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05/04/88 Wesley Rust, Fulton County v. Wesley Rust

May 4, 1988




523 N.E.2d 1125, 169 Ill. App. 3d 800, 120 Ill. Dec. 214 1988.IL.670

Appeal from the Circuit Court of Fulton County; the Hon. Kenneth Bath, Judge, presiding.


JUSTICE HEIPLE delivered the opinion of the court. SCOTT and WOMBACHER, JJ., concur.


The plaintiff, Virgil Yaste, appeals from the court's order dismissing his complaint for a writ of mandamus for the defendant Fulton County Superintendent of Highways to repair and maintain a certain roadway. We reverse.

For our purposes, the statutory terms "road" and "highway" are synonymous. (See Ill. Rev. Stat. 1985, ch. 121, par. 2-202.) Section 6-401 of the Illinois Highway Code (Ill. Rev. Stat. 1985, ch. 121, par. 6-401) provides that after landowners present a proper petition alleging that a certain road needs repair or maintenance, the county superintendent of highways shall hold a hearing. If the superintendent determines that the described road needs repair or maintenance by the appropriate highway commissioner, then he shall order the commissioner either to make proper or necessary repairs or to properly maintain the road. Ill. Rev. Stat. 1985, ch. 121, par. 6-401.

The record shows that the plaintiff wished to have the roadway at issue maintained so he could use it to gain access to a piece of his property. He previously reached his property by traveling across neighboring land with the neighboring landowner's consent. When the neighboring land was sold, the plaintiff lost his consensual passage to it. Thereafter, pursuant to section 6-401 of the Illinois Highway Code (the Code) (Ill. Rev. Stat. 1985, ch. 121, par. 6-401), the plaintiff petitioned to have the instant roadway maintained by the County.

The former Fulton County highway superintendent held a hearing pursuant to section 6 -- 401 and found that approximately 60 years ago there was a public road where the plaintiff requested current maintenance. However, he found that the road had been abandoned and that the county was not now required to repair or maintain it. Thereafter, the plaintiff brought the instant mandamus action, seeking to compel the Fulton County highway superintendent's repair and maintenance of the roadway.

The trial court initially dismissed the plaintiff's complaint, finding that a claim for mandamus did not lie. The plaintiff appealed; we reversed and remanded. We found that the court should have held a hearing to determine whether the road had been legally abandoned. We further held that although dismissal of the complaint would be proper after a finding that the road was abandoned, if the road were not abandoned it would be incumbent upon the court to order the highway superintendent to comply with the statute. Yaste v. Pedigo (1986), 144 Ill. App. 3d 1184 (unpublished Rule 23 order).

After its hearing on remand, the court found insufficient evidence that the roadway at issue was a dedicated public road. Additionally, the court assumed arguendo that the roadway was a public road; and it found legal abandonment as the road had not been used or needed by the public for over 60 years. It again dismissed the plaintiff's complaint. The plaintiff appealed, arguing that the court erred in dismissing his complaint. We agree.

Initially, we observe that the existence of a public road may be established pursuant to statute, by dedication, or by prescription. (Ill. Rev. Stat. 1985, ch. 121, par. 2-202.) The court found no dedication, but it did not address whether the instant passageway had been statutorily or prescriptively established as a road. The plaintiff presented a 1918 plat book indicating the road. He also presented several elderly residents of the area who testified that they recalled that the roadway both was used and maintained by the county during their youth. Additionally, the plaintiff testified that a portion of the instant roadway was maintained by the county in 1965. (See Meade v. Commonwealth Edison Co. (1977), 48 Ill. App. 3d 312, 362 N.E.2d 779.) Furthermore, we note that following his hearing on the plaintiff's petition, the county superintendent of highways found it "evident that there was a public road . . . [which may] have been maintained by the township [approximately 60 years ago]."

Obviously, to prove the establishment of an aged road presents special difficulties. The plaintiff made a showing, and the defendant, who focused on the issue of abandonment, presented no evidence to rebut the plaintiff's evidence. We find that the record does not support dismissal for an inadequate demonstration of existence of a public road. In so finding, we note that in his appellate brief's comments on whether the instant roadway is a "road," the defendant merely asserts without argument that the facts in this case parallel those in Brockhausen v. Bochland (1891), 137 Ill. 547, 27 N.E. 458. The defendant's reliance on that case is inappropriate. The Brockhausen court merely held that the "old road" in question had ceased to be a public highway because it had been abandoned by the public in favor of an alternate, more convenient and safe route.

On the remaining question of whether the instant road has been abandoned, we observe the following. Under aged but nonetheless vital case law, a public highway "remains such until it is vacated by the public authorities in the manner prescribed by the statutes, or is abandoned by non-user on acquiring the legal right to another road, or where the necessity for another road has ceased to exist." (Chicago & Eastern Illinois Ry. Co. v. Road District No. 10 (1933), 353 Ill. 160, 165, 187 N.E. 155.) Mere nonuse is not sufficient to establish abandonment; rather, abandonment will be deemed where the public has ceased to travel a highway for a length of time sufficient to clearly indicate their acceptance of a new highway acquired with consent of the public authorities. Chicago & Eastern Illinois Ry. Co. v. Road District No. 10 (1933), 353 Ill. 160, 166, 187 N.E. 155.

With reference to the law of Chicago & Eastern Illinois, we find the court's finding of abandonment against the manifest weight of the evidence. The instant road may be grown up with plants. Further, it may have been many years since the road was either used for passage or maintained. Nevertheless, we consider determinative the unrebutted evidence that the plaintiff, who seeks to use the road for access to his otherwise landlocked property, neither ...

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