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Klose v. Mende

December 07, 2001

JEROME B. KLOSE AND RUTH C. KLOSE, PLAINTIFFS-APPELLANTS,
v.
FREDERICK E. MENDE, COMMISSIONER OF HIGHWAYS, MERIDEN TOWNSHIP LASALLE COUNTY, ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 13th Judicial Circuit, LaSalle County, Illinois No. 00-MR-123 Honorable Robert L. Carter Judge, Presiding.

The opinion of the court was delivered by: Justice McDADE

UNPUBLISHED

Jerome and Ruth Klose (plaintiffs) filed an amended complaint for declaratory judgment (complaint) against Frederick E. Mende (defendant), seeking a court order that would establish plaintiffs' fee simple title in two roadways. The trial court dismissed their complaint, finding that defendant owned the two roads. Plaintiffs then moved for leave to file a second amended complaint, which the court denied. Plaintiffs now appeal from the dismissal of their claim.

FACTS

On October 6, 1995, plaintiffs recorded a warranty deed (deed) in the LaSalle County recorder's office (recorder's office) for the north one-half of the southwest quarter of section 14 in Meriden Township (section 14). The deed stated that plaintiffs' portion of section 14 was to extend 2,354.17 feet west on the east-west half section line of section 14, and north, 877.20 feet, starting at section 14's west section line. This property encompassed portions of the rights-of-way of North 4550th Road and East 10th Road. North 4550th Road and East 10th Road are township roads that run east-west and north-south, respectively, along the northern and western boundaries of plaintiffs' portion of section 14.

Defendant is the commissioner of highways for the Meriden Township road district in LaSalle County. On January 12, 2000, defendant mailed plaintiffs a right-of-way agreement (agreement) requesting that they make available two 66-foot right-of-ways running through both roads because the highway district was planning to make improvements on North 4550th Road. Plaintiffs refused defendant's request.

Defendant then produced a ledger that had been kept by the Meriden Township clerk. The ledger indicated that in 1856, North 4550th Road and East 10th Road (named Highways No. 5 and 1, respectively, in the ledger) had been dedicated to Meriden Township. The ledger established that North 4550th Road ran through sections 13 and 14 along the east-west half section line, and that East 10th Road ran through sections 14 and 15, and that both roads were four rods wide (66 feet). The ledger also stated that section 14 had a width of 80.57 chains (5317.62 feet), which exceeded the original government survey (80.08 chains, or 5285.28 feet) by 32.34 feet.

Plaintiffs filed an Amended Complaint for Declaratory Judgment on August 9, 2000, to confirm their fee simple title to the North 4550th Road and East 10th Road right-of ways, as defendant was claiming ownership by dedication to the same 33 feet of right-of-way in North 4550th Road and East 10th Road that plaintiffs were claiming through warranty deeds. The trial court dismissed plaintiffs' action, finding that the 1856 road dedications were valid and that defendant owned the right-of-ways. Plaintiffs' motion to file a second amended complaint was denied.

Plaintiffs raise two issues on appeal: (1) whether the trial court erred in dismissing their complaint, and (2) whether the trial court abused its discretion in denying their motion to file a second amended complaint.

ANALYSIS

I. Dismissal of Complaint for Declaratory Judgment.

Plaintiffs contend that the trial court erred in dismissing their complaint for declaratory judgment. They assert that the court's finding that the township's 1856 road dedications were valid is not supported by the record.

The standard for reviewing a decision granting a motion to dismiss is de novo. The motion should only be granted when, viewing the allegations of the complaint in the light most favorable to the nonmoving party, it clearly appears that the nonmoving party would not be entitled to relief under any set of facts. Board of Directors of Bloomfield Club Recreation Assn. v. The Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d 330, 335 (1999).

In 1856, the Meriden Township clerk recorded an entry in the Meriden Township ledger (ledger) of the dedication of North 4550th Road and East 10th Road as public highways. Plaintiffs contend that the 1856 dedications are invalid because they failed to comply with the statutory requirements of article 24, sections 1 through 5, of "An Act to provide for township organization" (the Act) (1851 Ill. Laws 35 (ยงยง1 through 5)). Looking first at North 4550th Road, plaintiffs point out that there was no order of dedication and none of the following documents required by the statute were attached to such an order: the petition requesting permission to build the roads (section 1); a record of a personal examination by the commissioner of the potential route for the new road (section 3); notice of, and a date for, a public hearing to discuss the reasons for and against the laying out of the new road (section 3); or a separate survey, report of that survey, ...


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