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02/05/88 First National Bank of v. the Village of Mundelein

February 5, 1988

FIRST NATIONAL BANK OF LAKE FOREST, TRUSTEE, ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS

v.

THE VILLAGE OF MUNDELEIN, DEFENDANT-APPELLANT AND CROSS-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

519 N.E.2d 476, 166 Ill. App. 3d 83, 116 Ill. Dec. 584 1988.IL.146

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

This case involves the Mundelein Industrial Park (park), an industrial subdivision located in the Village of Mundelein, Lake County, Illinois. It lies south of Allanson Road, a paved, dedicated public road and consists of some industrial sites fronting on Tower Road, the main north-south street in the park. Within the park, there is also a small cul-de-sac called Turret Court. Most of the lots have been sold and are improved with a variety of industrial buildings. The park is divided into two sections, unit I, which was developed in the late 1960s and unit II, which was established in the mid-1970s.

Defendant, Village of Mundelein, appeals from a jury verdict which found that Tower Road and Turret Court (roads) are public roads. Plaintiff First National Bank of Lake Forest, trustee under trust No. 5142 (also known as the Park Allanson Trust), owns a number of lots in the park. Plaintiff Edward Jacks is one of the beneficiaries of said trust and has the power of direction regarding the same.

Plaintiffs filed a three-count complaint on March 29, 1985. Count I sought declaratory judgment that the roads are public and, therefore, owned by defendant. Count II sought damages of $150,000 for work done on the roads and its ancillary structures. Count III sought damages of $150,000 for lost sales of property in the Mundelein Industrial Park (park) and resulting carrying costs., Defendant filed a counterclaim seeking money damages from plaintiffs to repair the roads.

A jury trial in this cause of action commenced on December 1, 1986. At the close of all the evidence, the court ruled as follows: (1) plaintiffs' motion for a directed verdict as to count I was denied, and therefore, the issue was submitted to this jury; (2) defendant's motion for a directed verdict as to count II was granted on the basis of governmental tort immunity; (3) defendant's motion for a directed verdict on count III was sustained on the ground of governmental tort immunity; and (4) plaintiffs' motion for a directed verdict on defendant's counterclaim seeking damages for the repair of the roads was granted. The jury found that the roads had been dedicated to the public, and the village appeals from that verdict and the judgment entered thereon. Plaintiffs cross-appeal from the trial court's decision to grant defendant's motion for a directed verdict on count III of the amended complaint based on the defense of governmental tort immunity. Plaintiffs do not appeal the trial court's granting of defendant's motion for a directed verdict on count II of the amended complaint.

The original plat of subdivision of the part designated in the trial court as unit I was prepared in 1967 by Neil Lee, a surveyor working for Donald Englehardt, the owner at that time. After Tower Road was built, a number of lots in unit I were sold off by Englehardt. A few years later, in the early 1970s, Englehardt sold off the remaining lots, together with about 50 acres of vacant land to the south, and title was placed in plaintiffs' trust. Plaintiff Edward Jacks, who had power of direction over the trust, hired Frank Furlan, an engineer and surveyor, to lay out and design a plat of subdivision on the 50 acres commonly known as unit II. The only access unit II had to the system of public roads was over

After the infrastructure of unit II was completed in the mid-1970s, numerous lots were sold, and various industrial buildings were constructed through 1982. In 1982, a lawsuit was filed against defendant by Lynne Hight, who had fallen from her bicycle after riding over a crack in the pavement in that part of Tower Road in unit I. The issue of ownership of Tower Road then arose. On July 2, 1982, Mayor McCrae of Mundelein wrote Jacks a letter notifying him that the village was taking the position that the roads were private thoroughfares.

The primary issue of this case is whether or not the roads were dedicated through common law dedication to defendant, Village of Mundelein. The jury verdict held that the roads were dedicated public roads. Where conflicting evidence is presented to a jury, its verdict will not be disturbed on appeal unless its verdict is unreasonable, arbitrary, or not supported by the evidence. Milwaukee Mutual Insurance Co. v. Wessels (1983), 114 Ill. App. 3d 746.

Defendant argues that the evidence was insufficient to meet the elements required for a common law dedication. It is well established that the elements required for a common law dedication are: (1) donative intent; (2) the acceptance by the public; and (3) clear and unequivocal evidence of the first two stated elements. Reiman v. Kale (1980), 83 Ill. App. 3d 773.

Initially, defendant contends that the evidence does not clearly and unequivocally establish that plaintiffs intended to donate the land over and under the roads to defendant for public streets. Plaintiffs cite the following as evidence of the requisite donative intent.

Edward Jacks testified that he was one of the beneficiaries of the trust and was the person primarily responsible for the subdivision and development of unit II in the park. Jacks testified that he intended the roads to be dedicated public roads, that he never sent bills to lot owners for upkeep and maintenance of the roads, and that he never restricted access thereto or erected "private" signs thereon. Further, Jacks said he never told prospective purchasers that the roads were private.

Jacks also testified that he sold lots to the public and that he paid defendant substantial fees for plan review and construction inspection based upon the village engineer's estimates of costs for public improvement.

Next Neil Lee testified that he was a surveyor with over 20 years' experience and was presently employed with R. E. Allen & Associates. He stated that he had prepared the plat of subdivision for unit I in the park. He then said that it was the custom and practice of Lake County surveyors at the relevant time to draw the lot lines at the boundaries of the street if the street was to be dedicated to the public. He said that if the subdivider's intention was to make a private road, the lot lines normally extended to the center of the thoroughfare. Viewing the plat of subdivision for unit I, Lee noted that the lot lines stopped at the edge of Tower Road and that this showed it was to be dedicated to the public.

Frank Furlan, an engineer and registered land surveyor since 1953, stated that he practiced primarily in Lake County. Furlan testified that he had prepared the plat of subdivision for unit II of the park in 1974. He stated that prior to drawing up the preliminary plat, he contacted defendant to determine the subdivision regulations and met with the village engineer. Furlan then stated that he submitted a preliminary plat to defendant for its consideration, and the latter reviewed it and sent it back with no major changes. He said that he then prepared the engineering drawings for public improvements, i.e., streets, water mains, and sanitary sewers, and submitted them to the defendant's engineer, who made a number of recommendations and revisions, most of which were followed by plaintiffs.

Furlan then testified that the plat of subdivision was shown to all village officials and that they approved of and signed the plat. He stated that the plat complied with the provisions of the defendant's subdivision ordinance. He said further that if the roads had been intended to be private, they would have been designed to different standards. He testified that a private road would have cost substantially less than the one which ...


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