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Tucker v. Bunger

OPINION FILED JULY 30, 1982.

HARTLEY D. TUCKER ET AL., PLAINTIFFS-APPELLEES,

v.

CLARENCE BUNGER, COMMISSIONER OF HIGHWAYS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria County; the Hon. Charles M. Wilson, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The commissioner of highways of Timber Township in Peoria County, Clarence Bunger, planned to widen the Martin-Webber Road to a width, including the paved surface and ditches, of 66 feet. Six township residents who own land adjoining the Martin-Webber Road objected to the commissioner's proposed actions and filed a suit in the circuit court to enjoin the commissioner from widening the road absent statutory condemnation proceedings. Following a hearing on the complaint, the Peoria County court determined that condemnation proceedings would be required before the township could widen the road beyond its existing use, and accordingly the commissioner was ordered not to proceed. An appeal of that order has been perfected by the commissioner.

All parties concede that the road in question, as it is currently used and defined by existing fences that parallel the road, is narrower than the proposed width of 66 feet. The commissioner, however, relying on the rules that govern the statutory dedication of roadways to the public use, urges that the Martin-Webber Road was originally dedicated to include 66 feet of right-of-way, that such dedication was in compliance with the statute, and that non-use of the full 66 foot width during the intervening years does not negate the township's right hereto.

To understand the township position, it is necessary to review a bit of Illinois history. Prior to 1849, counties in the State were governed by a commissioner's court, the legislature having not previously authorized the township form of local government. Among the powers vested in the county commissioners was the power to open new roads. (Ill. Rev. Stat. 1845, ch. XCIII, sec. 17.) Such roads were required to be surveyed, and plats of those surveys were to be recorded with the county recorder. (Ill. Rev. Stat. 1845, ch. XCIII, sec. 33.) Then, by action of the legislature on February 12, 1849, which took effect April 16, 1849, voters of each county in the State were given the authority to elect the township form of organization by referendum in their respective counties. In counties so electing, three commissioners of highways were to be elected in each township at the annual township meeting. (1849 Ill. Laws 190, 192.) In addition, the three commissioners of highways were given authority to lay out new roads (1849 Ill. Laws 190, 212), provided that the road was surveyed and a copy of the survey was recorded in the office of the town clerk. No requirement existed for the township highway commissioners, as it did for county commissioners, to record the plat of survey of all new roads to be recorded with the county recorder. Ill. Rev. Stat. 1874, ch. 109, par. 9.

According to the appellant township, the Martin-Webber Road was dedicated according to statutory criteria in 1851. At that time, the law provided that:

"Whenever the commissioners of highways shall lay out * * * any road, either upon application to them or otherwise, they shall cause a survey to be made of such road, and shall incorporate such survey in an order to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same." (1849 Ill. Laws 190, 218.)

It was further provided that:

"All public roads to be laid out by the commissioners of highways of any town shall not be less than four rods [66 feet] wide * * *." (1849 Ill. Laws 190, 221.)

Finally, the town clerk was vested with the responsibility of keeping "custody of all the record books, and papers of the town * * *." (1849 Ill. Laws 190, 195.) At the trial of this cause, it was determined that the town clerk of Timber Township had in his possession no record of an order of the commissioners of highways or of a survey of the Martin-Webber Road. Such records had been either lost or destroyed.

The current commissioner of highways, the defendant herein, sought to rely on certain secondary records which were maintained by the superintendent of highways of Peoria County. From the testimony of Florence Wray, a former but long-time employee of the superintendent's office, it was learned that starting around 1931 or 1932 and continuing into the 1940's, she transcribed into typewritten form the existing records for each township in Peoria. Those records, subsequently maintained in the superintendent's office, contained a typed transcription that purports to be the commissioner's order of January 29, 1851, establishing the Martin-Webber Road and reciting a metes and bounds description of the road's path. A sketch of the road also appears on the transcription, but it was not drawn by Mrs. Wray. Another employee of the superintendent's office, Mr. Wayne Sayer, testified that the sketch "looked like" one he had drawn, in 1948 or 1949, without benefit of the original township records.

In concluding the statement of its position, the township contends that a highway right-of-way 66 feet in width was dedicated in compliance with the applicable statutes, and therefore, even though the full 66 foot width has not previously been utilized, the public's right thereto is not barred. The township relies on the case of Department of Transportation v. Thomas (1978), 59 Ill. App.3d 684, 375 N.E.2d 834.

The township residents who instituted this action urge that to sustain the township's position would defeat the purposes of our recording laws. They correctly note that current recording laws require recording with the county recorder of all surveys that describe dedications of land to the public use. Under these facts, where the survey was not recorded with the county recorder, they contend that there was no proper record notice of the dedicated width of the Martin-Webber Road. The property owners conclude the statement of their position by arguing that absent proper recording, the dedication in question must be a common-law dedication where the extent of the dedicated right-of-way is determined by actual use. They rely on the authority of Pilgrim v. Chamberlain (1968), 91 Ill. App.2d 233, 234 N.E.2d 75.

Our analysis of issues raised by this appeal required a review of the statutes in effect in Illinois in 1851. And that review compels us to agree with the township that in that year, the only recording requirement in effect to perfect the dedication of a township road was satisfied with a filing of the survey with the town clerk. Thereupon, it was the duty of the town clerk to maintain the survey as part of the records of the township so as to afford persons an opportunity for ascertaining the status of title to dedicated property. We cannot agree with the township that this opportunity was afforded under the particular circumstances before us.

• 1 Sometime between the early 1930's and the present, the township records were lost, misplaced or destroyed. There is no testimony in the transcript of the proceedings below to indicate the whereabouts of these lost records, but the present town clerk indicates that he has never seen the original 1851 records pertaining to the Martin-Webber Road. Yet, as a general rule, the loss or destruction of a public land record does not render ineffectual its force and operation as constructive notice. (Shannon v. Hall (1874), 72 Ill. 354.) The purpose of the recording laws is to protect the property rights of the grantee, in this case the township, and such rights are not extinguished or lost by the destruction of the record book. (Shannon v. Hall.) Though the case of the unwary purchaser who is deemed to have constructive notice of ...


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