APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This was an action for declaratory judgment brought by the Plaintiff, Corbridge, asking that he and those holding under him had a common law easement over a portion of the premises of the defendant in the city of Rockford. On the date of trial the plaintiff amended his complaint and asked the court to declare the strip of land in question was a public highway within the meaning of Ill. Rev. Stat. 1969, ch. 121, sec. 2-202 contending that the property had been used as a public highway for more than fifteen years. The defendant asked for a continuance after the complaint was amended which the trial court refused to grant. The case was tried and the court held that a portion of the property in question was a public highway within the meaning of the aforementioned statute.
The property involved in this suit is located on the south side of Auburn Street in the city of Rockford. The plaintiff owned Lots 1 and 2 in Block 21 and the defendant owned Lots 3 and 4 in Block 21, Riverside Addition to the city of Rockford. These four lots are approximately 48 feet in width and 150 feet deep. The defendant owns the lots to the east and the plaintiff owns the lots to the west. To the west on the plaintiff's property is an areaway 10 or 12 feet wide running south to the east-west public alley which apparently the plaintiff has chained off. To the east of defendant's property is an alley 16 feet wide which runs along the easterly edge of his property through to Myott Street one block south of Auburn. Immediately to the south of both plaintiff and defendant's property is an alley 20 feet in width which runs the entire length of both plaintiff and defendant's property forming a T intersection with the 16 foot alley.
There is a building on defendant's property which covers all of Lot 4 and the easterly 9 feet of Lot 3 leaving a vacant area of approximately 39 feet of Lot 3. In 1941 the building on Lot 4 and a portion of Lot 3, was constructed as a theatre; the 39 foot area to the west was used as a parking lot. The plaintiff's building apparently covers a goodly portion except the west 10 or 12 foot alleyway of Lot 1 and a portion of Lot 2 with part of the building extending almost to the lot line in the middle part of Lot 2 leaving a parking area on the east of Plaintiff's building both north and south of that part of the building which extends over approximately to defendant's property. The Auburn Theatre was owned at one time by J. Albert Johnson and while being used as a theatre by mutual agreement the parking area on Lots 2 of the plaintiff and 3 of the defendant were used in the daytime for customers in plaintiff's property and primarily at night for patrons of the theatre. The plaintiff purchased his property in 1952 and the Auburn Street Hardware Inc. purchased the theatre and converted it into a hardware store in 1967.
There is access to the property of the plaintiff both from Auburn Street on the north and the 20 foot alley on the south. Defendant contends, however, that it is necessary or desirable for semi-trailer trucks to use the parking area in question for deliveries as it is difficult for them to use the alley running north and south and then westerly to his premises on the south.
As indicated, on the date of trial, the plaintiff was given leave to file an amended complaint contending that the parking lot in question was a statutory public highway in public use for more than 15 years. The parking lot in question, to-wit: the westerly 39 feet of Lot 3 was paved with concrete by the Auburn Theatre when the theatre was constructed; defendant and his predecessors in title paid the taxes on Lot 3 covering the parking lot; paid for the removal of snow thereon; and made repairs to the cement parking area, including blacktopping. At one time the defendant asked the plaintiff to share in the removal of the snow between the buildings and the plaintiff told him that he had never paid for any maintenance of the property in question and was not considering paying any. The statute in question here provides in pertinent part:
"* * * Highway any public way for vehicular travel which has been laid out in pursuance of any law of this State or of The Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, * * *." Ill. Rev. Stat. 1961, chap. 121, par. 2-202.
