FIFTH DIVISION June 22, 2007
No. 1-06-1230
JOAN L. MILLER and RICHARD A. MILLER, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Cook County. ) v. ) No. 03 CH 06001 ) METROPOLITAN WATER RECLAMATION ) DISTRICT OF GREATER CHICAGO ) and THE CITY OF EVANSTON, ) ) Defendants-Appellees ) ) and ) ) (Evanston Wilmette Golf Course Association, ) Descendants and Assigns of Laura N. Kline, ) Unknown Owners and Non-Record Claimants, ) Honorable ) Julia M. Nowicki, Defendants). ) Judge Presiding.
PRESIDING JUSTICE O'BRIEN delivered the opinion of the court:
Plaintiffs, Richard and Joan Miller, appeal the order of the circuit court granting summary
judgment in favor of defendants, Metropolitan Water Reclamation District of Greater Chicago
(the District) and the City of Evanston, on plaintiff's complaint for adverse possession. We
affirm.
In 1971, plaintiffs, Richard and Joan Miller, purchased a house adjacent to land (the
subject property) belonging to the District. The District leases the subject property to the City of
Evanston with the right of reentry. The City of Evanston in turn subleases the subject property to
the Evanston Wilmette Golf Course Association, a private corporation that operates the Peter No. 1-06-1230
Jans Community Golf Course. Plaintiffs discovered that portions of their garage and other parts
of their residential property were built or sited on the subject property. For purposes of this
appeal, plaintiffs do not dispute that the District holds legal title to the subject property.
In 1996, the District notified plaintiffs of the encroachment and requested the City of
Evanston to take corrective action to eliminate the encroachments. In 2001, plaintiffs indicated
that they wanted a permit for the encroachments that would require permission from the City of
Evanston, the golf course, and the District. Plaintiffs later abandoned that request.
Plaintiffs then filed a complaint alleging adverse possession against the District and the
City of Evanston (collectively referred to as defendants), as well as the Evanston Wilmette Golf
Course Association. The Evanston Wilmette Golf Course Association was served but never
appeared. The parties filed cross-motions for summary judgment. The District argued in
relevant part that adverse possession will not lie where, as here, a municipal corporation is
holding the subject property for the use of the public of the state at large. Plaintiffs responded
that the District did not hold the subject property for public use by the people of the state. The
trial court granted summary judgment in favor of defendants. Plaintiffs appeal pursuant to
Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).
Summary judgment is appropriate where the pleadings, depositions and admissions on
file, together with any affidavits, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Adams v. Northern Illinois Gas Co., 211
Ill. 2d 32, 43 (2004). Review is de novo. Adams, 211 Ill. 2d at 43.
To establish title by adverse possession as provided by section 13-101 of the Limitations
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Act, the party must possess the disputed land for 20 years. 735 ILCS 5/13-101 (West 2000).
The party must prove that the 20 years of possession was: "(1) continuous; (2) hostile or adverse;
(3) actual; (4) open, notorious and exclusive; and (5) under a claim of title inconsistent with that
of the true owner." General Iron Industries, Inc. v. A. Finkl & Sons Co., 292 Ill. App. 3d 439,
441 (1997).
This case involves a claim of adverse possession against land held by a municipal
corporation. The 20-year statute of limitations runs against a municipal corporation with respect
to property held in a private capacity, but not with respect to property held in trust for the public.
The supreme court case Brown v. Trustees of Schools, 224 Ill. 184 (1906), is informative. In
Brown, the trustees sued to recover possession of part of a schoolhouse lot to which the trustees
held legal title for the use of the school district. A private citizen, Frank Brown, claimed title by
adverse possession on the basis that he and his predecessors in title had been in the open,
exclusive and adverse possession of that part of the schoolhouse lot for more than 20 years. The
Illinois Supreme Court stated:
"The rule that statutes of limitations do not run against the state also extends to minor
municipalities created by it as local governmental agencies, in respect to governmental
affairs affecting the general public. The exemption extends to counties, cities, towns, and
minor municipalities in all matters respecting strictly public rights as distinguished from
private and local rights, but as to matters involving private rights they are subject to
statutes of limitation to the same extent as individuals. [Citations.]
