APPEAL from the Circuit Court of Cook County; the Hon. F.
EMMETT MORRISSEY, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 7, 1976.
The Village of Hillside, an Illinois Municipal Corporation, (Hillside) instituted this cause on September 5, 1973, seeking injunctive relief against the Chicago, Aurora & Elgin Railroad Corporation (CA&E) for allegedly causing and maintaining a nuisance at its right-of-way crossing with 51st Avenue. The CA&E answered, denying liability, and further filed a third-party complaint against the Village of Bellwood (Bellwood). Pursuant to the third-party complaint, Bellwood filed its answer and affirmative defense alleging that the area in question was a public highway by prescription. On October 24, 1974, the circuit court granted summary judgment in favor of plaintiff Hillside and against third-party defendant Bellwood, expressly finding that no public highway or easement by prescription existed over the 51st Avenue crossing of the CA&E right-of-way. Bellwood appeals from that judgment and from that part of an order which conditioned the stay of execution upon the payment $300 by Bellwood to Hillside.
The Villages of Hillside and Bellwood are neighboring communities in western Cook County which share a common boundary between the CA&E right-of-way to the south and the Chicago Great Western right-of-way to the north. The CA&E right-of-way lies entirely within the village limits of Hillside and is approximately 100 feet wide. The record reveals that a certain street called 51st Avenue runs north and south between the two villages. 51st Avenue is located between Mannheim and Wolf Roads, and is the only street which crosses the rights-of-way for this 1 1/2-mile distance. The instant controversy focuses on the 51st Avenue crossing of the CA&E right-of-way.
It appears that the 51st Avenue crossing is rather crude, and consequently, the flow of vehicular traffic across it causes clouds of dust to rise. The Village of Hillside effectively abated the problem on March 12, 1973, when it erected a steel barricade across the street along the southerly edge of the CA&E right-of-way. The barricade prevented the flow of any traffic on 51st Avenue. Shortly thereafter, the Village of Bellwood filed a complaint for injunction alleging easement rights over the crossing. Bellwood's complaint subsequently was voluntarily dismissed when the two villages reached a settlement and the barricade was removed.
On September 5, 1973, the Village of Hillside instituted this action against the CA&E. In its complaint Hillside alleged inter alia as follows: That the CA&E owned, operated and controlled the right-of-way in controversy; that said right-of-way contained stone, dirt, cinders, debris and gravel which had been placed there by the CA that for a long time said right-of-way was traversed by automobile and other vehicular traffic which caused great clouds of dust, debris and similar material to be dispersed into the air and the surrounding neighborhood; that said activities violated section 26 of chapter 100 1/2 of the Illinois Revised Statutes; and that as a result thereof, the Village of Hillside was deprived of peaceful enjoyment and its citizens and residents were damaged both in loss of property value and in health and safety. Hillside requested a temporary and permanent injunction against the CA&E from further use of the property as it was presently used.
In its answer the CA&E admitted ownership and control of the right-of-way, but alleged that it lacked information as to the truth of the other allegations. The CA&E also denied violation of the statute and that the Village of Hillside or its residents were damaged in any manner.
The CA&E also filed a third-party complaint against the Village of Bellwood. Therein it alleged that Bellwood previously had brought an action to enjoin Hillside from obstructing 51st Avenue where the same crossed its right-of-way, and in that action Bellwood asserted certain easement rights over and across its premises at 51st Avenue. The CA&E further alleged that the matters complained of by Hillside were the proximate result of the use by Bellwood of the alleged easement rights. The railroad prayed that Hillside's complaint be dismissed and that an injunction be entered, if at all, against Bellwood.
