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Stevenson v. Cosgrove

OPINION FILED MAY 20, 1976.

EUGENE STEVENSON, LA SALLE COUNTY SUPERINTENDENT OF HIGHWAYS, PLAINTIFF-APPELLANT,

v.

FRANCIS D. COSGROVE, PERU TOWNSHIP ROAD COMMISSIONER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. WENDELL THOMPSON, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Plaintiff Eugene Stevenson, La Salle County Superintendent of Highways, filed this mandamus action to compel Francis D. Cosgrove, Road Commissioner for Peru Township, to provide maintenance for West Lynnwood Drive located in the First Addition of Lynnwood Subdivision, an unincorporated area in Peru Township. Cosgrove defended the suit on two grounds: (1) the street had never been accepted into the township road system, and (2) available township road funds were insufficient to pay the cost of repair and maintenance work. Judgment was entered on the jury verdict in favor of defendant, and plaintiff appeals.

The plat for Lynnwood Subdivision's First Addition was filed in 1965. West Lynnwood Drive provided access into part of the subdivision from South Bluff Road and was designed to end in a cul-de-sac. However, before the street was completed, a plat for the Second Addition was filed which included a street extending West Lynnwood Drive into the Second Addition. As a consequence, the original cul-de-sac would not be needed. The Second Addition was never completed, and its streets have never been accepted by the township because they do not meet the county's specifications. At the time of trial, West Lynnwood Drive ended approximately at the boundary between the First and Second Additions where a barricade was placed across the road.

A letter from plaintiff to the County Industrial Development and Planning Committee, dated August 21, 1968, was introduced into evidence, which stated:

"An inspection of [Lynnwood] subdivision was made and it is the opinion of this office that the first subdivision cannot be accepted until the cul-de-sacs are completed and the other minor details, listed on the enclosed memos, are taken care of.

The second subdivision has now badly deteriorated and the bond which has been posted will not now cover the construction of the roads due to the fact that much of the work which was previously completed must now be reworked.

I recommend that the Committee or a subcommittee inspect this subdivision and take appropriate action to get the first subdivision in an acceptable condition this construction season and either get the second subdivision completed or abandoned."

The following year, although the cul-de-sac for West Lynnwood Drive had not been completed, plaintiff apparently decided the streets in the First Addition were acceptable. On October 21, 1969, at plaintiff's request, defendant sent a letter to plaintiff stating:

"This is to advise that upon inspection October 17, 1969, I find the roads in Lynnwood 1st Subdivision are acceptable to me. With conditions set forth by County Superintendent of Highways."

The following letter was then sent by plaintiff to the County Board Committee on October 22, 1969:

"* * * I find the roads in Lynnwood Subdivision acceptable to me at this time.

This acceptance is made with the condition that the portion of West Lynnwood Drive, that was disturbed with the addition of Lynnwood 2d Subdivision will be restored, including a new surface, before the roads in Lynnwood 2nd Subdivision are accepted."

Beginning in 1970, after the road was blacktopped, defendant plowed snow and salted West Lynnwood Drive when needed so that a doctor who lived in the subdivision would have access in and out of his home. In 1972 defendant occasionally patched holes, and thereafter, on advice of counsel, he provided limited repairs for safety purposes only, such as patching holes and placing several loads of gravel in an area where erosion had caused a soil slippage as the edge of the road washed away. The road itself had been cut out of a bluff, and the topography dropped sharply downhill to the Illinois River. At the location of the slippage, the road was passable by only one car at a time. Estimates for the cost of permanently repairing the road ranged from $50,000 to $90,000.

There was also evidence that defendant had installed a culvert on the road at one time, that West Lynnwood Drive was considered a township road for purposes of determining motor fuel tax revenues, but that it was not designated as a township road on a map sent by plaintiff to defendant in relation to a bridge project. Plaintiff testified that West Lynnwood Drive was inspected by him during and after construction, and that, according to his recollection, it met the standards and specifications of the county subdivision regulations in effect at ...


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