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Cook v. Mighell Construction Co.

OPINION FILED AUGUST 5, 1976.

CHARLES M. COOK ET AL., PLAINTIFFS-APPELLEES,

v.

MIGHELL CONSTRUCTION COMPANY, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lee County; the Hon. JAMES E. BALES, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The plaintiffs filed their complaint to enjoin the defendant from obstructing a former public highway in the city of Dixon. Defendant's motion to dismiss the complaint was denied and the trial court entered a temporary injunction requiring the removal of the barrier placed over the street by defendant. Defendant subsequently moved to dissolve the injunction. This was denied, and on August 22, 1975, a permanent injunction was entered restraining the defendant from obstructing the roadway and street known as VanBuren Avenue in the city of Dixon. This appeal followed.

An understanding of the facts in this case would be best served by examination of the following diagram of the street in question and the contiguous property appurtenant thereto.

The property herein is located in the Gilbraith subdivision, which was platted in 1869 and by which the one-block street, VanBuren, was dedicated. In 1887 VanBuren Street was vacated from First Street north to the railroad tracks. However, since that time the street has been maintained by the city of Dixon and was last paved by the city of Dixon in 1958-59. The plaintiffs, Decker, Mulkins and Cook, occupy residences on the three lots as indicated in the diagram above. Mighell Construction Company is the owner of the property abutting Van Buren Street south of the railroad tracks on both sides of the street. A factory is located on that portion of the Mighell property to the west of VanBuren street, and the Mighell property to the east side of VanBuren is unimproved. This property was formerly owned by the Freeman Shoe Company. On January 24, 1975, the defendant erected a barrier across VanBuren at the southerly end of VanBuren at its intersection with First Street. This barrier prevented the plaintiffs from egress or ingress from VanBuren Street to First Street. The city of Dixon ordered the barrier taken down, but it was re-erected on January 27, 1975. This suit followed, seeking to remove the barrier across VanBuren and to enjoin the defendant from obstructing VanBuren in any manner whatsoever.

Succinctly stated, the issue in this case is whether a party who owns the property on both sides of a vacated street, and therefore by law the property formerly constituting the street, can be properly enjoined from closing the street on the complaint of other owners who abut the street on the basis that these property owners have a private legal right of access to the vacated street.

The defendant argues that where any street is vacated the title thereto passes to the owners of the abutting lots free from any easement on the part of the municipality, citing Prall v. Burckhartt (1921), 299 Ill. 19, 132 N.E. 280. The plaintiffs have cited the statute relating to the vacation of streets or alleys by a municipality as found in section 11-91-2 of the Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11-91-2), which provides as follows:

"Except in cases where the deed, or other instrument, dedicating a street or alley, or part thereof, has expressly provided for a specific devolution of the title thereto upon the abandonment or vacation thereof, whenever any street or alley, or any part thereof, is vacated under or by virtue of any ordinance of any municipality, the title to the land included within the street or alley, or part thereof, so vacated, vests in the then owners of the land abutting thereon, in the same proportions and to the same extent, as though the street or alley has been dedicated by a common law plat (as distinguished from a statutory plat) and as though the fee of the street or alley had been acquired by the owners as a part of the land abutting on the street or alley."

Defendants, likewise, have cited the comparable statute found in section 9-127 of the Illinois Highway Code (Ill. Rev. Stat. 1975, ch. 121, par. 9-127) pertaining to vacation of highways, which, in pertinent part, is substantially the same as the vacation of streets by a municipality as set forth above.

The rule of the above statutes and the cases cited by the defendant is generally acknowledged by both parties to be that when a street is vacated, title to the land on which the street is located becomes absolute in adjacent lot owners and their ownership extends to the middle of the street. See Prall; Counselman v. Wisconsin Lime & Cement Co. (1921), 299 Ill. 84, 132 N.E. 289; People ex rel. Alexander v. City of Mt. Vernon (1949), 404 Ill. 58, 88 N.E.2d 45.

Plaintiffs contend, however, that the foregoing rule does not extinguish the rights of plaintiffs as property owners abutting the vacated platted street from ingress and egress over the vacated street.

In its memorandum opinion the trial court relied upon Welter v. Eaton (1937), 366 Ill. 143, 7 N.E.2d 855. This case is not appropos on its facts to the case before us, for there the holding was summarized in the single headnote as follows:

"The rule that one cannot complain of the vacation of a street without showing special damage or that he owns property abutting on the highway sought to be closed applies only to a vacation by public authorities and does not apply where private owners attempt to vacate, fence or plow up highways designated on a plat, the rule in such case being that purchasers of lots in the platted subdivision have a right, as against the plattor or his privies, to have the tracts marked on the plat as roadways kept open for their use, regardless of whether they have been accepted as highways by the authorities." 366 Ill. 143.

All properties in question herein are included in the Gilbraith subdivision platted in 1869, at which time VanBuren Street was dedicated to public use. As indicated above, on April 22, 1887, the city of Dixon, by appropriate ordinance, vacated VanBuren Street from First Street north to the railroad tracks.

We agree with the contentions of the plaintiffs that they have the right of ingress and egress on the vacated street in question. In Wattles v. Village of McHenry (1922), 305 Ill. 189, 137 N.E. 114, the court, in considering the application of the ...


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