J&A Cantore, LP v. The Village of Villa Park , 2017 IL App (2d) 160601 ( 2017 )

2017 IL App (2d) 160601
No. 2-16-0601
Opinion filed May 31, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
J&A CANTORE, LP, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 14-CH-1613
)
THE VILLAGE OF VILLA PARK and THE )
CITY OF ELMHURST, )
)
Defendants ) Honorable
) Paul M. Fullerton,
(The City of Elmhurst, Defendant-Appellee). ) 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
¶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.
2017 IL App (2d) 160601
¶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
1
The Village of Villa Park is not a party to this appeal.
-2-
2017 IL App (2d) 160601
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.
-3-
2017 IL App (2d) 160601
¶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.
-4-
2017 IL App (2d) 160601
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
-5-
2017 IL App (2d) 160601
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
-6-
2017 IL App (2d) 160601
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
-7-
2017 IL App (2d) 160601
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
-8-
2017 IL App (2d) 160601
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
-9-
2017 IL App (2d) 160601
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.
- 10 -
2017 IL App (2d) 160601
[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
- 11 -
2017 IL App (2d) 160601
an Illinois Registered Land Surveyor. It was prepared for Cantore, Cantore and
Company and it depicts West Avenue or West Ave. As an unincorporated ave. Similar
to all the other plats presented in this matter.
So the court believes that Elmhurst has shown sufficient affirmative matter to
support its motion [to dismiss]. All of the evidence cited by this Court leads the Court to
conclude that there has clearly been a common law dedication of the 33-foot strip that
includes the disputed property. The court also believes that based on the entirety of all
the evidence, there has been a statutory dedication of this disputed property. And going
back to that initial statement of the law that the Statute of Limitations for adverse
possession does not run against property held for public use, the court grants the motion,
the 2-619 motion dismissing counts 3 and 4 of the Plaintiff’s complaint. And the
dismissal is with prejudice.”
¶ 25 On September 8, 2015, Elmhurst filed a motion for a finding pursuant to Illinois Supreme
Court Rule 304(a) (eff. Feb. 26, 2010). On January 26, 2016, the trial court granted the motion,
making the express finding that there was no just reason to delay enforcement or appeal of the
order dismissing counts III and IV of plaintiff’s complaint.
¶ 26 On February 25, 2016, plaintiff filed a motion to reconsider the trial court’s order
dismissing its claims against Elmhurst. Plaintiff argued that the trial court had misapplied the
law relating to statutory and common-law dedications of property as public roads, as well as the
law relating to a municipality’s acceptance of such a dedication. On June 28, 2016, the trial
court denied plaintiff’s motion to reconsider. Plaintiff timely appeals.
¶ 27 II. ANALYSIS
- 12 -
2017 IL App (2d) 160601
¶ 28 Plaintiff argues on appeal that the trial court erred in dismissing its complaint pursuant to
section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)). A motion to dismiss under section
2-619 admits the sufficiency of the complaint but asserts that an affirmative matter defeats the
claim. In re Estate of Kirk, 2017 IL App (4th) 160416, ¶ 39. When ruling on a section 2-619
motion, the trial court must interpret the pleadings and supporting documents in the light most
favorable to the nonmoving party. Id. ¶ 41. We review de novo the trial court’s judgment on a
section 2-619 motion. Id.
¶ 29 In its complaint, plaintiff proceeded under the theory that it had satisfied the conditions to
claim that it owned the disputed property through adverse possession. Elmhurst’s motion to
dismiss sought to rebut plaintiff’s claim of adverse possession by showing that its portion of the
disputed property had been dedicated for public use, either through a statutory dedication or
through a common-law dedication. Next, Elmhurst sought to demonstrate that it had accepted
the dedication. Finally, Elmhurst sought to prove that its portion of the disputed property was
subject to public use sufficient to defeat plaintiff’s claim of adverse possession. On appeal, then,
plaintiff challenges each facet of Elmhurst’s motion to dismiss. Plaintiff argues first that
Elmhurst did not demonstrate any dedication for public use, either statutory or common-law, of
its portion of the disputed property. Plaintiff next argues that Elmhurst never accepted any
dedication. Finally, plaintiff contends that the trial court erred in considering Elmhurst’s portion
of the disputed property to be subject to public use, because it, at best, serves only a local
interest. We consider each contention in turn.
