APPEAL from the Circuit Court of Stephenson County; the Hon.
THOMAS E. HORNSBY, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 27, 1978.
This is an annexation case in which the Freeport Fire Protection District and the town of Silver Creek petitioned for a writ of quo warrantor against the city of Freeport to oust the city from jurisdiction over certain territory annexed by the city, which formerly was part of the town of Silver Creek and the Freeport Fire Protection District.
The basis of the quo warrantor writ is that the territories annexed are not contiguous to the city as required by section 7-1-8 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 7-1-8), and as the Illinois courts> have construed the term "contiguous." Section 7-1-8 provides that:
"Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality * * * may be annexed to the municipality * * *."
Section 7-1-3 of the Illinois Municipal Code provides that the annexation may be objected to on the ground that "(1) that the territory described in the petition or ordinance, as the case may be, is not contiguous to the annexing municipality."
The trial court, after a hearing, refused to issue the writ, finding that the territories annexed were contiguous within the meaning of the statute.
The contiguity of the territories annexed by the city depends on the connection between the two created by the city annexing a stretch of an east-west road known as Fairgrounds Road and a portion of Illinois Route 26, running north and south and intersecting Fairgrounds Road. Adjacent to the city's south boundary is a tract of land known as the Moll property, whose southern boundary is along the north edge of Fairgrounds Road and whose eastern boundary is along the western edge of Route 26. The confluence of the two highways and their relationship to the Moll and Micro properties is shown in the sketch below. (It will be noted that that portion of Fairgrounds Road east of Route 26 and that portion west of Route 26 do not exactly coincide, the eastern portion apparently being about five feet north of the western portion, where it intersects Route 26.)
By successive separate ordinances in the same session of the City Council, the city, following the Moll annexation, annexed a tract immediately south of Fairgrounds Road and immediately east of Route 26, known as the Micro Switch land; a tract adjacent to the Micro property along part of its southern boundary (Stephenson County Home); a farm, the Lamm Farm (lying immediately south of the Stephenson County property and extending westward to Route 26); part of the right-of-way of the Chicago, Milwaukee St. Paul Railroad, running through the Lamm Farm; and lastly,
"West Fairgrounds Road from South Walnut Road to a point 3921.92 feet west of Illinois Route 26; South Walnut Road from West Fairgrounds Road south to West Lamm Road; West Lamm Road from South Walnut Road to Illinois Route 26; Illinois Route 26 from a point 952 feet north of West Fairgrounds Road to the south line of the northwest quarter of the southwest quarter of Section 7, Township 26, North, Range 8, East; Illinois Route 26 from the north line of West Lamm Road southerly to the south line
of the northwest quarter of Section 18, Township 26, North, Range 8, East."
It is the city's theory that all the lands adjacent to the annexed roads are made contiguous by reason of touching these roads. Section 7-1-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 7-1-1), in part provides:
"The new boundary shall extend to the far side of any adjacent highway and shall include all of every highway within the area annexed."
This provision is obviously aimed at preventing a gap or hiatus whereby a portion of a highway adjacent to the annexed territory, which is a necessary and integral part of the annexed territory, would be isolated, creating problems as to traffic control, financing, maintenance, etc. The intent of the statute as amended in 1965 is a salutary one, but we do not believe it is intended to be used as the city is attempting to use it here. That is to say, that while a highway or road adjacent and parallel to territory validly annexed by reason of contiguity to a municipality is automatically annexed along with the new annexation, making the territory on its far side also eligible for annexation, the road must form a new boundary with the next annexation, not merely touch it in the manner of a "T" or at a corner. Many Illinois cases have considered the question of annexation of territory through annexation of roads and have rejected the theory invoked here by the city. (See People ex rel. Adamowski v. Village of Streamwood (1959), 15 Ill.2d 595 (which, while decided prior to the amendment requiring the annexation of adjacent highways, clearly asserts the objection to using highways or streets as a means of annexing the territory adjacent to the highway)), and the numerous Illinois appellate decisions on this point, People ex rel. Coojar Realty v. Village of Burr Ridge (1967), 81 Ill. App.2d 203; In re Annexation to City of ...