2015 IL App (4th) 150334 

NO. 4-15-0334 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

ENBRIDGE PIPELINES (ILLINOIS), L.L.C., n/k/a 

ILLINOIS EXTENSION PIPELINE COMPANY, L.L.C., 

 Plaintiff-Appellee,

 v. 

LESLIE DEAN TROYER, MARY TERESA TROYER, 

FIRST NATIONAL BANK OF SULLIVAN, as 

Mortgagee, and NON-RECORD CLAIMANTS and 

UNKNOWN OWNERS, 

 Defendants-Appellants.

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Appeal from

Circuit Court of 

McLean County 

No. 14ED12 

Honorable 

Paul G. Lawrence, 

Judge Presiding.

 

 PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion. 

 Justices Holder White and Steigmann concurred in the judgment and opinion. 

OPINION

¶ 1 Plaintiff, Enbridge Pipelines (Illinois), L.L.C., now known as Illinois Expansion 

Pipeline Company, L.L.C. (IEPC), obtained eminent-domain authority from the Illinois 

Commerce Commission (ICC) over certain real property upon which it is constructing a liquid 

petroleum pipeline. Multiple landowners have been subject to IEPC's eminent-domain authority. 

Defendants (Landowners) in this matter are landowners in McLean County who have been 

unable to reach an agreement with IEPC on the amount of just compensation to be paid and are 

scheduled for jury trials later this year on that issue. In April 2015, IEPC sought and received an 

injunction granting it the right to access the permanent and temporary easements it obtained in 

condemnation proceedings so it can begin construction of the pipeline on Landowners' tracts. 

Landowners filed the instant interlocutory appeal asking this court to dissolve the injunction until 

FILED

September 22, 2015 

Carla Bender

4th District Appellate

Court, IL
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the juries have determined the just compensation due and said compensation has been paid by 

IEPC. We affirm the trial court's order granting IEPC access to the real estate so it can construct 

the pipeline. 

¶ 2 I. BACKGROUND

¶ 3 In August 2007, IEPC filed an application for a certificate in good standing and 

other relief pursuant to section 15-401 of the Common Carrier by Pipeline Law (Pipeline Law) 

(220 ILCS 5/15-401 (West 2006)). IEPC's application sought approval from the ICC to 

construct and operate a liquid petroleum pipeline project named the "Southern Access 

Extension" (SAX). IEPC described the proposed extension as a 36-inch-diameter underground 

pipeline that would originate from its Flanagan terminal located near Pontiac, Illinois, and 

terminate approximately 170 miles south at its Patoka terminal located near Patoka, Illinois. 

IEPC's application also sought to acquire, when necessary, easements on private property to 

construct the SAX pipeline pursuant to eminent domain, as authorized by section 8-509 of the 

Public Utilities Act (Act) (220 ILCS 5/8-509 (West 2006)). 

¶ 4 In July 2009, the ICC issued an order in docket No. 07-0446 granting IEPC's 

application for a certificate in good standing, which effectively authorized construction of the 

SAX pipeline. The ICC, however, denied IEPC's request for eminent-domain authority, urging 

instead that IEPC continue negotiations with landowners who declined the compensation IEPC 

offered in exchange for an easement on the landowners' properties. Despite its denial, the ICC 

stated, "in the event [IEPC] is still unable to obtain the necessary easement rights through the 

negotiation process, it can renew its request for authority to exercise eminent[-]domain authority 

by *** demonstrating that it has made reasonable attempts to obtain easements, through goodfaith negotiations." 
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¶ 5 Intervenors appealed the ICC's order granting IEPC a certificate in good standing, 

and this court affirmed. Pliura Intervenors v. Illinois Commerce Comm'n, 405 Ill. App. 3d 199, 

200, 942 N.E.2d 576, 578 (2010). In January 2011, the Supreme Court of Illinois denied 

Intervenors' petition for leave to appeal. Pliura Intervenors v. Illinois Commerce Comm'n, 239 

Ill. 2d 589, 943 N.E.2d 1108 (2011). 

¶ 6 In July 2013, IEPC filed a petition renewing its request for eminent-domain 

authority under section 8-509 of the Act. IEPC sought to apply that authority to 148 of the 680 

tracts of land comprising the SAX pipeline project route, claiming further negotiations with the 

owners of those respective properties would be futile. 

¶ 7 In April 2014, the ICC granted IEPC the right to exercise eminent domain, subject 

to certain conditions not relevant here. This court affirmed the ICC's grant of eminent domain in 

May 2015. See Pliura Intervenors v. Illinois Commerce Comm'n, 2015 IL App (4th) 140592-U.

