APPEAL from the Circuit Court of Johnson County; the Hon.
STUART CLUSTER, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Defendant, Anthony T. Dean, appeals from an order entered following a bench trial in the Circuit Court of Johnson County requiring him as an individual, and not in his capacity as the Director of the Illinois Department of Conservation, together with his "agents, servants, and employees," to rebuild a road which runs through Ferne Clyffe State Park and which defendant had ordered closed to vehicular traffic, torn up and barricaded from public use. On appeal defendant raises the following issues: (1) that he is immune from individual liability since he was acting in good faith pursuant to his official duties as Director of the Department of Conservation; (2) that the instant case is in fact a suit against the State of Illinois and is therefore barred by the doctrine of sovereign immunity; (3) that the plaintiffs do not have any real property interest in the disputed road; (4) that assuming there was an easement, that easement has been extinguished; (5) that assuming an easement existed, defendant had the lawful authority to close the road to vehicular traffic; (6) that the injunctive relief granted by the trial court was clearly improper.
The pertinent facts are as follows: Ferne Clyffe State Park is a State park located in Johnson County and partly extends into the village limits of Goreville; the road in question, now known as Ferne Clyffe Road, runs in a southerly direction from the Village of Goreville into Ferne Clyffe State Park; the Village of Goreville was incorporated in 1900; although the State Park was not established until some time after 1949, the area had been used as a park and recreation area for many years prior to that by tourists and the inhabitants of Goreville; Ferne Clyffe Road existed as far back as 1908 and plaintiffs offered the testimony of numerous inhabitants of Goreville as to the constant use of that road by themselves and the general public from that time up until its closing in 1973; during the early years of its existence the road was maintained periodically by volunteer workers from the community.
Sometime between 1920 and 1935 Miss Emma Rebman acquired the land that comprised the park area and within which Ferne Clyffe Road is located. Following this transfer of ownership the public continued to maintain the road and to visit and use the park as a recreational area. In 1949 Miss Rebman conveyed her part of the park area to the State to make a State park. The State widened and paved Ferne Clyffe Road. However, due to the topography of the land, the road was always in poor condition and required continuous maintenance. In 1965 the State acquired adjoining property and built a new entrance road to the park which served to divert the traffic away from Ferne Clyffe Road.
Defendant became Director of the Department of Conservation of the State of Illinois on January 13, 1973. Prior to his becoming Director a task force comprised of various experts conducted an intensive study lasting several years of the various problems in Ferne Clyffe and other State parks and recommended to the defendant that the road which is the subject of this suit be closed to vehicular traffic. The study showed that the road itself was dangerous for automobile traffic because of the steep grade and crooked horizontal alignment and that a satisfactory road could not be built because of the peculiar road base and topographical conditions which encouraged the rapid deterioration of the road. Furthermore, it was found that the rock, plant and soil formations in the area to which the road led were being damaged to the point of destruction from excessive use by people, automobiles, and parked trailers. The study recommended that by closing Ferne Clyffe Road and bringing people into the park by the new entrance road to a better suited area the fragile plant life which was then deteriorating could perhaps be saved.
On the basis of this report and several meetings with Department engineers and site planners, and based upon the responsibilities, purposes and powers of the Department of Conservation as set out by statute, the defendant, in his capacity as Director of the Department of Conservation, ordered that the road in question be closed to vehicular traffic. Pursuant to this order, 2700 feet of Ferne Clyffe Road was disked and the pavement scarified and removed in August of 1973. Barricades were also placed at both ends of this stretch of road.
In November of 1973 plaintiffs filed suit against the defendant individually, and not in his official capacity, seeking an injunction compelling him to rebuild and reopen the road, or in the alternative, $65,000 damages. After a trial the court held that Ferne Clyffe Road had been used openly, notoriously and adversely by the public far in excess of the 15-year statutory period for establishing a public highway by prescription and further that the long continued use by the public created an implied dedication of the road which made it a part of the street system of the Village of Goreville. Consequently, the trial court found that defendant's act of closing the road constituted an assumption of authority which he did not have and hence was an illegal act. Since illegal acts performed by defendant could not be acts of the State or of the Department of Conservation, the court held that the defendant could be proceeded against individually. Based upon these findings, the court issued a mandatory injunction ordering the defendant, "and his agents, servants and employees" to remove the barricades and to rebuild and restore Ferne Clyffe Road for public use.
