FIRST DIVISION MARCH 19, 2007
No. 1-06-0292
PERRY BIGELOW, and THE BIGELOW ) Appeal from the GROUP, INC., an Illinois Corporation, ) Circuit Court of ) Cook County. Plaintiffs-Appellees, ) ) v. ) No. 03 CH 04739 ) THE CITY OF ROLLING MEADOWS, an ) Illinois Municipal Corporation, ) The Honorable ) Mary Anne Mason, Defendant-Appellant. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
In March 2003, the plaintiffs, Perry Bigelow and the Bigelow
Group, filed a complaint for declaratory judgment against the
defendant, the City of Rolling Meadows (City). The plaintiffs
asked the court to declare that they were the owners of a 33-foot
strip of property (Subject Property) and that the City had no
interest in the property. Both parties filed motions for summary
judgment. The trial court granted the plaintiffs' motion,
finding there was no statutory dedication of the Subject Property
and that the City waived its argument that there was a common-law
dedication. The City appealed, arguing (1) the action is time-
barred, and (2) the Subject Property was dedicated to and No. 1-06-0292
accepted by the City for the benefit of the public. For the
reasons that follow, we affirm the judgment of the trial court.
BACKGROUND
The Subject Property consists of a 33-foot strip of land
within the municipal boundaries of the City. In 1926, the
Subject Property was platted as part of a subdivision known as
Arthur T. Macintosh and Company's Palatine Estates Unit No. 2
Subdivision (Palatine Estates) in what was then unincorporated
Cook County. In the 1926 plat of subdivision, the Subject
Property was designated as Winnetka Avenue.
Perry Bigelow is the beneficial owner of lot 7 of Palatine
Estates. The record owner is the First National Bank and Trust
Company of Barrington (Bank); the Bank is the trustee pursuant to
a 1986 trust agreement. The Bigelow Group is the beneficial
owner of lots 5 and 6. The Bank is also the record owner of
those lots as trustee under a 1987 trust agreement. The Subject
Property runs adjacent to lots 5, 6, and 7.
In 1961, the City annexed property near Palatine Estates.
The plaintiffs contend the property was south of Palatine
Estates. The City maintains that the property fell within the
plat of subdivision and included the Subject Property. Although
the annexation agreement is included in the record, the map
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referenced in the agreement is not.1 Without the map, it is
difficult for this court to properly assess whether the property
was included in the agreement.
In 1992, the City passed an ordinance annexing the Subject
Property.2 The ordinance referred to Winnetka Avenue as
"dedicated Winnetka Avenue" and "dedicated right-of-way Winnetka
Avenue." The City has referred to the Subject Property as a
dedicated right-of-way in other documents, including a plat of
the Plum Grove Countryside Unit No. 11 Subdivision, where it is
referred to as "heretofore dedicated," and in an ordinance
vacating part of Winnetka Avenue, the City refers to Winnetka
Avenue as a "dedicated right-of-way."
The Subject Property has never been paved or used as a
public way for vehicular or pedestrian traffic. The Subject
1 On appeal, an appellant has the burden to present a
sufficiently complete record to support his claims of error.
Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958
(1984). "From the very nature of an appeal it is evident that
the court of review must have before it the record to review in
order to determine whether there was the error claimed by the
appellant." Foutch, 99 Ill. 2d at 391. 2 Portions of this ordinance are illegible.
3 No. 1-06-0292
Property is burdened with the City's storm sewer and a drain tile
line installed by Northwest Mosquito Abatement District.
In February 2003, the plaintiffs sent a letter to the mayor
of the City stating:
"The [Subject Property] has never been
donated or dedicated to the public; nor has
it ever been improved or used as a public way
for vehicular or pedestrian traffic. As the
owner of the strip, I am entitled to use it
for any lawful purpose, including but not
limited to the construction of a street or
driveway. Although my ownership of the strip
is clear under Illinois law, please be
advised that in the event it is determined by
a court of competent jurisdiction that the
recordation of the 1926 plat of subdivision
was intended to constitute an offer of
dedication of the strip to the public, I do
hereby revoke and withdraw the offer to
dedicate the strip to the public."
