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Dorsey v. Spencer

OPINION FILED FEBRUARY 27, 1985.

CLYDE DORSEY ET AL., PLAINTIFFS-APPELLANTS,

v.

WAYNE SPENCER ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Morgan County; the Hon. Gordon D. Seator, Judge, presiding.

PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

This case concerns interpretation of article 6 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 6-101 et seq.), which provides for the administration of township and road district roads. More particularly, the case involves division 3 of that article (Ill. Rev. Stat. 1981, ch. 121, par. 6-301 et seq.), setting forth the procedure for laying out, widening, altering, or vacating such a road. In general, the legislative scheme appears to indicate an intention to have a standard procedure for handling each of the four matters. However, in regard to proceedings to vacate roads, division 3 contains several ambiguities. The validity of such a proceeding is at issue here. We hold that, despite some statutory language to the contrary, compliance with certain procedures, applicable to the three other types of procedures, is not a requisite to the valid vacation of a road.

On September 27, 1982, plaintiffs, Clyde and Dorothy Dorsey, filed a complaint in the circuit court of Morgan County against defendants, Wayne, Marceline, and Marlin Spencer, seeking a judgment declaring that a certain "public highway which is a township road" had never been vacated and continued to be a township road. On March 31, 1983, a second amended complaint was filed. Subsequently, defendants filed a motion to dismiss on the basis that the complaint had been rendered moot because a valid vacation of the road had been effectuated pursuant to article 6, division 3, of the Code. On September 26, 1983, the trial court allowed the motion, dismissing the complaint in bar of action. On October 13, 1983, plaintiffs filed a motion to reconsider which was denied on April 27, 1984. Plaintiffs have appealed. We affirm.

A brief description of the format of division 3 is necessary in order to understand this case. Section 6-303 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6-303) sets forth the methods by which proceedings to lay out, widen, alter or vacate may be initiated. This section contains a procedure, applicable only to proceedings to vacate, whereby the township or road district highway commissioner (commissioner) may commence a proceeding to vacate a road by filing a "certificate * * * to vacate [the road]" with the clerk of the township or road district and the county clerk. After the action has been commenced, the subsequent procedures follow the same pattern regardless of the type of action requested. By the terms of section 6-305 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6-305), the commissioner, upon filing of a certificate by himself or upon receiving a petition pursuant to section 6-303, is required to hold a hearing after giving a prescribed notice. After holding the hearing, the commissioner is required to "decide and publicly announce whether he will grant or refuse" the laying out, widening, altering or vacation of the road.

Defendants' motion to dismiss was accompanied by certificates of the Highway Commissioner of Morgan County Road District No. 12, which purportedly complied with the foregoing provisions of division 3 for vacation of the road in question. The dispute between the parties is as to whether subsequent requirements of division 3 were shown to have been satisfied.

Section 6-306 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6-306) contains a procedure for appealing a commissioner's decision, which refuses to permit the laying out, widening, altering or vacating of a road, to the county superintendent of highways (superintendent). There is no appeal at that stage from the granting of any of the four types of action. However, under section 6-311 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6-311), after an original decision by the commissioner to proceed or after an appeal to the superintendent and a decision by the superintendent to proceed, a final hearing is usually required to be held by the commissioner or, if an appeal has been taken, by the superintendent. After that hearing, a final order must be entered. If both the commissioner and the superintendent refuse to permit the requested action, that order of the superintendent becomes the final order. Section 6-315a of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6-315a) sets forth a procedure for administrative review by the circuit court of final orders.

An exception to the procedures set forth in the preceding paragraph which eliminates any necessity for a second hearing before the commissioner is provided by the following portion of the last paragraph of section 6-305:

"A final hearing may be held at the time of the preliminary or adjourned meeting if all damages have been released, all surveys and plats are made and there are no objectors." (Ill. Rev. Stat. 1981, ch. 121, par. 6-305.)

The documents attached to defendants' motion do not indicate that more than one hearing was held by the commissioner. Thus, the action taken was sufficient to vacate the road in question only if the commissioner complied with the foregoing provisions of section 6-305, or if compliance with these provisions was not required.

Plaintiffs contend that there was no showing of compliance with the foregoing provision for holding both a preliminary and final hearing at the same time because there was no showing that damages had been released or that "all surveys and plats [had been] made." Defendants agree that no such showing was made, but contend that neither the release of damages nor survey and plat requirements are applicable to proceedings to vacate. We agree with defendants.

Section 6-307 of the Code states in part that if the highway commissioner, or upon appeal from his decision, the county superintendent of highways, enters "a preliminary order for the laying out, widening, alteration or vacation of a township * * * road, the [commissioner] or [superintendent], as the case may be, shall cause a survey and plat of such township or district road to be made by a competent surveyor who shall report such survey and plat to the [commissioner] or [superintendent], as the case may be." The report is to contain "the courses and distances and [specify] the land over which such road is to pass." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 121, par. 6-307.

Section 6-308 (Ill. Rev. Stat. 1981, ch. 121, par. 6-308) provides that after a highway commissioner or, upon appeal from his decision, the county superintendent of highways has entered a preliminary order for the laying out, widening, alteration or vacation of a road, and a survey therefor has been completed pursuant to section 6-307, proceedings must "next be taken" to fix the damages which will be sustained by the adjoining landowners by reason of such "laying out, widening, altering or vacation." By the terms of section 6-309 (Ill. Rev. Stat. 1981, ch. 121, par. 6-309) damages may be determined either by agreement between landowners and the commissioner or by proceedings in eminent domain. However, the authority of the commissioner or superintendent to proceed in eminent domain is limited to proceedings to lay out, widen, or alter roads.

Section 6-311 of the Code, which provides for entry of a final order by the commissioner or superintendent, states:

"Within 20 days after the damages likely to be sustained by reason of the proposed laying out, widening, alteration or vacation of any township or district road have been finally ascertained, either by agreement of the parties or by condemnation proceedings, or within 20 days after such damages may have been released, the [commissioner] or the [superintendent], as the case may be, shall hold a public hearing at which he shall hear and consider reasons for or against the proposed laying out, widening, alteration or vacation of such road, and at which ...


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