Marseilles Hydro v. Marseilles Land

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2394, 06-1481, 06-2456
MARSEILLES HYDRO POWER, LLC,
Plaintiff-Appellee,
v.
MARSEILLES LAND AND WATER CO.,
Defendant/Third-Party Plaintiff-Appellant,
v.
ILLINOIS POWER CO., and
INTERNATIONAL PAPER CO.,
Third-Party Defendants-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 00 C 1164 & 04 C 1427—Harry D. Leinenweber, Judge.
____________
ARGUED SEPTEMBER 5, 2007—DECIDED FEBRUARY 28, 2008
____________
Before EASTERBROOK, Chief Judge, and WOOD and EVANS,
Circuit Judges.
WOOD, Circuit Judge.
2 Nos. 05-2394, 06-1481, 06-2456
. . . The gaps I mean,
No one has seen them made or heard them made,
But at spring mending-time we find them there.1
In the spring of 2000, a gap opened in one wall of a water
canal in Marseilles, Illinois, causing the wall to collapse
partially. This incident gave birth to a long-running dispute
between Marseilles Land and Water Company (“the canal
company”) and Marseilles Hydro Power LLC (“the power
company”); that lawsuit has already made one trip to this
court. See Marseilles Hydro Power, LLC v. Marseilles Land and
Water Co., 299 F.3d 643 (7th Cir. 2002). The parties are
fighting over who has the right to receive rents for the
water running through the canal and who was responsible
for keeping the wall in good repair. Along the way, they
have argued over land deeds, obligations to provide
subjacent support, and certain indentures governing the
rights and duties associated with the canal. Three other
parties have been swept into the fray.
Four years into the dispute, the power company filed an
eminent domain action in which it sought to condemn all
of the canal company’s rights in the canal, in the water, in
the surrounding land, and under the indentures. Third-
party claims, crossclaims, and third-party crossclaims were
thrown into the hopper. The original and eminent domain
cases became so entangled that the district court acciden-
tally, but understandably, entered a partial judgment in
one case under the wrong docket number. Eventually, the
court reached a final judgment in the eminent domain case,
1
Robert Frost, Mending Wall, in North of Boston (Bartleby.com 2d
ed. 1999). All citations are to this edition, which is online
at http://www.bartleby.com/118/2.html (last visited Feb. 7,
2008).
Nos. 05-2394, 06-1481, 06-2456 3
and it certified partial final judgments for two parts of the
original case under FED. R. CIV. P. 54(b).2 The net result is
the consolidated appeals now before us. We affirm the
judgments of the district court.
I
The procedural history of this case was first called “long
and complex” back in December 2005. Marseilles Hydro
Power Co. v. Marseilles Land & Water, LLC, 2005 U.S. Dist.
Lexis 34103, *4 (N.D. Ill., Dec. 16, 2005). Since then, matters
have gotten worse. We summarize the high points for the
convenience of the reader.
In 1876, the canal company received a charter from the
Illinois General Assembly to build a dam on the Illinois
River in Marseilles. In 1910, the canal company entered into
an agreement with Eugene Chubbuck, the owner of
a building next to the river, to supply water and main-
tain the canals in return for monthly rents in specified
amounts (the “1910 Indentures”). When Illinois Power
2
All references to the Federal Rules of Civil Procedure will be
to the version that took effect on December 1, 2007. The Commit-
tee Note to Rule 54 reflects a general point about the 2007 rules:
“The language of Rule 54 has been amended as part of the
general restyling of the Civil Rules to make them more easily
understood and to make style and terminology consistent
throughout the rules. These changes are intended to be stylistic
only.” The Order of April 30, 2007, issued by the Supreme
Court in connection with the adoption of the 2007 Rules stated
the revised rules “shall govern in all proceedings . . . com-
menced [after December 1, 2007] and, insofar as just and
practicable, all proceedings then pending.” We see nothing in
the rules implicated by the present appeal that would prevent
the application of the new rules in this case.
4 Nos. 05-2394, 06-1481, 06-2456
succeeded Chubbuck in 1924 and began to use the build-
ing for providing electrical power, the agreement was
amended (“1924 Indentures”). The power plant was
decommissioned in 1988 or 1989 and was conveyed to the
power company in 1999; soon thereafter, the power
company also acquired the interests in the Indentures.
Noting that the canal had fallen into disrepair, the power
company ceased paying rents to the canal company in
early 1999.
