a decent night’s sleep; their children

cannot study; and they cannot use their yards or even their

living rooms to relax and enjoy their property. The noise

problem is compounded by the pervasive stench of aircraft

fuel aerosols, a known cancer hazard, which fill the air and

rain a potentially deadly toxic mist on homes, yards and

schools.

B. The Proceedings Below

In December 1984, Petitioner Bieneman, on his own

behalf and on behalf of all persons similarly situated near

O’Hare, brought this action for compensation for the “tak-

ing” of his property as a result of the intense levels of

noise, vibration and air pollution from O’Hare operations.

(See Amended Complaint, Count III, A-68). This Court, in

Griggs v. Allegheny County, 369 U.S. 84 (1962), held that

where an airport proprietor allows overflights over residen-

tial property which severely disturb sleep, communication,

and the use and enjoyment of the property, an avigation

easement has been taken which requires the payment of

just compensation.

In addition to compensation for a taking within the

Griggs doctrine, Bieneman sought to recover damages for

personal injuries caused by airport noise. Though Illinois

law provides state law damage remedies for persoral injury

resulting from excessive noise, vibration and air pollution

— as well as a state constitutional guarantee prohibiting

a taking of property without just compensation — a quirk

in Seventh Circuit precedent barred Bieneman from any

state law remedies. In contrast to the weight of authority

holding that there was no federal preemption of state law

damage remedies for injuries caused by noise from airport

operations,? a solitary 1975 decision by the Seventh

3 Greater Westchester Homeowners Association v. City of Los

(Footnote continued on the following page)

~ 5

Circuit held that Congress has preempted state law dam-

age remedies for injuries caused by aircraft operations.

Luedtke v. County of Milwaukee, 521 F. 2d 387 (7th Cir.

1975). As the law of the Seventh Circuit, Luedtke pur-

ported to declare a federal constitutional bar to all state

remedies.

1. Plaintiff’s Initial Complaint

Faced with Luedtke’s purported federal constitutional

bar on all state damage remedies, Bieneman initially

sought relief under federal law for his personal injuries as

well as compensation for the taking of an easement in his

property under Griggs.

e Count I of the original Complaint alleged with

specificity that it has been and continues to be the

official policy and practice of the City of Chicago

— duly authorized and implemented by City offi-

cials and carried out under color of state law

— to operate, develop and expand O’Hare Inter-

national Airport in a manner that intentionally

injures Bieneman and his property, and thereby

deprives him of his constitutional rights to life,

liberty and property in violation of his right to

substantive due process. (A-54)*

e Count II alleged with specificity that the Airline

Defendants have carried out the City’s policy

3 (Continued)

Angeles, 26 Cal.3d 86, 160 Cal. Rptr. 733, 603 P.2d 1329 (1979),

cert. denied, 449 U.S. 820 (1980); Owen v. City of Atlanta, 157

Ga.App. 354, 277 S.E.2d 338 (1981), affd, City of Atlanta v.

Owen, 248 Ga. 299, 282 S.E.2d 906, cert. denied, 456 U.S. 972

(1982); Krueger v. Mitchell, 112 Wis.2d 88, 332 N.W.2d 733

(1983); Ursin v. New Orleans Aviation Board, 506 So.2d 947

(La.Ct.App., 1987), rev’d on other grounds, 515 So.2d 1087 (La.

1987).

* Counts I and II of the First Amended Complaint (A-54) are

identical to Counts I and II of the original Complaint.

6

in active concert and participation with the

City Defendants, and that the Airline Defen-

dants have conspired with the City Defendants

under color of state law to intentionally injure

Bieneman and damage his property, and thereby

deprive him of his constitutional rights to life,

liberty and property. In both Counts I and II,

Bieneman sought to recover damages for per-

sonal injury and damage to his real and personal

property.

- Count III was an inverse condemnation claim

against the City to recover compensation for the

taking of Bieneman’s real property. This count

alleged that the City, as owner, operator and pro-

prietor of O’Hare, has caused and continues to

cause numerous jet-powered aircraft to be oper-

ated at all hours through the airspace over or

adjacent to Bieneman’s property. Bieneman fur-

ther alleged that these continuous aircraft oper-

ations have impacted and continue to impact

Bieneman and his property with excessive lev-

els of noise, vibration and air pollution; and as

a result, Bieneman’s dia tithid and airspace had

been taken.

The City and Airline Defendants moved to dismiss

Counts I and II for failure to state a claim. The District

Court granted this portion of their motion, finding that

notwithstanding his injuries, Bieneman had not identified

a liberty or property interest under the Due Process Clause

of the Fourteenth Amendment that had been violated by

Defendants (A-87).

