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September 25, 1996


Appeal from the Circuit Court of Cook County. No. 92--CH--4991. Honorable Robert Ericsson, Judge Presiding.

Rehearing Denied November 25, 1996. Released for Publication December 10, 1996.

The Honorable Justice Cerda delivered the opinion of the court: Tully, P.j., and Greiman, J., concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

This dispute involves the use of an unpaved road that leads from Main Street in Lemont to a nearby quarry area and to the property of plaintiff, Limestone Development Corporation (LDC). The is sue in this preliminary injunction case is whether the petitioner made a fair showing that the canal road became a public highway by prescriptive easement, implied easement, statutory dedication or common law dedication.

There are three sections of the road. The first section, which begins at the railroad crossing adjacent to Main Street, is privately owned by Michael O'Malley, who is not a party to this action. The next section (hereinafter called the Steel road) is owned by defendant, K.A. Steel Chemicals, Inc. (Steel), and proceeds to the 90-foot reserve strip along the south side of the Illinois & Michigan Canal (I&M Canal). Steel, which manufactures, repackages, and distributes hazardous chemicals, purchased its property on the north and south sides of the I&M Canal in 1963.

The remainder of the road (hereinafter called the Lemont road) is owned by defendant, the Village of Lemont (Lemont). It crosses the southern reserve strip and the I&M Canal, then proceeds east along the 90-foot reserve strip on the north side of the canal to LDC's property. The Steel road and a leased section of the Lemont Road lead into Steel's chemical plant located north of the I&M Canal. In 1970, Lemont purchased the 90-foot reserve strips along the I&M Canal from the State of Illinois, which acquired it from the federal government in 1947. When discussing the Steel and the Lemont roads together, it will be called the canal road.

LDC purchased 55 acres of vacant and unimproved land adjacent to the I&M Canal, including water-filled quarries, in 1989. None of its property, which is east of the Steel plant, is located in Lemont. LDC bought the property in anticipation of developing it into a recreational marina, knowing that there was no guaranteed access to the property.

In June or July 1990, LDC brought in heavy equipment to widen and clear the Lemont road without Lemont's knowledge or permission. During the road clearing, vegetation and trees were destroyed. When Doug Blocker, Lemont's building and zoning Administrator, learned of the clearing, he contacted Terry Regan, LDC's president, and expressed concerns about the nature and type of road improvements proposed by LDC as well as drainage, erosion, and public safety issues.

After several letters between the two men, Blocker told Regan that he had no approval for a temporary road, that he had to clean all the trees and bushes immediately, and that he should not assume that the I&M Canal reserve strip could be used as a road for LDC's proposed development plans. Blocker also told Regan to not use the road until LDC's overall development plans had been submitted to Lemont and reviewed. Lemont claimed that it had legitimate public safety and liability concerns about the use of the canal reserve strips. During that same time, Steel informed LDC that it could not use the Steel road without advance permission.

Nevertheless, LDC proceeded to use the canal road to bring landfill onto its property without Lemont's knowledge or permission. Subsequently, on September 26, 1990, Lemont posted a stop work order and locked the gate that crosses the Lemont road, thus blocking LDC's access to its property over the canal road.

In 1992, LDC brought an action for declaratory, injunctive, and monetary relief against Lemont, alleging that Lemont was wrongfully denying LDC access to its property by maintaining a locked gate on the Lemont road. In November 1994, LDC filed its fourth-amended complaint. The claims involved in this appeal are as follows.

In counts I through III, LDC requested a declaration that the canal road is a public highway by statutory dedication, common law dedication, or prescription, and sought to enjoin Lemont from interfering with LDC's use of the canal road to access its property. In counts VII and VIII, LDC requested a declaration and injunction against Steel, alleging that Steel's portion of the road is either a public or private road by prescription. In count X, LDC sought declaratory and injunctive relief against Lemont based on an implied easement by estoppel.

On December 15, 1994, LDC filed an emergency petition for a preliminary injunction, alleging that Lemont and Steel continued to deny LDC unfettered access to the canal road, thus prohibiting LDC from developing its property. Emergency relief was denied, but a hearing was set.

On July 10, 1995, the trial court found that LDC had the right to unfettered use of the canal road due to the existence of a prescriptive easement, an implied easement, a statutory dedication, and a common law dedication. A preliminary injunction was issued and Lemont was ordered to remove its lock from the gate. The court also ordered both defendants to allow LDC, its agents, and its invitees free and unfettered access over the canal road. However, the court refused to order Lemont to remove the gate and restore the road to its condition ...

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