The right to compensation for a taking also arises under the Illinois Constitution. Ill. Const. art. 1, s. 15. An action based on a taking stands outside of the realm of local governmental tort immunity. The basis of the liability is not founded on tort principles of fault, or a breach of a duty of care, but arises directly from constitutional guarantees that property shall not be taken or damaged for public use without just compensation.

This rule applies, regardless of whether recovery is sought under a theory of nuisance, or inverse condemnation. Even prior to the abrogation of common law tort immunity in Molitor v. Kaneland Community Unit District No.302, supra, such actions have always been recognized as undeniable exceptions to any governmental immunity. See Catello v. The Chicago, Burlington & Quincy Railroad Co., 298 m; 248, 256, 131 N.E. 591 (1921) ("...private property shall not be taken or damaged for public use without just compensation. This is a provision of our constitution that no legislative act and no decision of any court of this State can nullify"); Barrington Hills Country Club v. Village of Barrington, 357 fil. 11, 191 N.E. 239, 243 (1934) (holding that an injured party is entitled to damages for a nuisance, because it constitutes a taking); and City of Highland v. Auer, 235 111. App. 327, 331 (4th Dist. 1925) ("Our constitution guarantees to every citizen that his property shall not be taken or damaged for public use without just compensation.... It protects him against damages caused by a nuisance.")

Because an action for compensation due for a taking, whether framed as an action in inverse condemnation, or in nuisance, stands outside of the Tort Immunity Act, it necessarily follows that a notice provision and a statute of limitations within that Act cannot apply to bar the action. This is the specific holding in Streeter v. County of Winnebago, supra, which is controlling in this jurisdiction.

B. The Statute of Limitations for a Taking in Illinois is 20 years.

The vast majority of courts, including 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. 735 ILCS 5/13-101. The courts have uniformly rejected shorter limitation periods because otherwise, bodies cloaked with condemnation authority could save their money and obtain the legal equivalent of adverse possession in a far shorter period. The courts have recognized that the end result of an inverse condemnation action is to transfer an easement to the governmental body, the same easement that would be obtained with adverse possession.

The logic of tying the inverse condemnation for a taking to the statutory period for recovery of lands under adverse possession has been uniformly stated by the courts. The black letter statement of that doctrine is found in Lewis, A Treatise on the Law of Eminent Domain in the United States, (3d ed. 1909) at Section 966:

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 owner's right to compensation is not barred, except by adverse possession for the prescriptive period.

A typical statement of the courts' reasoning behind application of the limitations period for adverse possession is found in Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 28 Cal. Rptr. 357 (1st Dist. 1963):

The rationale of these latter cases is that the owner's right of recovery is founded upon and grows out of his title to land and that until such title is lost by adverse possession the owner should have the right to maintain an action to recover that which represents the property itself...

In Krambeck V. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977), the court stated the logic of the principle as follows:

Inverse condemnation is analogous to an action by a private owner against another private individual or entity to recover the title to or possession of property. while the property owner cannot compel the return of the property taken because of the eminent domain power of the condemner, he has a constitutional right as a substitute, to just compensation for what was taken.

In characterizing the applicable statute of limitations for an inverse condemnation action the Nebraska Supreme Court, quoting an earlier decision said:

It is just as if condemnation proceedings were begun and not yet completed. In such cases the action for just compensation is not barred except by adverse possession of the land taken for ten years, the requisite period to establish title by prescription.

In Love v. Postal Telegraph-Cable Co., 221 N.C. 469, 20 S.E.2d 337 (1942), the Court stated:

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 prescription -- this last by adverse possession and continuous user for a period of twenty years.

* * * * *

The awarding of permanent damages would be equivalent to the acquisition of an easement by condemnation.

The distinction between the statute of limitations for an inverse condemnation action for a taking, and a state constitutional action based not on a taking but on consequential damages, was explained in Oklahoma City v. Wells, 91 P.2d 1077 (Okla. 1989). There the city had cited a Washington case Jacobs v. Seattle, 100 Wash. 524, 171 P.662(Wash. 1918), in support of a statute of limitations less than the period required for adverse possession. The Oklahoma Supreme Court rejected that argument, emphasizing the distinction between the statute of limitations where there is a taking, and the statute of limitations where there is no taking but simply "damaging":

[B]ut that is a case involving consequential damages and not the actual taking of plaintiffs land. In this connection attention is called to the case of Aylmore et al. v. City of Seattle, 100 Wash. 515, 171 P.659, L.R.A. 1918E, 127 where the actual taking of land was involved; *** This distinction is clearly recognized in nearly all the states where the question of limitations has been before the court, and must always be kept in mind in applying the statute of limitations.

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.