We consider first the allegation that the trial court erred in holding that the instant action is not a suit against the State of Illinois nor against its Director of Conservation but is a suit against the defendant individually because we find this issue determinative of this appeal. In the trial court and now on appeal defendant argues that this action, even though brought against him as an individual, is in fact a suit against the State which is barred by the doctrine of sovereign immunity. We agree.
Article IV, section 26, of the Illinois Constitution of 1870 provided that "[t]he State of Illinois shall never be made defendant in any court of law or equity." This section was changed by the 1970 Illinois Constitution, article XIII, section 4, which provides that: "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." Pursuant to the authority granted in the Constitution, the General Assembly enacted "An Act in relation to immunity for the State of Illinois" (Ill. Rev. Stat. 1973, ch. 127, par. 801) which provides that the State shall never be made a defendant or party in any court except as allowed in the Court of Claims Act. The latter enactment (Ill. Rev. Stat. 1973, ch. 37, par. 439.8) provides the various instances in which the State may be sued in the Court of Claims.
• 1, 2 As discussed, the State of Illinois was not nominally made a defendant in this action. However, it is well settled that the parties formally denominated in a cause of action are not singularly conclusive as to whether a suit is barred by the doctrine of sovereign immunity. Substance takes precedence over form, and the matter must be determined by an examination of the issues presented and the relief sought. (Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 101 N.E.2d 71; Posinski v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 376 Ill. 346, 33 N.E.2d 869; E.H. Swenson & Son, Inc., v. Lorenz, 36 Ill.2d 382, 223 N.E.2d 147; G.H. Sternberg & Co. v. Bond, 30 Ill. App.3d 874, 333 N.E.2d 261; People ex rel. Maciuba v. Cheston, 25 Ill. App.3d 224, 323 N.E.2d 40; Struve v. Department of Conservation, 14 Ill. App.3d 1092, 303 N.E.2d 32.) The leading case establishing the rule on the question of whether a suit against an officer is in fact one against the State is Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944. In Schwing the State of Illinois had acquired legal title to land for park purposes from the holder of a tax deed. Thereafter, since the Department of Public Works and Buildings was charged by statute with the supervision and management of State parklands, the director of that department was sued by the holder of a note and trust deed of record at the time of the State's purchase, to foreclose the Department's interest in the property. In ruling that the claim against the Director was barred by the doctrine of sovereign immunity, the court held:
"A suit brought against an officer or agency with relation to some matter in which defendant represents the State in action and liability, and the State, while not a party to the record, is the real party against which relief is sought, so that a judgment or decree for plaintiff, although nominally against the named defendant as an individual distinct from the State, could operate to control the action of the State or subject it to liability, is, in effect, a suit against the State. [Citations.] In such cases where the rights of the State would be directly and adversely affected by the judgment or decree sought, the State is a necessary party defendant, and, if it cannot be made a party, the suit must be dismissed as to it.
* * * It is thus manifest that the principal interest adverse to plaintiff in this suit is the interest of the State of Illinois in the property, and the relief sought and obtained was in reality against the State although ostensibly against one of its officers. The decree of foreclosure and sale against the Director of the Department of Public Works and Buildings is, accordingly, an effort to coerce the State by judicial order.
`A suit to foreclose a mortgage involving real estate to which the State has legal title is one against the State which cannot be maintained without its consent.'" Schwing v. Miles, 367 Ill. 436, 442-44.
Examining these standards in light of the facts before us we consider first that the action of closing the road in question was ordered by Dean in his capacity as the Director of the Department of Conservation in furtherance of the powers and duties assigned to him by statute which included: the care, control and supervision of all State parks so that they may be used for the benefit and enjoyment of all the people of Illinois (Ill. Rev. Stat. 1973, ch. 105, par. 465); the conservation and preservation of the fauna and flora (Ill. Rev. Stat. 1973, ch. 127, par. 63a2); the preservation, through limitation of future use, areas of great natural scenic beauty (Ill. Rev. Stat. 1973, ch. 127, par. 63a19); and, the enforcement of the laws of the State and the rules and regulations of the Department in or on any lands owned, leased or managed by the Department (Ill. Rev. Stat. 1973, ch. 127, par. 63a28). We are not presented with any allegations or evidence that Dean had any personal or individual interest in the Ferne Clyffe road. Rather, the evidence shows that he received a recommendation to close the road from a task force of engineers, site planners, land managers, the district forester and district biologist, and ...