¶ 8 On March 26, 2015, IEPC filed a motion seeking to enjoin Landowners from 

interfering with its access to the tracts of real estate at issue so IEPC would be able to construct 

the pipeline in an efficient, effective, and timely manner. IEPC's verified motion set forth the 

following: 

(1) The pipeline, an $800 million project, is scheduled to be in service in 

December 2015. To achieve that in-service date, IEPC must adhere to an intricate, interrelated 

construction schedule consisting of a carefully orchestrated series of tasks to be performed in a 

specific order by specialized crews and equipment, sequentially through the relevant tracts.

(2) Timely completion of the project is necessary for IEPC to fulfill its 

contractual obligations. 

(3) Landowners have refused to allow IEPC access to their tracts, despite IEPC's 
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clear right to construct the pipeline on those tracts.

(4) If the construction process is disrupted and fragmented by lack of access to 

certain tracts, if may be necessary to employ time-consuming and expensive move-around 

techniques. A single substantial skip along the route can easily result in as much as $500,000 or 

more in increased construction costs as well as significant delays in workflow due to repeated 

relocation of personnel and equipment. 

(5) In addition to the significant lost revenue resulting from construction delays, 

any delay in the in-service date would significantly impair the reputation of IEPC and its 

affiliated Enbridge entities for reliability and dependability as common-carriers-by-pipeline. 

(6) Landowners' only remaining issue in the litigation is the amount of just 

compensation to be paid by IEPC for access to the tracts. 

(7) IEPC will deposit with the court the full amount of the compensation awards 

sought by Landowners for the value of the easements and a bond to cover all alleged damages to 

the remainder. (IEPC's motion makes clear it believes the actual values are much lower than 

Landowners have calculated, it expects the jury verdicts to be much lower than the amounts 

sought, and if the jury awards less than the amount IEPC deposits with the court, IEPC is entitled 

to have the remaining balance returned.)

(8) IEPC has no adequate remedy at law because it has no recourse against any 

party for the increased costs, loss of revenue or customers, or damage to its reputation. 

(9) Landowners will suffer no harm because the deposited funds are sufficient to 

cover the values of the easements demanded by them.

¶ 9 Landowners contended IEPC does not have a right to access the tracts until a jury 

determines the amount of just compensation due and that amount is paid by IEPC. 
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¶ 10 On April 20, 2015, the trial court issued a written order granting IEPC access to 

Landowners' tracts. The court found (1) IEPC established it had a clear and certain right in 

Landowners' property to construct, operate, and maintain a pipeline; (2) its right was in need of 

protection; (3) absent an injunction, IEPC would suffer immediate and irreparable harm; (4) 

there was no remedy at law, as Landowners even admitted; (5) IEPC had already succeeded on 

the merits of the litigation, only the issue of "just compensation" remained to be determined; (6) 

through a variety of methods, IEPC had succeeded in obtaining access to approximately 650 of 

the 680 tracts needed to construct the pipeline. The McLean County tracts were "all that remain 

between start and finish of the route"; (7) under these circumstances, Landowners' tracts are a 

barrier to the timely completion of the pipeline project and are being used to delay a project 

determined by the ICC to be needed in the public interest; and (8) the public interest in an 

adequate and dependable supply of refined petroleum products, as determined by the ICC in its 

certification order, requires an adequate transport infrastructure for crude petroleum and the 

timely completion of IEPC's project serves that interest and weighs in favor of the injunction. 

¶ 11 The trial court granted IEPC's motion and ordered Landowners to refrain from 

impeding IEPC's access to the subject tracts for the purpose of constructing, operating, and 

maintaining the pipeline. The court directed IEPC to deposit $1.7 million with the McLean 

County treasurer to cover the maximum amounts Landowners claimed for the permanent and 

temporary easements. The court also required IEPC to post a surety bond in the amount of $27 

million to secure Landowners' claims for any damages to the remainder.

¶ 12 This appeal followed. 

¶ 13 II. ANALYSIS

¶ 14 Landowners appeal from the grant of injunctive relief, contending the trial court 
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abused its discretion in granting IEPC access before just compensation was determined and paid. 

This court has jurisdiction pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010) 

(an appeal may be taken from an interlocutory order granting an injunction). We review the 

decision to grant an injunction for an abuse of discretion. Roxana Community Unit School 

District No. 1 v. WRB Refining, LP, 2012 IL App (4th) 120331, ¶ 27, 973 N.E.2d 1073 ("We 

review a trial court's decision granting or denying a preliminary injunction for an abuse of 

discretion, which occurs only when its ruling is arbitrary, fanciful, or unreasonable, or when no 

reasonable person would adopt the court's view." (Internal quotation marks omitted.)). 

