Peter P. Godels v. State of Illinois

This cause was heard on a motion to dismiss before I the entire Court, and oral argument was then and there presented. Following that hearing, the case was referred

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to Commissioner Barnes for a hearing. The case was then presented to the commissioner by way of stipulation. Pursuant to the stipulation, the commissioner wrote his report. I The evidence before us, pursuant to stipulation, establishes that the Claimant became the owner of a certain piece of real estate, located in the Village of [*174] Tilton, by warranty deed executed and acknowledged on April 24, 1968, for the sum of $2,000.00 from Ira and Pearl Accord.

Pursuant to affidavit, the purchaser states the deed was delivered to him on the date that it bears, but that he did not record the deed until the year 1980. On October 3, 1969, the Illinois Department of Public Aid, hereafter referred to as IDPA, filed a notice of lien against the real estate in question and duly renewed said lien within the five-year period as provided by statute. The Claimant attempted to sell the real estate to third parties in the year 1980, at which time he was made aware that there was a $1,350.00lien claim from the IDPA. The Claimant requested the IDPA to remove said lien, but they refused and accordingly he was required to pay $1,350.00 to obtain a release so as to convey merchantable title.

It is further noted for the record that Ira Accord and Pearl Accord had applied for public assistance in July of 1969, and were both granted the same in 1969, with .medical assistance for Pearl Accord from June of 1969.

There is some indication in the record that Ira Accord had received some benefits as far back as 1948 and into 1969, but we do not believe that this is relevant to our discussion. There is no allegation or stipulation that this transaction was other than an arms-length transfer of property for full value between nonrelated parties. Since this is the case, we are presented with a very narrow legal issue, being: What is the effect, if any, of a public assistance notice of lien filed pursuant to section 3-10.2 of the Illinois Public Aid Code on a prior, but unrecorded, transfer of real estate? Ill. Rev. Stat., ch. 23, par. 3-10.2.

The law is quite clear that a transfer is effective [*175] between parties upon delivery of a deed regardless of whether or not the State should receive any protection by virtue of the fact that the deed was not recorded. The ‘public assistance lien is a general lien that, when filed, attaches to any property owned by the recipients. This is further shown by the specific statutory language in section 3-10.2, which states, and we quote, “The lien shall be prior to any lien thereafter recorded or filed and shall be notice to a subsequent purchaser (emphasis added), assignor, or encumbrancer of the existence and nature of such lien.” (Ill. Rev. Stat., ch. 23, par. 3-10.2.)

In our opinion, the Claimant does not move to the . position of a subsequent purchaser simply because he did not record the deed. In support of this result, we would further refer the parties to the discussion by John Cribbet in his book, Principles of the Law of Property.

In his discussion upon the law of recording, he bases the criterion for being protected on those who rely on the system. In other words, if you are a purchaser for value (BFP) or have lent money on reliance of a clear title, then obviously you would be protected against clouds, liens, or judgments on the premises. The State, however, 1 does not meet this criterion. In fact, public aid is given on the basis of not having property of sufficient income.

The State did not rely on any ownership of property to make such payments. Therefore, the lien was invalid.

The State then received a windfall from the Claimant due to the contractual pressures of his not being able to consummate a sale until he could convey merchantable title. I For all of the above reasons, this Court awards the Claimant the sum of $1,350.00.

[*176] ( No . 82-CC-0578-Claim dismissed.) i

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DRAVOMECHLING, Claimant, 0. THE STATE OF ILLINOIS,

Respondent. I

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Opinion filed August 15,1985. I SNYDER & GERARD (S. MICHAEL RITTER, of counsel), I for Claimant. I NEIL F. HARTIGAN, Attorney General (JOHN PER- 1 CONTI and JENNIFER DOVER, Assistant Attorneys General, I of counsel), for Respondent.

NEGLIGENCE-barge colliding with bridge-accident not proven-ckzim denied. In action for property damage and lost profits arising out of alleged collision of Claimant’s barge with bridge operated by State, claim was denied as Claimant failed to prove that the collision occurred since neither the bridge tender nor the towboat pilot made a report of the collision as required and inspection of the bridge by bridge engineer revealed no damage to bridge indicative of a collision.

HOLDERMAN, J. Claimant in this matter, Dravo Mechling, is the owner of a Towboat Barge Company which seeks to recover for damages to its barge DM-907 which it claims resulted from the barge’s collision with the Cass Street bridge near Joliet, Illinois, on November 27, 1980. On that date, the LYNN B, a diesel-powered towboat pushing the tow, was proceeding southbound on the Illinois River toward Joliet, Illinois, with 11 barges in tow. The tow consisted of four barges on the port side, four barges in the center and three barges on the starboard side.

