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04/16/87 the People Ex Rel. David v. the City of Goreville Et

April 16, 1987

CONSERVATION, PLAINTIFF-APPELLEE

v.

THE CITY OF GOREVILLE ET AL., DEFENDANTS-APPELLANTS

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, THE DEPARTMENT FILED THE TRANSCRIPT OF THE TRIAL IN HUDGENS

v.

DEAN. THAT TRANSCRIPT CONSTITUTES THE PRIMARY SOURCE FOR THE FACTS OF THIS CASE, AND WE NOW REVIEW THE TESTIMONY GIVEN IN THAT PREVIOUS LITIGATION.



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

THE PEOPLE ex rel. DAVID KENNEY, Director, Department of

507 N.E.2d 1247, 154 Ill. App. 3d 1091, 107 Ill. Dec. 878 1987.IL.512

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

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. JONES and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Defendants, the village of Goreville and its mayor, appeal from orders of the circuit court of Johnson County finding in favor of plaintiff, the Illinois Department of Conservation (the Department), in a dispute over a road which is located in the village of Goreville and runs through Ferne Clyffe State Park. The circuit court granted the Department's motion for summary judgment on its petition for a permanent injunction which sought to enjoin the village from exercising any control over the road which the Department had barricaded. Defendants contend genuine issues of material fact remain in the case, arguing particularly that the road had become a public highway by prescription or, alternatively, that the Department had entered into an agreement with the village to reopen the road. We reverse the order granting summary judgment and remand.

The dispute over this road has been the subject of previous litigation, including a decision by this court as well as one by our supreme court. The controversy arose in 1973 when the Department closed the road. The Department had obtained title to the property in Johnson County on which the road was located in the late 1940's from Emma Rebman and subsequently began using the land as a State park. The park extends partly into the village limits of Goreville. The entire road is located in the portion of the park which is within the village limits. The Department closed the road after studies showed it to be dangerous due to its poor condition and steep grades. In the initial litigation, the village sued the Department in order to force it to rebuild and reopen the road after the Department had ordered it closed. After a decision favorable to the village in the circuit court, this court reversed the judgment, finding the action against the Department barred by the doctrine of sovereign immunity, but noting the action could be brought in the Illinois Court of Claims. (Hudgens v. Dean (1977), 53 Ill. App. 3d 126, 368 N.E.2d 944.) Subsequently, the supreme court affirmed our judgment. Hudgens v. Dean (1979), 75 Ill. 2d 353, 388 N.E.2d 1242.

In the present litigation, the Department filed a petition for a permanent injunction in order to prevent defendants from exercising control over the road, which the Department has kept barricaded. Defendants filed a counterclaim, alleging that the road had become a public highway by prescription and that it was a municipal street, and alleging that the Department had entered into an agreement to turn over control of the road to the village. The trial court subsequently dismissed defendants' counterclaim on February 2, 1984. Defendants then filed two affirmative defenses, which, like the counterclaim, asserted the road was a public highway under municipal control or that the Department had agreed to reopen the road. Ruling on a motion filed by the Department, the court struck defendants' second affirmative defense based upon the alleged contract. Both sides then moved for summary judgment. The trial court denied defendants' motion and granted summary judgment in favor of the Department.

Several witnesses testified regarding use of the road. A. L. Foster testified he moved to Goreville in 1913 and has lived there since then. He stated that hundreds of people used the road, including families who lived in the area as well as the general public. Foster testified he never asked anyone for permission to use the road. In 1916, Foster began a business in which he transported tourists from a local train depot to the scenic area that today is the State park. He personally used the road from 1916 until it was closed in 1973. Foster testified that a man named Dennison Gholson owned the property prior to Rebman and that Gholson sold it to Rebman in 1925 or 1930. Rebman invited people to come to the area, according to Foster. Foster further stated he had served as a village official in Goreville for 32 years and that during his tenure the village cooperated with local farmers to maintain the road, with the village sending volunteers to do the work. In conflicting testimony, Foster at one point stated the village board had authorized expenditures for maintaining the road, but later said no village money was spent on materials or labor. Foster also testified that after the State had acquired the property, the State came to Goreville officials to obtain a permit to surface the road.

Cloyd Miles testified that he lived in Goreville beginning in 1910. He rode a pony on the road as a young boy. Miles testified that many people used the road, including farmers hauling produce and other supplies.

Dessie Mays, who was 76 years old at the time of trial, testified that she lived in Goreville all of her life and that the public has always used the road. She personally has used the road and has never asked anyone's permission to do so. She considered it a public road. Mays stated that Rebman invited people to come to the area and that Rebman charged 10 cents admission.

Ed Jenkins, who moved to a farm near the park area in the 1930's, testified also that the public used this road. He stated he never asked anyone's permission to use the road, but that Rebman did charge admission to the park for a time. He stated she charged this admission 25 to 30 years ago, meaning 1950 or 1945. He stated that Rebman hired a man to work on the road in the 1930's but that the town also sent volunteers to maintain the road.

R. C. Martin testified he used the road often before he moved from Goreville in about 1920. He stated that the public had used the road since 1910. He never sought anyone's permission or paid anyone to travel on it. He did acknowledge that Rebman had ...


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