The City also sought dismissal of Count III, the inverse

condemnation claim, for failure to join the United States as

a necessary and indispensable party or, in the alternative,

requested a more definite statement. The District Court

denied the motion to dismiss, agreeing with Bieneman that

7

the City was the owner and proprietor of O’Hare and that

under Griggs, Petitioner stated in Count III a claim upon

which relief could be granted (A-87). However, the District

Court did require Bieneman to allege more definitely in his

Complaint the time he took title to the property and the

approximate date of the taking (A-87).

Bieneman moved for reconsideration of the dismissal

of Counts I and II, and the requirement of a more definite

statement. That motion was denied on March 20, 1986

(A-84).

2. The First Amended Complaint

Thereafter, Bieneman filed his First Amended Com-

plaint (A-54). Counts I and II, based on a denial of sub-

stantive due process, were re-stated to preserve the right

to appeal their dismissal. The Count III inverse condem-

nation claim was amended in compliance with the District

Court’s order to include the date Plaintiff Bieneman took

title to his property, 1967, and the approximate date of the

taking, 1976. (First Amended Complaint, Count III, pars.

4 and 22; A-68). In addition, a number of pendent counts

based on state law were added by Bieneman.

The City and Airline Defendants moved to dismiss all

counts of Bieneman’s Amended Complaint. The District

Court granted Defendants’ motions, and entered final judg-

ment, effective June 8, 1987 (A-43; A-44; A-45).

The District Court held that all of Bieneman’s state

tort law claims were preempted by federal law (A-45). In so

ruling, the District Court relied exclusively on the Seventh

Circuit’s decision in Luedtke v. County of Milwaukee, 521

F. 2d 387 (7th Cir. 1975).

The District Court further held that Bieneman failed

to state a claim against the City for inverse condemnation,

ruling that such a claim could not be based on the Fifth

and Fourteenth Amendments, as alleged by Bieneman, but

only on 42 U.S.C. sec. 1983. The Court went on to hold that

8

even if Bieneman’s taking claim was amended to allege a

violation of Section 1983, Bieneman’s claim — which arose

in 1976 and was filed in 1984 — would be barred by a five-

year statute of limitations applicable to such a Section 1983

action.

3. Proceedings In The Court Of

Appeals

Following the decision of the District Court dismissing

the Complaint on the merits for failure to state a claim,

Bieneman filed a timely notice of appeal. The Court of

Appeals dismissed the appeal for lack of jurisdiction, hold-

ing that the failure of the District Court to rule on class

certification rendered the decision not final. (A-37).

On remand, the District Court denied certification of

any aspect of this case as a class action, and based on the

prior ruling on the merits, entered final judgment against

Bieneman. (A-23; A24; A-25).

On appeal, the Court of Appeals ruled as follows:

1. As to the deprivation of a liberty or property inter-

est, the Court held that in order for there to be a violation

of substantive due process, the injury must have been the

intended goal of the government activity. (A-9 to A-10).

2. As to the taking claim, the Court of Appeals held

that — despite the fact that Illinois would apply a 20-year

statute of limitations to inverse condemnation actions for

the taking of real estate — Wilson v. Garcia, 471 U.S. 261

(1985) and Goodman v. Lukens Steel Co., 482 U.S. 656,

107 S.Ct. 2617 (1989), mandated application of the state’s

personal injury statute. (A-11 to A-15).

3. As to the state law claims, the Court of Appeals held

that its 1975 decision in Lwedtke was incorrect and that

state law damage remedies were not preempted by federal

law. The Court of Appeals overruled Luedtke. (A-17).

9

REASONS FOR GRANTING THE WRIT

A. The Decision Below Is In Direct Conflict

With The Law Applied By Dlinois Courts

On Identical Taking Claims

The instant Petition is directed solely at the Court

of Appeals’ ruling that this Court’s decisions in Wilson

and Goodman compel the application of a two-year per-

sonal injury statute of limitations to a direct constitutional

action for just compensation for Chicago’s taking of an

easement in Bieneman’s real property.

Bieneman’s action was not brought pursuant to the

Civil Rights Statute of 1871, 42 U.S.C. Section 1983. The

action was brought directly pursuant to the cause of action

for just compensation created by the Fifth Amendment.

First English Evangelical Lutheran Church of Glendale v.

Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 2386 n.

9 (1987). Thus, the legislative intent to be examined here

is not that which was examined in Wilson and Goodman,

1.€., the intent of the 42nd Congress in passing the Civil

Rights Act of 1871. The construction of that Act is not at

issue here.

