SECOND DIVISION March 28, 2006
No. 1-05-1301
CITY OF DES PLAINES, an Illinois ) Appeal from the home-rule municipality, ) Circuit Court of ) Cook County. Plaintiff-Appellee ) ) v. ) ) RICHARD and BARBARA REDELLA, ) KAREN SECCO, LESLIE BOULAY, ) DAVID RIEKER, and JANUSZ ) SOSYNSKI, ) Honorable ) Martin Agran, Defendants-Appellants. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
At issue in this case is whether Trailside Lane, a private
road, was properly declared a public highway pursuant to section
2-202 of the Illinois Highway Code (Code) (605 ILCS 5/2-202 (West
2002)). The City of Des Plaines (City) sought a declaratory
judgment from the trial court that Trailside Lane had become a
public highway pursuant to the 15-year public use provision of
section 2-202 of the Code. The trial court granted summary
judgment in favor of the City.
On appeal, defendants Richard and Barbara Redella, Karen
Secco, Leslie Boulay, David Rieker, and Janusz Sosynski contend
the trial court erred in granting summary judgment because: (1)
section 2-202 of the Code is merely Adefinitional;@ (2) even if
the easements allowing the Woods Drive residents to use Trailside 1-05-1301
Lane terminated, the defendants retained fee simple title to the
land; (3) section 2-202 of the Code cannot be interpreted to
allow the City to take private property without compensating the
owners; and (4) material questions of fact existed. We reverse
and remand for further proceedings.
FACTS
This case concerns five contiguous lots located immediately
north of Ballard Road in a north-south line. In 1949 the joint
owners of the entire parcel sold off the northernmost of the five
lots. At the time of sale, they granted an easement over the
western edge of the remaining four lots as a means of ingress
from and egress to Ballard Road. The easement was to cease "at
such time that a hard surfaced roadway is constructed along
either the Westerly or Northerly boundaries of the real estate."
Trailside Lane is completely within the boundaries of the
easement.
In 1953 the owners conveyed lot four, granting an
appropriate easement over the remaining property for purposes of
access to Ballard Road. The easement was to cease and terminate
Aat such time as a hard surface roadway is constructed along the
Westerly boundaries of the real estate.@ When the owners
conveyed a portion of lot one to the Illinois State Toll Highway
Commission in 1957, they reserved the existing easement.
2 1-05-1301
The record contains a few deeds from subsequent transfers of
the five lots. The deeds that are included make no specific
mention of the easement. However, a subdivision plat, filed in
1959 when lot five was divided into four residential lots,
contains a notation next to Trailside Lane indicating that it was
a "roadway easement." The subdivision plat showed Trailside Lane
as the only means of ingress and egress to and from Forest Lane
and Ballard Road. Forest Lane was subsequently renamed Woods
Drive. Trailside Lane dead-ends into Woods Drive, a publicly
dedicated cul-de-sac. Defendants, the current owners of lots one
through four, live on Trailside Lane.
In 2000, defendants resurfaced part of Trailside Lane and
installed Aspeed bumps@ on the road. On December 12, 2002, the
City filed a declaratory judgment action against defendants,
asking the trial court to declare Trailside Lane, pursuant to
section 2-202 of Code, had become a part of the City=s highway
system. The City contended the residents of the Woods Drive
subdivision had traversed Trailside Lane since 1959 in order to
access Ballard Road, which made the road a publicly dedicated
right-of-way under section 2-202 of the Code. The City also
contended that for more than 25 years, it had plowed snow,
patched pot holes, and picked up branches on Trailside Lane.
An affidavit from Angelo Bernar, Assistant Director of the
3 1-05-1301
City of Des Plaines Public Works Department, was attached in
support of the City=s complaint. Bernar stated he had been
employed by the department for more than 35 years. According to
Bernar, the City had continually plowed snow, patched pot holes,
repaired water mains, trimmed bushes, and picked up branches on
Trailside Lane since the late 1960's.