At a hearing held in this matter, Captain William Wince, the pilot of the LYNN B, testified that on the date of the alleged collision, barge DM-907 was the lead barge on the port side as the tow approached the Cass Street bridge. In his discovery deposition taken August 13,1984, he stated the barge in question was not the lead [*177] barge but was the second barge on the port side as the tow approached the bridge. Evidence introduced showed that, as the LYNN B approached the bridge, the Captain sounded the proper signal from a boat for a bridge to open, which is one long blast on the boat’s horn, which should be answered by the bridge tender with one long blast from the bridge siren or whistle and the switching on of the green visual signal lights. The evidence also shows that the pilot of the LYNN B did not receive any notice from the bridge tender that the bridge was going to open. The pilot testified that the traffic gates for the vehicular traffic over the bridge were still up, indicating the vehicular traffic was still crossing the bridge. He stated he was moving at about ! two miles per hour and the front of the tow was under the bridge when he reversed the engines. The Captain

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further testified that the lead barge number DM-907

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~ struck the bridge causing damage to the barge.

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There are many rules and regulations concerning I i accidents of this kind. One of these rules states that when I a vessel collides with a bridge, the bridge tender is to l write a report of the accident at once and send it to the bridge engineer, and it is a requirement that an accident report be made out on a standard form and submitted to I the bridge engineer immediately following the accident.

The rules further state that the accident report must be completed irrespective of any property damage or injury. The bridge operator is required by the rules to obtain every detail possible and include it in the accident , report. The rules and regulations also provide that such a collision be entered in the bridge tender’s log book and

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be correct and true as they form a permanent record of the operation of the bridge and it may be referred to , later on in the case of controversy or lawsuit.

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In this case, there was no entry in the bridge tender’s log sheet to indicate an accident had occurred at the i

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Cass Street bridge on November 27, 1980. No accident I report pertaining to this collision was filed with the bridge engineer as required by the rules and regulations for the guidance of bridge tenders.

Although it is standard procedure for Claimant to report such accidents in the towboat pilot’s log sheet, in this case there was no report of the alleged accident in the log sheets for the towboat, LYNN B, on November 27, 1980.

On November 29, 1980, the same tow struck a pier at a bridge at Ottawa, Illinois. An entry in the pilot’s log referring to that incident states, “Rubbed bridge at Ottawa Highway, Barge 4815 sinking Bow, C. Guard on.” The Coast Guard was notified of this incident and the proper procedures were followed. This was in contrast to the alleged accident in Joliet, Illinois.

Mr. Karlton M. Keeney testified for Respondent. He is a bridge engineer and responsible for the operation and maintenance of moveable bridges in the Joliet, Illinois, area. He testified that on December 2, 1980, he personally inspected the Cass Street bridge and found no damage to the bridge.

It is standard procedure in accidents of this kind that the vessel master will notify the closest Coast Guard office. The Coast Guard then informs the marine safety office after which a Coast Guard 2692 form is sent to the vessel owner and an inspector sent out. Failure to report damage to a vessel within five working days after the accident was grounds in 1980 for a $100.00 fine.

In the present case, the Coast Guard was not notified of the alleged accident and the Coast Guard [*179] ,179 form 2692 was never prepared. Captain Wince testified he had a radio on board but failed to report the accident.

In addition, Captain Wince left the scene of the alleged accident, thereby depriving the Department of Transportation of the opportunity to inspect the allegedly damaged barge.

Claimant seeks to recover the sums it expended in the’repair of said barge as well as lost earnings from the loss of use of the barge while it was being repaired.

In this case, the towboat failed to follow the prescribed procedures in reporting accidents of this kind. This is in direct contrast to the procedure followed after the collision at Ottawa, Illinois.

The evidence indicates it is unlikely the tow and the lead barge DM-907 struck the Cass Street bridge, since there is no such entry of such a collision in the pilot’s log or the bridge tender’s log. The fact that the bridge tender and the pilot both failed to make an entry of such an accident leads the Court to conclude that there was I not any accident at the Cass Street bridge. This is further I strengthened by the fact that the bridge engineer who

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examined the Cass Street bridge found no damage to the bridge or evidence of the barge striking said bridge. The fact remains also that the pilot of the tow never received the required response from the bridge tender and still proceeded to go under the bridge. I This Court is of the opinion there was not any accident on November 27, 1980, with the Cass Street I bridge near Joliet, Illinois. This claim is dismissed.