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04/08/87 the Village of Cypress, v. Fred Green

April 8, 1987





506 N.E.2d 762, 154 Ill. App. 3d 119, 107 Ill. Dec. 19 1987.IL.457

Appeal from the Circuit Court of Johnson County; the Hon. Louis G. Horman, Judge, presiding.


JUSTICE JONES delivered the opinion of the court. KARNS, P.J., and WELCH, J., concur.


Plaintiff, the Village of Cypress (village), brought suit against the defendant, Fred Green, a resident of the village, seeking damages for obstruction of a strip of land that was claimed by the village as a public road within its corporate limits. The village claimed that the land had become a public way through prescriptive use by the public for 15 years pursuant to section 2-202 of the Illinois Highway Code (Ill. Rev. Stat. 1983, ch. 121, par. 2-202). The trial court found for the village and assessed damages against the defendant in the amount of $4,000 actual damages and $1,000 punitive damages. On appeal defendant Green contends (1) that the court lacked jurisdiction to decide the case because the owner or owners of the property on which the road was located were not joined as parties defendant and (2) that the evidence failed to support the court's finding that the road in question was a public road. The defendant additionally contends (3) that the record was insufficient to support the trial court's award of $4,000 actual damages and (4) that the court's award of $1,000 punitive damages was improper. We affirm in part and reverse in part and remand this cause for a redetermination of the amount of actual damages to be assessed against the defendant.

The plaintiff village is an Illinois municipality located in Johnson County. Prior to 1931 the main north-south street within the village was a State route referred to as "Public Road." Subsequent to 1931, the State constructed a new highway, Route 37, which ran through the center of the village one block west of the old Public Road. A diagonal section of the old Public Road crossed Route 37 and that part on the east side of Route 37 connected the village's main street, the old Public Road running north and south, with Route 37 at the north end of town. On a map prepared by the predecessor of the Illinois Department of Transportation (Department) in 1931, this diagonal section was shown to be abandoned. It is this diagonal section, measuring approximately 200 feet in length, that is the subject matter of the village's suit.

In its amended complaint against the defendant, the village alleged that the portion of the old Public Road in question had been used by the general public "continuously, openly and for public purposes" for more than 15 years and that the defendant, on August 13, 1984, and at various times thereafter, had used heavy equipment to remove the tar and chip surface of the road and had piled dirt on the road, rendering it impassable. The village sought damages from the defendant in an amount necessary to remove the dirt from the roadway and restore the road to a safe and passable condition. The village additionally sought punitive damages, alleging that the defendant, "after notice to desist, [had acted] wilfully and maliciously and with a wanton disregard of the rights of the plaintiff." The defendant answered the plaintiff's complaint, denying that he was without legal right to act as he had and, in an amended affirmative defense, asserted that any use of the property by the public as a road had been with the consent of the owner and that his actions had also been taken with the consent of the present owner of the property.

At trial evidence was adduced regarding the public's use of the previously abandoned portion of the Public Road in question. Various witnesses, including defendant Green, testified that the road had been used by the public for more than 15 years. The village clerk, Mary Jo King, testified that the road had been used continuously by the public since 1948. Former mayor Carol Racey testified that the road had been continuously traveled as a public roadway for the entire 13 years that she had lived in the village. Deputy Sheriff Robert Harner testified that the public had used the roadway for more than 16 years. The defendant's witness, Wilford Dunn, a village board member, testified that he had been familiar with the property for 25 years and that it had always been used by the public. Former board member Ray Gore, age 65, testified that he had lived in the village all of his life and that the roadway in question had been in the same location and had been used continuously by the public for as long as he could remember. The defendant's son-in-law, Frank Moake, testified that he had been familiar with the property for 25 years and that it had always been used by the public. Finally, defendant Green testified that the public did not start using the roadway in question until 1938 or 1939, but he admitted that since that time it had been used continuously by the public.

In further testimony defendant Green stated that in 1938 or 1939, he had made himself a place to park on the property in question with the permission of Molly and Jess Hunter, who owned the property. He had leveled off a portion of the land where the old Public Road had been and had put some gravel on it so that he could park his truck there. At about that same time the general public started to use the property to reach Route 37 from the east.

In 1981 the defendant's son-in-law, Frank Moake, purchased some property at a foreclosure sale that he claimed included the roadway in question. There was some confusion as to the title or description of the property purchased by Mr. Moake. Robert Krudwig, an abstracter in Johnson County, testified that title to the roadway was presently held by heirs of Jess Hunter, who had purchased the property in 1919. Moake stated that he had paid taxes on eight acres of property that he claimed included the area where the roadway was located. Frank Moake took possession of the property adjoining the roadway and built a house. After moving into his new home, Mr. Moake and his father-in-law, defendant Green, decided to fill in the roadway and plant the entire area, in order to expand the lawn beside Moake's house and to keep cars from running past his house.

On August 13, 1984, defendant Green began filling the roadway with dirt, using a large tractor. Upon learning of this activity, Carol Racey, the mayor of Cypress at that time, rushed to the scene and tried to communicate with the defendant by waving her arms and shouting. The defendant saw her but ignored her and continued to work. Mrs. Racey consulted with the sheriff and the State's Attorney and subsequently hired a bulldozer and returned to the scene. By this time the road was completely covered with dirt. Confronted by the mayor and Deputy Sheriff Harner, the defendant signed a paper in which he agreed to restore the street to its former condition. He subsequently did some grading and dumped some rock on the roadway, but it was not properly repaired. The mayor tried on two or three occasions to get the defendant to restore the road to its former condition, without success. At the time of trial the road remained covered with dirt.

The roadway, prior to the defendant's actions, had had a hard surface from years of "tar and chipping." This was the same kind of surface as on the other streets in the village. Former mayor Carol Racey testified that the village had maintained the portion of roadway in question, although it was unclear from the plaintiff's exhibits how much money was actually expended on the portion in question. The plaintiff's exhibits showed that in 1965 motor fuel tax funds had been spent to clean ditches, drains, and right-of-ways on the Public Road and to reseal part of the entire Public Road running through the town. Similar work was done in 1970 and 1971. This evidence was corroborated by the defendant's witness, village board member Wilford Dunn, who stated that it had been 10 years since village money had been spent on the the roadway in question, which he described as having an "oil and chip" surface.

Former mayor Carol Racey testified that although the roadway had been completely covered with dirt by the time she saw it after the defendant and his son-in-law had worked on it, she had seen "scrapes at the end of the dirt pile where they had scraped up some of the pieces of [the oil and chip]." Both the defendant and his son-in-law, Frank Moake, testified that they had merely covered the roadway with dirt, leaving the hard surface intact. Frank Moake described the road as an "oil and chip" road with sand ...

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