This decision prompted the first, more complex lawsuit,
to which we refer in this opinion as the original case
(No. 00 C 1164). In February 2000, the power company sued
the canal company for failing to keep the canals in good
repair and slander of title. But “[s]omething there is that
doesn’t love a wall,/That wants it down.” The retaining wall
collapsed in April 2000, not long after the power company
allowed the water to drain from the North Race (one of the
two major parts to the canal).
In March 2003, after the trip to this court noted earlier, in
which we vacated an injunction that authorized the power
company to enter upon the canal company’s property to
repair the wall, the original case continued. The canal
company counterclaimed for trespass and negligence and
asserted third-party claims against Illinois Power, Field
Container (“Field”), and International Paper. According to
the canal company, Illinois Power is responsible for the
collapse of the wall, because its power lines and guywires
put too much tension on the structure. Field
and International Paper were liable, it claimed, based
on their alleged ownership of the wall, which was suppos-
edly reflected in deeds of sale in 1991 and 1996 (the
“Deeds”), and their failure to maintain it. In August 2003,
the court dismissed International Paper from the lawsuit.
Nos. 05-2394, 06-1481, 06-2456 5
Right after International Paper left the picture, the power
company received a license from the Federal Energy
Regulatory Commission to recommission the power plant.
This prompted it to file a second suit in February 2004,
to which we refer as the eminent domain case (No. 04 C
1427), in which it sought to take the canal by eminent
domain under the power granted to it by 16 U.S.C. § 814.
Both the power company and the canal company had
filed cross-motions for summary judgment in the original
case before the eminent domain action began. In May 2004,
the district court ruled on some of those motions, conclud-
ing that the power company was a successor-in-interest
under the Indentures and holding in its favor on several
other issues related to the Indentures. The summary
judgment did not resolve the entire dispute, however,
and some of the motions lingered.
In June 2004, the canal company threatened to open the
head gates to the river and flood the North Race, which
had been dry since 2000. The power company secured a
temporary restraining order in the eminent domain suit
against such an action, but the canal company defied the
order and literally opened the floodgates. This prompted
Field to file a third-party counterclaim against the
canal company for trespass in the original case.
The eminent domain case was resolved first, when the
court entered final judgment in the power company’s
favor in January 2005. It awarded all of the requested land
and rights to the power company and set compensation
for the taking at $168,750. The canal company’s appeal
from that judgment, No. 05-2394, is one of the three now
before us.
In October 2005, the third-party claims against Field and
Illinois Power in the original case were dismissed as
6 Nos. 05-2394, 06-1481, 06-2456
untimely under the statute of limitations for property
damage. Unfortunately, the court accidentally entered
that order under the docket number assigned to the
eminent domain case, No. 04 C 1427. The district court also
resolved the questions of who owned the retaining wall
and who was responsible for certain obligations under
the Indentures in favor of Field and Illinois Power and
against the canal company. By May 2006, the court had
corrected the mistaken docket entry and recorded its
decision in the proper place (that is, No. 00 C 1164). At that
point, however, it mistakenly cited 28 U.S.C. § 1292(b) in its
effort to certify these rulings for immediate appeal. The
canal company filed the second appeal before us, No.
06-1481, in order to challenge the court’s decision that the
statute of limitations barred its claims against Field and
Illinois Power. It filed yet a third appeal, No. 06-2456, from
the district court’s resolution of the issues of ownership of
the retaining wall, naming Field and International Paper as
appellees, and obligations under the Indentures, naming
the power company as appellee.
In April 2007, the parties agreed to dismiss Field from the
original case voluntarily. This left the original litigants, the
power company and the canal company, and two of the
third-party appellees, Illinois Power and International
Paper. Another third-party defendant, North American
Hydro, is party to some claims that have not been finally
adjudicated, and is not before this court.
II
Before reaching the other issues, a jurisdictional question
looms: is appellate jurisdiction proper over the appeals
from orders entered in the original case? In attempting
Nos. 05-2394, 06-1481, 06-2456 7
to certify the cases we have docketed as Nos. 06-1481 and
06-2456 as ready for immediate appeal, the district court
cited 28 U.S.C. § 1292(b), which is for “a controlling
question of law as to which there is substantial ground
for difference of opinion.” Neither of the cases fits that
standard, because both also purport to be from a final
judgment and deal with issues of fact as well as issues
of law. Further, the district court did not “state [the appro-
priate reasons] in writing in [its] order.” Id. Finally, no one
asked this court to accept the appeals, either within the
requisite ten days given by § 1292(b) or otherwise. One
thing, therefore, is certain: these are not, and cannot be,
proper interlocutory appeals.