The question *** is whether there is an implied exemption from the statutes of
-3- No. 1-06-1230
limitation in favor of trustees of schools with respect to property held for the use of a
particular school district, and that depends upon the meaning of the term 'public rights,' as
used in the decisions. *** [T]he public right and public use must be in the people of the
state at large, and not in the inhabitants of a particular local district. *** [T]here is a well-
founded distinction between cases where the municipality is seeking to enforce a right in
which the public in general have an interest in common with the people of such
municipality, and cases where the public have no such interest ***.
There are numerous cases where it has been held that municipalities or minor
political subdivisions of the state are not subject to limitation laws in respect to streets
and public highways [citation], but streets and highways are not for the use of the
inhabitants of any municipality or locality alone, but for the free and unobstructed use of
all the people in the state. Such rights are clearly distinguishable from the rights or
interests of the inhabitants of a locality in property acquired for a mere local use, such as
city offices, a library site, or the use of a fire department. Such property is held and used
for strictly local purposes." Brown, 224 Ill. at 186-88.
The supreme court held that "[t]he people of the State in general have no interest, in
common with the inhabitants of a school district, in the school house site or the proceeds of it."
Brown, 224 Ill. at 189. Accordingly, the supreme court held that adverse possession could lie
against the property. Brown, 224 Ill. at 189. Brown remains good law. See Wanless v.
Wraight, 202 Ill. App. 3d 750 (1990) (holding that parking lot did not fall qualify as a "public
use" as defined by Brown.)
-4- No. 1-06-1230
Thus, the term "public use," as defined by Brown, means that the people of the state at
large must have a general interest in the property at issue. It does not mean that the public
necessarily must have total and unlimited access to the property, but rather that the property is for
the general benefit of the people of the state. If the property is for such "public use", then adverse
possession cannot lie against the property.
As discussed, the District holds legal title to the subject property. The District's
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FIFTH DIVISION June 22, 2007
No. 1-06-1230
JOAN L. MILLER and RICHARD A. MILLER, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Cook County. ) v. ) No. 03 CH 06001 ) METROPOLITAN WATER RECLAMATION ) DISTRICT OF GREATER CHICAGO ) and THE CITY OF EVANSTON, ) ) Defendants-Appellees ) ) and ) ) (Evanston Wilmette Golf Course Association, ) Descendants and Assigns of Laura N. Kline, ) Unknown Owners and Non-Record Claimants, ) Honorable ) Julia M. Nowicki, Defendants). ) Judge Presiding.
PRESIDING JUSTICE O'BRIEN delivered the opinion of the court:
Plaintiffs, Richard and Joan Miller, appeal the order of the circuit court granting summary
judgment in favor of defendants, Metropolitan Water Reclamation District of Greater Chicago
(the District) and the City of Evanston, on plaintiff's complaint for adverse possession. We
affirm.
In 1971, plaintiffs, Richard and Joan Miller, purchased a house adjacent to land (the
subject property) belonging to the District. The District leases the subject property to the City of
Evanston with the right of reentry. The City of Evanston in turn subleases the subject property to
the Evanston Wilmette Golf Course Association, a private corporation that operates the Peter No. 1-06-1230
Jans Community Golf Course. Plaintiffs discovered that portions of their garage and other parts
of their residential property were built or sited on the subject property. For purposes of this
appeal, plaintiffs do not dispute that the District holds legal title to the subject property.
In 1996, the District notified plaintiffs of the encroachment and requested the City of
Evanston to take corrective action to eliminate the encroachments. In 2001, plaintiffs indicated
that they wanted a permit for the encroachments that would require permission from the City of
Evanston, the golf course, and the District. Plaintiffs later abandoned that request.