In its answer to the third-party complaint, Bellwood admitted that it previously had brought an action against Hillside in which it asserted certain easement rights over and across the CA&E right-of-way. Bellwood denied, however, that the alleged nuisance was the proximate result of its use of the easement. Subsequently, Bellwood amended its complaint to include an affirmative defense in which it alleged that the 51st Avenue crossing over the CA&E right-of-way was a public highway by virtue of chapter 121, section 2-202 of the Illinois Revised Statutes (Ill. Rev. Stat. 1973, ch. 121, par. 2-202) in that the crossing had been used by the public for vehicular travel in excess of 15 years, and that said use by the public had been open, notorious, continuous, uninterrupted, adverse, and under claim of right with the knowledge, but not with the consent of the CA&E. Bellwood further alleged that since the area in question was a public highway located entirely within the village limits of Hillside, it constituted a part of the municipal street system of Hillside, and therefore, the responsibility for the maintenance and repair of said area was upon Hillside and not upon Bellwood.
Hillside filed a reply to the affirmative defense and denied that the crossing was a highway as provided by statute. It admitted that the public used 51st Avenue, but denied that said use had been open and notorious and specifically denied that said use was adverse and without the consent of the CA&E. Hillside further denied responsibility for the maintenance and repair of the crossing since the area had not been dedicated to it and since the crossing was not a highway.
With the matter having thus been put at issue, both Hillside and Bellwood moved for summary judgment. Each party attached briefs in support thereof. The court considered the motions and found that factual questions existed. Accordingly, both motions were denied and the matter was set for trial. Thereafter, the cause proceeded to trial and evidence was heard. On October 24, 1974, the court entered an order granting Hillside's motion for summary judgment. The court expressly found that no public highway or easement by prescription existed over the 51st Avenue crossing of the CA&E right-of-way. Bellwood filed its post-trial motion, and said motion was denied. Bellwood then moved that its appeal act as a supersedeas without bond. The court granted the motion, but conditioned its order upon the payment by Bellwood to Hillside of $300. The payment was to compensate Hillside for the cost of the erection and removal of a barricade it had placed across 51st Avenue immediately after the court's order became enforceable.
On appeal Bellwood contends that (1) the third-party complaint filed by defendant CA&E should be dismissed for failure to state a cause of action; (2) Hillside's complaint for injunction should be dismissed for failure to state a cause of action; (3) the trial court erred in entering summary judgment in favor of Hillside; (4) the entry of summary judgment is against the manifest weight of the evidence; (5) the trial court abused its discretion when it allowed the introduction of additional evidence after all parties had rested; and (6) the trial court abused its discretion in conditioning the stay order upon the payment of $300 by Bellwood to Hillside.
• 1 We note that Bellwood raises the issue of the adequacy of the complaint and the third-party complaint for the first time on appeal. The law is well settled that only where a complaint, with all the intendments in its favor, wholly and absolutely fails to state a cause of action at all, can an objection be made to it for the first time on appeal. (Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162.) Numerous cases hold that any lesser deficiency must be preserved by timely objection. (E.g., Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550; Rosewood Corp. v. Fisher, 46 Ill.2d 249, 263 N.E.2d 833.) Upon careful review of the pleadings, we find that Bellwood's objections fall within the latter rule. Had Bellwood made timely motions to strike, both Hillside and the CA&E could have amended their respective complaints so as to alleviate the objections now raised on appeal. Bellwood has participated in a full trial on the merits, and it would be unfair to require the parties to relitigate the same issues. Accordingly, we hold that Bellwood has waived the right to challenge the sufficiency of the complaints. We hold further that the complaint and third-party complaint do not wholly and absolutely fail to state causes of action.
• 2 Bellwood next contends that the trial court erred in entering summary judgment in favor of Hillside on the issue of whether a highway by prescription existed. As we stated, both Hillside and Bellwood filed motions for summary judgment. When the matter came up for hearing, the trial court determined that a factual question existed, and therefore denied the motions. Thereafter, the matter proceeded to trial and the court heard evidence. Bellwood argues that the court's subsequent entry of summary judgment in favor of Hillside clearly was error in view of the court's express recognition of a factual dispute. We find this argument to be purely technical and we cannot agree that the circumstances require a reversal. Clearly, the word "summary" is a misnomer, and the order should have ...