Looking beyond the labels, however, we can see that the
district court made the findings necessary to “direct entry
of a final judgment as to one or more, but fewer than all,
claims or parties.” See FED. R. CIV. P. 54(b). First, it resolved
particular claims, which we describe in more detail below.
Second, in keeping with the requirement of Rule 54(b) to
make an express determination that “there is no just reason
for delay,” the court prepared final judgment forms in
which it explicitly made that finding. The district court’s
orders were, as the pre-2007 version of Rule 54(b) required,
entered on the docket. We are satisfied that the mention of
§ 1292(b) was a slip of the pen, and that in substance we
have the certifications required by Rule 54(b).
That finding, however, raises a second question: were
the orders in question eligible for treatment under
Rule 54(b)? Assuming that counsel correctly represented
that all claims concerning International Paper and Illinois
Power have been resolved in the district court, the answer
is yes, because the rule authorizes certification when
everything having to do with a particular party is wrapped
8 Nos. 05-2394, 06-1481, 06-2456
up. If any loose ends remain with one or the other com-
pany, certification is still appropriate if certain claims have
finally been resolved. That requires a somewhat
more complex inquiry. If an examination of the record
reveals that the claims on appeal are too similar to the
issues remaining in the district court, then we would
have to conclude that there was no partial final judg-
ment of the sort contemplated by the rule. In such a case,
we would have no jurisdiction to entertain the appeal.
See ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360,
365 (7th Cir. 2000). When a district court invokes Rule
54(b), we have an independent obligation to ensure that its
decision on a given claim is indeed a final one. See Curtiss-
Wright Corp. v. General Electric Co., 446 U.S. 1, 7-8 (1980). We
must also decide whether the district court abused its
discretion in determining that there was no just reason for
delay. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.,
860 F.2d 1441, 1443-44 (7th Cir. 1988). Both questions
involve consideration of the factual relation between the
issues that have been resolved and those that remain. Id. at
1444 n.3 (quoting Curtiss-Wright, 446 U.S. at 8, 10) (noting
that the standard of review for the separateness inquiry
was left ambiguous).
There are no bright-line rules for determining whether
two claims are separate for Rule 54(b) purposes, but we
find some guidance in Amalgamated Meat Cutters & Butcher
Workmen v. Thompson Farms Co., 642 F.2d 1065, 1070-71 (7th
Cir. 1981). “At a minimum, claims cannot be separate
unless separate recovery is possible on each. . . . Hence,
mere variations of legal theory do not constitute separate
claims. . . . Nor are claims so closely related that they
would fall afoul of the rule against splitting claims if
brought separately. . . .” Id. This inquiry involves compar-
Nos. 05-2394, 06-1481, 06-2456 9
ing the issues at stake in the appealed claims and those
remaining in the district court, American Cyanamid, 860 F.2d
at 1444, and determining whether there is a “significant
factual overlap,” Automatic Liquid Packaging, Inc. v. Dominik,
852 F.2d 1036, 1037 (7th Cir. 1988). In the course of this
examination, we bear in mind that the rule defines a class
of final judgments, suitable for appeal under 28 U.S.C. §
1291. The scope of Rule 54(b) must therefore be confined to
“situations where one of multiple claims is fully adjudi-
cated—to spare the court of appeals from having to keep
relearning the facts of a case on successive appeals.”
American Cyanamid, 860 F.2d at 1444 (quotation omitted).
“[I]f there are different facts (and of course different issues)
consideration of the appeals piecemeal rather than all
at once will not involve a duplication in the efforts required
of the judges to prepare for argument in, and to decide,
each appeal.” Jack Walters & Sons Corp. v. Morton Bldg., Inc.,
737 F.2d 698, 702 (7th Cir. 1984). Even if two claims arise
from the same event or occurrence, they may be separable
for Rule 54(b) purposes if they rely on entirely different
legal entitlements yielding separate recoveries, rather than
different legal theories aimed at the same recovery.
Although, in the case before us, many of the claims on
appeal and some still pending in the district court stem
from the same occurrence—the collapse of the retaining
wall in April 2000—the issues raised in each part of the
case are legally distinct and involve different facts. The
case as a whole includes the following claims, all brought
by the canal company: (1) a set arising under property
law, based on the removal of lateral support by the drain-
ing of the North Race, filed against the power company
and North American Hydro, both still in the district court;
(2) claims in tort against Illinois Power, which have
10 Nos. 05-2394, 06-1481, 06-2456
been resolved and are now on appeal; and (3) a pair of
claims against Field and International Paper based on
an interpretation of a deed, which have been finally
resolved and are the subject of one of these appeals.
