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People v. Heizer

MAY 13, 1966.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

DONALD HEIZER, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Randolph County; the Hon. CARL H. BECKER, Judge, presiding. Judgment affirmed.

MORAN, J.

Rehearing denied June 11, 1966.

This is an appeal from an order of the Circuit Court of Randolph County, Illinois, rendering judgment against the plaintiff on its complaint in quo warrantor, alleging that the defendants were usurping the office of trustees of a purported public fire protection district known as the Prairie Du Rocher Fire Protection District.

Plaintiff alleges that the district has no legal existence and the defendants justify their trusteeships by denying the plaintiff's claims and asserting the valid organization of the district.

The Illinois Legislature provided for the organization of such fire districts in chapter 127 1/2, section 21, of the Illinois Revised Statutes. The statute is as follows:

"Whenever any territory is (1) an area of contiguous territory in a county, or in more than one, but in not more than 5 counties; (2) so situated that the destruction by fire of the buildings and other property therein is hazardous to the lives and property of the public; (3) so situated that the acquisition, establishment, maintenance and operation of a fire station or stations, facilities, vehicles, apparatus and equipment for the prevention and control of fire therein will conduce to the promotion and protection of the health, safety, welfare and convenience of the public; (4) so situated that it does not divide any city, village or incorporated town; (5) so situated that such territory contains no territory included in any other fire district, the same may be incorporated as a fire protection district. Such districts may be incorporated under this Act in the manner following:

"Fifty or more of the legal voters resident within the limits of such proposed district, or a majority thereof if less than 100, may petition the county court of the county which contains all or the largest portion of the proposed district to cause the question to be submitted to the legal voters of such proposed district, whether such proposed territory shall be organized as a fire protection district under this Act; such petition shall be addressed to said county court and shall contain a definite description of the boundaries of the territory to be embraced in the proposed district, and the name of such proposed district (and) shall allege facts in support of such organization and incorporation.

"Upon filing any such petition in the office of the county clerk of the county in which such petition is made, it shall be the duty of the county court to fix a time and place for a hearing upon the subject of the petition.

"Notice shall be given by the county court to whom the petition is addressed, or by the county clerk or sheriff of the county in which such petition is made at the order and direction of the county court, of the time and place of the hearing upon the subject of the petition at least 20 days prior thereto by one publication thereof in one or more daily or weekly papers published within the proposed fire protection district (or if no daily or weekly newspaper is published within such proposed fire protection district, then either by one publication thereof in any newspaper of general circulation within said territory or by posting at least ten copies of such notice in such district at least 20 days before such hearing in conspicuous places as far separated from each other as consistently possible), and by mailing a copy of such notice to the mayor or president of the board of trustees of all cities, villages and incorporated towns within such proposed fire protection district."

A petition was filed, a hearing held, and an election conducted. The plaintiff challenges the organization on several points.

The description of the district is first challenged as inadequate in that the proposed boundaries failed to completely enclose the lands of the proposed district. The description reads:

"Thence Southerly along the west bank of the Kaskaskia River to the point where the Kaskaskia intersects the Mississippi River; thence Northwesterly along the low watermark of the east bank of the Mississippi River to the point of beginning."

Plaintiff introduced evidence that between the west bank of the Kaskaskia and the low watermark of the Mississippi there was a 75 to 100-yard gap in the boundaries. Several persons familiar with this area testified that the west bank of the Kaskaskia and the low watermark of the Mississippi's east bank do not intersect. The bank is distinguished from the low watermark or the water's edge; a bank is a ridge of land or acclivity which borders the watercourse. Marion L. Wills, a qualified surveyor, testified on behalf of the defendant that he would be able to survey the area and locate all its boundaries by interpreting the description as a whole.

[1-4] Where the area to be incorporated and the boundary lines enclosing it are readily ascertainable by a reading of the whole description, the petition is sufficient to confer jurisdiction upon the county court even though the boundary lines described in the petition are erroneous because they fail to enclose the area sought to be incorporated. Descriptions of municipal boundaries are not construed with the same strictness as are those contained in deeds and contracts, and if the description in a petition to incorporate fairly apprises the public of the property involved, it will be considered sufficient. The law is well settled that boundaries give way to intention when the intention can be known. The People v. Anderson, 398 Ill. 480, 76 N.E.2d 773; ...


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