APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from the judgment of the circuit court of Winnebago County dismissing the plaintiffs' complaint for money damages resulting from the vacating of a county road abutting the plaintiffs' property.
The property in question is located at the corner of a State highway known as FAS 1044 (also called Harrison Avenue) which runs east and west, and Bell School Road (a county highway also known as County Highway No. 26), which runs north and south and dead-ends at Harrison Avenue. The property extends about 1130 feet north of Harrison Avenue on the east side of Bell School Road and is improved with several buildings, including a restaurant and service station. It is divided into two parcels, one of which has approximately 375 feet of frontage on Bell School Road, the other adjacent parcel having about 759 feet of frontage.
On November 9, 1972, the County Board of Winnebago County passed a resolution vacating the south 560 feet of Bell School Road (Highway No. 26), which is the portion of the road running north from Harrison Avenue along the plaintiffs' property, so that the road then ran west from the northerly part of plaintiffs' property and then south and entered Harrison Avenue at a point some 1440 feet west of where it originally connected with Harrison Avenue. On October 11, 1974, the plaintiffs filed a complaint against the County alleging that as to each of the two tracts the County had deprived the plaintiffs of access to Bell School Road by vacating the south 560 feet of that road; that they were deprived "totally of access from Harrison Avenue and totally of direct access from Bell School Road," which reduced the value of their property; that no compensation had been paid for said damages and that the plaintiffs were entitled to damages in the amount (for both tracts) of $300,000. In a second count the plaintiffs alleged that the vacating of the 560 feet of Bell School Road diminished the value of their property by cutting off their access to Bell School Road and Harrison Avenue, and that this amounted to a taking of private property for public use without just compensation, in violation of the Illinois Constitution, whereby they are entitled to compensation in the amount of $300,000.
The County moved to dismiss the complaint for failure to state a cause of action based on the following grounds:
(1) That the Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 8-102) (officially the Local Governmental and Governmental Employees Tort Immunity Act) provides that notice must be given within one year of a cause of action accruing against a local public entity and in this case no notice was given within one year as required by that Act;
(2) That under the Tort Immunity Act (ch. 85, par. 2-103), a local public entity is not liable for an injury caused by adopting or failing to adopt an enactment;
(3) That the County Board relocated the part of the road vacated and hence there is no ground for action against the Board because, while section 5-109 of the Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 5-109) provides that compensation shall be paid for damages caused by vacation of a county highway, section 5-110 of that statute states that the provisions of section 5-109 "shall not apply where the county board has ordered a highway or part thereof to be vacated permanently to be reconstructed and dedicated in a new location," which is what occurred in this case.
The trial court granted the County's motion and dismissed the complaint. No testimony was heard.
In this appeal the plaintiffs contend that the suit in question is not subject to the notice provisions of section 8-102 of the Tort Immunity Act. It is the plaintiffs' theory that that Act and the notice provision thereof refers only to torts and this is intended to mean cases of personal injury arising out of an accident or the other usual bases of common law negligence. Plaintiffs admit there are no Illinois cases so holding but cite the United States District Court case of Luker v. Nelson (N.D. Ill. 1972), 341 F. Supp. 111, as indicating that the notice provisions were intended to apply only to the usual common law torts arising out of fortuitous events where the circumstances require prompt notice. As pointed out by the County in its reply brief, the Federal District Court's remarks were mostly dicta and what was actually decided in the Luker case was simply that the notice provisions of the Tort Immunity Act did not apply to a civil rights case under section 1983 of the United States Code.
• 1 While we have found cases involving other circumstances than the common garden variety of tort actions for negligence arising out of accidental injury, where the notice provisions of the Act have been applicable (false arrest Ramos v. Armstrong (1972), 8 Ill. App.3d 503; wrongful discharge Kepper v. La Salle-Peru Township School District No. 120 (1972), 7 Ill. App.3d 138; malicious prosecution Dear v. Locke (1970), 128 Ill. App.2d 356; wrongful demolition of a building Hecko v. City of Chicago (1975), 25 Ill. App.3d 572), we are not persuaded that the circumstances here are subject to the provisions of the Tort Immunity Act. It is true the notice provision of the Act speaks of an "injury or cause of action" but the title of the Act clearly indicates it is intended to apply to cases arising in one context or another under the law of torts. Thus if no tort is involved the notice provisions and the limitations of the Tort Immunity Act would not apply.
• 2 In the case before us, while the complaint asked for "damages" it also prayed for "compensation" and invoked that section of the Illinois Constitution guaranteeing that private property shall not be taken for public use without just compensation. The action, as conceived in these terms, is therefore analogous to a claim for compensation in an eminent domain proceeding rather than a tort for which damages are recoverable due to a breach of duty. The plaintiffs do not contend in their brief that any wrongful act was done merely that they were injured in their property rights by the exercise of the County's prerogative to vacate the road and since they were injured for a public purpose they are entitled to compensation. There is no element of tort here. No duty was owed to the plaintiffs which was breached by the change in the road and it is not alleged that the change was arbitrary or unnecessary. The plaintiffs merely analogize the vacation of the road to many other cases of loss of access under eminent domain proceedings and claim compensation for the results of the County's action, without in any way challenging the County's right to take such action. (See Department of Public Works & Buildings v. Wilson & Co., Inc. (1975), 62 Ill.2d 131, and No. 3 Oakland Suburban Heights, Inc. v. H.W. Bekermeier (1968), 94 Ill. App.2d 67; also McCue v. Brown (1974), 22 Ill. App.3d 236.) Under these circumstances we do not feel the notice provisions of the Tort Immunity Act should be held to bar the plaintiffs' suit. It would seem to us very technical to bar the plaintiffs' action for lack of notice under the circumstances of this case in view of the fact that the County Board was acting deliberately and according to law when the act complained of occurred and certainly had no need of notice as to its own resolution vacating the road. While the delay of almost two years in filing the complaint may give rise to some speculation as to the economic effect it produced, it gave the County no difficulty in defending the matter. The nature of the circumstances was not such as to make prompt notice a material element in this case and we do not think the action should be barred for lack of such notice.
• 3 Likewise, we do not consider section 2-103 of the Tort Immunity Act, which provides that a public entity "is not liable for any injury caused by adopting or failing to adopt an enactment or by failing to enforce any law," to be applicable to the circumstances of this case. As we view it, the question is one of compensation to an abutting landowner for loss of access. Whatever may be the considerations of public policy relating to this question we do not believe it is governed by the principles of tort law.
However, the County invokes a further statutory provision, being section 5-110 of the Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 5-110). This must be read in conjunction with ...