Defendants filed a counterclaim seeking a declaratory
judgment that: (1) the easement remained in full force and
effect; (2) the easement property is owned in fee simple by each
defendant relative to the portion of the easement property on
their respective lots; (3) Trailside Lane, as part of the
easement property, is owned in fee simple by each defendant
relative to the portion of the easement property on their
respective lots; and (4) Trailside Lane is a private street and
not a publicly dedicated right-of-way or otherwise owned by the
City or part of the City=s highway system. In the alternative,
defendants asked the trial court to declare the City must pay
them an amount representing the fair market value of their
respective fee simple interests in Trailside Lane. Defendants
also asked the trial court to determine on what date the
conversion occurred and make an award to the defendants for all
costs and expenses they incurred relative to Trailside Lane.
Defendants contended in their counterclaim that the City had
4 1-05-1301
never indicated or asserted any ownership rights over Trailside
Lane. Specifically, defendants contended the City had never
paved, installed improvements, or otherwise maintained Trailside
Lane, as required by the City=s code for all City-owned roadways.
Defendants also contended the City actually acknowledged the
private nature of Trailside Lane during a Des Plaines City
Council committee meeting.
In support of their counterclaim, defendants attached the
minutes from a committee meeting of the City Council held on
February 28, 2000. During the meeting, Alderman Brookman
recommended that the Council continue to provide existing City
services to certain Aprivate streets,@ including Trailside Lane.
On March 6, 2000, the City Council adopted Alderman Brookman=s
recommendation. Defendants also attached a bill from Jacobs &
Son, Inc. in the amount of $9,000 for the paving of Trailside
Lane in 2000.
On November 19, 2004, the City filed its motion for summary
judgment. The City contended the easement referenced in the 1949
warranty deed ceased and terminated by its own terms after
Trailside Lane became a hard-surfaced roadway. The City
contended that because the residents of the Woods Drive cul-de-
sac had used the hard-surfaced Trailside Lane for at least three
decades to access Ballard Road after the easement ceased,
5 1-05-1301
Trailside Lane had become a public road by virtue of section 2-
202 of the Code. The trial court granted the City=s motion for
summary judgment. The trial court did not specifically rule on
the merits of defendants= counterclaim. Defendants appealed.
DECISION
Summary judgment is appropriate where the pleadings,
depositions, admissions, and affidavits on file, when taken in
the light most favorable to the nonmovant, show there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002);
Midland Properties Co. v. ACME Refining Co., 361 Ill. App. 3d
180, 183, 836 N.E.2d 95, 98 (2005). Our review of the circuit
court=s grant of summary judgment is de novo. Midland Properties
Co., 361 Ill. App. 3d at 183.
I. Section 2-202
Defendants contend the trial court erred in entering summary
judgment in favor of the City because section 2-202 of the Code
is merely Adefinitional@ for the purposes of the other sections
of the statute and does not affect private property rights.
Defendants contend the definition of a highway contained in
section 2-202 does not constitute an operable provision of the
Code, but rather governs the application of the operable
provisions in other sections. See New York Life Insurance Co. v.
6 1-05-1301
Murphy, 388 Ill. 316, 58 N.E.2d 182 (1944).
Defendants also contend a review of the plain language of
the two earlier codifications of section 2-202 demonstrates the
current version of the section is meant to be definitional. Both
the 1931 and 1953 versions of section 2-202 state that roads
which meet the statutory criteria are Ahereby declared to be
public highways.@ Ill. Rev. Stat. 1953, ch. 121, par. 152; Ill.
Rev. Stat. 1931, ch. 121, par. 152. This affirmative declaratory
provision is absent from the current version of section 2-202.
See 605 ILCS 5/2-202 (West 2002). According to defendants, the
omission evidences a clear legislative intent to substantively
change the operation of section 2-202.