¶ 15 Landowners also contend the trial court had no legal authority to support its 

decision to grant access to IEPC before a jury determined just compensation and IEPC paid that 

amount to Landowners. As a legal question, we review this issue de novo. See Clinton Landfill, 

Inc. v. Mahomet Water Valley Authority, 406 Ill. App. 3d 374, 378, 943 N.E.2d 725, 730 (2010); 

Advanced Imaging Center of Northern Illinois Ltd. Partnership v. Cassidy, 335 Ill. App. 3d 746, 

748, 781 N.E.2d 664, 666 (2002). 

¶ 16 A. Trial Court Had Equitable Authority To Issue A Preliminary Injunction 

¶ 17 We turn to the legal question first, because if the trial court did not have legal 

authority to issue an injunction, we need not determine whether it abused its discretion in doing 

so. A court would have no discretion to issue an injunction without legal authority. 

¶ 18 Both parties cite Forest Preserve District of Du Page County v. West Suburban 

Bank, 161 Ill. 2d 448, 641 N.E.2d 493 (1994), as support for their respective positions. In that 

case, the trial court issued a preliminary injunction to prevent the bank from constructing a 

parking lot on land subject to condemnation proceedings. The forest preserve district (District), 

like IEPC here, did not have "quick take" powers. Id. at 450, 641 N.E.2d at 494. The purpose of 
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the condemnation proceeding was to preserve flora and fauna on the property. In issuing a 

preliminary injunction, the court found the District was likely to succeed on the merits because it 

had a statutory right to condemn the property. Id. at 451, 641 N.E.2d at 495. The court also 

found the District had no adequate remedy at law because the property would sustain irreversible 

damage and the cost of restoration would exceed the original purchase price of the land. Id. at 

451-52, 641 N.E.2d at 495. The order enjoined the defendants from any construction on the 

property but allowed the defendants to continue farming the property, to perform maintenance on 

an existing wash pit, to erect a soil erosion fence, and to continue parking equipment on the 

property. Id. at 452, 641 N.E.2d at 495. 

¶ 19 The appellate court reversed, finding the request for an injunction in the 

condemnation proceeding amounted to a "quick take" of the property, exceeding the District's 

condemnation authority. Id. The supreme court reversed the appellate court, finding the 

injunction did not amount of a "quick take" of the defendants' property because it did not grant 

the District title or possession of the property. Id. at 453-54, 641 N.E.2d at 496. As the supreme 

court noted, "[i]n an ordinary condemnation proceeding, a landowner continues to enjoy title and 

possession of the land pending a final determination of just compensation and the deposit of that 

amount for his benefit." Id. at 453, 641 N.E.2d at 496. 

¶ 20 In the case at bar, the condemnation proceeding does not fit into the category of 

an "ordinary" condemnation proceeding as described above. Landowners retain both title to and 

possession of their tracts. When these proceedings terminate, Landowners will continue to hold 

title and possession of their tracts. The injunction simply prevents Landowners from impeding 

IEPC's access to the tracts for the purpose of installing, operating, and maintaining a pipeline, 

rights which have been approved by the ICC and upheld by this court. As in West Suburban 
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Bank, "[t]he injunction did not radically curtail defendants' right to use the property or deprive 

defendants of all economically viable use of the property." Id. at 457, 641 N.E.2d at 497. There 

the defendants continued to have the right to farm and store equipment on the property, just as 

Landowners do here. As a result, since the injunction did not deprive the defendants of all 

economically viable use of the property, it did not amount to a regulatory taking. Id. As the 

supreme court specifically noted, in the context of condemnation proceedings, a preliminary 

injunction cannot be considered a taking without compensation, as the very purpose of a 

condemnation proceeding is to determine the amount of just compensation constitutionally owed 

to the landowner. Id. See also Northern Border Pipeline Co. v. 64.111 Acres of Land, 125 F. 

Supp. 2d 299 (N.D. Ill. 2000) (where parties agreed plaintiff had no statutory authority to 

immediate possession of the property, court nevertheless found it had equitable power to issue 

preliminary injunction granting possession even though just compensation had yet to be 

determined).

¶ 21 Landowners refer to the preliminary injunction as an unconstitutional taking. 