¶ 30 A. Statutory or Common-Law Dedication
¶ 31 As a preface to its contentions about statutory and common-law dedications, plaintiff first
argues that the trial court erred in determining that Elmhurst owned its portion of the disputed
- 13 -
2017 IL App (2d) 160601
property. Plaintiff reasons that, if Elmhurst did not own its portion of the disputed property, then
it could not validly lease that portion to the Park District. Plaintiff argues that, in turn, the 1983
and 1995 leases could not be used as evidence of Elmhurst’s ownership or its intent to subject its
portion of the disputed property to public use.
¶ 32 Plaintiff bases this prefatory argument on an apparently commonsense observation: the
boundary lines of the various lots did not extend into the area marked as West Avenue, so
Elmhurst’s annexation of territory containing its portion of the disputed property would have had
no effect on the ownership of the disputed property. Plaintiff argues that, even if Elmhurst
received fee simple title to lot 1 of Matthew’s Subdivision, lot 1 did not include any of the
disputed property, because the western boundary line of lot 1 did not include the 33-foot-wide
strip of land comprising Elmhurst’s portion of the disputed property. Plaintiff derides Elmhurst’s
contention as conflating the creation of municipal boundaries through annexation (as to which
plaintiff appears to concede that Elmhurst’s portion of the disputed property is correctly ascribed
to be within Elmhurst’s corporate boundaries) and the actual ownership interest in the territory so
annexed. Plaintiff correctly points out that Elmhurst cites no authority that equates annexation
and ownership. However, this sets up a bit of a straw-man argument.
¶ 33 It is well established that a statutory dedication vests title to the dedicated property in the
public. Republic Bank of Chicago v. Village of Manhattan, 2015 IL App (3d) 130379, ¶ 18;
Reiman v. Kale, 83 Ill. App. 3d 773, 776 (1980). If Elmhurst can demonstrate that its portion of
the disputed property was the subject of a statutory dedication as a public street, then it would
possess fee simple title to its portion of the disputed property, and plaintiff’s contentions
regarding ownership would be foreclosed. Thus, we turn to that issue.
- 14 -
2017 IL App (2d) 160601
¶ 34 A statutory dedication occurs when: (1) the property owner files or records a plat that
marks or notes the portions of the premises donated or granted to the public, and (2) the public
entity accepts the dedication. Bigelow v. City of Rolling Meadows, 372 Ill. App. 3d 60, 64
(2007). To complete a statutory dedication, the provisions of the Plat Act (currently 765 ILCS
205/0.01 et seq. (West 2014)) must be fully complied with, and the plat must clearly indicate a
donation to the public of the property in question. Bigelow, 372 Ill. App. 3d at 64-65. In order
to determine whether a plat fully complies with the Plat Act, a court must refer to the version of
the Plat Act in force when the plat was created. Lambach v. Town of Mason, 386 Ill. 41, 47
(1944). There must also be an ascertainable public entity to take title. Bigelow, 372 Ill. App. 3d
at 65. In determining whether there is a statutory dedication, the court is limited to an
examination of the plat and the marks and notations appearing on the plat. Id. We turn first to
compliance with the proper version of the Plat Act.
¶ 35 Elmhurst’s claim of title arises from the H.O. Stone Addition, recorded on March 10,
1925. At that time, the Plat Act provided:
Ҥ 1. Be it enacted by the People of the State of Illinois, represented in the
General Assembly: Whenever the owner of lands shall wish to subdivide the same into
two or more parts for the purpose of laying out a town, or making any addition to any
city, village or town, or of re-subdividing any lots or blocks therein, he shall cause the
same to be surveyed and a plat thereof to be made by the county surveyor or some other
competent surveyor, which plat shall particularly describe and set forth all the streets,
alleys, common or public grounds, and all the in and out lots or fractional lots or blocks
within, adjoining or adjacent to the land so divided, giving the names, width, courses and
extent of all such streets and alleys, and numbering all lots and blocks by progressive
- 15 -
2017 IL App (2d) 160601
numbers, giving their precise length and width. Reference shall also be made upon the
plat to some known and permanent monument from which future surveys may be made,
or, if no such monument shall exist within convenient distance, the surveyor shall, at the
time of making his survey, plant, and fix in such manner that the same shall not be moved
by frost, at the corner of some public ground, or, if there be none, then at the corner of
some lot or block most convenient for reference, a good and sufficient stone, to be
furnished by the person for whom the survey is made, and designate upon the plat the
point where the same may be found.
