B & R Development Co. v. Village of Forsyth

245 Ill. App. 3d 770
CourtAppellate Court of Illinois
DecidedJune 3, 1993
DocketNo. 4-92-0740
StatusPublished
Cited by1 cases

This text of 245 Ill. App. 3d 770 (B & R Development Co. v. Village of Forsyth) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B & R Development Co. v. Village of Forsyth, 245 Ill. App. 3d 770 (Ill. Ct. App. 1993).

Opinion

JUSTICE GREEN

delivered the opinion of the court:

This appeal concerns a petition brought in the circuit court of Macon County seeking to annex certain unincorporated territory to the City of Decatur pursuant to the provisions of article 7, division 1, of the Illinois Municipal Code (Code) (111. Rev. Stat. 1991, ch. 24, pars. 7 — 1—1 through 7 — 1—48). Under the procedure used here, section 7 — 1—2(a) of the Code requires that a petition for annexation must be “signed by a majority of the owners of record of land in the territory [sought to be annexed] and also by a majority of the electors” residing therein. (Emphasis added.) (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—2(a).) Section 7 — 1—1 of the Code states that when territory is ánnexed, “[t]he new boundary shall extend to the far side of any adjacent highway and shall include all of every highway within the area annexed.” (Emphasis added.) 111. Rev. Stat. 1991, ch. 24, par. 7 — 1—1.

Here, the petition was “signed by a majority of the owners of record of land in the territory” only if (1) owners of the fee interest underlying the far one-half of a township road on the boundary of the territory sought to be annexed and (2) owners of mineral interests in a portion of that territory are not “owners of record of land in the territory” within'the meaning of section 7 — 1—2(a) of the Code. We hold that none of those people holding the types of interest in the real estate described are “owners of record” within the meaning of section 7 — 1—2(a) of the Code. The foregoing being the only issue on appeal, we affirm the judgment of the circuit court which ruled the petition was valid.

The petition was filed on June 15", 1992, by petitioners John W. and Georgia J. Schnake and B & R Development Company (B&R). Francis H. Brett, individually and as coexecutor with Wilma J. Gepford of the estate of Pearl J. Brett, deceased, along with the Village of Forsyth (Forsyth), filed objections to the petition. After an evidentiary hearing, the court entered an order on July 29, 1992, finding in favor of the petitioners as to the petition. The court ordered the question of annexation be submitted to the City of Decatur pursuant to section 7 — 1—4 of the Code (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—4). After objectors’ motion to vacate the judgment was denied, objectors took the instant appeal. Petitioners cross-appealed from the portion of the order which overruled petitioners’ request to dismiss Forsyth’s objections on the basis that Forsyth had no standing to object. Petitioners have abandoned the cross-appeal. The only issue raised on appeal is whether the petition was “signed by a majority of the owners of record.”

The evidence presented showed that the three petitioners, the Decatur Park District and objector Francis H. Brett were undisputedly “owners of record” of land in the territory. If they were all the “owners of record,” petitioners would be a majority of that group by a count of three to two. However, the evidence also showed that (1) Larry and Jessica Baker owned the fee underlying a portion of the “far side” of Oakland Road which was on the west boundary of much of the territory for which annexation was sought. However, because of the configuration of the territory, the Baker tract, which was not included in the territory, was on the east side of Oakland Road. The evidence also showed that objectors Brett and Wilma J. Gepford had mineral interests in the property owned by Brett. If only Gepford is deemed an additional “owner of reeord,” the count would become three to three, which would destroy petitioners’ majority, and if the Bakers are determined to be “owners of record,” petitioners’ position would be even worse.

The Decatur Park District did not sign the petition but filed an answer stating that it consented to the annexation. If it is deemed to be in the position of a signer of the petition, the petitioners would have a majority of four to three if only Gepford, through her mineral interest, is deemed an additional “owner of record.” However, if the Bakers are owners of record, no majority would exist regardless of the status of Gepford.

The Illinois Supreme Court has said repeatedly that the word “owner,” as applied to real property, has no fixed meaning, but it has been defined to include “one who has the usufruct, control or occupation of land with a claim of ownership, whether his interest be an absolute fee or a less estate.” (Coombs v. People (1902), 198 Ill. 586, 588, 64 N.E. 1056, 1057; see also In re Petition to Annex Certain Real Estate (1991), 144 Ill. 2d 284, 288, 579 N.E.2d 848, 849 (Joliet).) In Coombs, the court was concerned with whether a person sued for unpaid taxes on real estate was the owner of the premises from which the obligation to pay the tax arose. That person had purchased the property at a tax sale, and the question upon which the case turned was whether the tax deed he recorded was defective.

In Joliet the case turned upon whether petitioners seeking annexation to a municipality under article 7 of the Code could create numerous co-owners of a tract for the purpose of creating enough signatories to a petition to have a majority. The court held that the division of the ownership was created in bad faith and that required dismissal of the petition for annexation.

Because of the broad interpretation given to ownership of real estate, objectors maintain both the Bakers’ and Gepford’s interests should make them “owners of record.” They point out that Gepford pays real property taxes on her interest and that these taxes and her ability to exploit the mineral interest might be changed under city control. Citing Postal Telegraph-Cable Co. v. Eaton (1897), 170 Ill. 513, 49 N.E. 365, they note that the Bakers would have a cause of action if a telephone pole was erected adjacent to the far side of Oakland Road (sought to be annexed) under which they own the fee. (See also Lewis v. Illinois Bell Telephone Co. (1981), 98 Ill. App. 3d 1047, 425 N.E.2d 55.) There is substance to the objectors’ position, but we, nevertheless, are satisfied that the legislature did not intend that interests such as those of the Bakers and Gepford should be factors in determining whether land be annexed to a municipality.

The purpose of the requirement relating to the annexation of adjacent highways to the far side of the highway is to prevent any question regarding jurisdiction, maintenance, financing, and traffic control after the annexation has taken place. (People ex rel. Freeport Fire Protection District v. City of Freeport (1978), 58 Ill. App. 3d 314, 317, 374 N.E.2d 479, 482.) Section 7-1-1 of the Code also provides that the far side of adjacent highways shall be deemed annexed even if that area is not included in the description in the petition of the territory sought to be annexed. It further provides that when any such annexation took place before October 1, 1975, without the far half of the adjacent highway being included in the description of the territory to be annexed, the far half will, nevertheless, be deemed to have been annexed.

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Related

In Re Annexation of Approx. 280 Acres of Land
615 N.E.2d 43 (Appellate Court of Illinois, 1993)

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Bluebook (online)
245 Ill. App. 3d 770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/b-r-development-co-v-village-of-forsyth-illappct-1993.