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J&A Cantore, LP v. Village of Villa Park

Court of Appeals of Illinois, Second District

May 31, 2017

J&A CANTORE, LP, Plaintiff-Appellant,
v.
THE VILLAGE OF VILLA PARK and THE CITY OF ELMHURST, Defendants The City of Elmhurst, Defendant-Appellee.

         Appeal from the Circuit Court of Du Page County, No. 14-CH-1613 Honorable Paul M. Fullerton, Judge, Presiding.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Hutchinson concurred in the judgment and opinion.

          OPINION

          BIRKETT JUSTICE

         ¶ 1 Plaintiff, J&A Cantore, LP, appeals the judgment of the circuit court of Du Page County dismissing counts III and IV of its complaint against defendant, the City of Elmhurst (Elmhurst), seeking to eject Elmhurst from a disputed portion of real property (disputed property). On appeal, plaintiff contends that the trial court erred in concluding: (1) that there had been either a statutory or a common-law dedication of the disputed property for public use as a street; or (2) that Elmhurst accepted the dedication of the disputed property. Plaintiff further contends that the trial court erred: (3) in determining that the disputed property was subject to public use. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The disputed property is a strip of property along the eastern side of the property commonly known as 711 South Route 83, in Villa Park, Illinois (plaintiff's property). The disputed property is 58 feet wide, east to west, and extends north and south along the length of plaintiff's property. The western 25 feet of the disputed property lies in the Village of Villa Park (Villa Park);[1] the eastern 33 feet of the disputed property lies in Elmhurst. Beginning sometime in the 1980s, the then-owner of plaintiff's property erected a fence that ran parallel to the eastern lot line of plaintiff's property, but was located 58 feet to the east of the lot line, thereby encompassing the disputed property into an enclosure that included plaintiff's property and the disputed property.

         ¶ 4 On January 1, 2014, plaintiff obtained plaintiff's property via a trustee deed from the previous owner. Plaintiff alleges that it is the fee simple owner of plaintiff's property along with the disputed property. After plaintiff obtained plaintiff's property, it maintained the fence enclosing the disputed property and stored vehicles and trailers on the disputed property. On April 1, 2014, Elmhurst removed the fence and erected a new fence 58 feet to the west of the old fence, along the lot line of plaintiff's property. On September 2, 2014, Villa Park notified plaintiff that it intended to remove the vehicles and trailers that plaintiff had been storing on the disputed property.

         ¶ 5 On September 4, 2014, plaintiff filed a four-count complaint against Villa Park and Elmhurst. Counts I and II were directed against Villa Park and are not at issue in this appeal. Counts III and IV were directed against Elmhurst; count III sought ejectment of Elmhurst from the disputed property and count IV sought an injunction against Elmhurst to prohibit it from using the disputed property. Plaintiff grounded its legal theories on a claim that it had gained title to the disputed property through adverse possession.

         ¶ 6 On November 14, 2014, Elmhurst filed a motion to dismiss the counts of plaintiff's complaint pertaining to it. See 735 ILCS 5/2-619 (West 2014). Elmhurst alleged that there was an affirmative matter that defeated plaintiff's claims, namely, that the disputed property was held by Elmhurst for public use, which meant that plaintiff could not adversely possess the disputed property. In support, Elmhurst attached affidavits and exhibits purporting to illustrate the creation and dedication of the disputed property as a public street, which Elmhurst had accepted.

         ¶ 7 Specifically, the affidavit of Peter Piet, Elmhurst's geographic information system specialist, laid out some of the circumstances regarding plaintiff's property and the disputed property. Piet averred that plaintiff obtained title to plaintiff's property by way of a January 1, 2014, trustee deed, which, on March 14, 2014, was recorded in Du Page County. According to Piet, plaintiff's property was legally described using references to lots 194, 195, 196, and 197 in "Robertson and Young's 3rd Spring Road Addition to Elmhurst" (3rd Spring Road Addition). According to a plat recorded on August 19, 1910, the 3rd Spring Road Addition was a subdivision located in "Section 10 and 11, Township 39 North, Range 11, East of the Third Principal Meridian." A certified copy of the plat was attached to Piet's affidavit.

         ¶ 8 The plat of the 3rd Spring Road Addition shows a 25-foot-wide roadway running north and south along the eastern boundaries of lots 189 through 198. The roadway is currently located within the corporate boundaries of Villa Park. Further, as is pertinent here, the roadway appears to consist of the western 25 feet of the disputed property. The roadway is not named on the plat of the 3rd Spring Road Addition.