*** § 2. The plat having been completed, shall be certified by the surveyor and
acknowledged by the owner of the land, or his attorney duly authorized, in the same
manner as deeds of land are required to be acknowledged. The certificate of the surveyor
and of acknowledgement, together with the plat, shall be recorded in the recorder’s office
of the county in which the land is situated, or if the title to the land is registered under the
Land Titles Act, shall be filed in the office of the registrar of titles for the county, and
such acknowledgment and recording, or such acknowledgment and filing as aforesaid,
shall have like effect and certified copies thereof and of such plat, or of any plat
heretofore acknowledged and certified according to law, may be used in evidence to the
same extent and with like effect, as in case of deeds.
*** § 3. The acknowledgement and recording of such plat, or the
acknowledgment and filing of the same as aforesaid, shall be held in law and in equity to
be a conveyance in fee simple of such portions of the premises platted as are marked or
noted on such plat as donated or granted to the public, or any person, religious society,
corporation or body politic, and as a general warranty against the donor, his heirs and
- 16 -
2017 IL App (2d) 160601
representatives, to such donee or grantee, for their use or for the use and purposes therein
named or intended, and for no other use or purpose. And the premises intended for any
street, alley, way, common or other public use *** shall be held in the corporate name
thereof in trust to and for the uses and purposes set forth or intended.” Ill. Rev. Stat.
1925, ch. 109, ¶¶ 1-3.
¶ 36 The plat of the H.O. Stone addition fulfills the technical requirements of sections 1 and 2
of the Plat Act from 1925. First, it is labeled as “H.O Stone & Company’s Spring Road Addition
to Elmhurst.” It makes apparent that it intends to be an addition to Elmhurst, as then constituted.
Ill. Rev. Stat. 1925, ch. 109, ¶ 1. The plat bears an owner’s certificate in which the Chicago Title
and Trust Company, under the provisions of a dated and numbered trust agreement, states that it
is the owner of the described land and caused the land to be surveyed, subdivided, and platted as
shown on the plat. The owner’s certificate appears to be properly notarized. Likewise, the plat
bears a surveyor’s certificate that states that the surveyor, who was registered with the State,
surveyed the land, subdivided it into blocks and lots, and noted the streets and alleys, all of
which were correctly represented on the plat. See id. Additionally, the plat shows that the land
is subdivided into blocks that are progressively numbered and contain lots that are progressively
numbered, and it gives the lots’ lengths and widths. The streets are particularly described by
name, width, and course. The section lines and quarter lines are depicted; a stone monument is
identified at the intersection of West Avenue and Coolidge Street. See id.
¶ 37 The requirements of section 2 of the Plat Act are also fulfilled. The plat contains on its
face the required certifications of the owner and the surveyor. Further, the plat demonstrates that
it was recorded in the recorder’s office of Du Page County. Ill. Rev. Stat. 1925, ch. 109, ¶ 2.
Pursuant to section 3 of the Plat Act, the acknowledged and recorded plat conveyed fee simple
- 17 -
2017 IL App (2d) 160601
title to the portions of the premises marked as donated or granted to the public, namely, the
streets and alleys shown on the plat. Ill. Rev. Stat. 1925, ch. 109, ¶ 3. Accordingly, we hold that
the plat of the H.O. Stone Addition fulfills the requirements for a statutory dedication of the
streets depicted on it, thereby vesting Elmhurst with fee simple title to its portion of the disputed
property.
¶ 38 Plaintiff argues that, for a statutory dedication to be effective, the plat must clearly
indicate a donation to the public. Plaintiff specifically contends that, because the plat for the
H.O. Stone Addition does not bear sufficient indicia of the intent to donate, such as including the
words “hereby dedicated” or labeling the portions of the territory to be donated as “public,” the
trial court erred in concluding that there was a statutory dedication of the streets depicted on the
plat. We disagree.
