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03/08/94 JAMES SEMMERLING v. ROBERT HAJEK

March 8, 1994

JAMES SEMMERLING, LAKE VILLA TOWNSHIP HIGHWAY COMMISSIONER, PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,
v.
ROBERT HAJEK, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 92-SC-2098. Honorable Peter M. Trobe, Judge, Presiding.

Colwell, Doyle, PECCARELLI

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

James Semmerling, the Lake Villa Township highway commissioner and the plaintiff and counterdefendant in this case (plaintiff), appeals from an order of the circuit court of Lake County declaring the width of a prescriptive public highway easement to be the width of the paved road plus six feet on either side. On appeal, plaintiff argues that the easement should be extended to include the entire 40-foot width of the right-of-way designated on the subdivision plat. In particular, plaintiff claims that (1) the Illinois Highway Code (Code) (605 ILCS 5/1-101 et seq. (West 1992)) requires that the easement be at least 40 feet wide; (2) the trial court's ruling is against the manifest weight of the evidence; and (3) the evidence demonstrates that the entire 40-foot strip of land has been dedicated to public use. We affirm.

The facts of this case are gleaned from a bystander's report. The road at issue is Christiansen Avenue (the road), which is located in the Cedar Park subdivision in Lake Villa Township (the Township). The parties entered a plat of the subdivision into evidence. The plat shows the road lying within a 40-foot wide "driveway" running east to west from Munn Road to Crooked Lake. The record on appeal does not reveal the width of the road. The plat designates Munn Road as a "driveway for use of lot owners."

Defendant and counterplaintiff, Robert Hajek (defendant), owns a parcel of land immediately to the north of the road. The east border of his property is located 250 feet west of Munn Road. The west border of defendant's property is the lake. The parties submitted photographs of the road that reveal that the road is paved up to a point 65 feet west of defendant's east property line. Beyond that point, the road is a dirt path. The plat does not reveal the location of the terminus of the paved portion of the road. The paved and unpaved portions of the road are separated by a gate which has a sign reading "Private" and "No Parking."

Wood fences parallel the road on each side. The entire width of the road is not paved. The paved portion of the road is slightly elevated, and between the paved portion of the road and the fences are grassy strips of land. There is also a fence running south to north along the east border of defendant's property. The fence runs from the north end of the paved road and meets the fence which runs along the north end of the driveway. There was a spray painted line running across the paved road which corresponds to the east border of defendant's property. Also spray painted on the paved road is the message "PRIVATE." The area in dispute is that portion of the road running from the east border of defendant's property to the gate.

Defendant testified that he purchased the property in 1991 from a person who had obtained it through a tax sale. Defendant stated he had a constant problem with people parking in the area. In response, defendant erected the fences and placed "no trespassing" signs along the road. He stated that the fences running parallel to the road sit on the borders of the driveway as defined in the subdivision plat. Defendant also admitted to painting the pavement and piling and burning leaves on the pavement. According to defendant, the Township paved the road in 1988. Prior to this, the Township had laid a gravel road and oiled the road.

Plaintiff testified that he has been the Township highway commissioner since 1982. He also testified that the Township road district paved, maintained, plowed, and kept the road clear for drainage. The road district's maintenance of the road extended from Munn Road to the gate. This maintenance also included mowing the grass on either side of the road. There were drainage ditches on either side of the road. According to plaintiff, the snowplow drivers needed space to turn around their plows and that they generally turned the plows around at the end of the road near the gate. Plaintiff finally testified to the costs the road district incurred when it removed the "graffiti," the leaves, and the fence that defendant placed on the driveway.

M. Schneider testified that he was the Township highway commissioner from 1976 to 1982. He considered the road to be a public road. While he was commissioner, the road district laid gravel, maintained the "shoulders and drain," and plowed the road. He also testified that he has been familiar with the road since childhood and that the road was generally used by the public to access the lake. Also, the Department of Conservation used the road to access the lake for the purpose of conducting studies and surveys of the lake. Emergency vehicles also used the road to gain access to the lake. Schneider finally testified that he participated in a lawsuit seeking to declare the "property's" tax status void. The court in that case ruled the "property" public and tax-exempt for all time.

Edward Quirsfeld testified that he has been a resident of the Cedar Park subdivision since 1972. Originally, the subdivision's homeowners association maintained the road because it was an easement allowing the homeowners access to the lake. However, early in the 1970's, the Township began maintaining the road. This included plowing, grading, and supplying gravel to the water's edge. Quirsfeld was president of the homeowners' association when the court declared the property tax-exempt. He testified that, in 1988, the homeowners' association erected a gate across the road with a lockbecause of the excessive use of the road by the general public. Thereafter, the homeowners' association charged an admission fee to members of the homeowners' association who wished to gain access to the lake. As a result, the public's use of the road was reduced.

Carol Hetzel testified that she has owned property at the corner of Munn Road and Christiansen Avenue since 1990. She has been familiar with that area since 1958. Hetzel testified that the public had access to and used the road until about 1991.

David Bycroft testified that he is a construction land surveyor for the Lake County Land Survey. He also testified that the plat submitted by the parties purported to be the plat of the Cedar Park subdivision. Although he did not draw up the plat himself, he claimed that the plat was drawn from Lake County Land Survey office records. He never compared the office records to the official records to verify the plat's accuracy.

The parties stipulated to the affidavit of Clarence Hanson. Hanson's affidavit stated that Hanson was the Township highway commissioner from 1964 to 1975 and was an employee of the Township highway department from 1954 to 1964. The affidavit further stated that the ...


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