Plaintiffs then filed a complaint alleging adverse possession against the District and the
City of Evanston (collectively referred to as defendants), as well as the Evanston Wilmette Golf
Course Association. The Evanston Wilmette Golf Course Association was served but never
appeared. The parties filed cross-motions for summary judgment. The District argued in
relevant part that adverse possession will not lie where, as here, a municipal corporation is
holding the subject property for the use of the public of the state at large. Plaintiffs responded
that the District did not hold the subject property for public use by the people of the state. The
trial court granted summary judgment in favor of defendants. Plaintiffs appeal pursuant to
Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).
Summary judgment is appropriate where the pleadings, depositions and admissions on
file, together with any affidavits, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Adams v. Northern Illinois Gas Co., 211
Ill. 2d 32, 43 (2004). Review is de novo. Adams, 211 Ill. 2d at 43.
To establish title by adverse possession as provided by section 13-101 of the Limitations
-2- No. 1-06-1230
Act, the party must possess the disputed land for 20 years. 735 ILCS 5/13-101 (West 2000).
The party must prove that the 20 years of possession was: "(1) continuous; (2) hostile or adverse;
(3) actual; (4) open, notorious and exclusive; and (5) under a claim of title inconsistent with that
of the true owner." General Iron Industries, Inc. v. A. Finkl & Sons Co., 292 Ill. App. 3d 439,
441 (1997).
This case involves a claim of adverse possession against land held by a municipal
corporation. The 20-year statute of limitations runs against a municipal corporation with respect
to property held in a private capacity, but not with respect to property held in trust for the public.
The supreme court case Brown v. Trustees of Schools, 224 Ill. 184 (1906), is informative. In
Brown, the trustees sued to recover possession of part of a schoolhouse lot to which the trustees
held legal title for the use of the school district. A private citizen, Frank Brown, claimed title by
adverse possession on the basis that he and his predecessors in title had been in the open,
exclusive and adverse possession of that part of the schoolhouse lot for more than 20 years. The
Illinois Supreme Court stated:
"The rule that statutes of limitations do not run against the state also extends to minor
municipalities created by it as local governmental agencies, in respect to governmental
affairs affecting the general public. The exemption extends to counties, cities, towns, and
minor municipalities in all matters respecting strictly public rights as distinguished from
private and local rights, but as to matters involving private rights they are subject to
statutes of limitation to the same extent as individuals. [Citations.]
The question *** is whether there is an implied exemption from the statutes of
-3- No. 1-06-1230
limitation in favor of trustees of schools with respect to property held for the use of a
particular school district, and that depends upon the meaning of the term 'public rights,' as
used in the decisions. *** [T]he public right and public use must be in the people of the
state at large, and not in the inhabitants of a particular local district. *** [T]here is a well-
founded distinction between cases where the municipality is seeking to enforce a right in
which the public in general have an interest in common with the people of such
municipality, and cases where the public have no such interest ***.
There are numerous cases where it has been held that municipalities or minor
political subdivisions of the state are not subject to limitation laws in respect to streets
and public highways [citation], but streets and highways are not for the use of the
inhabitants of any municipality or locality alone, but for the free and unobstructed use of
all the people in the state. Such rights are clearly distinguishable from the rights or
interests of the inhabitants of a locality in property acquired for a mere local use, such as
city offices, a library site, or the use of a fire department. Such property is held and used
for strictly local purposes." Brown, 224 Ill. at 186-88.
The supreme court held that "[t]he people of the State in general have no interest, in
common with the inhabitants of a school district, in the school house site or the proceeds of it."
Brown, 224 Ill. at 189. Accordingly, the supreme court held that adverse possession could lie
against the property. Brown, 224 Ill. at 189. Brown remains good law. See Wanless v.
Wraight, 202 Ill. App. 3d 750 (1990) (holding that parking lot did not fall qualify as a "public
use" as defined by Brown.)
-4- No. 1-06-1230
Thus, the term "public use," as defined by Brown, means that the people of the state at
large must have a general interest in the property at issue. It does not mean that the public
necessarily must have total and unlimited access to the property, but rather that the property is for
the general benefit of the people of the state. If the property is for such "public use", then adverse
possession cannot lie against the property.