In March, the plaintiffs filed their complaint for
declaratory relief, asking that the trial court declare that they
are the owners of the Subject Property. The plaintiffs filed a
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motion for summary judgment, arguing that the Subject Property
was not a dedicated public right-of-way. The City filed a cross-
motion for summary judgment, arguing that the Subject Property
was a dedicated public right-of-way and that the City accepted
the dedication for the benefit of the public. The trial court
granted the plaintiffs' motion and denied the City's. This
appeal followed.
ANALYSIS
The City argues that the trial court erred when it granted
the plaintiffs' motion for summary judgment because (1) the
action was time-barred, and (2) the Subject Property was
dedicated to and accepted by the City for the benefit of the
public.
Summary judgment is proper where "the pleadings,
depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." 735 ILCS 5/2-1005(c) (West 2002). Summary
judgment should only be granted where the right of the moving
party is clear and free from doubt. Horwitz v. Holabird & Root,
212 Ill. 2d 1, 8, 816 N.E.2d 272 (2004). We review the grant of
summary judgment de novo. Horwitz, 212 Ill. 2d at 8.
5 No. 1-06-0292
A. Timeliness of the Action
The City argues that this action was untimely because it was
filed outside the one-year statute of limitations of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/8-101 (West 2002)). Section 8-101
provides: "No civil action may be commenced in any court against
a local entity or any of its employees for any injury unless it
is commenced within one year from the date that the injury was
received or the cause of action accrued." 745 ILCS 10/8-101
(West 2002). However, section 2-101 of the Tort Immunity Act
explains: "Nothing in this Act affects the right to obtain relief
other than damages against a local public entity or public
employee." 745 ILCS 10/2-101 (West 2002).
In Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.
2d 248, 256, 807 N.E.2d 439 (2004), the supreme court held that
where a plaintiff seeks relief other than damages, his claim is
excluded from the Tort Immunity Act. In that case the plaintiffs
sought a declaration that an ordinance was unlawful and they
sought restitution for wrongly obtained fees. As the plaintiffs
did not state a claim for damages, their cause of action was not
barred by the one-year statute of limitations. Raintree Homes,
209 Ill. 2d at 258.
6 No. 1-06-0292
In this case, the plaintiffs sought declaratory relief, not
damages. Specifically, the plaintiffs sought a declaration that:
(1) plaintiffs are the owners of the Subject Property and the
City has no interest in the property; (2) the Subject Property is
not a dedicated right-of-way and the City's actions prohibiting
the use of the Subject Property are unconstitutional and void;
(3) the City's actions constitute the taking of the plaintiffs'
property without due process of law; and (4) the plaintiffs have
a clear legal right to use the Subject Property as access to the
public portion of Winnetka Road. The plaintiffs also asked the
court to enjoin and restrain the City from preventing the
reasonable use of the Subject Property. The plaintiffs' action,
therefore, is not barred by the Tort Immunity Act's one-year
statute of limitations.
Alternatively, the City argues that the plaintiffs' cause of
action is barred by the doctrines of laches and waiver. The City
contends that until the filing of their complaint, the plaintiffs
did not make any claim to the Subject Property. Specifically,
the City alleges that the plaintiffs failed to pay taxes on the
Property, failed to take any action to claim title, and proposed
an annexation agreement with the City that included terms
regarding the vacation of the Subject Property. The City,
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however, cites no authority to support this argument. Because
this argument is not supported by any authority, it is waived.
Ruback v. Doss, 347 Ill. App. 3d 808, 816, 807 N.E.2d 1019 (2004)
(citing Supreme Court Rule 341(e)(7) 210 Ill. 2d R. 341(e)(7),
which requires a party to provide citations to relevant authority
supporting arguments advanced on appeal).
B. Dedication and Acceptance
Section 3 of the Plat Act provides:
"The acknowledgment and recording of
such plat, or the acknowledgment and the
filing of the same shall be held in all
courts to be a conveyance in fee simple of
such portions of the premises platted as are
marked or noted on such plat as donated or
granted to the public *** for their use or
for the use and purposes therein named or
intended, and for no other use or purpose;
and the premises intended for any street,
alley, way, common or other public use in any
city, village or town, or addition thereto,
shall be held in the corporate name thereof
in trust to and for the uses and purposes set
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forth or intended." 765 ILCS 205/3 (West
2002).3
In other words, a statutory dedication occurs when: (1) the
property owner files or records a plat which marks or notes on
the plat portions of the premises as donated or granted to the
public, and (2) the public entity accepts the dedication.