The last of those three is easiest to recognize as fully
separable from the rest of the case. That part of the original
litigation raised the question whether the 1991 and 1996
Deeds did or did not convey the offending wall. The set of
tort claims against Illinois Power are also factually and
legally distinguishable from those alleged against the
power company and North American Hydro. The canal
company’s complaint against Illinois Power ultimately
concerns the guywires that Illinois Power attached to the
retaining wall and a light pole that supposedly caused
subsidence behind the retaining wall. The district court
found these claims barred by the statute of limitations; it
did not reach the merits. The issues at stake in the inquiry
into timeliness bear little or no relation to the causation
inquiries needed to assess the claims against the power
company and North American Hydro, even though they
arise from the same injury. Compare Fitigues, Inc. v. Varat
Enterprises, Inc., 813 F. Supp. 1336 (N.D. Ill. 1992) (separat-
ing review of an arbitration award from the rest of a
contract dispute because the issues involved in the former
were confined by statute).
Even if we look behind the statute of limitations to the
underlying factual overlaps, see Minority Police Officers
Assn. v. South Bend, 721 F.2d 197, 201 (7th Cir. 1983), the
claims against Illinois Power and those against the
power company and North American Hydro arise from
different sets of facts occurring in different periods in-
voking different legal regimes. The claims against Illinois
Power arise from the allegedly negligent construction of
Nos. 05-2394, 06-1481, 06-2456 11
improvements in 1960 and 1994. The claims against the
power company and North American Hydro all relate to
the draining (or, as the parties call it, “dewatering”) of the
North Race in 2000, because this action allegedly destroyed
the lateral support for the wall (a question of property law).
The periods covered by the two claims also differ consider-
ably. While there will be some overlapping historical facts,
a panel hearing an appeal from a final decision on the
claims still pending before the district court (group 1
above) will not have to rehash the same issues as we have
had to investigate for this appeal. We conclude, therefore,
that the ownership and tort claims now before us in Nos.
06-1481 and 06-2456 are sufficiently distinct from the
remainder of the case that the use of Rule 54(b) is appropri-
ate.
From here the rest of the inquiry falls into place. The
district court did not abuse its discretion in certifying
that there was “no just reason for delay” under Rule 54(b).
We thus turn to the merits in both the eminent domain
appeal, No. 05-2394, and the two Rule 54(b) appeals.
III
A. Eminent Domain
The eminent domain case can be broken down into three
parts: whether the taking was necessary (as specified in the
statute), whether the scope was proper, and whether the
court assessed compensation appropriately. As this
judgment was entered after a full trial to the court, we
review any findings of fact for clear error only, see FED. R.
CIV. P. 52(a)(6), and we give de novo review to the court’s
legal rulings.
12 Nos. 05-2394, 06-1481, 06-2456
1. Necessity
Under the Federal Power Act, 16 U.S.C. § 814, a FERC
licensee may “exercise . . . the right of eminent domain”
“[w]hen [it] can not acquire by contract or pledges . . . the
right to use or damage the lands or property of others
necessary to the construction, maintenance, or operation of
any dam, reservoir, diversion structure, or the works
appurtenant or accessory thereto . . . .” Id. Absolute inabil-
ity to acquire the property is not required; the statute
contemplates merely the failure of a bona fide effort to
acquire the rights through contract. See Wilson v. Union
Elec. Light & Power Co., 59 F.2d 580, 581 (8th Cir. 1932).
The power company acquired its FERC license in No-
vember 2003. Although it did have some rights under the
Indentures—specifically to use water flowing through the
canal for generating power—it contended that those rights
were rendered effectively useless by the bad repair of the
canal. It also alleged that the canal company failed to
uphold its side of the Indentures when it did not repair the
canal or the collapsed retaining wall. This stubbornness,
the power company claimed, made condemnation neces-
sary. The canal company, for its part, disagreed, arguing
that the power company never really engaged in any
sincere negotiation, instead offering pittances as compensa-
tion (in order, the canal company accused, to “steal” its
assets). Intending to demonstrate how wrong the power
company was about the usability of the canals, the canal
company violated a temporary restraining order in June of
2004 by flooding the North Race.
The district court found that the canal was not in working
order (a finding that was not shaken by the unauthorized
flooding). Marseilles Hydro Power, LLC v. Marseilles Land &
Water Co., 2004 U.S. Dist. Lexis 9849, *30 (N.D. Ill. 2004).