AThe primary goal of statutory construction is to ascertain
and give meaning to the legislature=s intent.@ Lauer v. American
Family Life Insurance Co., 199 Ill. 2d 384, 388, 769 N.E.2d 924,
926 (2002). AThe best indication of legislative intent is the
statutory language, given its plain and ordinary meaning.@
Lauer, 199 Ill. 2d at 388.
Section 2-202 of the Code defines a highway as:
Aany public way for vehicular travel which
has been laid out in pursuance of any law of
this State, or of the Territory of Illinois,
or which has been established by dedication,
7 1-05-1301
or used by the public as a highway for 15
years, or which has been or may be laid out
and connect a subdivision or platted land
with a public highway and which has been
dedicated for the use of the owners of the
land included in the subdivision or platted
land where there has been an acceptance and
use under such dedication by such owners, and
which has not been vacated in pursuance of
law.@ 605 ILCS 5/2-202 (West 2002).
Contrary to defendants= contentions, the purpose of section
2-202 is well-settled. Under Illinois law, a public highway can
be established by any of three methods: by statute; by
dedication; or by prescription. People ex rel. Carson v.
Mateyka, 57 Ill. App. 3d 991, 997, 373 N.E.2d 471, 475 (1978).
Several courts in Illinois have recognized that Aa public highway
may be established through a prescriptive easement pursuant to
section 2-202 of the Illinois Highway Code.@ See e.g. County of
Kendall v. Rosenwinkel, 353 Ill. App. 3d 529, 544, 818 N.E.2d
425, 438 (2004); Alpine Acres Homeowners Assoc. v. Leonard, 213
Ill. App. 3d 634, 642, 571 N.E.2d 1150, 1155 (1991); Mateyka, 57
Ill. App. 3d at 997-98. These cases were decided on the wording
of the current section 2-202. We find section 2-202 of the Code
8 1-05-1301
is not merely Adefinitional@ in nature.
II. Just Compensation
Defendants contend the trial court erred when it granted
summary judgment because section 2-202 of the Code may not be
interpreted to allow the seizure of Trailside Lane by the City, a
government entity, without compensation to the owners of the
easement property.
The takings clauses of the United States and Illinois
Constitutions express a well-settled prohibition on the
government taking the private property of its citizens without
due process and just compensation. See U.S. Const., amend. V;
Ill. Const. 1970, art. I, '5.
Defendants contend that rather than commence an eminent
domain proceeding where the owners would be afforded due process
and awarded compensation for their confiscated property, the City
sought to improperly seize the property by way of section 2-202.
Contrary to defendants= contention, the trial court=s ruling
granted the City only a prescriptive easement over the road, not
fee title to the easement property itself. See Minnie Creek
Drainage District v. Streeter, 327 Ill. 236, 245, 158 N.E. 383,
386 (1927); Hudgens v. Dean, 53 Ill. App. 3d 126, 131, 368 N.E.2d
944, 948-49 (1977). Granting a public prescriptive easement over
a private road pursuant to section 2-202 of the Code does not
9 1-05-1301
necessarily constitute a taking under the Illinois or United
States constitutions.
While no case in Illinois has directly addressed this issue,
courts in other states have determined compensation is not
required when a private road is converted to a public highway by
prescriptive easement. See e.g., Algermissen v. Sutin, 61 P.3d
176, 185 (N.M. 2002) (AThe general rule is that acquisition of an
easement by prescription is not a taking and does not require
compensation to the landowner); Board of County Commissioners of
Saguache County v. Flickinger, 687 P.2d 975, 984 (Colo. 1984).
But See Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F.
Supp. 2d 206, 217-27 (D.R.I. 2002).
In Flickinger, the Colorado Supreme Court recognized the
defendant originally had a fee interest in the private road
across his property, subject to certain conditions imposed by
state law. By virtue of section 43-2-201(1)(c), a private road
could be declared a public highway if the public used the road
without interruption for the statutory period of twenty years.