¶ 39 Remembering that we are limited to considering the marks and notations on the plat in
determining whether a statutory dedication was accomplished (Bigelow, 372 Ill. App. 3d at 65),
we believe that the unmistakable intent of the original proprietor was to dedicate to Elmhurst as a
public street the territory marked as West Avenue on the plat of the H.O. Stone Addition. West
Avenue appears on the plat as a north-south street, and it is notated with the marking “33’ ” at
the northernmost and southernmost extents of its course. The eastern boundary of West Avenue
is marked by a solid line (with gaps for the intersecting streets). The western boundary of West
Avenue is marked by a dashed and dotted line depicting the western line of a specifically
described section. West Avenue forms the western boundary of the territory depicted in the plat
(excepting the bend of Salt Creek, which also seems to physically denote the western boundary
of the territory lying south of Coolidge Street). McKinley Street, an east-west street, forms the
northern boundary of the territory depicted in the plat, and it similarly bears the notation “33’ ” at
- 18 -
2017 IL App (2d) 160601
the easternmost and westernmost extents of its course. The eponymous Spring Road appears on
the plat as a north-south street. Its eastern and western boundaries are depicted as solid lines; a
dashed and dotted line representing the eastern line of a specifically described section runs down
the middle of Spring Road, and at the northernmost and southernmost extents of Spring Road’s
course, the notation “33’ ” appears to the east and west of the dashed and dotted line in the
middle of Spring Road. Similarly, a portion of Berkley Avenue, also a north-south street, forms
the eastern boundary of the territory depicted on the plat. At its northernmost extent, it bears the
notation “50”; at its southernmost extent, it bears the notation “25.” Along block 18, Berkley
Avenue’s western boundary is represented by a solid line; beginning at Coolidge Street, a dashed
and dotted line representing the eastern line of a specifically described section appears as the
eastern boundary of Berkley Avenue. At the intersection of Coolidge Street and Berkley
Avenue, the northernmost extent of the apparently partial portion of Berkley Avenue bears the
notation “25.” Finally, Coolidge Street (excepting the portion of Salt Creek to the south of
Coolidge Street), an east-west street, forms the southern boundary of the platted territory.
Running west from Salt Creek, the northern boundary of Coolidge Street is shown by a solid
line; the southern boundary of Coolidge Street is shown by a dashed and dotted line portraying
the northern and southern lines of specifically described sections. At its westernmost extent,
Coolidge Street bears the notation “33’.” Running east from the intersection of Coolidge Street
and Berkley Avenue, the northern boundary of Coolidge Street is shown by a solid line (with
gaps for the intersecting streets); the southern boundary of Coolidge Street is shown by a dashed
and dotted line portraying the northern and southern lines of specifically described sections. At
its easternmost extent, near the intersection with Spring Road, Coolidge Street bears the notation
“33’.”
- 19 -
2017 IL App (2d) 160601
¶ 40 The plat, therefore, shows the territory being subdivided, with the streets indicated by
name. Around the periphery of the territory, the streets are named, but shown as being 33 feet in
width, which is half the width of the internal east-west streets and half the width of Spring Road.
In Thompson v. Maloney, 199 Ill. 276, 284-85 (1902), the supreme court held that a similar half-
width strip of land circumscribing the platted territory clearly showed upon the face of the plat
the proprietor’s intent to donate the strip to the public as a street or alley. The court held:
“The natural presumption arising from the face of the plat is that the strip in question,
being a part of the subdivision as platted, and yet not being a part of any platted lot, and
extending, as it does, on all sides of the platted lots, and comprising one half of the streets
and avenues on other sides of the plat, was platted as one half of a street, the other half
whereof it is clear the proprietor of the plat expected and intended should be furnished
out of adjoining premises when platted. There is nothing otherwise on the plat to
overcome the presumption. That the presumption arises from the face of the plat that the
strip in question was intended to be dedicated to the public use is supported by the text of
[a treatise].” Id. at 285.
¶ 41 Similarly, in Kennedy v. Town of Normal, 359 Ill. 306, 309-10 (1934), our supreme court
held, simply by observing the face of the plat, that an unnamed strip was intended to be donated
to the public as an alley, even though the proprietor of the plat did not otherwise satisfy the
requirements for a statutory dedication. The court noted that the streets on the plat had been
named and that, although the unnamed alley appeared between the lots of the relevant block, the
“plat and its certificate sufficiently show[ed] the intention of the proprietor” “to set apart certain
grounds for the use of the public.” Id. at 310.
