APPEAL from the Circuit Court of Madison County; the Hon.
THOMAS R. GIBBONS, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the Circuit Court of Madison County declaring a certain roadway to be a public highway and ordering the defendant road commissioner to maintain the roadway. Three issues are raised on appeal. The appellant road commissioner of Edwardsville township contends the circuit court was without jurisdiction of the action because of the failure to join all necessary parties. In addition, the appellant maintains that mandamus is an inappropriate remedy and that the evidence is insufficient to establish a public roadway by prescription.
Plaintiffs Mike and Linda Carson initiated the action by filing a petition for mandamus requesting the court to declare a certain roadway to be a public highway and to order the defendant road commissioner to maintain the tract. The litigation involves a roadway lying entirely within the Edwardsville Township. The factual issues for determination are essentially not in dispute.
The road extends in a north-south direction for approximately 2472 feet. The southern outlet of the road intersects with a public access road running parallel to Interstate Route 270 in an east-west direction. The road is not a through street as its northern boundary terminates at the residence of the plaintiffs. Four additional homes also adjoin the roadway. A business is located at the southern terminus of the road, and customers of the concern use a portion of the roadway to enter the premises.
The southern portion of the roadway follows the course of an easement for road purposes approximately 16 feet wide. The northern portion of the road follows the course of an easement for road purposes approximately 32 feet wide. The roadway is outside the boundaries of the easement by approximately seven feet in the southern portion and by 11 feet in the northern section. The width of the road varies from seven to 10 feet and at points is subject to simultaneous passage by two automobiles. A railroad right of way belonging to the Illinois Terminal Railroad Company intersects the southern section of the roadway. The trackage and signal wires had been removed from the intersection three to five years prior to the initiation of this action.
The fee owners of the road, except a portion 16 feet by 210 feet at the northern boundary, are Paul and Rose Newman. While the tract in question did appear on their yearly real estate tax bill, it was stipulated that no proof of actual payment of taxes on this parcel of land existed. The adjoining landowners hold easements over the roadway.
Testimony regarding the use of the road indicates that four classes of persons used the road: (1) adjoining landowners; (2) social invitees of the landowners; (3) business invitees of the landowners, including those who entered to provide necessary services; and (4) persons who entered the roadway by mistake.
The road in question had been maintained by the office of the road commissioner for at least 20 years, and testimony of some witnesses indicated public maintenance had continued for over 30 years. Alfred Mateyka, the defendant road commissioner, had maintained the road from the time of his accession to office in 1959. He testified that he followed the maintenance policy of his predecessors with regard to the road until 1969. At that time, he discovered the road was actually private and ceased public maintenance. Regular maintenance included grading, oiling, and the laying of rock chips as well as regular removal of weeds and snow. In addition, under road culverts were installed in order to facilitate drainage. All of the improvements were accomplished without charge to the fee owner or adjoining landowners. During the period of maintenance, the roadway was considered as a public road for the purpose of determining the township share of motor vehicle fuel tax funds which were used for maintenance of township roads.
The appellant contends that certain necessary parties were not joined. According to the appellant, the Illinois Terminal Railroad owns a right of way across the roadway but was not notified of the suit in violation of section 6-323 of the Illinois Highway Code (Ill. Rev. Stat. 1975, ch. 121, par. 6-323). In addition, plaintiff alleges that George Heuer is the owner of certain property lying along the roadway with an easement over the road. The party residing on the property, Beluah Enyart, was notified of the litigation. She filed an answer denying all material allegations in the complaint, but did not appear in court.
1 The plaintiff's reliance on section 6-323 is misplaced. The statute is concerned with the laying out of a new road which could affect the existing operations of the railroad. The roadway here is already in existence, and the claim is only that it has become public by prescription. Notice is not required by the statute.
2 All persons who are legally or beneficially interested in the subject matter of a suit, and who will be affected by the decree fashioned by the trial court, must be joined in the litigation (Oglesby v. Springfield Marine Bank, 385 Ill. 414, 52 N.E.2d 1000). The joinder of necessary parties is jurisdictional, and the issue may be raised at the hearing, on appeal, or by the court on its own motion (Hobbs v. Pinnell, 17 Ill.2d 535, 536, 162 N.E.2d 361). Requirements of joinder are determined by the pleadings and the evidence, and not by the final decision in the case. Tri-Mor Bowl, Inc. v. Brunswick Corp., 51 Ill. App.3d 743, 366 N.E.2d 941.
It appears clear that the interest of both Heuer and the Illinois Terminal Railroad in the continuation of their respective easements could be affected by the decree fashioned by the court. While this would appear to require their joinder as parties, an exception to the inclusion of necessary parties must be considered.
3 The doctrine of representation applies when those before the court have the same interests as those who have not been made parties and are able to protect the interests of those absent. (Moore v. McDaniel, 48 Ill. App.3d 152, 158, 362 N.E.2d 382, 388; Clark v. Village of Milan, 3 Ill. App.3d 569, 572, 277 N.E.2d 895.) In this case, both the Schlueters and the Clintons held easements over the roadway. They were joined as defendants, appeared at trial, and were able to adequately protect the interests of Heuer and the Illinois Terminal Railroad. The fee owners of the roadway, the Newmans, held a superior interest and defended their rights, and consequently the rights of those claiming an easement interest, with vigor.
4 In addition, an affidavit filed on appeal indicates that both Heuer and Enyart owned an interest in the land asserted to belong to Heuer alone. Heuer was aware of the litigation and had given Beluah Enyart the authority to represent his interest. Mrs. Enyart answered the complaint but chose not to appear. Under these circumstances ...