Appeal from the Circuit Court of DuPage County; the Hon.
PHILLIP F. LOCKE, Judge, presiding. Reversed.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
The trial court entered judgment in Quo Warrantor ousting the Village from certain territory alleged to have been annexed in 1923, and setting aside a 1967 annexation which would thereby lack contiguity to the Village.
The Village, appealing from the judgment, urges that there is no omission between the west boundary of the 1923 annexation and the east boundary of the 1967 annexation; but that, in any event, plaintiffs are estopped because of acquiescence in the exercise of jursidiction by Hinsdale in the disputed area for some 40 years.
Plaintiffs argue that no ambiguity exists with reference to the boundary description in the 1923 ordinance, and that the description in that ordinance clearly creates an omitted area between the territory described in the two ordinances; and that the Village did not sustain its burden of establishing de facto jurisdiction over the allegedly omitted area by a preponderance of the evidence.
Petitioners are the majority of property owners of record and the majority of electors in the disputed territory. Their request to the Attorney General and to the State's Attorney to institute the proceedings having been denied, they obtained leave of court to file the suit pursuant to Ill Rev Stats 1967, c 112, § 10. After a hearing before the court a judgment order of ouster was entered as to the disputed territory under the 1923 ordinance and the court also refused to vacate a previous order denying the annexation under the 1967 ordinance because of lack of contiguity.
The evidence consisting of the map accompanying the 1923 ordinance, together with expert testimony of petitioners' surveyor, would support a finding of fact that the description in the 1923 ordinance resulted in a substantial undescribed area between the 1923 and the 1967 annexations sufficient to support a judgment of ouster. We distinguish People ex rel. Chicago Title & Trust Co. v. City of Des Plaines, 76 Ill. App.2d 243, 222 N.E.2d 1 (1966). The gap between the areas annexed by the two ordinances in this case was a substantial area which could not be considered de minimis within the rule of the Des Plaines case.
We reverse the judgment below, however, because we believe it to be against the manifest weight of the evidence as we believe the Village has justified its authority by the exercise of de facto jurisdiction in the disputed area over a period of some 40 years with acquiescence of the public.
The answer of the Village, in addition to denying a gap in contiguity in the description of the territory sought to be annexed, alleged as an affirmative defense that the Village has "exercised jurisdiction over the area . . . for over 40 years . . . in the following manner:
"A. The property has been zoned by the Village of Hinsdale, a copy of the zoning map of the Village of Hinsdale being attached hereto as Exhibit `A.' There is no zoning classification for the subject property other than that established by the Village of Hinsdale Zoning Ordinance.
"B. Street addresses have been established in the area pursuant to a 1932 Ordinance of the Village of Hinsdale.
"C. A storm sewer has been established in this area pursuant to a 1958 General Obligation Bond issue of the Village of Hinsdale. In addition, there have been five other General Obligation Bond issues of the Village of Hinsdale during the 40-year period where it has been represented to purchasers that the subject property is included within the Village boundaries. Taxes for said General Obligation Bond issue have been and are being extended on the subject property.
"D. Water Revenue Bonds have been issued by the Village of Hinsdale during the 40-year period and it has been represented to purchasers that water users in the subject area are included within the corporate limits of the Village of Hinsdale.
"E. Special assessments have been levied by the Village of Hinsdale on property in the subject area.
"F. The Village of Hinsdale has provided water service to a portion of the subject area for over 10 years. This is the only water service available to ...