APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 9, 1976.
Plaintiffs appeal from an order finding a 13.3-foot strip of their property to be a public highway by prescription as a result of having been used as a public way for vehicular traffic for 15 years, and denying plaintiff's request for injunctive relief. On appeal, they contend the judgment is against the manifest weight of the evidence.
Plaintiffs as owners and beneficiaries of two adjoining tracts of land located at the southwest corner of Scott Street and Grand Avenue in the Village of Franklin Park filed their complaint for an injunction to restrain the defendants from interfering with their use, enjoyment and possession of the east 13.3 feet of parcel two. They allege that the defendants have entered into a contract to improve the roadway at the intersection by placing pavement over the said 13.3 feet of their property.
Defendants answered that the strip in question had been used by the public as a roadway for 15 years prior to June, 1971, and consequently is a highway by prescription pursuant to section 2-202 of the Illinois Highway Code. (Ill. Rev. Stat. 1975, ch. 121, par. 2-202.) In addition, defendants counterclaimed and prayed that plaintiffs be enjoined from interfering with the defendants or the public's further use of the 13.3-foot portion of the property.
The following pertinent evidence was adduced at trial.
Since 1971 he was the owner of a 50-percent beneficial interest in the trust which owned property described as parcels one and two. Parcel two is approximately 33 feet wide and 233 feet long. It includes a 5 foot 2 inch sidewalk, several concrete stops for parking, a 14-foot area recently paved with black top, and another area of approximately 10 feet previously paved. The 13.3-foot strip in question is the easternmost portion of the parcel. Scott Street, a north-south street, is a two-lane road abutting parcel two south from Grand Avenue.
He had observed cars parked perpendicular to the building on parcel two approximately 100 times over 21 years. He striped the area from the building line approximately 30 feet 6 inches.
In 1973 the Village's consulting engineer indicated that the Scott Street improvement would include part of parcel two. On May 2, 1975, defendants' job superintendent, Mike Johnson, stated that the improvement would come within one foot of the building located on parcel one. He did not know if parked cars would prevent traffic on Scott Street from travelling in a straight line with the eastern edge of a sidewalk beginning at the next intersection to the south at Greenfield. He did not know if the previous owners had ever placed any signs indicating that the black top area was private property on the 13.3 feet in question. He always drove his automobile as far to the eastern side of Scott Street as possible to avoid collisions with vehicles parked on the 13.3-foot-portion of parcel two.
Defendants stipulated that they would not encroach within 20.7 feet of the building and agreed that only 13.3 feet from the center of the section line would be taken from parcel two.
He surveyed this area in 1965 and observed cars moving north and south along Scott Street. There were two lanes of pavement and the street was approximately 35 to 36 feet wide. He did not need flagmen to divert traffic during the three days he was surveying along the section line. Power poles and parked cars prevent traffic from travelling over the 13.3-foot area in dispute. To the south of the 13-foot area on an undeveloped tract of ...