Nos. 05-2394, 06-1481, 06-2456 13
Although it is possible that the flooding might have created
some evidence that the canal was useable, in the end the
district court was entitled to place more weight on the light
the act of flooding shed on the canal company’s unwilling-
ness to negotiate, and thus the need for eminent domain.
The flooding is indicative of a party who will accept a
bargain only on its terms. This perception is fortified by the
canal company’s own (denied) filing with FERC, which
stated that the property, including the canals, “[wa]s not
available to [the power company] on a volitional basis.” See
Order on Reh’g, 107 FERC ¶ 61,066 n.9 (Apr. 20, 2004). This
statement makes it clear that no amicable resolution was
forthcoming. Further, the existence of the original suit was
premised on the power company’s efforts to exercise its
right under the Indentures to force the canal company to
repair the canals. The canal company’s decision to resist
that demand (even through a lawsuit) indicates an unwill-
ingness to perform. There was no clear error in the district
court’s factual finding that the use of eminent domain was
reasonably necessary whether or not the canal was actually
completely unusable, because the use of the canals could
not be acquired from the canal company “by contract or
pledges.”
2. Scope
The district court has already analyzed why each portion
of the property to be condemned was necessary for the
operation of the power plant. See Marseilles Hydro Power,
LLC v. Marseilles Land & Water Co., 2004 U.S. Dist.
Lexis 25276, *7-13 (N.D. Ill. 2004). The fact that the
court did not give the power company everything it
wanted reflects the care it gave to this question. We do not
14 Nos. 05-2394, 06-1481, 06-2456
need to rehearse its findings in detail here, for nothing
was presented to us that would indicate any clear error.
The canal company argues instead that the power
company should take none of the rights appurtenant to
the property, only the real estate itself, because it asked
only for rights related to streets and alleys abutting the
property. This could be true only if one reads the eminent
domain complaint selectively. Paragraph (a) asks for
“[f]ull and clear fee simple title to the Premises, including
all improvements thereon and all interests therein and
rights incident thereto of every kind and nature . . . .”
Paragraph (b) reinforces the broad sweep of Paragraph (a)
by separately asking for the rights to the abutting
streets and alleyways.
The canal company next asserts that some lesser property
right would suffice, such as a license to use the water or an
easement. On the facts found by the district court, this
argument cannot prevail. Part of the court’s determination
was that the power company had demonstrated its need for
a full-blown acquisition of the property; a lesser interest
would not do. Based on this record, we find no clear error
in that decision.
3. Compensation
Most of the dispute here is about the proper method for
valuation of the rights and properties at stake. The canal
company argues that the court improperly excluded
evidence from its expert, David Moody. This court reviews
the question whether the district court properly interpreted
FED. R. EVID. 702 de novo, and its ultimate decision to admit
or exclude for abuse of discretion. See United States v. Allen,
269 F.3d 842, 845 (7th Cir. 2001).
Nos. 05-2394, 06-1481, 06-2456 15
We do not need to review the question whether Moody’s
testimony should have been admitted or not because, if
there was error at all, we are satisfied that it would
be harmless. In a trial to the court (as this was), the district
judge is entitled to weigh the testimony, even if admitted,
at his or her discretion. Here, the judge would not have
abused his discretion if he had admitted the testimony and
then had weighed it lightly. The court laid out the reasons
why it found each of the parties’ experts to be more or less
credible. See Marseilles Hydro Power, 2004 U.S. Dist. Lexis
25276 at *17-27. It then analyzed the value of each section
of the property and came up with a number much higher
than what the power company offered, but lower than the
canal company’s demand. Id. at *25-30. Far from an abuse
of discretion, this was a reasonable approach to take in the
face of widely varying estimates.
Furthermore, the district court recognized a limitation on
value that the canal company did not: the Indentures limit
the value of the water rights. The canal company cannot get
a higher price for the water without breaking the contract.
Thus, any valuation that presumed free use of the water
would be inherently flawed, as the judge recognized. See
id. at *21-24. To the extent that somebody else could extract
a higher value from the water, that would suggest that the
highest and best use of the property is not what the canal
company was proposing. Compensation in eminent
domain cases is only for the value lost to the owner, not the
benefit gained by the condemnor. United States v. Miller,
317 U.S. 369, 375 (1943) (describing compensation as “no
more than indemnity for [the landowner’s] loss”). The
value of the taking could not be measured by how the
property might be used by a hypothetical third party; it is
only the value of what was lost to the condemnee. That
16 Nos. 05-2394, 06-1481, 06-2456
value, in turn, was limited by the terms of the Indentures.
