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Nicholson v. Village of Schaumburg

SEPTEMBER 27, 1961.




Appeal from the County Court of Cook County; the Hon. RICHARD SCHOLZ, Jr., Judge, presiding. Order reversed. MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Defendant Village of Schaumburg Center appeals from an order granting the petition of plaintiffs for a disconnection of their property from the village. The principal question for our determination is whether plaintiffs are the owners of record of all the property sought to be disconnected, as required by the statute authorizing such proceedings. Ill. Rev Stats c 24, § 7-42 (1959).

The case was tried under a stipulation of facts. The property was originally annexed to the village in 1958 at the request of plaintiff Thord Nicholson. Subsequent to the annexation, plaintiffs Thord and Elva Nicholson conveyed to the Northern Illinois Gas Company by warranty deed a portion of the property, being a strip of land approximately 83 feet wide and 4000 feet long, for the sum of $20,000. The conveyance was subject to a perpetual easement for access purposes. There was also reserved to the grantors, that is, the Nicholsons, their heirs, successors and assigns, "the right to farm the tract conveyed to the extent it does not interfere with the grantors operations." This was done by an unrecorded letter, written on the letterhead of the law offices of Righeimer and Righeimer, signed by Frank S. Righeimer, Jr., one of the partners, and addressed to one Martin M. Nelson. The Northern Illinois Gas Company did not sign the petition for annexation.

It is plaintiffs' contention that the reservation of the easement and the right to farm the tract, as evidenced by the letter in question, is sufficient to make them owners of record within the meaning of the statute. It is defendant's position that while the Nicholsons may be considered to be owners of the property, they are not owners of record and are not the sole owners; that the Northern Illinois Gas Company is the owner of the fee; that its title is a matter of record in the office of the Recorder of Deeds for Cook County; that it is actually using and in possession of the property; that it pays all taxes thereon, and that it is therefore an owner of record and a necessary party to the petition.

The statute in question, which is the sole authority for this proceeding, reads as follows:

"Land disconnected by court procedure. The owner or owners of record of any area of land consisting of one or more tracts, lying within the corporate limits of any municipality, which (1) is not contiguous in whole or in part to any other municipality; (2) contains 20 or more acres; (3) is not subdivided into municipal lots and blocks; (4) is located on the border of the municipality; and (5) which, if disconnected, will not result in the isolation of any part of the municipality from the remainder of the municipality, may have the area disconnected as follows:

"The owner or owners of record of any such area of land shall file a petition in the county where the land is situated, alleging facts in support of the disconnection. . . . If the court finds that the allegations of the petition are true and that the area of land is entitled to disconnection it shall order the specified land disconnected from the designated municipality."

Under that statute all the owners of record of land sought to be disconnected must sign the petition. There could be no other interpretation. This statute in fact superseded a previous statute which required only a majority. Ill. Rev Stats c 24, § 377, 1925.

The issue turns on the construction of the phrase, "The owner or owners of record." What constitutes an owner or owners of land is not susceptible of precise definition. In Restatement of the Law we find the following:

"§ 5(e). Complete Property. The totality of these rights, privileges, powers and immunities which it is legally possible for a person to have with regard to a given piece of land, that are other than those which all other members of society have as such, constitutes complete property in such land or thing other than land." Restatement of the Law, Property, Ch 1, § 5(e).

That is a good statement of total ownership, but it is qualified by the further statement that "[t]he owner may part with many of the rights, powers, privileges and immunities that constitute complete property, and his relationship to the thing is still termed ownership. . . ." (Ch 1, § 10(c).)

In 73 CJS, Property, § 13(b), at page 184, it is said:

"Whether in a given case, one is an `owner' will depend on particular circumstances and one having a particular estate or interest may be regarded as an owner for some purposes while not so regarded for others."

In determining its meaning as used in the statute, the nature of the act, the object sought to be accomplished, and the purpose of the statute as a whole are taken into account. Woodward Governor Co. v. City of Loves Park, 335 Ill. App. 528, 535, 82 N.E.2d 387, 392; American Community Builders, Inc. v. City of Chicago Heights, 337 Ill. App. 263, 85 N.E.2d 837; Vance v. Rankin, 95 Ill. App. 562; In re: Smithfield City, 70 Utah 564, 262 P 105, 106; City of Phoenix v. State, 60 Ariz. 369, 137 P.2d 783, 786.

Plaintiffs argue that this is a remedial statute and that the courts have construed it with such liberality that the limited unrecorded interest of the Nicholsons is sufficient to bring them within the meaning of the term "owners of record," and they cite in support of their position Van Bebber v. Village of Scottville, 13 Ill. App.2d 458, 142 N.E.2d 711, 715; Wolbach v. Village of Flossmoor, 329 Ill. App. 528, 69 N.E.2d 704, 705; American Community Builders, Inc. v. City of ...

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