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12/01/95 VILLAGE RIVERWOODS v. BG LIMITED

December 1, 1995

THE VILLAGE OF RIVERWOODS, PLAINTIFF-APPELLANT,
v.
BG LIMITED PARTNERSHIP AND THE DEPARTMENT OF TRANSPORTATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE THOMAS O'BRIEN, JUDGE PRESIDING.

Presiding Justice Cousins delivered the opinion of the court: Campbell and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

The plaintiff, Village of Riverwoods, filed a complaint alleging trespass by the defendants, BG Limited Partnership (BG) and Illinois Department of Transportation (IDOT), as they began construction work on land allegedly owned by the plaintiff. Plaintiff also requested a declaratory judgment that the defendants had no authority to continue their construction, and plaintiff asked for an injunction to stop all construction and restore any disturbed property. IDOT filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), contending that the circuit court lacked subject matter jurisdiction over IDOT. IDOT submitted public records showing that the State had been granted a right-of-way for the land at issue, and IDOT claimed that the circuit court had no jurisdiction to adjudicate the State's property rights as to the disputed land. The trial court granted the motion, and plaintiff's appeal of that order is appeal No. 1-93-1964. BG subsequently filed its own section 2-619 motion to dismiss, claiming that IDOT was a necessary party to the action. The trial court granted the motion, and we have consolidated plaintiff's appeal of that order, appeal No. 1-94-0463, with plaintiff's previous appeal.

On April 23, 1993, plaintiff filed a complaint against the defendants for declaratory judgment and an injunction. On April 30, 1993, the plaintiff filed an amended complaint which added count II, alleging trespass by the defendants. Plaintiff stated that IDOT approved a permit for construction to add a right-turn lane on Illinois State Highway 21 in Lake County, Illinois, where the highway is named Deerfield Road. For both counts, the complaint alleged:

"That said permit on its face purports to grant authority for the widening of a portion of Deerfield Road located within the Village of Riverwoods. That fee simple title to the land underlying said proposed widening is vested in the Village of Riverwoods and other parties and is not vested in the State of Illinois. That the present use of Deerfield Road is at best a common law easement for road purposes only and any interest of the State of Illinois is confined to the present contours of said road. That the State of Illinois through the defendant, Illinois Department of Transportation, is thus without authority to permit the defendant, BG Limited Partnership *** to utilize property owned by the Village of Riverwoods or any portion of the area adjacent to the boundaries of Deerfield Road as they existed prior to the issuance of said permit."

In count I, plaintiff requested a declaratory judgment that the defendants had no authority to continue their construction and asked for an injunction to stop all construction and restore any disturbed property. In count II for trespass, plaintiff requested that the defendants cease and desist the use and occupation of the plaintiff's property without authorization by the plaintiff.

IDOT filed a motion to dismiss pursuant to section 2-619 on May 4, 1993. The motion claimed that sovereign immunity barred the action, citing several cases to state that "the Illinois Supreme Court has ruled that the Circuit Courts have no jurisdiction to adjudicate the property rights of the Department of Transportation." The motion concluded, "The State's property rights in the disputed highway property at issue in this case cannot be adjudicated in this Court, nor can other relief be awarded against the Illinois Department of Transportation." On May 5, 1993, IDOT submitted a trial memorandum which contained a copy of a 1929 deed, with the copy certified by the recorder of deeds for Lake County. The 1929 deed granted a right-of-way for a public highway 66 feet in width. IDOT also submitted copies of the statutes applicable to the 1929 deed and claimed, "These exhibits show that there is no defect or flaw in the State's right to use the entire 66 foot right of way for highway purposes. All that was required for a statutory dedication of the entire 66 foot right of way was provided in 1929."

BG filed its answer to the complaint on May 4, 1993. On May 5, 1993, pursuant to section 2-619, BG joined IDOT's motion to dismiss. BG claimed:

"Because granting relief against BG would require a determination of the State's interest in the right of way in dispute, if IDOT is dismissed, the action cannot proceed against only BG. *** Any adjudication against BG would materially affect the State's interest in this property. Under general rules of joinder, IDOT is a necessary party, without whom the Court cannot proceed."

On May 5, 1993, the plaintiff filed a brief in support of its amended complaint. Plaintiff argued that the State's right-of-way extended only to Deerfield Road's existing width of 24 feet. The plaintiff stipulated that the grantors in the 1929 documents intended to donate a right-of-way 66 feet in width. However, plaintiff claimed, "The prior pattern of existing use precisely defines the width of the right of way."

The trial court granted IDOT's motion to dismiss on May 7, 1993, and dismissed IDOT with prejudice. The court also granted BG's motion to dismiss, without prejudice, and gave the plaintiff 30 days in which to file an amended complaint. Plaintiff filed a notice of appeal on May 27, 1993, appeal No. 1-93-1964, as to the part of the order granting IDOT's motion to dismiss with prejudice.

Plaintiff filed its second amended complaint against BG on June 3, 1993. The complaint contained two counts. Count I sought an injunction against all construction and a declaration that "BG has no authority to carry out that portion of work now underway." Count II sought damages for trespass.

On September 15, 1993, BG filed a motion to dismiss pursuant to section 2-619, again contending that the State would be directly and adversely affected by the relief sought by the complaint. The trial court granted the motion on December 23, 1993, stating that "the Court feels that it would be necessary to join the State of Illinois in the second amended complaint as a necessary party since it would not be bound by a determination in this court unless it were a party." The order granting BG's motion to dismiss was entered on January 3, 1994. Plaintiff's appeal of that ...


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