Nor is this a situation where the federal remedy — a

direct action for just compensation for the taking of real

property — is a unique federal remedy with “no precise

counterpart in state law”. Wilson v. Garcia, 471 U.S. at

271. In identical actions for recovery of just compensation

for a taking of real estate under the Illinois Constitution,

the Illinois courts have ruled that the applicable period of

limitations is the statutory period provided by the state

adverse possession statute — 20 years.

In extending Wilson and Goodman well beyond the

boundaries of the 1871 Civil Rights Act, the Court of

Appeals has trivialized the Just Compensation Clause of

the Fifth Amendment. How can logic reconcile the fact

that an inverse condemnation action for the “taking” of

real estate under the Just Compensation Clause of the

10

Illinois constitution is governed by a 20-year limitations

period, while the identical action under the federal con-

stitution is limited to two years under the state personal

injury statute? There is nothing in either Wilson or Good-

man that compels such an anomalous result.

B. The Limitations Period Applied To

Taking Claims Under Illinois Law

This Court has declared that the proprietor of an air-

port, such as the City of Chicago, has a constitutional obli-

gation to pay neighboring property owners for substantial

interference with the use and enjoyment of their property

arising from the noise of aircraft operations. This Court

has characterized this interference as the taking of an ease-

ment in real estate:

We think, however, that respondent, which was

the promoter, owner and lessor of the airport, was

in these circumstances the one who took the air

easement in the constitutional sense. ... We see no

difference between its responsibility for the air

easements necessary for operation of the airport

and its responsibility for the land on which the

runways were built....A county that designed

and constructed a bridge would not have a usable

facility unless it had at least an easement over

the land necessary for the approaches to the

bridge. * * * The glide path for the northeast run-

way is as necessary for the operation of the air-

port as is a surface highway for operation of a

bridge. ... Without the “approach areas” an air-

port is indeed not operable. Respondent in design-

ing it had to acquire some private property. Our

conclusion is that by constitutional standards it did

not acquire enough.

Griggs v. Allegheny County, 369 U.S.

84, at 89-90 (1962) (emphasis added).

The law is clear that where a person’s use and enjoy-

ment of property is severely impaired by aircraft noise

there has been a “taking” within the meaning of the Fifth

11

and Fourteenth Amendments; and that the airport propri-

etor, in this case Chicago, is the entity liable for the tak-

ing. See Griggs v. Allegheny County, 369 U.S. 84 (1962);

Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100

(1962); City of Jacksonville v. Schumann, 167 So.2d 95

(Fla.Dist.Ct.App. 1964); Highline School District No. 401,

King County v. Port of Seattle, 87 Wash.2d 6, 548 P.2d 1085

(Wash. 1976).

Where the action is for inverse condemnation to

recover compensation for interests in rea! estate taken

by state or local governments, the majority rule in most

jurisdictions — including Illinois — has long been that the

appropriate statute of limitations is the statutory period for

actions to recover land under adverse possession. Petersen

v. Port of Seattle, 94 Wash.2d 479, 618 P.2d 67 (1980);

Brazos River Authority v. City of Graham, 163 Tex. 167,

354 S.W.2d 99 (1961); Krambeck v. City of Gretna, 198 Neb.

608, 254 N.W.2d 691 (1977); Faulk v. Missouri River &

N.W. Ry., 28 S.D. 1, 182 N.W. 233 (1911); Aylmore v. City

of Seattle, 100 Wash. 515, 171 P. 659 (1918); Love v. Postal

Telegraph-Cable Co., 221 N.C. 469, 20 S.E.2d 337 (1942);

accord DiSanto v. City of Warrenville, 17 Ill. Dec. 289, 59

Ill. App.3d 931, 376 N.E.2d 288 (2d Dist. 1978); People ex.

rel. Markgraff v. Rosenfield, 383 Ill. 468, 50 N.E.2d 479

(1943); Cf. Village of Palatine v. Dahle, 385 Ill. 621, 53

N.E.2d 608 (1944); Rosenthal v. City of Crystal Lake, 171

Ill.App.3d 428, 525 N.E.2d 1176, 121 Ill. Dec. 869 (2nd

Dist. 1988); Ruck v. Midwest Hunting and Fishing Club,

104 I1l.App.2d 185, 243 N.E.2d 834 (2nd Dist. 1968).

The vast majority of courts, including those in Illinois,

have ruled that where there is a “taking”, the appropriate

statute of limitations is the statutory period provided by

the state adverse possession statute — 20 years in Illinois.

Ill. Rev. Stat., ch. 110, Sec. 13-101. Courts have con-

sistently rejected shorter limitation periods. Otherwise,

bodies cloaked with condemnation authority could obtain

12

the legal equivalent of adverse possession in a far shorter

period than statutorily required for adverse possession.