In short, we conclude that the district court’s findings with
respect to the necessity, scope, and valuation of the taking
were not clearly erroneous.
B. Statute of Limitations
The second appeal before us, No. 06-1481, is from the
dismissal of Field and Illinois Power from the suit on
statute of limitations grounds. We review this decision
de novo. Jones v. GE, 87 F.3d 209, 211 (7th Cir. 1996). Because
Field has been dismissed from the suit by consent, this
issue is moot with respect to it. We will consider the statute
of limitations only as it bears on the injury allegedly caused
by Illinois Power.
The parties dispute which statute of limitations should
apply. The power company argues for Illinois’s four-year
statute of limitations governing damage arising from
negligent construction of improvements, 735 ILCS 5/13-
214(a); the canal company would prefer the five-year
general limitations period on property damage, 735 ILCS
5/13-205. A number of consequences flow from the choice
of statute. The four-year statute contains an explicit
clause stating that the clock starts when the injured
party “knew or should reasonably have known” of the
injury. 735 ILCS 5/13-214(a). It also contains a ten-year
statute of repose. 735 ILCS 5/13-214(b). The five-year
statute, in contrast, does not have either provision, and the
cause of action has been held to accrue on the date of
injury, Ill. Nat’l Bank & Trust v. Rockford, 92 N.E.2d 166, 169
(Ill. 1950).
As we noted earlier, the canal company’s claims against
Illinois Power arise from guywires that Illinois Power
Nos. 05-2394, 06-1481, 06-2456 17
attached to the retaining wall in 1960 and a light pole it
installed in 1994. The former applied pressure to the
retaining wall, while the latter accidentally broke a drain-
pipe, thereby allowing rainwater to wash away the soil
behind the wall, causing subsidence. In either case, the
injury was caused by construction of an improvement.
Where two statutes of limitations might apply, Illinois
courts instruct that we should apply the more specific one.
See Commonwealth Edison v. Walsh Constr. Co., 532 N.E.2d
346, 350 (Ill. App. Ct. 1988) (construing § 3-214 as an
exception to the general statute of limitations for property
damage in § 3-205). The district court found that the shorter
four-year statute of limitations applies here, and we agree.
Because the four-year statute applies, so does the discov-
ery rule written into it. The district court found that a letter
from the power company to the canal company in June
1997 marked the date of notice. The canal company objects
that the letter, written by a lawyer, was inadmissible
hearsay. That is incorrect: it is not hearsay if it is used only
to show notice. See FED. R. EVID. 801(c) and 1972 Advisory
Cmte. Notes (“If the significance of an offered statement
lies solely in the fact that it was made, no issue is raised as
to the truth of anything asserted, and the statement is not
hearsay.”). At the latest, therefore, the clock began to run in
June of 1997. That clock expired in 2001, well before Illinois
Power was joined as a third-party defendant.
We need not consider the question whether the harm
alleged was a continuing injury or a continuing tort, nor the
(rather strong) arguments for an earlier date of accrual. At
the latest, the suit should have been brought by June 2001,
and it was not. The claims against Illinois Power were time-
barred and therefore properly dismissed.
18 Nos. 05-2394, 06-1481, 06-2456
C. Deeds
The third appeal, No. 06-2456, deals with the final two
issues: interpretation of the 1991 and 1996 Deeds, which
determine who owns the wall, and the rights and obliga-
tions due each party under the Indentures.
The parties agree that the canal company conveyed the
land next to the wall (“the Reserve”) to Federal Paper
Board Co. (International Paper’s predecessor-in-interest) by
quitclaim deed in 1991. Federal Paper Board then conveyed
the Reserve to Field in 1996 by warranty deed. What is
disputed is whether the wall itself was included in either or
both of those transactions. The canal company argues that
the wording of the 1996 Deed, explicitly excluding the wall
from the conveyance, proves that the 1991 Deed did convey
the wall to Federal Paper Board (and therefore Interna-
tional Paper). The canal company then argues that the 1996
Deed did not change the grant, proving that International
Paper still owned the wall at the time of collapse. (Some-
thing there is that doesn’t love a wall,/That wants it down . . . .)
