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Lincoln-way Sch. Dist. v. Vil. of Frankfort





APPEAL from the Circuit Court of Will County; the Hon. THOMAS W. VINSON, Judge, presiding.


This is an appeal from an order of the circuit court of Will County dismissing the plaintiff's complaint because it is barred by the statute of limitations and by laches.

The plaintiff raises the following points upon appeal: (1) the trial court erred in ruling that the statute of limitations bars plaintiff's action; (2) the trial court erred in ruling that plaintiff was guilty of laches under the facts of this case; (3) the trial court erred in determining that the sewer line is located under the right-of-way of Colorado Avenue.

On January 13, 1966, Lincoln-Way Community High School District 210, hereinafter known as plaintiff, entered into an agreement to purchase two parcels of land on contract from Marie Shilling, executor and trustee under the last will and testament of Otto C. Shilling. Plaintiff became owner in fee on October 15, 1974. The parcels of real estate are in the village of Frankfort at the intersection of Colorado Avenue and Route 45. The school property is bounded on the south by Colorado Avenue and on the east by Route 45. Plaintiff purchased the real estate so that a high school could be built at a future date. Before the plaintiff purchased the property, it obtained title insurance and had the real estate surveyed. There were no drawings or plats prepared in addition to the survey. Colorado Avenue commences at U.S. Route 45 then runs westerly and slightly to the south along the entire length of the tract traversing the majority of the north half of Section 21 in Frankfort Township. It appears that Colorado Avenue lies almost entirely within the southern boundary of plaintiff's property. Plaintiff contends that this was not discovered until 1974, when a survey was made preparatory to the building of the new high school. Colorado Avenue was not created by way of a grant of easement or dedication. Plaintiff also contends that this was not discovered until 1974.

While Colorado Avenue has not been dedicated by plat or by recorded grant of dedication, a 1893 Frankfort Township plat and a 1900 Frankfort Township plat indicate the existence of a road at approximately the same location then as today. It is not disputed that Colorado Avenue has a long history of prescriptive use. The general public has used Colorado Avenue for purposes of travel for approximately 50 years.

Herman Barlewort, who owned, farmed and lived upon plaintiff's land until 1963, testified by stipulation that, "the public in general had free, unrestricted, open and notorious use in common to Colorado Avenue. He is not aware of any request by the public in general to use Colorado Avenue or its continuous right-of-way."

In general, this use has been confined to the blacktop surface of the road. It is disputed whether the public used any portion of the land north of the blacktop surface.

The township highway commissioner, Walter Yunker, had the duty of maintaining Colorado Avenue. He was helped by an employee, Francis O'Brien. Colorado Avenue had been a gravel road until 1966 when it was resurfaced. The township highway commissioner and his helper maintained the road by plowing it, grading it, and resurfacing it. Their maintenance of Colorado Avenue was confined to the blacktop area except when they mowed weeds and grass during the summer months. The grass and weeds were mowed from the roadway to the limits of cultivation, a distance of approximately 10 feet.

There is testimony that at some time during 1973 the ditch which runs along Colorado Avenue was reshaped and restructured by the township highway commissioner. The ditch had existed for some 40 years prior to its reshaping.

Originally, a rail fence and subsequently a hedge fence ran along the south part of the plaintiff's property north of the travelled portion of Colorado Avenue. These fences were the southern limits for plowing and cultivation. Although the original fence no longer exists, remnants of the hedge fence still remain. In March, 1975, Herman Barlewort located the south fence line of the tract at various points along Colorado Avenue by stakes with attached red flags. It was photographed showing its relation to the tract's southern limits of cultivation to Colorado Avenue, the roadway ditch, and the sewer line manhole covers.

It appears from the record that the fence line is not parallel to the ditch. The distance between the fence line and the ditch increases as they extend in a westerly direction along the southern boundary of plaintiff's land, from 10 to approximately 15 feet. No one is sure who built the fence, why it was built, or when it was built. It is apparently unclear whether the fence line was built to represent the limits of public use of Colorado Avenue.

Early in 1966 the Village of Frankfort, hereinafter known as defendant, entered into negotiations with the Association of Franciscan Sisters for the extension of defendant's sanitary sewer service to the Sister's property, commonly known as St. Francis Woods, which is situated in Section 15 of Frankfort Township. The property is located east of plaintiff's property across Route 45. The sewer facilities are located southeast of plaintiff's tract across Colorado Avenue.

The village engineer, Robert E. Hamilton, drafted alternate plans for the sewer connection. The plans for the most direct route from the Sisters' property to the sewage treatment facilities were rejected because of the difficulty in obtaining the necessary easements. A more circuitous route along the north side of Colorado Avenue was used. The final sewer plans were to route the line east down St. Francis Road, then south along U.S. Route 45 to Colorado Avenue, then west along the north side of Colorado Avenue to the sewage treatment facility.

In the spring of 1967, the Sisters agreed that a sewer main would be constructed and then dedicated to the village. This was memorialized by a resolution of the defendant on June 5, 1967. The Sisters were to obtain the necessary easements and permits for the sewer route.

It appears that the defendant did not consider eminent domain proceedings or attempt to obtain easements or have a boundary survey made. It also appears that none of defendant's board members questioned whether Colorado Avenue had been dedicated. The plans for the sewer line were approved at the May 8, 1967, meeting of defendant's board.

The plaintiff's board president, Elias Brown, a member of its board, W.W. Morrison, and its superintendent of buildings and grounds, Frank Goetschel, attended that meeting. The proposed high school was to be located at the west end of the plaintiff's property. The minutes of the village board meeting state that Robert Hamilton told the three men, "about the depth of the sewer line at the West end of the High School property." There is nothing to indicate that the three men inquired about the plaintiff's boundaries, easements over ...

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