Courts have recognized that the end result of an inverse

condemnation action is to transfer an easement to the gov-

ernmental body, the same easement that would be obtained

with adverse possession.

The logic of tying the inverse condemnation for a tak-

ing to the statutory period for recovery of lands under

adverse possession was stated in Lewis, A Treatise on the

Law of Eminent Domain in the Umited States, Section 966

(38d ed. 1909):

Where the Constitution requires compensation

either expressly or as interpreted by the courts to

be first made for property taken for public use,

a law which casts the initiative upon the owner

to prosecute his claim for compensation within a

time limited or be barred is invalid. Where under

such a constitution property is appropriated for

public use without complying therewith, the own-

ers right to compensation is not barred, except by

adverse possession for the prescriptive period.

Lewis at p. 1713 (emphasis added).

In Krambeck v. City of Gretna, 198 Neb. 608, 254

N.W.2d 691 (1977), the court stated the logic of this prin-

ciple as follows:

Inverse condemnation is analogous to an action by

a private owner against another private individ-

ual or entity to recover the title to or possession of

property. While the property owner cannot com-

pel the return of the property taken because of the

eminent domain power of the condemnor, he has

a constitutional right as a substitute to just com-

pensation for what was taken.

254 N.W.2d at 695.

In Love v. Postal Telegraph-Cable Co., 221 N.C. 469,

20 S.E.2d 337 (1942), the Court stated:

13

In short, in its broader aspect, the suit is to recover

for the value of an easement, which can pass to

the defendant only by grant, condemnation or pre-

scription — this last by adverse possession and con-

tinuous user [sic] for a period of twenty years.

The awarding of permanent damages would be

equivalent to an easement by condemnation.

20 S.E. 2d at 338 (emphasis added).

Illinois follows the rule that where the action is for

inverse condemnation for compensation for a taking, the

applicable statute of limitations is the period of limitations

established by statute for adverse possession.® In Illinois,

that period is 20 years. Ill.Rev.Stat. ch. 110, Sec. 13-101.

The court in DiSanto v. City of Warrenville, 17 Ill. Dec.

289, 59 Ill. App.3d 931, 376 N.E.2d 288 (2d Dist. 1978), con-

fronted an inverse condemnation action commenced more

than five years following the alleged taking of sewer and

° The Illinois Constitution mandates compensation for a “dam-

aging” as well as a “taking”. The statute of limitations for a

“damaging” as opposed to a “taking” is five years. Horn v. City

of Chicago, 403 Ill. 549, 87 N.E.2d 642 (1949), appeal dismissed,

338 U.S. 940 (1950). For flights over Bieneman’s property —

as in Griggs — the action is considered a “taking”. The distinc-

tion between a taking and consequential damages is discussed

at length in Batten v. United States, 306 F.2d 580 (10th Cir.

1962), cert. denied, 371 U.S. 955 (1963). In Batten — unlike the

instant case — there were no overflights. Because there were no

overflights, the court held that the injuries were “consequential

damages” (306 F.2d at p. 583), and that the Fifth Amendment

did not provide compensation for damaging as opposed to tak-

ing: “In construing and applying this constitutional provision the

federal courts have long and consistently recognized the distinc-

tion between a taking and consequential damages... . Because

of this rule, which denies recovery of consequential damages in

the absence of any taking, many state constitutions provide in

substance that private property shall not be taken or damaged

without compensation. However, the federal obligation has not

been so enlarged by statute or by constitutional amendment.”

306 F.2d at 583-584.

14

water improvements. The court determined that no taking

had occurred because these had been no physical invasion

of DiSanto’s property. Yet the court still rejected the city’s

argument that a taking claim would be barred by a statute

of limitations. The court found that the 20-year adverse

possession statute of limitations applied to inverse condem-

nation proceedings; and like this case, the 20-year period

had not elapsed before the action was brought:

We could not agree, however, that laches is a bar

to Count V of the complaint. In that count the

plaintiffs, in effect, asked for a writ of mandamus

compelling the institution of eminent domain pro-

ceedings. * * * Since the limitations period for

adverse possession of real property (20 years) had

not run at the commencement of the action, the

plaintiffs are not barred in Count V by the statute

of limitations. (Ill. Rev. Stat. 1975, ch. 83, par. 1;

cf. Village of Palatine v. Dahle, 385 Ill. 621, 628,

53 N.E.2d 608 (1944).

376 N.E.2d at 295 (1978).

Another Illinois case dealing with the statute of limi-

tations pertinent to inverse condemnation takings is Peo-

ple ex. rel. Markgraff v. Rosenfield, 383 Ill. 468, 50 N.E.2d

479 (1943). In Markgraff, the plaintiffs and their predeces-

sors in interest waited roughly twelve years to bring an

action against the Department of Public Works and Build-

ings for appropriating some of their land for a highway

without compensation. Because a special highway statute

applied to adverse possession for highway construction (15

years vs. the normal 20 years), the court dealt with a 15

year statute for adverse possession:

Unless the owner whose land is wrongfully taken

acquiesces in the trespass, taking and use of the

property for a public highway for the statutory

period of fifteen years, such owner cannot be

defeated of his right to compensation. Under sec-

tion 139 of the Roads and Bridges Act (Ill. Rev.

Stat. 1941 chap. 121, par. 152) in order that the

15

Department acquire an easement by adverse use,

such adverse possession must continue for a period

of fifteen years.

50 N.E.2d at 481 (emphasis added).

Based on the above analysis, it is clear that the taking

claim for inverse condemnation contained in Count III was

governed by a 20-year statute of limitations. Since that

period had not passed, Count III was not barred by the

statute of limitations.

C. There Is Nothing In Either Wilson Or Good-

man That Mandates Use Of The Personal

Injury Statute Of Limitations To Govern

A Direct Fifth Amendment Action For

Just Compensation

Under normal practice, federal courts will borrow the

most analogous state statute of limitations to govern a

federal claim for which no statute of limitations has been

prescribed by Congress. Runyon v. McCrary, 427 U.S. 160,

180 (1976); Johnson v. Railway Express Agency, 421 US.

454, 462 (1975); Chattanooga Foundry & Pipe Works v.

Atlanta, 203 U.S. 390, 397-398 (1906).

As discussed above, Illinois has a directly analogous

cause of action to the federal constitutional claim for just

compensation for a taking of real property. It is clear that

for a “taking” of real property — be it a taking under the

Illinois Constitution or the Federal Constitution — Illinois

courts use the statutory period for adverse possession for

real estate (20 years) as the statute of limitations. Thus,

absent compelling reasons to the contrary, the jurispru-

dence of this Court dictates that federal courts should —

under parallel enforcement of the Fifth Amendment right

to just compensation for the taking of real property — apply

the same statute of limitations as the Illinois courts.

There is nothing in the decisions of this Court in Wi1l-

son or Goodman that compels a different result. Both cases

involve what this Court said were at heart “questions of

16

statutory construction,” Wilson, 471 U.S. at 268: the intent

of the 42nd Congress in enacting the Civil Rights Act of

1871 and the statute of limitations that Congress intended

to apply to actions brought under the Act. In both cases

this Court interpreted that the intent of the Congress in

the 1871 Civil Rights statute to focus on personal injury

oriented tort remedies.

Among the potential analogies, Congress unques-

tionably would have considered the remedies

established in the Civil Rights Act to be more

analogous to tort claims for personal injury, than,

for example, to claims for damages to property or

breach of contract.

Wilson, 471 U.S. at 277.

Had the 42nd Congress expressly focused on the

issue decided today, we believe it would have char-

acterized Section 1983 as conferring a general

remedy for injuries to personal rights.

Wilson, 471 U.S. at 278.

[Blecause claims under Section 1983 are in

essence claims for personal injury, the state

statute applicable to such claims should be

borrowed.

Goodman, 107 S. Ct. at 2621.®

Thus, Wilson and Goodman were both predicated on

this Court’s conclusion that Congress would have applied

a personal injury statute of limitations to actions under the

1871 Civil Rights Act. But there is nothing in the direct

Fifth Amendment claim to recover just compensation for

the seizure of an interest in real estate that even remotely

suggests a personal injury action. Nor is there anything

in the history of the Fifth Amendment’s “Just Compensa-

tion Clause” which suggests that the concern there was

personal injury — as opposed to protection of property.

8 Accord, Owens v. Okyre,__U.S.__, 109 S.Ct. 573, 577 (1989).

17

CONCLUSION

For all the foregoing reasons, Petitioner respectfully

requests this Court to issue a writ of certiorari to review

the judgment and opinion of the United States Court of

Appeals for the Seventh Circuit in No. 88-2399.

Respectfully submitted,

JOSEPH V. KARAGANIS

A. BrRucE WHITE

KATHLEEN M. DONAHUE

ELLEN LoIs ZISOOK

KARAGANIS & WHITE LTD.

414 North Orleans

Suite 810

Chicago, Illinois 60610

(312) 836-1177

Attorneys for Petitioners