The district court found that the wording of the 1991
Deed was clear. The Deed conveyed “[a] strip of land 30
feet in width, more or less, . . . bounded on the east by
the west right-of-way line of Main Street, on the south
by [described properties], . . . on the west by a line [parallel
to a certain lot], and on the north by the south wall of
the north head race. . . .” This, the court found, indicated
beyond any doubt that the parcel conveyed was bounded
by the wall, but that it did not include the wall. The
court also focused on the words “more or less,” which it
noted are “used as words of precaution and safety and
are intended to cover unimportant inaccuracies.” 23 Am.
Jur. 2d Deeds § 258. We, too, find this reading compelling.
The 1991 Deed, at least, conveyed the Reserve, but not
Nos. 05-2394, 06-1481, 06-2456 19
the wall, to International Paper’s predecessor, leaving
the wall in the canal company’s hands.
The canal company resists this conclusion by pointing
to the 1996 Deed, which explicitly excludes the wall from
the description of the property (the “north property line
is the south face of the wall”). It argues that this word-
ing raises the inference that the 1991 Deed may be ambigu-
ous after all because it was not as precise. The flaw in the
canal company’s argument is timing: a later deed cannot
render an earlier deed ambiguous. See Mann v. Mann, 671
N.E.2d 73, 76 (Ill. App. Ct. 1996); Green Bay and Miss. Canal
Co. v. Hewett, 12 N.W. 382, 383-84 (Wis. 1882) (“This is an
application of the ancient rule or maxim that ‘the first deed
and the last will shall operate.’ ”). Although external
circumstances can render a deed latently ambiguous, it
must be so when written, even if the parties only discover
it later on. In 1991, there were no discoverable external
circumstances that rendered the deed ambiguous: the
ambiguity-creating document would not exist for another
five years. The district court correctly found, as a matter of
law, that the 1991 Deed governed and was unambiguous
within its four corners; the 1996 Deed was a separate
document by a separate grantor and did not retroactively
muddy up the earlier document. (We note in passing the
perverse consequences an alternative ruling would have.
Artful drafting of a later deed would allow a landowner to
divest herself of land without actually conveying it, a ploy
that could come in very handy if the plot of land were, for
instance, contaminated.)
On appeal, the canal company also raises a rule of deed
construction for artificial monuments, arguing that the
property line should, as a matter of law, be measured to the
midpoint of the wall (meaning that the 1991 Deed con-
20 Nos. 05-2394, 06-1481, 06-2456
veyed at least the half of the wall facing the rest of
the Reserve). The district court invited the canal company
to present other deeds showing alternative ownership,
but it instead submitted only a surveyor’s affidavit. It never
mentioned the artificial-monument rule to the district
court. This court will not split the wall in two in such an
odd way: because this argument was not raised before the
district court, it is waived. Taubenfeld v. AON Corp., 415
F.3d 597, 599 (7th Cir. 2005) (citing Heller v. Equitable Life
Assurance Soc’y, 833 F.2d 1253, 1261-62 (7th Cir. 1987) (“On
numerous occasions we have held that if a party fails to
press an argument before the district court, he waives the
right to present that argument on appeal. . . . As we have
made clear, it is axiomatic that arguments not raised below
are waived on appeal.”) (citations and quotation marks
omitted)). We agree with the district court that the canal
company owned the retaining wall at the time of collapse.
D. Indentures
Last of all, we come to the first issue raised in the original
suit: whether the Indentures have been broken, if so by
whom, and what rights and obligations each party has as
a result. Whether the Indentures are characterized as
contracts or leases, the standard of review is de novo as long
as the writing is unambiguous; if there is ambiguity, review
is more deferential. Platinum Technology, Inc. v. Federal Ins.
Co., 282 F.3d 927, 930-31 (7th Cir. 2002); HA-LO Industries,
Inc. v. CenterPoint Properties Trust, 342 F.3d 794, 797 (7th
Cir. 2003).
The canal company argues that the Indentures are like
leases. This means, it urges, that the power company’s duty
to pay rents continued regardless of the state of repair of
Nos. 05-2394, 06-1481, 06-2456 21
the canal. The power company, naturally, contends that
they were more like contracts and the duty to pay was
excused once the canal company breached its obligation to
keep the canal in good repair. We prefer to put this charac-
terization debate to one side and to begin by examining the
text of the Indentures directly.