As discussed, the District holds legal title to the subject property. The District's
predecessor, the Sanitary District of Chicago, was organized on May 29, 1889, under "An Act to
create sanitary districts, and to remove obstructions in the Des Plaines and Illinois rivers." See
People ex rel. Longenecker v. Nelson, 133 Ill. 565 (1890). The act created certain districts made
up of areas of contiguous territory, and empowered those districts to construct and maintain a
common outlet for the drainage and sewage of the municipalities within the limits of each
district. See Nelson, 133 Ill. at 580. The supreme court noted that "[t]he object of the system of
drainage proposed by said act is to prevent the drainage and sewage of the city [of Chicago] and
its environs being carried into Lake Michigan, thereby contaminating the waters of the lake. This
result is to be reached by cutting a channel which will give an outlet for the drainage and sewage
of the city in the direction of the Des Plaines and Illinois rivers, and which will also cause a large
flow of water from the lake through the proposed artificial channel into those rivers for the
purpose of diluting the sewage, and rendering it innocuous to the people living along the course
of those streams." Nelson, 133 Ill. at 581. Clearly, this was intended to preserve the health of
the people of Chicago, those persons living around Lake Michigan and along the Des Plaines and
Illinois rivers, and the people of the state.
-5- No. 1-06-1230
The public purpose continues today, as "the State of Illinois *** has delegated to the
Metropolitan Sanitary District of Greater Chicago the police power to protect the public health
with respect to certain waters. More specifically, the District is authorized by statute to prevent
the pollution of Lake Michigan and other waters within its jurisdiction." Village of Glencoe v.
Metropolitan Sanitary District of Greater Chicago, 23 Ill. App. 3d 868, 872 (1974).
The supreme court also has noted:
"A sanitary district of this character is a municipal corporation, created by
legislative authority. It is a part of the machinery of government. Its functions are public.
The property held by such corporation is public property in the hands of the trustees, as
agents for the State, for the purposes designated in the act authorizing its creation ***."
Chicago & Eastern Illinois Ry. Co. v. Sanitary District of Bloom Township, 350 Ill. 542,
548 (1932).
Thus, the subject property, to which the District holds title and to which it retains the
right under the lease to reenter, is public property for the use and benefit of the people of the
state. As such, it is not subject to adverse possession.
Plaintiffs argue, though, that the subject property is currently being used as a golf course,
and that the property "thus lost whatever public use character it might have had, because it is part
of a proprietary business." In support, plaintiffs cite Brown, which held that "if the State
becomes a partner with individuals, or engages in business, it divests itself of its sovereign
character and is subject to [the adverse possession statute]." Brown, 224 Ill. at 186. However,
unlike in Brown, which involved a school site to which the people of the state at large had no
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general interest in common with the inhabitants of the school district, the subject property here
was subleased to the Evanston Wilmette Golf Course Association, which operates a golf course
thereon that is open to all persons in the state. As such, the people of the state at large have a
continuing general interest in the subject property during the leasehold and, therefore, the subject
property retains its public character.
Plaintiffs insist that "the [subject] property is not held for public use because the District
leased the property and property alienated in that manner cannot be classified as property for
public use." In support, plaintiffs cite Chanslor-Western Oil & Development Co. v. Metropolitan
Sanitary District of Greater Chicago, 131 Ill. App. 2d 527 (1970). Chanslor-Western Oil
addressed whether the District unreasonably withheld consent to a sublease. Chanslor-Western
Oil did not involve adverse possession and thus is not relevant to the issues presented here.
Plaintiffs also cite Sanitary District of Chicago v. Rhodes, 386 Ill. 269 (1944). Rhodes
addressed the question whether the main channel prism in Du Page and Lockport townships was
taxable. Rhodes did not involve adverse possession and is inapplicable to the case at bar.
In sum, as the subject property is for public use, plaintiffs' complaint for adverse
possession fails. Accordingly, we affirm the order granting summary judgment in favor of
defendants.
Affirmed.
GALLAGHER and O'MARA FROSSARD, JJ's concur.
-7-