Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County, Chancery Division. No.
18 CH 006379 Honorable Sanjay Tailor, Judge Presiding.
PRESIDING JUSTICE GRIFFIN delivered the judgment of the
court, with opinion. Justice Hyman and Justice Walker
concurred in the judgment and opinion.
GRIFFIN PRESIDING JUSTICE
1 On May 16, 2018, plaintiffs Victor and Eliath Mazal filed a
two-count verified complaint against defendants Macro Pinto
and Johanna Arias seeking to: (1) quiet title to a 16-foot
wide strip of land that runs between the parties'
properties in Lincolnwood, Illinois; and (2) enjoin
defendants from building a new fence on the property.
Plaintiffs' claims were based on alternative theories of
adverse possession and a prescriptive easement.
2 The trial court initially entered a temporary restraining
order in plaintiffs' favor, but later dismissed their
verified complaint with prejudice pursuant to section
2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS
5/2-619(a)(9) (West 2018)). The trial court based its
decision on the following findings: (1) the 16-foot strip was
statutorily dedicated property held by the Village of
Lincolnwood in trust for public use as an alleyway; (2) the
20-year limitations period on the recovery of lands did not
begin to run until 2008, when the Village vacated its
interest in the property; and (3) plaintiffs could prove no
set of facts establishing their use or possession of the
property for the required 20 years. Plaintiffs' motion to
reconsider was denied.
3 Plaintiffs appeal and ask us to reverse the trial
court's judgment. Plaintiffs contend that the limitations
period on the recovery of lands ran against the Village of
Lincolnwood and they can satisfy the 20-year limitations
period because: (1) the 16-foot strip never functioned as a
public alleyway; and (2) alleyways do not serve a public use.
For the following reasons, we affirm the judgment of the
circuit court of Cook County.
5 On October 5, 2016, plaintiffs purchased a home located at
6618 N. Monticello Ave. in Lincolnwood, Illinois. After
defendants purchased the abutting property on April 26, 2018,
plaintiffs filed a two-count verified complaint against
defendants in the circuit court of Cook County. In their
lawsuit filed on May 16, 2018, plaintiffs sought to quiet
title to a 16-foot wide strip of land that ran through the
parties' backyards and to enjoin defendants from
interfering with the property. Plaintiffs' claims were
based on alternative theories of adverse possession and a
6 Plaintiffs alleged that when they purchased their home, a
chain link fence divided the parties' backyard properties
lines and the 16-foot strip was on their side of the
property. Plaintiffs built a play set for their children
within two feet of the fence and claimed that their use and
possession of the premises spanned "thirty years."
Though they acknowledged that a "decades-old"
survey of the land showed that the 16-foot strip was a
dedicated public alleyway, plaintiffs alleged that
construction of the alleyway "never occurred, and there
is no such alleyway running between the properties."
7 On May 24, 2018, the trial court entered a temporary
restraining order in plaintiffs' favor and on August 15,
2018, defendants filed a combined motion to dismiss (735 ILCS
5/2-619.1 (West 2018)) the action pursuant to sections 2-615
(id. § 2-615) and 2-619(a)(9) (id.
§ 2-619(a)(9)) of the Illinois Code of Civil Procedure.
Section 2-615 allows a defendant to seek the dismissal of a
claim on the basis that it fails to state a cause of action.
Section 2-619(a)(9) provides for dismissal when a claim is
barred or defeated by an affirmative matter.
8 Defendants advanced several bases for dismissing
plaintiffs' verified complaint pursuant to section 2-615,
but the crux of their combined motion was that an affirmative
matter defeated the action altogether under section
2-619(a)(9). Defendants argued that the 16-foot strip was
statutorily dedicated to the Village of Lincolnwood for use
as a public alleyway and as a matter of law, the Village was
not subject to the 20-year limitations period on the recovery
of lands embodied in section 13-101 of the Limitations Act
(735 ILCS 5/13-101 (West 2018)) (section 13-101). Defendants
claimed that the limitations period started to run in 2008,
when the Village vacated its interest in the property through
the adoption of a municipal ordinance (Ordinance No.
2008-2787), and plaintiffs could not establish their use or
possession of the property for the required 20 years.
9 Defendants attached several public records to their
combined motion to dismiss, including a copy of the original
"Lincoln Ave. Gardens" subdivision plat, dated
February 11, 1927, and a copy of Ordinance No. 2008-2787. The
plat showed the proposed "public alleyway" running
through the parties' properties and expressly provided
that it was "approved by the President of the Board of
Trustees of the Village of Tessville" (Lincolnwood was
formerly named Tessville). Ordinance No. 2008-2787 contained
an express finding of the board of trustees that the vacation
of the 16-foot strip would serve the "public
interest" and indicated that upon vacation, title to the
property would vest in the abutting landowners in equal
10 Plaintiffs filed a response, arguing that the limitations
period in section 13-101 ran against the Village some time
prior to 2008 because: (1) the 16-foot strip never functioned
as a public alleyway; and (2) public alleyways do not serve a
public use. Plaintiffs claimed they could satisfy the 20-year
time period and asked the trial court to deny defendant's
combined motion to dismiss.
11 On January 23, 2019, the trial court dismissed
plaintiffs' verified complaint with prejudice pursuant to
section 2-619(a)(9). The trial court found that the 16-foot
strip was statutorily dedicated property, the limitations
period in section 13-101 began to run in 2008, and it was
"impossible" for plaintiffs to satisfy the required