This saves a great deal of time, as it turns out that the
Indentures are not ambiguous at all on the question of the
ongoing duty to pay rent. The district court correctly
noted that the canal company could not terminate the
Indentures for nonpayment of rent until the deficiency had
been reduced to judgment. Marseilles Hydro Power, 2004
U.S. Dist. Lexis 9849 at *17-18. Paragraphs 26 and 27 of the
1924 Indentures allow the canal company to shut off the
flow of water after 90 days’ delinquency, but it is permitted
to cancel the Indentures only if the power company is 90
days in arrears on a final judgment. The Indentures, on
their face, grant the canal company only one self-help
remedy: shutting off the flow of water. The alternative
remedy it chose—neglecting repairs—was not authorized.
In fact, ¶ 32 of the Indentures obliges the canal company
“to at all times keep [the premises] in good repair and
condition . . . so as not to impair the free use and enjoyment
of the water power hereby leased.” This provision places
no condition on the canal company’s obligation to keep the
canals in good working order. Whether characterized as
leases or contracts, the Indentures explicitly require the
canal company to maintain the canal regardless of whether
rent is current.
Paragraph 19 of the Indentures allows a rebate of rent
paid if the canal is not in working order for more than 10
days in a year. The canal company attempts to argue
that the power company should be obliged to pay rent,
and then the canal company would simply return the
22 Nos. 05-2394, 06-1481, 06-2456
payment a year later as a rebate. It makes no sense to us,
however, to read the Indentures as mandating an interest-
free loan of this sort to a party that is already in breach
of the agreements.
An alternative approach to the Indentures rests on the
question whether the power company succeeded to all of
the rights and obligations of the canal company in
the Indentures. Marseilles Hydro Power, 2004 U.S. Dist. Lexis
9849 at *9-19. The canal company was the original “party of
the first part,” and the power company succeeded to the
“Second Party” role (that is, it was the successor-in-interest
to Chubbuck) soon after taking over the power plant in
1999. The eminent domain complaint named “rights
incident [to the property] of every kind and nature,” which
would include the rights under the Indenture, and the
district court included the valuation of the rents under the
Indentures in the valuation of the property. Marseilles
Hydro Power, 2004 U.S. Dist. Lexis 25276 at *27-28. The canal
company correctly observes that the Indentures effectively
become void if the taking is allowed. Because we have
affirmed the district court’s order in the eminent domain
action, the power company has succeeded to all of the
rights incident to the property, including those of the canal
company under the Indentures. Because it is already the
“Second Party,” this accession dissolves the Indentures
through merger of the parties.
IV
Before I built a wall I’d ask to know/What I was walling in or
walling out,/And to whom I was like to give offence. We hope
that the saga of the Marseilles Canal Wall is over at last.
To say that the demise of the wall was causally over-
Nos. 05-2394, 06-1481, 06-2456 23
determined would be an epic understatement. Construing
all facts in the light most favorable to the canal company,
the pressure from Illinois Power’s guywires torqued it, the
weight of National Biscuit Co.’s trucks in the parking lot
above squashed it, the dewatering of the canal by the
power company and North American Hydro removed its
support on one side, and the damage from Illinois Power’s
light pole allowed Field’s drainage problems to erode the
support on the other—all for over thirty years after the
canal company’s president noticed that the wall was
leaning but concluded it wasn’t his problem because it
wasn’t his wall.
The prospect of sorting out liability in a case like this
is precisely why there are statutes of limitations: evidence
is so stale and causation is so tenuous that it is no
longer possible to render any judgment soundly based on
fact. The canal company’s defiant action in flooding
the North Race did not help its cause either. It illustrates
why the necessity of a taking can be shown by the failure of
bona fide efforts to contract and not only by an absolute
inability to acquire the property. The attempt to introduce
a retroactive ambiguity into the 1991 Deed shows why
deeds are construed within their four corners first, and
why the first deed governs. The district court is certainly
up to the task of finishing off the few issues that remain,
though sometimes, we admit, stones are not so easy to keep
stacked: And some are loaves and some so nearly balls/We have
to use a spell to make them balance:/“Stay where you are until
our backs are turned!”
In the spirit of piling stone upon stone in order to
help the district court finish the task before it, we AFFIRM
the district court’s judgment in No. 05-2394, the eminent
domain case. We also AFFIRM the dismissal of Field
24 Nos. 05-2394, 06-1481, 06-2456
and Illinois Power under the statute of limitations in
No. 06-1481. Finally, we AFFIRM the district court’s conclu-
sions in No. 06-2456, that the canal company owned the
wall at all relevant times, that the rights and duties of the
“party of the first part” to the Indentures belong to the
power company, and that if any party was in breach of the
Indentures it was the canal company. The power company,
we have found, owes no rents.
USCA-02-C-0072—2-28-08