- 20 -
2017 IL App (2d) 160601
¶ 42 Because the circumstances in this case are similar to those in Thompson and Kennedy, the
same result obtains. As in Thompson, there is a platted strip that surrounds the entirety of the
territory, where the geography of Salt Creek allows. Additionally, all of the circumscribing
strips are expressly named as streets and avenues, including West Avenue. As in Kennedy, the
circumscribing strips, including West Avenue, intersect with other named streets and avenues.
Thus, from the face of the plat and the fact that the plat is intended to represent an addition to
Elmhurst, we can glean that the proprietor intended to set apart the named streets for use by the
public. Id. at 309-10; Thompson, 199 Ill. at 284-85.
¶ 43 In addition, we note that the 3rd Spring Road Addition shows an unnamed 25-foot-wide
strip running along the eastern boundaries of lots abutting the 33-foot-wide strip in the H.O.
Stone Addition denominated as West Avenue. Where a strip was intended to constitute a portion
of a street, even if unnamed, the other portion of the street will be furnished by the adjoining
property when it is platted. Thompson, 199 Ill. at 290. Here, the 3rd Spring Road Addition
supplied a 25-foot-wide strip that was intended to comprise a portion of a street; West Avenue as
denominated on the plat of the H.O. Stone Addition was the adjoining property and completes
the street as contemplated in both plats. Id. Thus, Thompson suggests that the interpretation that
West Avenue was intended to be dedicated as a public street is the only reasonable construction
of the plats at issue, and it helps to confirm our judgment regarding whether West Avenue was
the subject of a statutory dedication.
¶ 44 Plaintiff urges that “[m]erely identifying a road on a plat, without the corresponding
language, however, is not sufficient to evidence a statutory dedication.” We agree that words
and phrases such as “public” or “hereby dedicated” also indicate a proprietor’s intent to dedicate
to the public the territory so denominated. Nevertheless, a plat that does not bear such words or
- 21 -
2017 IL App (2d) 160601
phrases can still indicate that territory labeled as a roadway was intended to be dedicated to the
public. Kennedy, 359 Ill. at 309-10; Thompson, 199 Ill. at 284-85.
¶ 45 To support its contention, plaintiff directs our attention specifically to Bigelow, 372 Ill.
App. 3d 60, and Semmerling v. Hajek, 258 Ill. App. 3d 180 (1994). In Bigelow, the plaintiffs
sued the City of Rolling Meadows (City) for a declaration that they owned a 33-foot strip of land
and that the City had no interest in that property. Bigelow, 372 Ill. App. 3d at 61. The trial court
ruled in favor of the plaintiffs, holding that there had been no statutory dedication of the subject
property and that the City had waived its argument that there was nevertheless a common-law
dedication, and the City appealed. Id. The subject property was currently within the City’s
municipal boundaries, but, when it was platted, it lay in unincorporated Cook County and was
designated as Winnetka Avenue. The subject property was adjacent to the plaintiffs’ lots in a
subdivision. Id.
¶ 46 The City asserted that it annexed the subject property in 1961, but the plat of annexation
was not included in the record on appeal. Id. at 62. In 1992, the City passed an annexation
ordinance in which the subject property was referred to as “ ‘dedicated Winnetka Avenue’ ” or
“ ‘dedicated right-of-way Winnetka Avenue.’ ” Id. However, at the time of the action, the
subject property had never been paved or used as a public way for vehicular or pedestrian traffic.
Id. Further, portions of the copy of the annexation ordinance appearing in the record were
illegible. Id. at 62 n.2.
¶ 47 Faced with these facts, the appellate court invoked the principle that deficiencies in the
appellate record will be construed against the appellant, who has the obligation to provide a
sufficient record to support the claims of error raised. Id. at 62 n.1 (citing Foutch v. O’Bryant,
99 Ill. 2d 389, 391-92 (1984)). Likewise, Under the Foutch principle, the appellate court was
- 22 -
2017 IL App (2d) 160601
required to presume that the order entered by the trial court was in conformity with the law and
had a sufficient factual basis; as well, any doubts arising from the incompleteness of the record
on appeal would be resolved against the appellant. See Foutch, 99 Ill. 2d at 392. Because the
plaintiffs had prevailed in the trial court, and because the City had failed to provide certain
important portions of the record on appeal, the appellate court’s ruling was already tilted in favor
of the plaintiffs.
