## Facts

- Jonathan Spafford Whitlock, as trustee, owned real property adjacent to a parcel where Hilander Foods, Inc. operated a grocery store.
- In September 1996, Hilander began constructing an addition; a retaining wall was on Hilander’s land, but underground concrete footings extended about 1.7 feet (approximately 18–20 inches) onto Whitlock’s property.
- Whitlock allowed Hilander to use portions of his property during construction but alleged unauthorized incursions, including the footing encroachment.
- Whitlock asserted he objected during construction and, based on Hilander’s assurances of compensation and an agreement, initially did not demand removal.
- A November 1996 survey confirmed the encroachment.
- Hilander contended the new footings merely replaced older encroaching footings in the same location; Whitlock disputed that characterization.
- After negotiations failed, Whitlock revoked access and sued in March 1997 seeking, among other relief, a mandatory injunction requiring removal of the encroaching footings and an order preventing maintenance of improvements on his land.
- Hilander admitted the encroachment but raised equitable defenses, including laches, waiver, and estoppel.
- The trial court entered summary judgment for Hilander, finding laches barred the claim as a matter of law and that Whitlock could not establish entitlement to a mandatory injunction.

## Issues

1. Whether laches barred Whitlock’s request for equitable relief as a matter of law based on his conduct and the several-month period between construction and filing suit.
2. Whether Whitlock was foreclosed, as a matter of law at the summary-judgment stage, from obtaining a mandatory injunction requiring removal of the encroaching footings.

## Decision

- The appellate court reversed the grant of summary judgment and remanded.
- Laches was not established as a matter of law because material factual disputes existed about Whitlock’s conduct, the reasonableness of any delay, and whether Hilander suffered cognizable prejudice.
- The trial court erred in concluding on summary judgment that Whitlock could not obtain a mandatory injunction; the propriety of that remedy required factual development and equitable balancing.

## Legal Principles

- Summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law; reasonable inferences are drawn in favor of the nonmovant.
- Laches requires (1) unreasonable delay in asserting a right and (2) resulting prejudice to the defendant; application typically depends on case-specific facts and is often unsuitable for resolution as a matter of law on summary judgment.
- A plaintiff’s efforts to resolve a property dispute through negotiations may be consistent with diligence and do not automatically constitute unreasonable delay for laches purposes.
- Prejudice for laches commonly turns on reliance; where communications and timing of expenditures are disputed, prejudice may require credibility determinations.
- In encroachment disputes, equity may deny mandatory removal where the encroachment is minor, removal would impose disproportionate hardship, and the encroachment was not willful; this determination requires a fact-specific balancing of equities.
- The existence of an admitted, permanent physical encroachment states a cognizable basis for equitable relief; whether damages are adequate or removal is appropriate generally cannot be decided without a developed evidentiary record.

## Conclusion

The appellate court held that disputed facts about the parties’ communications, reliance, and the equities surrounding a modest but permanent encroachment precluded summary judgment on laches and on the availability of a mandatory injunction, requiring remand for further proceedings.


Whitlock v. Hilander Foods, Inc., 720 N.E.2d 302 (Ill. App. Ct. 2d Dist. 1999)