Appeal from the Circuit Court of Kane County. No. 93-MR-0233. Honorable R. Peter Grometer, Judge, Presiding.
Released for Publication April 29, 1996.
The Honorable Justice Inglis delivered the opinion of the court: Geiger, J., concurs. Justice Rathje, concurring.
The opinion of the court was delivered by: Inglis
The Honorable Justice INGLIS delivered the opinion of the court:
Plaintiffs, Harris Bank of St. Charles, as Trustee under Trust No. 1843, and Lorraine Darrow, appeal from an order which denied their motion for summary judgment and granted the summary judgment motion of defendant, the City of Geneva (City). The issue on appeal is whether a 16-foot wide strip of land which is shown on a subdivision plat as being "reserved in favor of owners for planting purposes" was dedicated to the public and should be included as a part of the right-of-way of an abutting road. We affirm.
Plaintiffs commenced this declaratory judgment action which sought a declaration that the City owned the 16-foot strip in question and that the strip is a part of the Dunstan Road right-of-way. The property at issue is contained in this plat of subdivision.
[SEE DIAGRAM IN ORIGINAL]
Plaintiffs are the owners of a strip of land that the Chicago & Northwestern Railway Company (CNW) once owned. The land was improved with tracks that connected CNW's Aurora Branch to its main east-west line. The tracks were removed after CNW sold the property. Plaintiffs' property runs essentially south to north. Because the property was originally a spur track, the north end of the property begins to arc to the east. Immediately to the west of plaintiffs' strip are lots belonging to the Meadows subdivision. The 16-foot strip at issue lies directly to the east of plaintiffs' property and likewise runs essentially south to north with an easterly arc at the north end. The Dunstan Road right-of-way abuts the eastern boundary of the 16-foot strip and runs south to north with an easterly arc at the north end. The lots at issue abut the western boundary of the 16-foot strip.
The plat of subdivision for the Meadows was recorded on March 26, 1928. The plat designated several roads. The rights-of-way for Cheever Avenue and Meadows Road are shown on the plat as being 66 feet wide. The Sunset and Golf Roads rights-of-way are each 60 feet wide, and the Dunstan Road right-of-way is 50 feet. The 16-foot strip running alongside Dunstan is marked, "reserved in favor of owners for planting purposes." The Dunstan Road right-of-way flows into and becomes the Cheever Avenue right-of-way. The planting strip ends where Dunstan Road becomes Cheever Avenue. At that point, the Dunstan Road right-of-way, which is 50 feet wide and abuts the 16-foot planting strip, abruptly becomes the 66-feet-wide Cheever Avenue right-of-way.
On April 2, 1928, the City council approved an ordinance for the installation of roads and a system of water mains and sanitary sewers. The engineering plans for these projects show the right-of-way for Dunstan Road as 66 feet wide.
On August 2, 1946, the plat for Dryden's addition to the Meadows was filed. To accommodate some of the new lots, the plat extends Dunstan Road south. The adjacent planting strip was not extended, however. Therefore, the strip comes to an abrupt end, and the Dunstan Road extension is 66 feet wide.
Around 1965, the City forestry department planted trees in the 16-foot strip and maintained them from time to time. The City also installed light poles within the strip and ran electrical lines under the strip. The City obtained from CNW a license to run the electrical lines underneath the former railroad property which plaintiffs now own. There is nothing in the record indicating that the City obtained from any purported owners of the 16-foot strip a license to run the electrical lines underneath the strip.
At the time the plat for the Meadows was recorded, all parcels that were owned then were assigned tax numbers. A tax number was not assigned to the 16-foot strip, and no taxes were levied against it until March 1992, when, for the first time, the Kane County supervisor of assessments assigned a tax number to the parcel.
Plaintiffs sought to subdivide their property into 11 lots and to develop single-family homes on the lots. Although plaintiffs did succeed in obtaining an R-1 zoning classification for the property, the City denied plaintiffs' petition to subdivide. The City maintained that, because the 16-foot strip lay between plaintiffs' property ...