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09/07/94 BRAD EMALFARB v. PHILIP L. KRATER

September 7, 1994

BRAD EMALFARB, PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,
v.
PHILIP L. KRATER, LAWRENCE W. KRATER, NONA I. KRATER, STEVEN W. KRATER, LOUISE KRATER, FRANCES M. KRATER, AND THE WEST SHORE PARK CORPORATION AND UNKNOWN OWNERS, DEFENDANTS AND COUNTERPLAINTIFFS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 92-CH-169. Honorable Peter M. Trobe, Judge, Presiding.

Rehearing Denied October 12, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Quetsch, McLAREN, Doyle

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

This appeal concerns title to a parcel of land in the second addition to the West Shore Park subdivision near Diamond Lake in Lake County. Plaintiff, Brad Emalfarb, brought this action to quiet title to the property, which defendants contend has been dedicated for use as a public park. Defendants Philip Krater, Lawrence W. Krater, Nona I. Krater, Steven W. Krater, Louise Krater and Frances M. Krater are the owners of several lots in the second addition to the West Shore Park subdivision, and defendant West Shore Park Corporation (WSP Corp.) is an association of owners of property in the subdivision. Following a bench trial, the circuit court of Lake County entered judgment in favor of defendants, finding that there had been an effective statutory dedication of the property to Lake County for use as a public park. Plaintiff raises the following issueson appeal: (1) whether there was an effective statutory dedication of the property; (2) whether defendants have engaged in an improper collateral attack on the tax deed issued to one of plaintiff's predecessors in title; (3) whether Lake County was a necessary party to this action; and (4) whether defendants' challenge to plaintiff's title is barred by sections 2-1401(e) and 13-110 of the Code of Civil Procedure (735 ILCS 5/2-1401(e), 13-110 (West 1992)) and by laches.

Plaintiff claims ownership of the property by virtue of a deed dated October 11, 1991, from Rodney H. Weldon, which is in the chain of title leading back to a tax deed issued in 1978 to Marguerite J. Weldon. After the deed to plaintiff was recorded, Philip Krater filed an affidavit with the Lake County recorder of deeds averring that the owners of property in the West Shore Park subdivision, individually and as members of WSP Corp., claim the right to the use and enjoyment of the property as a park. The affidavit stated that the property had been in continuous use by the residents of the subdivision and their guests for a period in excess of 40 years for such recreation purposes as sunbathing, picnics, and volleyball.

Plaintiff brought this quiet title action against Philip Krater and WSP Corp., and the other members of the Krater family subsequently intervened as defendants. The Kraters and WSP corp. filed separate counterclaims against plaintiff, seeking declaratory relief. The Kraters' counterclaim sought a determination that there had been a statutory dedication of the property for use as a public park. WSP Corp.'s counterclaim consisted of four counts respectively seeking declarations: (1) that there had been a statutory dedication of the property for use as a public park; (2) that there had been a common-law dedication of the property to the public for use as a public park; (3) that WSP Corp. and the public had acquired an easement to use the property as a park; and (4) that the tax deed to Marguerite Weldon was void ab initio.

The original plat for the West Shore Park subdivision was recorded in 1923. In 1937, a portion of the subdivision designated "Lot E" was further subdivided as the second addition to West Shore Park by a plat approved by the Lake County board of supervisors and recorded with the Lake County recorder of deeds. On that plat, the word "Park" appears with reference to the parcel that is the subject of the case at bar.

The property apparently did not appear on Lake County tax rolls from 1937 until approximately 1972. Andrew Wulf, the supervisor of map services for Lake County, testified at trial but was unable to offer a definite explanation of why the property was not listed for taxation during that time period or the circumstances surroundingits eventual placement on the tax rolls in 1972. The record establishes that in 1971 or 1972 Lake County installed a sewer line on the property although there apparently was no easement of record authorizing the county to do so.

Several witnesses testified that the property had been used exclusively for recreational purposes and had been so used by residents of the subdivision and nonresidents alike. It was stipulated that numerous other individuals would give similar testimony if called as witnesses.

After trial and the submission of post-trial briefs by the parties, the trial court entered judgment in favor of defendants, finding that "the plat of subdivision constituted a statutory dedication of the subject property to Lake County for use as a public park." This appeal followed.

We first consider plaintiff's argument that the judgment must be reversed because of the failure to join Lake County as a party. A necessary party is one whose participation in the litigation is required for any of three reasons: (1) to protect an interest which the absent party has in the subject matter of the controversy which would be materially affected by a judgment entered in its absence; (2) to reach a decision which will protect the interests of those before the court; or (3) to enable the court to make a complete determination of the controversy. ( Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 26, 85 Ill. Dec. 220, 473 N.E.2d 588; Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 623, 26 Ill. Dec. 116, 387 N.E.2d 946.) It has been held that "an action for quiet title or to remove a cloud on title should join as parties all persons who may have a substantial interest therein and who will be materially affected by the decree." ( Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, 812, 89 Ill. Dec. 569, 480 N.E.2d 1312.) Under fundamental principles of due process, a court is without jurisdiction to enter an order or judgment which affects a right or interest of someone not before the court. ( Feen v. Ray (1985), 109 Ill. 2d 339, 344, 93 Ill. Dec. 794, 487 N.E.2d 619; Pettey v. First National Bank (1992), 225 Ill. App. 3d 539, 547-48, 167 Ill. Dec. 771, 588 N.E.2d 412.) An order entered by a court without jurisdiction over a necessary party is null and void. State Farm Mutual Automobile Insurance Co. v. Haskins (1991), 215 Ill. App. 3d 242, 245, 158 Ill. Dec. 838, 574 N.E.2d 1231.

It is well established that any party, or the court, sua sponte, may raise the issue of the absence of a necessary party at any time in the trial court, or for the first time on appeal. ( Allied American Insurance Co. v. Ayala (1993), 247 Ill. App. 3d 538, 543-44, 186 Ill. Dec. 717, 616 N.E.2d 1349.) However objections to nonjoinder of necessary parties made after judgment are disfavored and will be rejected unless the absent party was deprived of material rights without being heard or the absent party's interests are so interconnected with the appearing parties' intereststhat the presence of the absent party is absolutely necessary. ( Ayala, 247 Ill. App. 3d at 544; Haskins, 215 Ill. App. 3d at 245.) In the case at bar, the issue of whether Lake County was a necessary party does not appear to have been raised at trial, and therefore the standard formulated in Ayala and Haskins applies.

It is clear that Lake County has a direct interest in the subject matter of this litigation. The central issue in the trial court and on appeal is whether there was an effective statutory dedication of the subject property to Lake County for use as a public park based on the 1937 plat which designated the property as a "park." A statutory dedication occurs when the owner of property files or records a plat which marks or notes on the plat portions of the premises as donated or granted to the public ( Schwebl v. Seifer (1991), 208 Ill. App. 3d 176, 181, 153 Ill. Dec. 322, 567 N.E.2d 37; Reiman v. Kale (1980), 83 Ill. App. 3d 773, 776, 38 Ill. Dec. 671, 403 N.E.2d 1275) and the public entity to which the property is dedicated accepts such dedication ( Schwebl, 208 Ill. App. 3d at 179). When the dedication is accepted, the grantee acquires legal title to the land upon an express charitable trust to use the property for public purposes, and the grantee may not alienate or dispose of the property ...


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