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Hess v. Miller

Court of Appeals of Illinois, Fourth District

June 5, 2019

MARCELLA M. HESS and STEVEN L. HESS, Plaintiffs-Appellees,
JEFFREY L. MILLER, as Highway Commissioner of Lima Township, Adams County, IL; JAMES FRANKENHOFF, as Superintendent of Highway of Adams County, IL; and HUNT-LIMA DRAINAGE & LEVEE DISTRICT, Defendants-Appellants.

          Appeal from the Circuit Court of Adams County No. 16MR244. The Honorable Mark A. Drummond, Judge Presiding.

          JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Knecht and Harris concurred in the judgment and opinion.



         ¶ 1 In December 2016, Marcella M. Hess and Steven L. Hess (landowners) filed a two-count complaint against (1) Jeffrey L. Miller, the highway commissioner of Lima Township, and (2) the Hunt-Lima Drainage & Levee District (drainage district). In essence, Miller had closed a township bridge which crossed over the drainage district's property. Landowners sought an easement across the vacated bridge. Relying upon Cook v. Mighell Construction Co., 40 Ill.App.3d 1032, 1038, 353 N.E.2d 43, 48 (1976) (when an "owners' rights are derived from the platting of a subdivision and where the street or a portion thereof is vacated by the municipality, the property owners abutting the vacated street, and those seeking access thereto, have an easement of access"), the trial court granted landowners an easement across the vacated portion of the road and the bridge.

         ¶ 2 The drainage district appeals, arguing that landowners are not entitled to an ease- ment. We agree and reverse.

         ¶ 3 I. BACKGROUND

         ¶ 4 A. The Complaint

         ¶ 5 In December 2016, landowners filed a two-count complaint against (1) Miller and (2) the drainage district. Count I, which the trial court ultimately dismissed with prejudice and is not appealed to this court, sought administrative review of Miller's closure of the bridge and the partial closure of the road.

         ¶ 6 Count II, which was a request for declaratory judgment, sought an easement across the vacated bridge that crossed the drainage district's levee. (A levee is an "embankment constructed along the edge of a river to prevent flooding." Black's Law Dictionary 918 (7th ed. 1999)). Landowners sought "a common law private and perpetual easement right to use the subject vacated road, which includes the bridge, for the purpose of traveling the same to and from their properties that lie adjacent to the vacated road." Landowners sued the drainage district for an easement because the drainage district owned "the land under which the subject bridge is situated, and by virtue of the subject road vacation and by operation of law, now owns the bridge structure that is affixed to its land." Citing Cook, landowners argued as follows:

"The common law rule in Illinois relative to vacated public roads and abutting landowners affected thereby, is that upon vacation, those landowners maintain a private easement right over and across that vacated road to access their properties. In other words, after a public road is vacated, the adjacent landowners have a continued legal right to traverse the vacated road to get to and from their properties, notwithstanding the general public's right to use the vacated road is extinguished."

         ¶ 7 Within this complaint, landowners explained that they had recently purchased a residence at 510 North 2900th Avenue, Ursa, Illinois. Landowners argued that "no one made them aware that the Lima Township was planning to vacate that section of the township road known as North 2900th Avenue that lies South of, adjacent to[, ] and immediately in front of their residence." Landowners noted that in September 2015, Miller "physically closed the subject portion of the public road, including the steel truss bridge that lies over the lands of [the drainage district] by, inter alia, cutting the wood oak floor planks at both ends of the bridge."

         ¶ 8 Attached to landowners' complaint was an "affidavit in opposition to road vacations." Within this affidavit, landowners explained that they "had only two ways to get to our Home: 1) access from the West by way of the subject North 2900th Avenue and its bridge that quickly leads to the hard-paved Bottom Road (the 'Blacktop Road Access') or 2) access from the East by way of North 2900th Avenue and other gravel township roads that eventually lead to Highway 96 (the 'Gravel Road Access')." Landowners explained that the "Blacktop Road Access allows us the most efficient and safe route to get to Quincy, Illinois[, ] for our medical, shopping and other needs within approximately 20 minutes from our Home." Landowners further explained that the "Gravel Road Access takes us approximately 35 minutes to get [to] Quincy, Illinois[, ] for our medical, shopping and other needs from our Home." Landowners elaborated that elimination of the bridge "would completely eliminate the Blacktop Road Access to our Home, which means of access is the most reasonable, efficient[, ] and safe route for us to get to and from Quincy, Illinois[, ] because it is hard pavement, dust free[, ] and is the quickest route."

         ¶ 9 Landowners' statements can be better understood with the assistance of Google Maps (see Winters v. MIMG LII Arbors at Eastland, LLC, 2018 IL App (4th) 170669, ¶ 15, 115 N.E.3d 282 (taking judicial notice of an image from Google Maps for the purpose of better understanding the statements made during depositions)):

         (Image Omitted)

         ¶ 10 Landowners also attached the warranty deeds they received from the prior land- owners. These warranty deeds included a legal description of landowners' property. The legal description did not refer to a subdivision plat. See 765 ILCS 205/1, 2 (West 2016) (discussing the surveying, platting, and recording requirements for subdividing property).

         ¶ 11 Landowners took their warranty deeds "subject to" the "[r]ights of the public, the State of Illinois, the [t]ownship and municipality in and to that part of the premises in question taken, used or dedicated for roads, streets, alleys or highways." The legal description also stated that the property was "subject to the right of the public for roadway purposes along the existing public roadway." Neither the warranty deeds nor the legal description of the ...

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