Thursday, March 22, 2012

The Strange Case of Wilmot Mountain

Here at Ski, Esq., we scour the country to bring you interesting ski law news, but rarely have we seen as bizarre a case as the one reported by the The Chicago Tribune yesterday. The Tribune reported on Wilmot Mountain, Inc. v. Lake County Forest Preserve District, where a border dispute between Wisconsin and Illinois just left a Wisconsin ski resort a little bit smaller.

Wisconsin's Wilmot Mountain's 135 skiable acres and 230' of vertical drop are located just north of the Wisconsin/Illinois border...or so everyone thought. In 2010, neighboring Cook County, IL informed Wilmot that an aerial survey of the property showed that a tiny sliver of the resort (see map below) was actually in Illinois  on property owned by the Lake County Forest Preserve District (the "District").

This was certainly news to Wilmot which, at Lake County's request, had demolished a series of old buildings on the Illinois side of the line and stacked the rubble on the top of one of its slopes on what it believed was Wilmot's property. According to the Court's opinion:

"Because the ski lodge was located close to the Wisconsin border and was more easily accessed from Wilmot's property, representatives of the District arranged for Wilmot personnel to demolish the structure and haul the resulting debris onto Wilmot's property. After dismantling the lodge, Wilmot's workers placed the debris near the top of Wilmot's South Run hill, which is next to the boundary between the properties. The workers then covered the debris with dirt and "fill," creating a relatively flat area that measures approximately twenty feet by 120 feet."

No good deed goes unpunished.

Wilmot argued that it should still be able to use the disputed land and advanced several theories to support its continued use - breach of contract, equitable estoppel, and that the resort had acquired a prescriptive easement. The court rejected each theory in turn. 

First, the breach of contract claim failed because the Illinois constitution would have required the District to pass a special ordinance to grant a license to resort for use of the property. No contract could exist in the absence of an ordinance. Second, pursuing an equitable estoppel claim against a municipal entity is nearly impossible and Wilmot could not meet the high showing required. Lastly, as the Court correctly notes, a private citizen generally cannot adversely possess government property, so the resort's analogous theory of a prescriptive easement also must fail.

However, Illinois' victory may be Pyrrhic because all it managed to win was the 20' x 120' wide pile of rubble and the right to prevent Wilmot from using the property.  Congratulations! The state's prize by establishing exclusive possession and ownership of the rubble? The one cause of action not dismissed by the court; Wilmot can pursue what is likely to be a successful unjust enrichment claim against the District. 

The action is currently pending in US District Court for the Northern District of Illinois. Full text of the decision can be found here.  Images used with permission.

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