APPEAL from the Circuit Court of Will County; the Hon. STEWART
C. HUTCHISON, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This cause involves two consolidated appeals from orders of the circuit court of Will County. Both actions were in fact prosecuted by taxpayer-property owners of the City of Lockport, Illinois (hereinafter referred to as Petitioners). The object of the actions was to prevent defendant School Trustees and School District (hereinafter referred to as Defendants) from dealing with the property, sometimes referred to as the Lockport Public Square, by sale or otherwise in any manner to change its character to anything other than so-called "public square property". The first case (Circuit Court No. W 69 G 2028E) was instituted in the name of the City of Lockport but was apparently financed by petitioners. We shall hereafter refer to this case as the "City of Lockport case". The other case (Circuit Court No. W 70 G 1474E) was instituted by petitioners in their own names after the circuit court had dismissed the City of Lockport case by an order which was adverse to the complaint of petitioners.
The complaint in the City of Lockport case, which was filed September 9, 1969, sought a declaratory judgment that title to the real property consisting of a square block designated on the Lockport city plat as a "Public Square", is vested in the City of Lockport. A school building stands on the property. The school is now closed. The complaint sought a finding that defendants (the trustees and the school district) had no right to sell such property to third parties and that an injunction precluding such sale should be issued by the court. Defendant, in response to the complaint, filed a motion to dismiss under Section 48 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110 par. 48). The motion was ultimately allowed by the circuit court of Will County on May 25, 1970. It is shown in the record that the Lockport City Council, on June 1, 1970, adopted a resolution to take no further action in the case instituted in the name of the City of Lockport. On June 23, 1970, within thirty (30) days of the order of dismissal, petitioners filed a petition for leave to substitute themselves as parties-plaintiff in place of the City of Lockport, and for leave to file a motion for a rehearing of the motion to dismiss on the basis of after-discovered evidence. Petitioners likewise requested consolidation of the City of Lockport case with the subsequent case filed by the petitioners. In the verified petition it is alleged, among other things, that the City Council of the City of Lockport "* * * has directed that the proceedings in this cause be terminated, but that the above-named taxpayers (Petitioners) wish to prosecute their case in Cause No. W 70 G 1474E without being prejudiced by any order previously entered in Cause No. W 69 G 2028E". On October 5, 1970, the circuit court of Will County entered its order denying the petition for substitution and for other relief. That cause is now on appeal from such order.
The complaint in the case filed separately in the names of the taxpayers also sought a declaratory judgment. In one count it sought to protect petitioners' "private property interests" in the Lockport Public Square, and in another count, it sought, on behalf of the petitioners as taxpayers, to quiet title to the property in question in the City of Lockport. This complaint was also dismissed pursuant to defendant's motion on January 14, 1971, ostensibly on the basis that the court's order of dismissal in the prior City of Lockport case was res adjudicata as to matters sought to be raised in the case filed in the names of Petitioners.
• 1 Counsel for the respective parties to these appeals have raised substantive questions as to the status of title to the Lockport Public Square. We note, however, that the order appealed from in the City of Lockport case denied petitioners the right to intervene in the lawsuit as parties-plaintiff, and it is, therefore, clear that the merits of the questions are not yet before this court (Strader v. Board of Education, etc., 413 Ill. 610, 110 N.E.2d 191; People v. Thompson, 101 Ill. App.2d 104, 242 N.E.2d 49). Accordingly, we express no opinion as to the merits of the question of title to the public square. We have concluded that the only issues presently before us are, whether the trial court's order denying petitioners' leave to substitute themselves as parties-plaintiff in the City of Lockport case was proper, and, if not, whether the trial court abused its discretion in refusing to grant petitioners' motion for leave to file a request for rehearing in opposition to defendants' motion to dismiss previously allowed. Our determination of these questions, as shown in the body of this opinion, renders unnecessary a ruling on the trial court's action in the subsequent case filed by the petitioners individually.
The right of petitioners to substitute themselves, for the original plaintiff-City of Lockport, as parties-plaintiff in the City of Lockport case, and thus to intervene in the lawsuit, is governed by section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110 par. 26.1). The pertinent part of the Section provides:
"(1) Upon timely application anyone shall be permitted as of right to intervene in an action: * * *
(b) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant will or may be bound by a judgment, decree or order in the action; * * *
(6) An intervenor shall have all the rights of an original party, except that the court may in its order allowing intervention, whether discretionary or a matter of right, provide that the applicant shall be bound by orders, judgments or decrees theretofore entered or by evidence theretofore received, that the applicant shall not raise issues which might more properly have been raised at an earlier stage of the proceeding, that the applicant shall not raise new issues or add new parties, or that in other respects the applicant shall not interfere with the control of the litigation, as justice and the avoidance of undue delay may require."
Defendants contend that the trial court acted properly in refusing the requested substitution and intervention on the ground that the motion therefor was not timely. (Childress v. State Farm Mutual Auto Ins. Co., 97 Ill. App.2d 112, 122, 239 N.E.2d 492, 497). Defendants also contend that since petitioners elected in the first instance to assert their rights through the City of Lockport, they are in no position to come in later and object to the City's determination not to appeal the allowance of defendants' motion to dismiss. We do not agree with such contentions.
