Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re Petition To Annex Certain Territory

SEPTEMBER 20, 1972.

IN RE PETITION TO ANNEX CERTAIN TERRITORY TO THE VILLAGE OF SOUTH BARRINGTON — (NATIONAL BANK OF AUSTIN, AS TRUSTEE, ET AL., OBJECTORS-APPELLANTS.)


APPEAL from the Circuit Court of Cook County; the Hon. HELEN F. McGILLICUDDY, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Objectors, Winston Development Corporation and National Bank of Austin, as trustee under Trust Number 4657, appeal from the order of the Circuit Court of Cook County which found that the Petition for Annexation was valid.

On appeal the objectors contend:

(1) That the petitioners did not meet all the requirements of the annexation statute;

(2) That the affidavit of DiMonte was insufficient to make a prima facie case;

(3) That the property sought to be annexed was not contiguous to South Barrington; and

(4) That the annexation statute was unconstitutional as applied to the objectors' property.

On February 17, 1970, the annexation petition was filed with the Clerk of the Circuit Court of Cook County. On February 19, 1970, notice of the proposed annexation was published in the Barrington Courier Review. There was no newspaper published in South Barrington. The Barrington Courier Review has a general circulation in the annexing municipality and territory. Petitioners own over 155 acres within the area sought to be annexed. Objectors own approximately 150 acres within the area sought to be annexed.

• 1 The objectors' first contention was that the petitioners did not meet all the requirements of the annexation statute. The objectors contend that a copy of the newspaper notice was not filed with the clerk of the annexing municipality and that the notice of the annexation petition hearing was not properly published.

The statute involved specifically states in pertinent part:

"* * * This notice shall be given by publishing a notice thereof at least once in one or more newspapers published in the annexing municipality, or, if no newspaper is published therein, then in one or more newspapers with a general circulation within the annexing municipality and territory. A copy of this notice shall be filed with the clerk of the annexing municipality." Ill. Rev. Stat. 1969, ch. 24, par. 7-1-2.

The objectors rely on People ex rel. Hopf v. Village of Bensenville, 132 Ill. App. 907, 272 N.E.2d 50, for the proposition that notices required by the annexation statute are mandatory and that failure to give the required notice to the village clerk was fatal. In the Hopf case, the statute involved specifically stated that "no annexation of such land is effective unless service is had and the affidavit filed as provided in this section." (Ill. Rev. Stat. 1969, ch. 24, par. 7-1-1.) It was clear from the language of the statute in question in the Hopf case that failure to comply with its provisions was fatal. In the case at bar there was no mandatory language which stated that annexation was ineffective unless a copy of the published notice was filed with the clerk of the annexing municipality.

• 2 It was uncontroverted that notice of the hearing on the annexation petition was published in the Barrington Courier Review. Objectors contend petitioners failed to establish that there was no newspaper published in South Barrington and therefore a jurisdictional element was missing. In the annexation petition the petitioners stated that there was no daily or weekly newspaper published in the annexing municipality, but that the Barrington Courier Review was a weekly newspaper having a general circulation within both the annexing municipality and the territory to be annexed. Objectors introduced no evidence that there was a daily or weekly newspaper published in the Village of South Barrington. The objectors were not prejudiced in any way by the petitioners' conduct in fulfilling the notice requirement of the annexation statute.

• 3 The objectors contend that the legal description of the property in the annexation petition was defective. Objectors rely on People v. Astle, 337 Ill. 253, 169 N.E. 185, which held that where the description of the property contains a patent ambiguity, the uncertainty in the description cannot be cured by extrinsic evidence. In the Astle case, the lines constituting the boundaries did not meet and therefore the lands of the conservancy district were not completely enclosed as required.

In the case at bar, the boundaries met and enclosed the land in question. The surveyor testified that he was unable to definitely ascertain the boundaries of the area from the legal description alone. The surveyor also testified that he could definitely ascertain the boundaries of the area by checking the legal descriptions in the recorder's office and making a field survey. The Supreme Court in People v. Knapp, 28 Ill.2d 239, 246, 190 N.E.2d 774, stated that:

"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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.