The court in DiSanto v. City of Warrenville, 59 Ill. App. 3d 931, 376 N.E.2d 288 (2d Dist. 1978), confronted an inverse condemnation action commenced more than five years following the alleged taking of sewer and 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 was barred by a statute of limitations. The court found that the 20-year adverse possession statute of limitations applied to inverse condemnation 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 proceedings. *** 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. (~. Rev. Stat. 1975, ch. 83, par. 1; cf Village of Palatine v. Dahle, 385 111.621, 628, 53 N.E.2d 608 (1944).

The other Illinois case dealing with the statute of limitations pertinent to inverse condemnation takings is People ex. rel. Markgraff v. Rosenfield, 383 Ill. 468, 50 N.E.2d 479 (1943). In Markgraff, the plaintiffs and their predecessors in interest waited roughly twelve years to bring an action against the Department of Public Works and Buildings for appropriating some of their land for a highway without compensation. Because a special statute of limitations applied to adverse possession for highway construction, the court dealt with a 15-year statute of limitations:

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 section 139 of the Roads and Bridges Act (Ill. Rev. Stat. 1941 chap. 121, par. 152) in order that the Department acquire an easement by adverse use, such adverse possession must continue for a period of fifteen years.

Based on the above analysis, it is clear that the taking claim for inverse condemnation in this case is governed by a 20-year statute of limitations. Even if one accepts arguendo Chicago's argument that the cause of action accrued pre-Luedtke, and accepts arguendo the dates in Exhibit 8 of Chicago's brief, the 20-year statutory period had not run for any of the plaintiff schools prior to Luedtke. Since these actions were brought promptly after Luedtke was overruled in December 1988, the action is not barred.

C. Aircraft Noise Is An Intermittent And Continuing Nuisance.

Testimony developed during deposition discovery for this motion demonstrates that noise has not been a constant at O'Hare -- not now -- and certainly not in the period prior to the Luedtke decision. That testimony shows that there have been periodic and dramatic changes in the uses of the runways leading to different noise impacts. For example, one of the leading sources of noise for schools to the south of the airport are departures on runway 22L and arrivals on that same runway, runway 4R.

According to Chicago's records -- which are highly unreliable [FN 37] -- prior to the late 1970s there was no traffic either arriving or departing from 22L/4R. Subsequent to the late 1970s the runway use shifted dramatically with a major increase in take-offs from 22L. This necessarily would have led to a very substantial change and increase in noise in the area underneath the 22L departure tracks.

Q. So that in the noise that you attributed to arrivals on 4R and departures on 22 left, at least according to the 1976 delay task force study and the inventory of the Master Plan, those would not have occurred in the period covered by those reports, isn't that right?

A. That's correct.

Q. So based on the historical documents, there was a change that took place somewhere between 1976 and 1979, isn't that right?

A. That is true.

* * * * *

Q. Would it be a fair statement, then, that between 1976, which is the time of Exhibit 20, and also the time of the first delay task force report, and 1979, when you prepared the Volume XVI of the Master Plan, that there had been a significant change in the utilization of runway 22 left for departures and runway 4 right for arrivals?

A. Yes.

Q.And would it also then be a fair statement that as it related to noise from the operation of that runway, be it for departures or arrivals, that the noise patterns changed as well?

A. Yes.

[FN 37] Chicago keeps crude handwritten records of the runways it is told are open for operation. These records are inconsistent and inaccurate when compared with FAA records and even these FAA records do not record which runways were actually used for given flights.

These shifting periods of quiet followed by periods of noise injury are the classic intermittent, continuing nuisance. The application of the continuing nuisance doctrine to the instant facts is clear from an analysis of the applicable case law. The Illinois Supreme Court discussed the principle of continuing nuisance in 1911 in the case of Jones v. Sanitary District of Chicago, 252 111.591, 97 N.E. 210 (1911). In Jones, the plaintiff alleged that periodic flooding of his land had occurred as a result of the change in direction of the flow of the Chicago River. The Sanitary District alleged that the change in flow was permanent, such that the statute of limitations on plaintiffs claim began to run from the date the improvement was completed. The Supreme Court disagreed, stating:

The improvement known as the drainage channel is permanent in character; but it is not alleged that appellee suffered damage by reason of its construction.... It is the use that has been made of it that it is complained has caused the injury.

* * * * *

If as appellant contends, the statute of limitations runs as to such actions as this from the date the drainage channel was completed to Lockport and the flow of water turned on, it is possible for a party to be barred before he has suffered any injury whatever.

The Illinois Supreme Court concluded that the injury was continuous and that the statute of limitations would run anew from the time of each actual flooding.

