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Robinette v. Dept. of Public Works & Bldgs.

NOVEMBER 24, 1971.




APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM J. BAUER, Judge, presiding. MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 12, 1972.

The American National Bank and Trust Company of Chicago, Trustee under Trust No. 18962 (also 18963), and C.B. Robinette and Rose R. Robinette, his wife as sole beneficiaries of the trusts, sued the Department of Public Works and Buildings of the State of Illinois and its Director, William Cellini. The complaint, as amended, sought revocation of the plat of dedication of land for a public highway. The plat of dedication contained the provision:

"Future ingress and egress to and from the remaining property of the grantor shall be by way of internal private roads to Kolberg Court and via Kolberg Court to Illinois Route 83."

Plaintiffs allege that this was a condition which was breached when the road plans were changed to deny access to Route 83 from Kolberg Court and instead provided access via a frontage road to Riverside Drive, a distance of approximately 2600 feet from Kolberg Court.

The trial court found for the plaintiffs and ordered the defendants to file an election within 30 days to provide the access via Kolberg Court. The order further provided that in the event the election was not filed, the dedication would be revoked upon the deposit of the $35,000 purchase price. The defendants appealed directly to the Supreme Court claiming that a constitutional question was presented on the theory that the suit, although nominally against the Department of Public Works and its Director, in effect was one against the State of Illinois and, thus, barred by Article 4, Sec. 26 of the Illinois Constitution. The Illinois Supreme Court transferred the cause here, stating in its opinion in 48 Ill.2d 259 (1971), that the constitutional issue had been resolved adversely to defendants in People ex rel. King v. Lorenz (1966), 34 Ill.2d 445. The court concluded that it had no jurisdiction since no substantial constitutional question was involved. *fn1

Defendants first contend that plaintiffs should be barred from equitable relief by way of revocation, primarily because an adequate remedy at law exists to compel the Directors to institute proceedings under the Eminent Domain Act to ascertain possible damage to the remainder of their property allegedly caused by the change in plans. Shaw v. Lorenz (1969), 42 Ill.2d 246 is cited as authority. However, in Shaw there was no condition in the plat of dedication. Plaintiffs there sought to enjoin the Director of the Department of Public Works from closing a township road in contravention of a separate agreement to keep the road open which had been made at the time of the unconditional dedication. The court held that mandamus was an adequate remedy, precluding the equitable relief of an injunction.

The right to revoke a conditional deed was not involved in Shaw, but it was the issue in People ex rel. King v. Lorenz, supra. In King, plaintiffs, who were successors in title to the grantor, sought revocation of a dedication deed alleging the grantees' nonperformance of an alleged condition of access to the remaining property. The plaintiffs there requested that Mandamus issue to compel the Director to include the land previously dedicated, on the issue of damage to the remainder for deprivation of access, in a pending condemnation suit for a frontage road which was made necessary by the change in plans by the state agency and which required additional property of the grantor. The court stated (page 448)

"The appellate court erred in refusing to allow revocation of the dedication deed."

The court reasoned that an owner who makes a voluntary dedication of his property may annex conditions to his grant so long as they do not defeat it; and that if such conditions are not materially complied with, the dedication may be revoked.

Defendants have argued that the decision in Shaw has limited or qualified the holding in People ex rel. King and that both stand for the general proposition that when mandamus is available and is an adequate remedy at law there can be no equitable relief whether by way of injunction or revocation.

• 1 Defendants argue that there is no previous authority for the revocation of a deed to land acquired by the State, and that King has not decided the point because the actual result there was not revocation of the deed but the alternative relief of mandamus to include the granted property in a pending condemnation suit. However, as plaintiffs have pointed out, the inclusion of the dedicated property in the pending condemnation suit necessarily revoked the previous grant or there would have been no purpose in again condemning the same property. The clear import of King is that the availability of mandamus is not an adequate defense against the granting of a revocation of a voluntary plat of dedication for violation of a condition of access so as to bar the remedy of revocation under circumstances similar to this case.

• 2 Defendants next argue that the deed of dedication here is unconditional since access from Kolberg Court to Route 83 is not stated to be a condition of dedication, and the provision in question contains no words of promise, re-entry, or forfeiture. They argue that any conflict in meaning of words used in the deed is to be construed most strongly against the dedicator, (City of Chicago v. Hogberg (1905), 217 Ill. 180, 183; and Ely v. Brown (1900), 183 Ill. 575, 589, 590) and thus that the court should not read in a requirement for direct access into Route 83 from the then existing Kolberg Court, but should consider the access from an extension of Kolberg Court as a sufficient compliance with the provision. The plaintiffs respond that there is no significant difference between the provision in the deed in the King case and that here, and we agree. *fn2 In both instances there is an explicit promise regarding future access to the highway from the grantor's remaining land. In King, a change of approximately 10% of the distance here involved was deemed a material default in the promised access. King therefore is controlling.

• 3 Nor is the condition against public policy as defendants have argued. The Department of Public Works is not being compelled to provide access as originally planned in contravention of the admitted right of the State to control and regulate its ways. The Department is authorized to take a lesser interest than one in fee simple, i.e. a conditional dedication as here. Ill. Rev. Stat. 1969, ch. 121, par. 4-501. But it may not take the benefits of a dedication free of burdens which it has voluntarily assumed. Defendants have cited Village of Lake Bluff v. Dalitsch (1953), 415 Ill. 476 as supporting the argument that a condition which can be construed to limit the power of public authorities to regulate points of ingress and egress to freeways to provide a safe and efficient means of transportation would be void as against public policy and could be disregarded. Dalitsch may be distinguished on its facts. The case before us is, as we have previously noted, controlled by People ex rel. King v. Lorenz, supra.

• 4 Defendants have also cited Ill. Rev. Stat. 1969, ch. 109 as authority for the argument that the State acquired a fee simple title to the property in question and is therefore a necessary party. We do not agree. These statutes do not apply here since par. 1(b)(6) of Ch. 109 specifically exempts conveyances of lands for public highways from its provisions. In making this argument the defendants, in effect, are seeking to raise the constitutional issue that the suit is in reality a suit against the State and barred ...

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