         ¶ 9 A plat recorded on March 10, 1925, depicts territory known as the "H.O. Stone & Company's Spring Road Addition to Elmhurst" (H.O. Stone Addition). The plat depicts a 33-foot roadway denominated as "West Avenue." West Avenue is located in Elmhurst and runs north and south, next to the western 25 feet of the disputed property and along the western boundary of lots in the H.O. Stone Addition. As pertinent here, West Avenue comprises the eastern 33-foot-wide portion of the disputed property. A certified copy of the plat of the H.O. Stone Addition was attached to Piet's affidavit.

         ¶ 10 On March 5, 1962, Elmhurst adopted an "Ordinance Providing for the Annexation to the City of Elmhurst of Certain Property West of Sunnyside Avenue and South of McKinley Avenue" (1962 Annexation Ordinance). The 1962 Annexation Ordinance included the portion of the H.O. Stone Addition that included West Avenue (a portion of the disputed property). On March 9, 1962, a plat depicting the annexed territory (including the portion of the disputed property) was recorded in Du Page County; additionally, a certified copy of the plat was attached to Piet's affidavit.

         ¶ 11 On August 6, 1968, Elmhurst adopted an ordinance vacating certain streets (Vacation Ordinance). The Vacation Ordinance included some of the territory depicted in the plat of the H.O. Stone Addition. The streets vacated at that time were portions of Coolidge, Wilson, and Harding Streets, all of which intersected, but did not pass through, West Avenue. West Avenue was not included among the streets vacated. On August 19, 1968, the Vacation Ordinance and a plat of vacation were recorded in Du Page County. Certified copies of the Vacation Ordinance and the plat of vacation were attached to Piet's affidavit.

         ¶ 12 On September 12, 1968, a plat of Matthew's Subdivision was recorded in Du Page County. Matthew's Subdivision contained lots 8 through 15 of blocks 7, 8, 9, and 10 of the H.O. Stone Addition. A certified copy of the plat of Matthew's Subdivision was attached to Piet's affidavit.

         ¶ 13 On September 15, 1974, Elmhurst obtained fee simple title to the property contained in Matthew's Subdivision (with the exception of certain property located in lot 1 of Matthew's Subdivision, which does not affect the disputed property) (1974 acquisition). On September 24, 1974, Elmhurst's deed for the 1974 acquisition (1974 deed) was recorded in Du Page County. A certified copy of the deed was attached to Piet's affidavit.

         ¶ 14 Piet averred that three exhibits attached to his affidavit were created using aerial photographs depicting plaintiff's property, the disputed property, and other nearby property, overlaid with markings depicting the various lot boundaries. The three aerial photographs were taken in 2002, 2005, and 2013. The fence does not appear to be visible in the photographs, presumably lying beneath the marking depicting the eastern boundary of West Avenue, but, in the 2005 and 2013 exhibits, stored vehicles and trailers can be seen on the disputed property.

         ¶ 15 Finally, Piet attached a February 23, 1990, letter, purporting to be from "Cantore and Company" and signed by Jay DeGarmo, suggesting that Elmhurst vacate its portion of the disputed property to allow it to be incorporated into Villa Park and then combined with plaintiff's property. There were several handwritten notations on the letter, one of which stated that, on March 16, 1990, Elmhurst contacted DeGarmo and informed him that it had no interest in vacating its portion of the disputed property. We note that, in arguing its motion to dismiss, Elmhurst did not reference the DeGarmo letter, and plaintiff disavowed that the letter was from it (although it might be reasonable to infer from the facts submitted in this matter that Cantore and Company had either an ownership or a beneficial interest in plaintiff's property when the letter was written). Moreover, the trial court reviewed and commented on the letter but placed only a small amount of weight on it in rendering its decision.

         ¶ 16 James W. Rogers, the executive director of the Elmhurst Park District (Park District), supplied the second affidavit. Rogers averred that the Park District owned and leased real property within Elmhurst's boundaries for recreational uses as public parks. There are a number of parks within Elmhurst located along Salt Creek, including Maple Trail Woods Park, which has been in its current form since 1985. Maple Trail Woods Park is comprised of property owned by the Park District, property owned by Elmhurst and leased to the Park District, and property owned by the Du Page County Forest Preserve District (Forest Preserve).

         ¶ 17 In 1983, the Park District and Elmhurst entered into a lease in which Elmhurst leased territory to the Park District for the purpose of creating or maintaining public parks and recreation areas. The territory leased included property in Maple Trail Woods Park and Elmhurst's portion of the disputed property. A certified copy of the lease and the accompanying plat were attached to Rogers's affidavit.