Here, the uncontested evidence is that the noise injury is not constant but follows an intermittent, changing sequence of quiet periods followed by new noise injury. This fact is established by overwhelming uncontroverted evidence in the testimony of Chicago's consultant Mary Vigilante, supra, and in the Affidavit of Dr. Joseph L. Carroll, a national transportation systems expert, along with affidavits of 23 principals and teachers of DuPage County (made part of the record as Exhibits 1-24 to Plaintiffs' response to the City of Chicago's first Motion For Summary Judgment, and incorporated herein by reference).

The classification of O'Hare noise disturbance as a continuing nuisance is consistent with Illinois decisions. In Johnson v. Tipton, 103 111. App. 3d 291, 431 N.E.2d 464 (2d Dist. 1982), the plaintiffs alleged that they were injured by pollution resulting from the storage of wastes on neighboring property, which had seeped onto their property until January 1976. The defendants contended that plaintiffs' strict liability and negligence claims were barred by a two-year statute of limitations. The Appellate Court disagreed, stating that "where a tort involves a continuing or repeated injury, the limitation period does not begin until the date of the last injury or when the tortious acts cease. Johnson, 431 N.E.2d 473. There is no difference between the continuing and repeated injury in Johnson and the continuing and repeated injury here.

In Urban v. Village of Inverness, 176 Ill. App. 3d 1, 530 N.E.2d 980 (1st Dist. 1988), cert. denied, the plaintiffs alleged that the Village had blocked the natural flow of water causing flooding on their properties. Flooding occurred on their property in 1972, 1978 and 1979. The Village argued that the statute of limitations should run from 1972, when the plaintiffs were first aware of flooding. Urban, 530 N.E.2d 980. The Appellate Court disagreed, concluding that the plaintiffs were the victims of repeated injury, and that the statute of limitations would begin to run from the date of the last injury, or when the tortious acts cease (i.e., the last flood in 1979). Urban, 530 N.E.2d 981. Similarly, in the present case, the period in which the Plaintiff School Districts could bring their claims begins to run from the date of the last aircraft operation causing harm to the plaintiff schools. Since the operations are each distinct harms, occurring over different times and duration, and continuing to this day, the statute of limitations cannot have run to date.

In Starcevich v. City of Farmingham, 110 Ill. App. 3d 1074, 443 N.E.2d 737 (3d Dist. 1982), cert. denied, the plaintiff filed an action for damages due to the flooding of his property. He alleged that as the result of drainage improvements, his property had been periodically flooded. The Appellate Court held that the plaintiffs opportunity to bring suit under the Tort Immunity Act began to run each time that the land was flooded. Starcevich, 443 N.E.2d 740. See also Leckrone v. City of Salem, 152 Ill. App. 3d 126, 503 N.E.2d 1093, (5th Dist. 1987). Similarly, the statute of limitations for the claims of the Plaintiff School Districts begins to run each time an aircraft operation or series of aircraft operations causes noise damage and interference at the plaintiff schools. The aircraft operations are still continuing today, and therefore, the claims of the Plaintiff School Districts cannot be time-barred.

In Gass v. Metro-East Sanitary District, 186 Ill. App. 3d 1077, 542 N.E.2d 1229 (5th Dist. 1989), cert. denied, .548 N.E.2d 1068 (1990), the plaintiffs alleged that their farmlands had flooded multiple times due to defendant's failure to properly maintain a canal. The Court stated that "where a tort involves repeated injury, the limitation period begins to run from the date of the last injury or when the tortious acts cease." Gass, 542 N.E.2d at 1234. The Court went on to state that if "the structure is not necessarily injurious but may be used in a way which may or may not result in injury, the cause of action does not accrue until the use of the structure causes injury." Gass, 542 N.E.2d at 1234.

The California Supreme Court has applied the continuing nuisance doctrine directly to the facts of an airport operation. In Baker v. Burbank-Glendale-Pasadena Airport Authority, 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866 (1985), cert. denied, 475 U.S. 1017 (1986), the plaintiffs were homeowners who lived adjacent to the Burbank-Glendale-Pasadena Airport. In 1982, the plaintiffs filed suit alleging that the airport's operations constituted a nuisance. The airport claimed that plaintiffs' suit was barred by the statute of limitations, using the date that the airport became a public entity as the date from which the statute should run. The California Supreme Court reversed the trial court's ruling that plaintiffs' claims were barred, finding that the aircraft operations constituted a continuing nuisance, and therefore the statute of limitations had not run on plaintiffs' claims. The Supreme Court stated that:

It does not follow, however, that simply because commercial flights operated in compliance with federal law may not be enjoined, the nuisance at issue is a permanent one. Whether a nuisance will be classified as continuing or permanent depends not on the offending party's interest in continuing the nuisance, but on the type of harm suffered.