Flickinger, 687 P.2d at 984. The effect of the section was
simply to require an owner desirous of retaining his interest in
the private road to prohibit continuous public use, or to
manifest his objection to it. AThe failure of the [defendants]
to comply with these statutory conditions resulted in the loss of
10 1-05-1301
their interest in the road as a private road and in the creation
of a public highway, with the result that the application of
section 43-2-201(1)(c) to the road did not constitute a
governmental taking for which compensation was required.@
Flickinger, 687 P.2d at 984-85.
We find persuasive the Colorado Supreme Court=s decision in
Flickinger. If the trial court did not err by declaring
Trailside Lane a public highway pursuant to section 2-202 of the
Code, it was proper to do so without compensating defendants.
III. Prescriptive Easement
In order for a road to constitute a Ahighway@ within the
meaning of section 2-202, it must fall within one of the
definitions of a highway set forth in that section. Leonard, 213
Ill. App. 3d at 642. The City does not contend defendants
dedicated portions of Trailside Lane to the public, and there is
no evidence in the record indicating Trailside Lane was laid out
pursuant to state or territorial law. Therefore, Trailside Lane
is not a public highway under the first two definitions contained
in section 2-202. That leaves the central question in this case:
whether Trailside Lane was properly deemed a public highway under
the 15-year public use provision of section 2-202.
Under Section 2-202 of the Code, a private road becomes a
public highway if used by the public for the requisite 15 year
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period. 605 ILCS 5/2-202 (West 2002). AThe requirements
necessary to establish a public highway by prescription under the
statute are the same as those necessary to establish a private
easement by prescription.@ Mateyka, 57 Ill. App. 3d at 997. The
use by the public must be adverse, exclusive, under a claim of
right, continuous and uninterrupted, with the knowledge of the
owner, but without his consent. Sparling v. Fon Du Lac Township,
319 Ill. App. 3d 560, 563, 745 N.E.2d 660, 664 (2001); People ex
rel. Kenney v. City of Goreville, 154 Ill. App. 3d 1091, 1097,
507 N.E.2d 1247, 1250-51 (1987); Mateyka, 57 Ill. App. 3d at
997-98; Corbridge v. Auburn St. Hardware, Inc., 5 Ill. App. 3d
293, 296, 282 N.E.2d 196, 198 (1972).
To determine whether a road has become a public highway,
courts look to whether the public generally had the free and
unrestricted right to use the road. People ex rel. Kenney, 154
Ill. App. 3d at 1097-98.
The establishment of an easement by prescription almost
always is a question of fact. Batchelder Co. v. Gustafson, 32
Ill. App. 3d 14, 18, 335 N.E.2d 565, 569 (1975), citing Peterson
v. Corrubia, 21 Ill. 2d 525, 173 N.E.2d 499 (1961).
With respect to adversity, the claimant must show the use of
the property was with the knowledge and acquiescence of the
owner, but without his permission. Sparling, 319 Ill. App. 3d at
12 1-05-1301
563. Where property has been used in an open, uninterrupted,
continuous, and exclusive manner for the required period,
adversity is presumed and the burden shifts to the party denying
the prescriptive easement to rebut the presumption and show the
use was A>under some license or indulgence inconsistent with the
claim of right by the public.=@ People ex rel. Kenney, 154 Ill.
App. 3d at 1097-98, quoting Neely v. Coffey, 81 Ill. 2d 439, 443,
410 N.E.2d 839, 841-42 (1980); Sparling, 319 Ill. App. 3d at 563.
The City contends the public use of Trailside Lane for more
than 15 years by the residents of the Woods Drive cul-de-sac, the
residents= invitees and guests, the U.S. postal service, City
public works vehicles, police and fire vehicles, garbage pickup
services, and newspaper delivery services, support the trial
court=s grant of summary judgment.