They fail to develop this argument at all as required by Illinois Supreme Court Rule 341(h) (eff. 

Feb. 6, 2013), and thus, they have forfeited it. See Sakellariadis v. Campbell, 391 Ill. App. 3d 

795, 804, 909 N.E.2d 353, 362 (2009). Nevertheless, we point out the constitution " 'does not 

require just compensation be paid in advance of, or even contemporaneously with, the taking.' " 

West Suburban Bank, 161 Ill. 2d at 458, 641 N.E.2d at 498 (quoting Beverly Bank v. Illinois 

Department of Transportation, 144 Ill. 2d 210, 229-30 (1991), citing Williamson County 

Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985)) (noting our supreme 

court interprets the present state constitutional protection against taking property without just 

compensation in the same way as quoted above).
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¶ 22 The supreme court in West Suburban Bank went on to state, even if the 

preliminary injunction constituted a taking, because the defendants were engaged in an adequate 

process for receiving just compensation for their property, immediate payment of compensation 

was not required. Id. 

¶ 23 In the case at bar, the ICC granted eminent-domain authority to IEPC, and this 

court affirmed the grant of that power. Pliura Intervenors, 2015 IL App (4th) 140592-U. Thus, 

IEPC has established its condemnation rights. Nothing remains to be done but to set just 

compensation. 

¶ 24 As noted above, this is not an ordinary condemnation case. Landowners retain 

title to their land and will still retain title when these proceedings finally come to an end. 

Landowners also retain possession of the real estate and will still retain possession when these 

proceedings finally end. Under these circumstances, the trial court retained its equitable 

authority to order Landowners not to impede IEPC's access to their property for pipeline 

purposes. In addition, as discussed more fully below, the court took steps to protect Landowners 

by requiring IEPC to deposit with the county treasurer $1.7 million and a $27 million surety 

bond. 

¶ 25 B. Trial Court Did Not Abuse Its Discretion in Granting the Injunction 

¶ 26 Based on the facts outlined above, the trial court correctly weighed the factors 

which determine whether an injunction should issue. A preliminary injunction may issue if "(1) 

a clearly ascertainable right requires protection, (2) irreparable injury will result in the absence of 

an injunction, (3) no adequate remedy at law is available, and (4) the moving party is likely to 

succeed on the merits of the case." Roxana Community Unit School District No. 1, 2012 IL App 

(4th) 120331, ¶ 23, 973 N.E.2d 1073 (citing Clinton Landfill, Inc., 406 Ill. App. 3d at 378, 943 
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N.E.2d at 729). A preliminary injunction should issue only if the harm to the plaintiff in the 

absence of such relief likely outweighs the harm to the defendant if the relief is granted. Id.

¶ 27 Here, IEPC had clearly established its rights in Landowners' properties by 

obtaining a certificate to build the pipeline from the ICC, as well as the right of condemnation. 

As noted above, this court affirmed both of those rights. Further, due to the intricate scheduling, 

sequential moving parts, deadlines, et cetera, IEPC proved it would suffer irreparable financial 

harm for which it could not seek recompense, as well as harm to its reputation as a certificated 

common-carrier pipeline company. IEPC has already succeeded on the merits of the 

condemnation proceeding. It has the right to build the pipeline on the subject tracts, and the 

issuance of the injunction granting access protects that right. 

¶ 28 Further, IEPC offered, and the trial court required it, to deposit enough cash ($1.7 

million) to cover the full amount claimed by Landowners as the value of their easements. IEPC 

also posted a $27 million surety bond to cover any damages to the remainder. The amount of 

just compensation will be decided by a jury, but clearly IEPC has the wherewithal to fully 

compensate Landowners for any amount the juries may assess. Further, IEPC agreed the trial 

court can allow Landowners access to the funds deposited with the treasurer upon application 

and a hearing. Thus, the funds are available to Landowners prior to any determination of just 

compensation. 

¶ 29 We find the trial court, under the circumstances here, did not abuse its discretion 

in granting IEPC an injunction to prevent Landowners from impeding IEPC's access to construct, 

operate, and maintain the pipeline on Landowners' tracts. 

¶ 30 III. CONCLUSION

¶ 31 In balancing the hardships to the parties and considering the appropriate factors in 
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making the decision to grant IEPC access to Landowners' tracts, as well as requiring the posting 

of sufficient funds and security to ensure just compensation will be paid, the trial court did not 

abuse its discretion by issuing an injunction to allow IEPC access without impediment by 

Landowners. 

¶ 32 We affirm the trial court's judgment. 

¶ 33 Affirmed.