Emalfarb v. Krater, 266 Ill. App. 3d 243, 248, 640 N.E.2d 325
(1994). "In order to effect a statutory dedication, the
provisions of the Plat Act must be fully complied with, and the
plat must clearly indicate a donation to the public of the real
estate in question." Emalfarb, 266 Ill. App. 3d at 252. In
addition, a statutory dedication requires an ascertainable
grantee to take title. Woodward v. Schultz, 15 Ill. 2d 476, 482,
155 N.E.2d 568 (1959); Emalfarb, 266 Ill. App. 3d at 253.
"However, the nonexistence of such a grantee at the time the plat
is filed or recorded is not fatal; ' "where the municipality is
not in existence at the time of the dedication, the fee of the
streets, alleys and public grounds remains in abeyance, subject
to vest in the corporation as soon as it is created." '
3 The 1925 version of section 3 of the Plat Act is virtually
the same at the current version. See Ill. Rev. Stat. 1925, ch.
109, par. 3.
9 No. 1-06-0292
[Citations.]" Emalfarb, 266 Ill. App. 3d at 253; see also Board
of Trustees of the Illinois & Michigan Canal v. Haven, 11 Ill.
554, 557 (1850). To determine whether there is a statutory
dedication, courts are limited to an examination of the plat and
the marks and notations appearing on the plat. Emalfarb, 266
Ill. App. 3d at 252.
The City cites Kimball v. City of Chicago, 253 Ill. 105, 97
N.E. 257 (1911), to support its argument that the plat need not
contain express words of dedication to effectuate a proper
dedication. The City of Chicago argued that a strip of platted
land was an alley dedicated to the public. Although the strip
was not marked or designated as an alley, the court held that it
was clear from the plat that the plattor intended that the land
be dedicated to the City for use as an alley. Kimball, 253 Ill.
at 110. Specifically, the court noted that the street lines did
not cross the alley and the alley connected directly to the
streets, indicating "an intention on the part of the plattor, we
think, to connect said strip at each street intersection in said
subdivision, and to indicate that said strip has been left open
as an alley, as plainly as though the strip had been marked with
the word 'alley' upon the plat." Kimball, 253 Ill. at 110.
The Kimball court also noted that "in order to show an
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intention to dedicate a strip of land for the use of the public
as a street it is not essential that the strip be designated on
the plat as a street, if, upon consideration of the entire plat,
there is manifested an intention to dedicate the strip as a
street." Kimball, 253 Ill. at 110, citing Thompson v. Maloney,
199 Ill. 276, 284, 65 N.E. 236 (1902) ("A survey and plat alone
are sufficient to establish a dedication, if it is evident from
the face of the plat it was the intention of the proprietor to
set apart certain grounds for public use").
In Reiman v. Kale, 83 Ill. App. 3d 773, 776, 403 N.E.2d 1275
(1980), the plaintiffs argued that marked roads on a plat were
statutorily donated to Downers Grove Township. The roads were
designated by dotted lines, while the lot lines were designated
by solid lines. The lot lines ran to the center of the street.
The appellate court held that the plat was insufficient to create
a statutory dedication because it failed to indicate that the
streets were granted to the public. Specifically, the court
pointed out that the streets were not marked as donated or
dedicated to the public, and the lot lines ran to the center of
the street. Thus, the court held there was no clear indication
on the plat that the owner intended to make dedication. "The
mere fact that the plat indicates the presence of streets, which
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are generally considered public places, is insufficient to effect
a statutory dedication, since there is no general prohibition
against private streets." Reiman, 83 Ill. App. 3d at 776; see
also People ex rel. Schimpff v. Norvell, 368 Ill. 325, 327, 13
N.E.2d 960 (1938) ("There is no rule of law which forbids the
subdivision of land by its owner in such a way as to establish
over it only private ways for the sole benefit of those who may
become owners of lots in the tract, and in which the public, as
such, will have no interest and over which it will have no
control").