We find there are fact issues concerning whether the
general public=s use of Trailside Lane was exclusive. ATo
establish exclusivity, it is unnecessary to show that only the
claimant has made use of the way, because exclusive use means
that the claimant=s right to use the lane does not depend upon a
like right in others. [Citation omitted]. However, exclusivity
does require that the rightful owner be altogether deprived of
possession.@ Chicago Steel Rule Die & Fabricators Co. v. Malan
Construction Co., 200 Ill. App. 3d 701, 707, 558 N.E.2d 341, 344
13 1-05-1301
(1990)(Chicago Steel).
Here, as in Chicago Steel, where a claim for a private
easement was made, there was no allegation in the pleadings that
the true owners were deprived of use or possession of Trailside
Lane. A>A joint possession by two, even though the claim of each
is adverse to the other, will not be disseizin [a deprivation of
possession] unless the rightful owner is altogether deprived of
possession.=@ Chicago Steel, 200 Ill. App. 3d at 707, quoting
Towle v. Quante, 246 Ill. 568, 576, 92 N.E. 967 (1910).
The City also contends unrebutted evidence of public
maintenance on the road supported the trial court=s decision to
grant summary judgment. Public maintenance of a road is strong
evidence that the roadway is in fact a public highway. People ex
rel. Kenney, 154 Ill. App. 3d at 1098.
Defendants counter that issues of material fact exist as to
whether the City actually performed maintenance on Trailside
Lane, and to what extent such maintenance should be taken into
account in light of the Woods Drive residents= use of the road.
Here, Bernar=s affidavit stated the City had continually
plowed snow, patched pot holes, repaired water mains, trimmed
bushes, and picked up branches on Trailside Lane since the late
14 1-05-1301
1960's. A public works record attached to the City=s response to
defendants counterclaim also reflects that Leslie Boulay and
David Rieker, two of the defendants in this case, called the City
and requested Asalting@ on Trailside Lane. According to the
record, a City truck was sent to salt the road.
While the defendants admitted in their verified answer to
the City=s amended complaint that the City made branch pickups on
Trailside Lane, they contended a fee was paid for the service.
The defendants also stated in their response that they plowed,
patched potholes, and otherwise maintained Trailside Lane at
their own expense. In support of their contentions, defendants
attached a bill to their counterclaim in the amount of $9,000 for
the pavement of Trailside Lane in 2000. The bill was addressed
to the Redellas.
Defendants also presented evidence indicating City services
were routinely performed on both private and public streets.
Minutes of a committee meeting attached to defendants=
counterclaim indicated Alderman Brookman recommended to the City
Council that the City continue to provide existing services to
certain Aprivate streets,@ including Trailside Lane. The City
Council agreed.
Furthermore, the record indicates defendants paid property
taxes on Trailside Lane. While the fact that a road is assessed
15 1-05-1301
and taxed as private property does not compel a finding that the
road is not a public highway, it is a factor to be considered.
Meade v. Commonwealth Edison Co., 48 Ill. App. 3d 312, 314, 362
N.E.2d 779, 781 (1977).
It is apparent the trial court considered no other issue but
the applicability of section 2-202 of the Code. After carefully
reviewing the record, we find material questions of fact exist
regarding whether Trailside Lane was used by the public as a
highway for 15 years.
IV. Termination of the Easements
In its summary judgment motion, the City contended the 1949
and 1953 easements, which allowed residents of the Woods Drive
cul-de-sac to use Trailside Lane to access Ballard Road, had
terminated decades earlier when Trailside Lane became a hard-
surfaced roadway. The City contended because the residents of
Woods Drive used Trailside Lane for more than 15 years after the
easements expired, the road had become a public highway under
section 2-202 of the Code.
Defendants initially contend on appeal that even if the 1949
and 1953 easements terminated by their own terms after Trailside
Lane was hard-surfaced, the defendants retained title to the
easement property itself. Because defendants retained title to
the easement property, they contend it was improper for the trial
16 1-05-1301
court to declare the road a public highway under section 2-202 of
the Code.