         ¶ 18 In 1995, the Park District and Elmhurst again entered into a lease for the purpose of creating or maintaining public parks and recreation areas. In the 1995 lease, Elmhurst leased the 1974 acquisition. Rogers attached a certified copy of the 1974 deed to his affidavit; it appears to be the same as that attached to Piet's affidavit.

         ¶ 19 In this affidavit, Rogers averred that Maple Trail Woods Park contained a pedestrian and bicycle trail that ran along Salt Creek and was part of the Salt Creek Greenways Trail. According to Rogers, the Salt Creek Greenways Trail was about 30 miles long, running through 12 municipalities from Busse Park in Elk Grove Village to the Brookfield Zoo. Rogers did not attach any documentary evidence to support these averments.

         ¶ 20 On January 8, 2015, plaintiff filed a motion to strike portions of Piet's and Rogers's affidavits. Plaintiff challenged the aerial photographs with the lot-line overlays attached to Piet's affidavit and some of the averments in Rogers's affidavit. On March 5, 2015, the trial court denied the motion to strike with respect to Piet's affidavit and granted in part the motion to strike regarding Rogers's affidavit. Specifically, it struck Rogers's averments about public use of the parks. The trial court also invited Elmhurst to file a supplement to Rogers's affidavit.

         ¶ 21 On March 25, 2015, Elmhurst filed a supplemental affidavit in which Rogers averred that, ever since Elmhurst's property had been included as part of Maple Trail Woods Park, it had been used as a public park and recreation area and had been continually open, vacant, wooded, and a wetland area. Rogers further averred that the zoning regime for Maple Trail Woods Park was "CR, " for conservation and recreation. Rogers also attached a certified copy of the intergovernmental agreement creating the Salt Creek Greenways Trail. Plaintiff did not challenge the averments in Rogers's supplemental affidavit.

         ¶ 22 On July 9, 2015, Elmhurst was granted leave to file the affidavit of Kim McGrew, the superintendent of streets for Elmhurst. McGrew averred that she had personally reviewed and was familiar with the plat of the H.O. Stone Addition. McGrew also had reviewed and was familiar with Elmhurst's 1927 annexation ordinance (1927 Annexation Ordinance) and attached to her affidavit a certified copy of the 1927 Annexation Ordinance and the accompanying plat. McGrew had reviewed and was familiar with the 1962 Annexation Ordinance and the accompanying plat. McGrew averred that, based on her review of the H.O. Stone Addition, the 1927 Annexation Ordinance, and the 1962 Annexation Ordinance, along with her personal knowledge of the property depicted in those documents, all of the territory in the H.O. Stone Addition had been annexed to Elmhurst and was within Elmhurst's boundaries. McGrew averred that she had personal knowledge of the streets, rights-of-way, and roadways depicted in the plat of the H.O. Stone Addition, and she noted the streets that Elmhurst paved and maintained. McGrew did not mention West Avenue by name in her affidavit.

         ¶ 23 Plaintiff responded to Elmhurst's motion to dismiss. Plaintiff argued that the plats included in the affidavits Elmhurst promulgated did not establish the ownership rights in the disputed property (specifically, in Elmhurst's portion of the disputed property). Particularly, plaintiff contended, the plats did not expressly dedicate West Avenue as a public street and Elmhurst's evidence did not establish a common-law dedication of West Avenue as a public street. Plaintiff further argued that Elmhurst did not establish that it had accepted any dedication of West Avenue, either statutory or common-law. Finally, plaintiff contended, the evidence did not demonstrate that the disputed property was "used by the public-at-large as opposed to a strictly local use."

         ¶ 24 On August 31, 2015, the trial court granted Elmhurst's motion to dismiss. The court ruled:

"At issue in this case is whether there's been a dedication of the disputed property by [Elmhurst] to defeat the Plaintiff's complaint. The disputed property is a portion of a 33-foot strip of land that runs along the western boundary of certain property in Elmhurst, and for simplicity purposes the court identifies it as West Avenue. The parties don't dispute the law that's applicable to this case. Again, the issue goes back to whether there's been a dedication. Statute of limitations for adverse possession does not run against property held for public use. Whether this is a statutory dedication or a common law dedication, again is at issue in this case. The statutory dedication involves three things. Three things must happen.
First, the property owner files or records a plat which makes or notes on the plat portions of the premises as donated or granted to the public, and the public entity accepts the dedication, and the ascertainable grantee must take title. To determine whether there's a statutory dedication, courts are limited to an examination of the plat and the marks and notations appearing on the plat. A survey and a plat alone are sufficient to establish a dedication if it's evident from the face of the plat it was the intention of the proprietor to set apart certain grounds for public use. It must be clear from the face of the plat that a dedication was intended.
With respect to common law dedication, *** the fee remains in the dedicator subject to an easement for the benefit of the public. Three things must be present. An intention to dedicate for public use, acceptance by the public, and unequivocal evidence of the first two elements. Intent of the dedicator may be manifested by a formal dedication or by acts of the donor from which the intent may be so fairly presumed as to equitably estop the donor from denying a donative intent. Proof of any act by the dedicator that evidences an intention to dedicate must be clear, unequivocal, and unambiguous. Additionally, general law regarding dedication concerning the issue of dedication [sic]. A dedication may be made by grant or other written instrument or may be evidenced by acts and declarations without writing.
No particular form is required to the validity of a dedication [sic]. It is purely a question of intention. A dedication may be made by a survey and plat alone without any declaration either oral or on the plat when it is evident from the face of the plat that it was the intention of the proprietor to set apart certain grounds for the use of the public.
In reviewing all of these cases that both parties cited, the overriding or one of the overriding themes the court kept coming back to was the intent or the intention. So, key pieces of evidence this court relied upon in making its ruling.
First, was [the H.O. Stone Addition] 1925 plat which was recorded on March 10th of 1925. The western boundary of the [H.O. Stone Addition] plat is depicted as a strip labeled West Avenue with its western boundary running along the west line of the south one half of the southwest one quarter of Section 11, Township 39, north, range 11, east of the third principle meridian. West Avenue runs into [sic] north south direction along the western boundary of Section 7, 8, 9, and 10 of the plat and has designated and has a designation of 33 on the north and south ends of the West Avenue strip. West Avenue is [intersected] by five streets. McKinley Street, Roosevelt Street, Wilson Street, Harding Street, Coolidge Street that run in an east west direction to all [sic]. In an east west direction that all [intersect] with Salt Creek to the east [sic]. The Court agrees with Elmhurst that these strips depicted on the plat are intended to be an offer of dedication for public streets.
Second key piece of evidence this court relied upon was the 1962 Annexation Ordinance. [Elmhurst] and the court agrees [sic] affirmative matter shows [Elmhurst's] intent to accept the dedication of the disputed property. And it began when it adopted the [1962 Annexation Ordinance], and approves the annexation plat that is recorded depicting a portion of the property platted in the [H.O. Stone Addition] plat. The annexation plat depicts the blocks and lots from the plat that were annexed and also depicts West Avenue running north and south along the western boundary of the territory annexed. The next key piece of evidence this court relied on was the 1968 vacation ordinance of certain streets. And the evidence showed that in 1968, [Elmhurst] adopted a vacation ordinance authorizing vacation of part of Coolidge, Wilson, and Harding. [Elmhurst's] 1968 vacation of these streets results in the only access to the property contained in lots 12, 13, 14, and 15 of block seven, lots 8 through 15 of block 8, and lots 8 through 15 of block 9, and lots 2 through 4 of block 10 is provided by West Avenue. The next document again supporting the court's ruling with the 1968 Matthew's subdivision plat depicting, also depicting the disputed property. And in 1968, that plat was recorded creating a single lot one containing lots 8 through 15 of block seven, lots 8 through 15 of block 8, lots 8 through 15 of block 9, and lots 2 through 9 of block 10. All from that original [H.O. Stone Addition] plat and also including the area of Coolidge Street, Wilson Street, Harding Street which were vacated by [Elmhurst]. So that Matthew's subdivision depicts two streets running east and west, McKinley and Madison, and one street, West Avenue running north to south the length of the western boundary of the newly created lot one. Again by way of this subdivision, the only north to south access for lot one is provided by West Avenue.
Moving forward, the court relied on the 1974 warranty deed, and this is where [Elmhurst] obtains title to most of the property. Again [Elmhurst's] only north to south access to its property by way of the 1974 warranty deed is provided by West Avenue.
In addition to all of that evidence that is just recently or just cited by the court [sic]. The court also noted and relied upon the evidence of the 1983 and 1995 leases between [Elmhurst] and the [Park District] wherein the disputed property is specifically listed as quote subject property end of quote and shows a clear intention of dedication for public use.
Finally, for good measure although not heavily weighed by this Court, the Court did note that the 1989 survey, plat of survey is not a recorded survey, but is prepared by an Illinois Registered Land Surveyor. It was prepared for Cantore, Cantore and Company and it depicts West Avenue or West Ave. As an ...

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