The Emalfarb court, following Reiman, held that the fact the
land as issue was labeled "park" on the plat and that such a use
was normally a public, rather than a private, use was
insufficient to establish a statutory dedication in the absence
of a specific designation of the land as public or other words
expressing an intent to donate the land for public use.
Emalfarb, 266 Ill. App. 3d at 255. The court held that "to the
extent that parks are generally considered public places, they
obviously may be maintained privately," and pointed out that the
original plat noted that all parks were "for the use only of the
present owners." Emalfarb, 266 Ill. App. 3d at 255.
The court further explained that even if the word "park" was
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sufficient to dedicate the property to a public use, it did not
establish the intent to dedicate the property to a specific
entity. The land at issue was part of a private subdivision in
an unincorporated area of Lake County. Lake County was not
identified on the plat, and specifically it was not identified as
a grantee. Because the plat evidenced no intent to dedicate the
land to Lake County, the court held no statutory dedication
occurred. Emalfarb, 266 Ill. App. 3d at 255-56.
The language of the Plat Act states that the dedicated land
must be "marked or noted on such plat as donated or granted to
the public." 765 ILCS 205/3 (West 2002). That means that it
must be clear on the face of the plat that a dedication was
intended. We find the facts in Kimball distinguishable from the
facts in this case. In Kimball, there were no allegations that
the streets marked on the plat were not dedicated, and hence, for
public use. Because the alley opened onto and connected the
streets, it was clear, from the plat alone, that the alley was
dedicated for public use.
In this case, although the Subject Property was designated
as Winnetka Avenue, there were no marks or notations on the plat
evidencing an intent to dedicate the Property for use by the
public. Although we recognize that most roads are public, there
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is no prohibition against private streets. Where the subdivision
was located not within the boundaries of a municipality, but in
unincorporated Cook County, we will not assume dedication in the
absence of such evidence. Accordingly, we hold that there was no
statutory dedication. Because there was no dedication, we need
not determine whether there was acceptance.
The City argues that if there was no statutory dedication,
then there was sufficient evidence to establish a common-law
dedication. When the requirements of a statutory dedication are
not met, the facts may still disclose a common-law dedication, in
which case the fee remains in the dedicator, subject to an
easement for the benefit of the public. Emalfarb, 266 Ill. App.
3d at 252-53. For a common-law dedication to be effective, there
must be: (1) an intention to dedicate the property for public
use; (2) acceptance by the public; and (3) unequivocal evidence
of the first two elements. Emalfarb, 266 Ill. App. 3d at 253.
The trial court found that the City waived any argument that
there was a common-law dedication because it failed to respond or
raise the issue in its combined response to the plaintiffs'
motion for summary judgment and cross-motion for summary
judgment.
"It is well settled that issues not raised in the trial
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court are deemed waived and may not be raised for the first time
on appeal." Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536,
662 N.E.2d 1248 (1996). Because the City addressed only the
statutory dedication of the Subject Property, we find that any
argument concerning a common-law dedication is waived.
Waiver aside, we agree with the trial court that the City
has not met its burden of establishing a common-law dedication.
The intent to dedicate "may be manifested by a formal dedication
or by acts of the donor from which the intent may be so fairly
presumed as to equitably estop the donor from denying a donative
intent." Limestone Development Corp. v. Village of Lemont, 284
Ill. App. 3d 848, 858-59, 672 N.E.2d 763 (1996). "Proof of any
act by the dedicator that evidences an intention to dedicate must
be clear, unequivocal, and unambiguous." Limestone Development
Corp., 284 Ill. App. 3d at 859.
As we explained above, there was no express intent to
dedicate the Subject Property on the face of the plat. While we
recognize that by labeling the Subject Property "Winnetka
Avenue," the argument could be made that it was dedicated for use
as a public road, that conclusion is neither unequivocal nor
unambiguous where there was no prohibition against private roads
and the Subject Property was not located within the boundaries of
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a municipality. Because there is no evidence of "clear,
unequivocal, and unambiguous" donative intent, we find there was
no common-law dedication.
CONCLUSION
For the reasons stated, we affirm the judgment of the trial
court.
Affirmed.
McBRIDE, P.J., and CAHILL, J., concur.