We agree with defendants that they retained title to the
easement property even if the easements had terminated. See
Streeter, 327 Ill. at 245; Hudgens, 53 Ill. App. 3d at 948-49
(Aeven assuming [the road] did in fact become a public highway
[pursuant to section 2-202 of the Code], it must be noted that
only an easement and not fee title can be acquired by
prescription@). However, the fact that defendants retained fee
title to the easement property was irrelevant when determining
whether Trailside Lane was properly declared a public highway
pursuant to section 2-202 of the Code. See 605 ILCS 5/2-202
(West 2002).
Defendants contend there is an issue of material fact as to
whether the easements ceased after the construction of a hard-
surfaced road on Trailside Lane. While defendants admit
residents of Woods Drive traversed Trailside Lane for decades,
the defendants contend the use of the road was permitted pursuant
to the easements. Defendants also contend that the absence of
any express grant of the easement in the later deeds to the
defendants is completely irrelevant and non-determinative because
easements are intended to pass with the land upon which they are
created and bind subsequent purchasers. See Flower v. Valentine,
17 1-05-1301
135 Ill. App. 3d 1034, 1039, 482 N.E.2d 682, 687 (1985).
In Mateyka, the court noted the disputed road was used by
four classes of people: (1) adjoining landowners; (2) social
invitees of the adjoining landowners; (3) people servicing the
needs of the landowners; and (4) people entering the roadway by
mistake. Mateyka, 57 Ill. App. 3d at 998. The court concluded
the use of the road by the adjoining landowners was predicated
upon the grant of an easement for road purposes in their
respective deeds. The adjoining landowners and those who entered
the roadway to reach their homes used the road with permission of
the fee owner. Mateyka, 57 Ill. App. 3d at 998-99. Because the
use of the roadway was by permission, the right to use never
could ripen into a prescriptive right. It was not adverse use.
Mateyka, 57 Ill. App. 3d at 998-99, citing Monroe v. Shrake, 376
Ill. 253, 256, 33 N.E.2d 459 (1941).
Here, as in Mateyka, Trailside Lane apparently was used by
four classes of people: (1) the residents of Woods Drive; (2)
social invitees of the Woods Drive residents; (3) people
servicing the needs of the Woods Drive residents; and (4) people
entering the roadway by mistake.
If the 1949 and 1953 easements were in effect, the Woods
Drive residents= use of the road was permissive and could not
ripen into a prescriptive right. See Mateyka, 57 Ill. App. 3d at
18 1-05-1301
998-99. If the easements ceased, the City still had the burden
of satisfying the requirements of section 2-202 of the Code.
While the terms of the 1949 and 1953 easements clearly
stated they were to terminate when a hard-surfaced roadway was
constructed along the westerly boundary of the properties, the
1949 and 1953 grants are ambiguous as to whether the construction
of a hard-surfaced roadway on the easement property itself would
terminate the easements. Questions of fact also exist as to
whether the easements ceased because they were not properly
identified in subsequent purchasers= deeds.
Moreover, it is unclear when Trailside Lane actually became
a hard-surfaced roadway. While the City contends the residents
of Woods Drive had traversed over a hard-surfaced Trailside Lane
for decades, nothing in the record supports this contention.
Because of the ambiguity in the easements= terms, the uncertainty
as to whether the easements were properly identified in
subsequent deeds, and the uncertainty as to when Trailside Lane
was actually paved, we find defendants raised a material issue of
fact as to when and whether the easements ceased.
CONCLUSION
We conclude the City was not entitled to summary judgment as
a matter of law because genuine issues of material fact remain as
to whether Trailside Lane had become a public highway under
19 1-05-1301
section 2-202 of the Code. See People ex rel. Kenney, 154 Ill.
App. 3d at 1099. We reverse the trial court=s order granting
summary judgment in favor of the City and remand this cause for
further proceedings.
Reversed and Remanded.
SOUTH, and HALL., JJ., concur.