The testimony of the witnesses for the plaintiff in substance was that they went across the property as a matter of convenience to go to the premises of the plaintiff or the defendant; that they used it for the deliveries; had used it in going to and from school; and for delivering papers. The owner of a place of business at the westerly dead-end of the east-west public alley testified that trucks had used the property in question to get to his place of business but that the trucks could get to the place of business through the alley east of the Auburn Hardware building and by agreement with Mr. Jost of the Auburn Hardware Company he would only use the property in question when the alley was blocked. He further testified that the general public formerly had parked on the property in question during the day when the theatre was not in operation. Additionally, this witness testified that he could use the north-south driveway on the west portion of Corbridge's property for access but that it was now blocked with posts and a chain. The record indicates that Mr. Corbridge had blocked this alleyway on his property. Another witness testified he owned property on the south side of the east-west public alley and that he had used the property of the Auburn Hardware to go back and forth many times. He testified that he used the public alley to the east of the hardware building when he was forced to because of cars being parked on the property in question but that it was difficult to use the public alley. He further testified that customers of the Rathskeller restaurant parked on the property in question. The tenant of Corbridge leasing the rear part of the building testified that he had used the property in question but that delivery trucks delivered both to Auburn Street Hardware and to him through the public alley. The plaintiff in substance testified that he used the property in question for access for deliveries and for deliveries to his tenants. The plaintiff also put up a sign on the property on Lot 2 which read "Night parking courtesy of Illinois Painting Company." It can thus be seen that the property between the buildings primarily was used by the plaintiff and defendant and their customers or lessees as a matter of mutual agreement.
The plaintiff has cited a number of cases, to-wit: Taylor v. Wentz (1958), 15 Ill.2d 83, 153 N.E.2d 812; Stevenson v. Meyer (1957), 10 Ill.2d 335, 139 N.E.2d 740; Van Amburg v. Reynolds (1939), 372 Ill. 317, 23 N.E.2d 694; Verh v. Morris (1951), 410 Ill. 206, 101 N.E.2d 566; Mudge v. Wagoner (1926), 320 Ill. 357, 151 N.E. 276. In all five of these cases the roadway ultimately found to be a public highway was the only means of access to the plaintiff's property. As an example, in Stevenson, supra, the road in question was a cinder road extending across the southerly part of defendant's property running from the highway to plaintiff's property and to a cemetery. This was the only access to either the cemetery or to plaintiff's property. The roadway had been used by the public for access to the cemetery for over sixty years.
In People v. Waitkus (1964), 30 Ill.2d 335, 196 N.E.2d 668, the Supreme Court considered the use of a road for some fifty years and the plaintiff contended there that it was a public highway within the meaning of Sec. 2-202 of the Illinois highway code. The court there held that there the road was used mainly to go to and from a farm, and although used by the public and another farm owner, such use was not by the general public within the meaning of this statute.
In Gietl v. Smith (1926), 320 Ill. 467, 151 N.E. 253 we find a situation somewhat similar to the facts in this case. In Gietl certain property owners brought an action to restrain the owner of property in the City of Springfield for blocking a 16 foot alleyway located on the property of the defendant. The case was referred to a Master in Chancery and he found that for 40 years the strip had been used by the public as an alley and the trial court enjoined the defendant from obstructing such alley. The Supreme Court in reversing the trial court stated:
"The use of vacant and unoccupied land by the public is presumed to be permissive and not adverse. To establish a highway or public way by prescription it is necessary that the use shall be under a claim of right, adverse, open, notorious, exclusive, continuous, and uninterrupted for the statutory period. [Citations.] There must be something more than mere travel by the public over unenclosed lands to create a highway by prescription. Use by a few individuals, and not by the public generally does not constitute such use by the public as creates title by prescription. The user must be under claim of right in the public and not by mere acquiescence on the part of the owner * * *."
In Swinford v. Roper (1945), 389 Ill. 340, 59 N.E.2d 863, the Supreme Court again considered the use of a portion of the defendant's property use of a portion of the defendant's property under a contention that it had ripened into a public highway within the meaning of Sec. 2-202, Chapter 121, supra. In holding that it had not and in reversing the trial court the Supreme Court stated:
"* * * Where land is originally laid out and used as a private way for the use of adjoining landowners, its use by the public as well does not necessarily make it a public highway where the owner keeps it up and the public use is not clearly hostile or under a claim of right. To establish a prescriptive right in the public where it is claimed that such property constitutes a part of a public highway, it must be shown that a well-defined line of travel existed over the property for a period of fifteen years. The use must be adverse, under claim of right, continuous and ...