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Bigelow v. City of Rolling Meadows

March 19, 2007

PERRY BIGELOW, AND THE BIGELOW GROUP, INC., AN ILLINOIS CORPORATION, PLAINTIFFS-APPELLEES,
v.
THE CITY OF ROLLING MEADOWS, AN ILLINOIS MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 03 CH 04739 The Honorable Mary Anne Mason, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

In March 2003, the plaintiffs, Perry Bigelow and the Bigelow Group, filed a complaint for declaratory judgment against the defendant, the City of Rolling Meadows (City). The plaintiffs asked the court to declare that they were the owners of a 33-foot strip of property (Subject Property) and that the City had no interest in the property. Both parties filed motions for summary judgment. The trial court granted the plaintiffs' motion, finding there was no statutory dedication of the Subject Property and that the City waived its argument that there was a common-law dedication. The City appealed, arguing (1) the action is time-barred, and (2) the Subject Property was dedicated to and accepted by the City for the benefit of the public. For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND

The Subject Property consists of a 33-foot strip of land within the municipal boundaries of the City. In 1926, the Subject Property was platted as part of a subdivision known as Arthur T. Macintosh and Company's Palatine Estates Unit No. 2 Subdivision (Palatine Estates) in what was then unincorporated Cook County. In the 1926 plat of subdivision, the Subject Property was designated as Winnetka Avenue.

Perry Bigelow is the beneficial owner of lot 7 of Palatine Estates. The record owner is the First National Bank and Trust Company of Barrington (Bank); the Bank is the trustee pursuant to a 1986 trust agreement. The Bigelow Group is the beneficial owner of lots 5 and 6. The Bank is also the record owner of those lots as trustee under a 1987 trust agreement. The Subject Property runs adjacent to lots 5, 6, and 7.

In 1961, the City annexed property near Palatine Estates. The plaintiffs contend the property was south of Palatine Estates. The City maintains that the property fell within the plat of subdivision and included the Subject Property. Although the annexation agreement is included in the record, the map referenced in the agreement is not.*fn1 Without the map, it is difficult for this court to properly assess whether the property was included in the agreement.

In 1992, the City passed an ordinance annexing the Subject Property.*fn2 The ordinance referred to Winnetka Avenue as "dedicated Winnetka Avenue" and "dedicated right-of-way Winnetka Avenue." The City has referred to the Subject Property as a dedicated right-of-way in other documents, including a plat of the Plum Grove Countryside Unit No. 11 Subdivision, where it is referred to as "heretofore dedicated," and in an ordinance vacating part of Winnetka Avenue, the City refers to Winnetka Avenue as a "dedicated right-of-way."

The Subject Property has never been paved or used as a public way for vehicular or pedestrian traffic. The Subject Property is burdened with the City's storm sewer and a drain tile line installed by Northwest Mosquito Abatement District.

In February 2003, the plaintiffs sent a letter to the mayor of the City stating:

"The [Subject Property] has never been donated or dedicated to the public; nor has it ever been improved or used as a public way for vehicular or pedestrian traffic. As the owner of the strip, I am entitled to use it for any lawful purpose, including but not limited to the construction of a street or driveway. Although my ownership of the strip is clear under Illinois law, please be advised that in the event it is determined by a court of competent jurisdiction that the recordation of the 1926 plat of subdivision was intended to constitute an offer of dedication of the strip to the public, I do hereby revoke and withdraw the offer to dedicate the strip to the public."

In March, the plaintiffs filed their complaint for declaratory relief, asking that the trial court declare that they are the owners of the Subject Property. The plaintiffs filed a motion for summary judgment, arguing that the Subject Property was not a dedicated public right-of-way. The City filed a cross-motion for summary judgment, arguing that the Subject Property was a dedicated public right-of-way and that the City accepted the dedication for the benefit of the public. The trial court granted the plaintiffs' motion and denied the City's. This appeal followed.

ANALYSIS

The City argues that the trial court erred when it granted the plaintiffs' motion for summary judgment because (1) the action was time-barred, and (2) the Subject Property was dedicated to and accepted by the City for the benefit of the public.

Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2002). Summary judgment should only be granted where the right of the moving party is clear and free from doubt. Horwitz v. Holabird & Root, 212 ...


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