It is apparent that at the time the complaint in the City of Lockport case was filed, the petitioners reasonably believed that the only manner in which the claimed rights of the public to the property in question could be protected, was through litigation nominally brought by the City. This procedure was appropriate, because in Droste v. Kerner, 34 Ill.2d 495, 217 N.E.2d 73, which was the precedent then to be followed in such cases at such time, a taxpayer or property owner, in absence of statute, had no individual standing in equity to enjoin an alleged misuse of property held in a public trust, unless he could show that he would suffer special damage different in kind and degree than that allegedly suffered by the public at large. On September 29, 1970, this principle was overruled in Paepcke v. Public Building Commission of Chicago, 46 Ill.2d 330, 263 N.E.2d 11. Petitioners, therefore, can hardly be penalized for originally seeking to protect the rights of the taxpayers and property owners in the only manner which was then apparently available as a result of Droste v. Kerner, supra. We likewise do not believe that the existence of the statute (Ill. Rev. Stat. 1969, ch. 24 par. 1-5-1) permitting taxpayers to bring suit against any person for recovery of money or property belonging to a municipality, presented petitioners with a viable procedural alternative at the time the original suit was filed in this cause. The statute referred to specifically directs that such actions are to be brought in the name of the municipality, and if, as here, the municipality is willing to prosecute the case at the outset, there was no reason for petitioners to seek recourse specifically under that statute.
• 2, 3 During the period of time, therefore, that the City was nominally prosecuting the case, the rights of petitioners were amply protected, and only when the City determined to withdraw from further prosecution of the case, did petitioners properly deem it necessary to seek to substitute themselves as parties-plaintiff in place of the City. We note that after entry of the order of dismissal on May 25, 1970, the City decided not to litigate further on June 1, 1970. Petitioners filed their motion for substitution on June 23, 1970, only 22 days after the City had declined to proceed. Under such circumstances, we do not believe that petitioners could validly be charged with laches or undue delay in asserting their individual rights as taxpayers or property owners in seeking substitution and intervention in the cause, for the reason that until that time their rights as well as those of the general public were adequately represented (see People v. Thompson, 101 Ill. App.2d 104, 242 N.E.2d 49, 51.) We, therefore, conclude that the trial court was wrong in holding that petitioners' motion for substitution was untimely. We feel, also, that, under the clear mandate of Section 26.1(6) of the Civil Practice Act quoted above, petitioners were entitled to intervene in the lawsuit as a matter of right at such time.
We note that in subparagraph (6) of the same section of the Civil Practice Act, even in cases where intervention must be allowed as a matter of right, the court may provide certain limitations upon the intervening parties in its order allowing intervention as justice and the avoidance of undue delay may require. In People v. Thompson, supra, the Appellate Court relied upon this section in upholding the lower court's order precluding intervention in a quo warrantor proceeding by individual taxpayers seeking to question the legality of the creation of a school district. The court in that case concluded that even if the trial court had allowed intervention, justice would have required a decision on the merits as against the taxpayers, largely for the reason that too long a period of time had elapsed between the creation of the school district and the inception of the quo warrantor proceeding seeking to challenge the legality of its existence. The new district had become operative, had hired personnel, had levied taxes, and the formerly existing partially adjoining school districts had been dissolved. The Appellate Court there felt that it would have been futile to allow the taxpayers the right to intervene in an action which necessarily would ultimately have been decided adversely to their position. We cannot say that such would clearly be the case in the action before us. Evidence in the record here discloses that the property in question has been used contemporaneously as a public square and for school purposes for decades at the time this suit was begun, and only when it was indicated that defendants were contemplating the sale of the property to third parties, and thereby asserting their right to do so, did the problem as to the title actually become apparent to the petitioners. There seemed to be no practical need for the institution of a lawsuit seeking a judicial determination of the title to the real estate until the ownership question as between the city and defendants was raised by the proposed actions of defendants. It was only at that time that the character of the property (as viewed by petitioners) was sought to be changed by defendants from a use by the school district to a contemplated sale to private third parties.
• 4 Defendants' opposition to the right of petitioners to be substituted as parties-plaintiff in the City of Lockport action, was also to the effect that, in any event, petitioners are estopped from asserting the claimed rights of the City of Lockport in the property in question because of long acquiescence and delay in questioning the rights of the defendants to the property in question. Defendants rely principally upon Hickey v. Illinois Central Railroad Co., 35 Ill.2d 427, 220 N.E.2d 415, where the doctrine of estoppel was reluctantly applied by the Supreme Court of this State against the State and City of Chicago, and thus prevented them from contesting the right of the Illinois Central Railroad in and to the fee in substantial portions of Chicago lakefront property. It was shown, however, in that case, that over a period of more than 50 years all government entities involved had consistently and by overt action disclaimed any interest in the property in question, and continuously acted as if the fee were held by the railroad. In the instant case, if petitioners' documentary evidence is to be believed, the City of Lockport, with some insignificant exceptions, treated the property as permissively used by the school districts for school purposes. The record also shows that the property was contemporaneously used over the years for those ...