The Court went on to analyze the difference between a continuing and a permanent nuisance. The Court characterized a permanent nuisance as where a permanent injury was done, generally by a solid structure encroaching on the plaintiffs property. Baker, 705 P.2d at 870. In contrast, the Court described a continuing nuisance as follows:

[I]f a nuisance is a use which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated.

* * * * *

The classic example of a continuing nuisance is an ongoing or repeated disturbance, such as the one before us today, caused by noise, vibration or foul odor.

* * * * *

[T]he distinction to be drawn is between encroachments of a permanent nature erected upon one's lands, and a complaint made, not of the location of the offending structures, but of the continuing use of such structures. [citations omitted.] The former are permanent, the latter is not.

The Court went on to state that in cases where there is doubt as to whether the nuisance is permanent or continuing, the plaintiff may elect to treat the nuisance as either permanent or continuing. Baker, 705 P.2d at 871. The Court also dismissed the airport's argument that the nuisance should be considered permanent because the operations were in compliance with federal law. The court stated that it would be unfair to regard the same nuisance as permanent, and apply a different statute of limitations, simply because there are different tortfeasors. Baker, 705 P.2d at 872. The Court went on to state that,

Moreover, we should be particularly cautious not to enlarge the category of permanent nuisances beyond those structures or conditions that truly are permanent. Where some means of abatement exists, there is little or no incentive to make remedial efforts once the nuisance is classified as permanent. Such a result is at odds with tort law's philosophy of encouraging innovation and repair to decrease future harm.

The Court noted that under federal law, the airport operator, like the City of Chicago, has some power to control noise, and thus abate the nuisance. This reinforced the conclusion that the nuisance was a continuing one. Baker, 705 P.2d at 872. The Court concluded by stating that,

Airport operations are the quintessential continuing nuisance. Although federal law precluding interference in any way with flight patterns and schedules adds an element of permanency to an otherwise continuing problem, it does not mandate that the overall nuisance is a permanent one. Thus plaintiffs may elect whether to treat airport noise and vibrations as a continuing or as a permanent nuisance.

Because plaintiffs elected to treat the airport as a continuing nuisance, we conclude that the statute of limitations does not bar their nuisance claims.

The California Supreme Court's opinion in Baker illustrates how the doctrine of continuing nuisance, as already recognized by Illinois courts, should be applied to a case in which the nuisance is the operation of an airport. As in the Baker case, the Plaintiff School Districts have alleged that O'Hare's operations constitute a continuing nuisance. As in Baker, O'Hare is operated by a public entity, the City of Chicago, which has sought to shield itself from liability by arguing that because it operates the airport in the public interest, any nuisance claims must be barred by a statute of limitations for a permanent nuisance. As in Baker, the City of Chicago has always possessed the power to abate the nuisance it has created, but has chosen not to do so. [FN 38] Therefore, as in Baker, the Plaintiff School Districts have the option to treat the nuisance as continuing, and their Complaint clearly was timely filed.

[FN 38] Indeed, one of the principal abatement techniques is exactly what plaintiffs seek here -- soundproofing and the recovery of their costs for such soundproofing.

D. The Use Of The INM Model Is Irrelevant, Inappropriate, And Inaccurate.

Plaintiffs have filed a separate motion to defer consideration of Vigilante's affidavit until completion of Plaintiffs' discovery as to this material. Vigilante's affidavit has a history of serious admitted errors [FN 39] and Plaintiffs have not completed their investigation into continuing errors and unsubstantiated claims of Vigilante's new material. However, consideration of the motion for summary judgment need not be deferred because of the problems created by the Vigilante errors. The Vigilante affidavit purports to cover the period 1979-1989. Yet, Chicago's statute of limitations argument is based on asserted facts which pre-date 1975 (Chicago's brief, pages 74-78). Therefore, the Vigilante material is irrelevant to the consideration of the defense of statute of limitations raised by Chicago.

[FN 39] The City withdrew the first Vigilante Affidavit and submitted a second "Affidavit of Mary L. Vigilante" to the Court in late April, 1993. The second affidavit contains brand new noise contour maps as Exhibits 2 through 9 and brand new numbers in Exhibits 10 and 11. All the exhibits previously submitted to this Court by Vigilante were discarded. This "clean sweep" was necessary because, as Ms. Vigilante acknowledged in a subsequent deposition, every map and every table in her first affidavit contained errors or inaccuracies. (Vigilante deposition, pages 104, et seq.) The only things that were not redone for the second affidavit were the affidavit, Ms. Vigilante's resume, and the historical material attached as Exhibit 12.