APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
The Village of Plainfield, plaintiff, appeals an order of the circuit court dismissing an annexation proceeding instituted under provisions of section 7-1-2 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 7-1-2 (1971)).
An ordinance to annex certain territory was adopted by the Village and filed in circuit court. At the conclusion of the hearing on the objections, the court sustained eight of the objections and dismissed the ordinance after denying plaintiff's motion to amend the ordinance by deleting certain parcels.
The first issues presented for review is the propriety of sustaining an objection that the State of Illinois was an owner of property included in the ordinance and that plaintiff had failed to obtain the required written consent of the Governor.
Section 7-1-2 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 7-1-2) provides in part as follows:
"Where real estate owned by the State of Illinois, or any board, agency or commission thereof, is situated in unincorporated territory adjacent to a municipality, the corporate authorities of such municipality may annex any part or all of such real estate only with the written consent of the Governor of the State of Illinois or the governing authority of such board, agency or commission, without any such petition or proceedings required by this Article by resolution of such corporate authorities."
Failure to obtain consent for annexation from State authorities was held to be a fatal defect where a park owned by the State of Illinois was situated within a greater territory sought to be annexed by an ordinance proceeding in City of East St. Louis v. Touchette, 14 Ill.2d 243, 150 N.E.2d 178 (1958).
The property in question in the case at bar included part of the right-of-way for public highways within Route 30 and Route 1-55. Use and occupancy by the State are not disputed. The plats of dedication for the parcels constituting the right-of-way provide that the grantors "hereby grant, convey and dedicate to the People of the State of Illinois for the purpose of a public highway * * *." Plaintiff contends that a dedication of a right-of-way for highway purposes is a grant of a determinable fee to the State, with the grantor retaining the underlying fee, and that such interest as the State acquires is not ownership within the meaning of the statute requiring the Governor's consent for annexation. Defendants argue that the decisions of Illinois courts which construe the term "owner" to include the holder of an easement, under the disconnection statute, are controlling here, so that the Governor's consent is required under the annexation statute. The consent provision of section 7-1-2 has not previously been construed by any court.
The disconnection statute (Ill. Rev. Stat. 1971, ch. 24, par. 7-3-6) provides that "[t]he owner or owners of record of any area of land consisting of one or more tracts, lying within the corporate limits of any municipality * * *" may disconnect from the municipality if certain conditions are met.
In Woodward Governor Co. v. City of Loves Park, 335 Ill. App. 528, 82 N.E.2d 387 (2d Dist. 1948), the court held that a railroad with an easement to so much of the land in question as it found necessary to use was an "owner" within the meaning of the disconnection statute and could properly be the only signer representing that property on the petition to disconnect. The court said:
"In light of our analysis of the numerous cases, defining the word `owner' when used in statutory enactment, we are of the opinion that section 7-42 of the Cities and Villages Act of 1941 should be construed liberally; that it was enacted for the purpose of granting relief to taxpayers; that the class of persons entitled to its benefits, namely owners, are not necessarily persons owning a fee simple title; that in determining who are its owners, it is necessary to consider the purposes of the acts and all the surrounding circumstances. Applying those conclusions to our problem before us, we are clearly of the opinion that the Chicago & Northwestern Railway Company held such title in the premises involved that they were `owners' and were entitled to the relief sought under the foregoing statute * * *." 335 Ill. App. 528, 540-41, 82 N.E.2d 387, 393.
In an earlier case construing the word "owner" in the same disconnection statute, the court stated the general rule to be:
"The word `owner,' when applied to real estate, is not confined to the holder of a fee simple title, and, unless there is something in the act to the contrary, the legislature will be understood as using the word in its popular sense." (Vance v. Rankin, 95 Ill. App. 562, 565 (3d ...