Appeal from the Circuit Court of Fayette County. No. 00-CH-10. Honorable John W. McGuire, Judge, presiding.
The opinion of the court was delivered by: Presiding Justice Chapman
Rule 23 order filed April 12, 2004
Motion to publish granted May 13, 2004.
In June 2000, Craig and Carolyn Hart (the plaintiffs) filed a complaint seeking to enjoin the defendants, the Town of Shafter and Shafter Township Road Commissioner Don Stewart, from entering onto their property to replace a bridge that once had been a part of a township road that ran through their property. The defendants contend that the disputed strip of land remains a public road despite many years of nonuse, while the plaintiffs contend that the old township road has been abandoned by the public. The plaintiffs appeal the trial court's order ruling that the road has not been abandoned. We affirm.
Although some specific testimony was in dispute, the parties stipulated to the most salient facts, which are as follows. In 1908, Sharon Township acquired a road running north and south along the boundary between sections 19 and 20 in what is now Shafter Township. The road, which is referred to as "Road 100 E", intersects at its southern end with Illinois State Route 185. The part of Sharon Township in which it is situated later became Shafter Township.
Portions of the road originally acquired in 1908 indisputably remain township roads. The disputed portion of the road runs along the western boundary of what is now the plaintiffs' property. Historical records show that the road included a bridge across a creek in 1925, although it is not clear exactly when the bridge was built. At that time, people used the road for horse-and-buggy traffic. By 1935, however, the bridge was gone. There is no evidence that there has been any bridge or other means of crossing the creek after 1935. The creek, which is now only a dry creek bed most of the time, is approximately four to six feet below the level of the disputed road.
After the bridge was gone, the disputed section of the road became impassable due to the growth of trees and brush in its path. There is no evidence that it was used by anyone at all until Joe Vittitow, who owned property on both sides of the disputed road (some of which he later sold to the plaintiffs), hired workers to clear trees and brush from a portion of the road traversing his property. Vittitow used the portion of the road he cleared. To cross the creek, however, he had to use a private road on his property with a bridge. The only incident in which anyone attempted to use Road 100 E as a through road involved a police car chase in which both the police car and the vehicle being pursued crashed and became stuck in the creek bed. Area residents instead drove east to a parallel north-south road and then south to connect to Illinois State Route 185.
The plaintiffs bought their property in three separate transactions between August 1988 and December 1989. Carolyn Hart described the disputed section of Road 100 E as being a "path" when she first saw the land prior to the first transaction in 1988. She testified that the township maintained and removed snow from Road 100 E only from its intersection with Route 185 to the southwest corner of the plaintiffs' property. She further testified that she could drive from that point north to the bank of the creek in a pickup truck but not in a car. There was no evidence to the contrary.
There is conflicting evidence regarding when the township first decided to reopen the disputed stretch of Road 100 E. According to the defendants, the plaintiffs thwarted efforts to make the road passable as early as 1992 by threatening workers and erecting a barricade. According to the plaintiffs, the grading work done on the roadway in 1992 at the behest of Joe Vittitow did not constitute an attempt to reopen the highway for public use, and no subsequent attempts were made to improve the road until 2000.
On June 15, 2000, the plaintiffs filed a complaint seeking to enjoin the township from entering their property to improve the old road or replace the bridge and seeking damages for a prior trespass to their property by township employees. The case proceeded to a bench trial on September 23, 2002. In their written closing arguments, submitted shortly thereafter, the plaintiffs contended, much as they do on appeal, that the section of Road 100 E abutting their property had been abandoned by the Town of Shafter. They argued that the road had not been used at all by the public at least since 1935 and that the public had demonstrated its intent to abandon the road by accepting a safer and more convenient parallel route in its stead, thereby satisfying both of the elements necessary to establish the abandonment of a public road. See Chicago & Eastern Illinois Ry. Co. v. Road District No. 10, 353 Ill. 160, 165, 187 N.E. 155, 157 (1933).
On February 11, 2003, the trial court entered an order finding for the defendants. The court found that the road had not been used for a period of time sufficient to sustain a finding of abandonment. It found, however, that because the alternative route was circuitous, it did not fulfill the same essential purpose as the disputed road. Therefore, the court concluded, ...