¶ 48 Plaintiff here points to the idea that, in order to effect a statutory dedication, “ ‘the plat
must clearly indicate a donation to the public of the real estate in question.’ ” Bigelow, 372 Ill.
App. 3d at 64-65 (quoting Emalfarb v. Krater, 266 Ill. App. 3d 243, 252 (1994)). The Bigelow
court concluded that, “although the Subject Property was designated as Winnetka Avenue, there
were no marks or notations on the plat evidencing an intent to dedicate the Property for use by
the public.” Id. at 66. The court further noted that, although “most roads are public, there is no
prohibition against private streets.” Id. at 66-67. According to plaintiff here, this is the takeaway
from Bigelow: that, in the absence of marks or notations on the plat expressly stating that the
roadways are donated to the public, it is improper to conclude that the proprietor of the plat
intended to donate the roadways to the public. Plaintiff’s interpretation of Bigelow is not borne
out upon a close examination.
¶ 49 First, we note that the idea that the “ ‘plat must clearly indicate a donation to the public of
the real estate in question’ ” (id. at 64-65 (quoting Emalfarb, 266 Ill. App. 3d at 252)) does not
necessarily foreclose the results in Kennedy and Thompson, in which unnamed strips of land
were nevertheless deemed to be dedicated to the public. This is because the plats could still be
read as dedicating named roadways to the public even though the plats did not bear the words or
- 23 -
2017 IL App (2d) 160601
phrases “public” or “hereby dedicated.” Kennedy, 359 Ill. at 309-10; Thompson, 199 Ill. at 284-
85.
¶ 50 Next, and we note that plaintiff’s treatment of Bigelow wholly overlooks this point, the
Bigelow court appears to have based its rejection of the principles from Kennedy and Thompson
on the fact that the subdivision was located in unincorporated Cook County when it was platted.
Specifically, the court held: “Where the subdivision was located not within the boundaries of a
municipality, but in unincorporated Cook County, we will not assume dedication in the absence
of [marks or notations on the plat evidencing an intent to dedicate the subject property for use by
the public].” Bigelow, 372 Ill. App. 3d at 67. In other words, one of Bigelow’s key aspects was
the fact that the subdivision was not designated as an addition to a municipality, so the
proprietor’s failure to expressly dedicate the subject property to the public takes on a different
significance, because it might be reasonable to infer that private streets would be contained in an
unincorporated area (and perhaps a private community), whereas it is a much less likely
inference when the territory is located in a municipality or is designated as an addition to a
municipality. In the instant case, the circumstances do not appear to be similar to those in
Bigelow, because the H.O. Stone Addition was designated as an addition to the municipality of
Elmhurst, and applying the principles in Kennedy and Thompson appears to be more appropriate
in such circumstances. Accordingly, we determine that Bigelow is distinguishable and provides
little guidance under the circumstances of this case.
¶ 51 Turning to Semmerling, we note that plaintiff urges that it stands for the same proposition
as Bigelow, namely, that the bare identification of a road on a plat, without language specifying
the proprietor’s intent to dedicate the road for use by the public, is insufficient to evidence a
statutory dedication. In Semmerling, the plaintiff was the Lake Villa Township highway
- 24 -
2017 IL App (2d) 160601
commissioner; the defendant was a private citizen who owned a parcel of land that included the
disputed road. The disputed road was located within a 40-foot-wide “driveway” running east
and west from Munn Road, which was designated as a “ ‘driveway for use of lot owners,’ ” to
Crooked Lake. Semmerling, 258 Ill. App. 3d at 181. The disputed road was paved up to a point
65 feet from the defendant’s property; beyond the paved point, the disputed road continued as a
dirt path, but the terminus of the paved portion of the disputed road was not shown on the plat.
Id. The paved and unpaved portions of the disputed road were separated by a gate with a sign
reading “ ‘Private’ ” and “ ‘No Parking.’ ” Id. At the eastern border of the defendant’s property,
a spray-painted line and the word, “ ‘PRIVATE’ ” marked the disputed road. Id. Wood fences
ran parallel to the disputed road on each side, but the entire width of the way between the fences
was not paved. Id. The particular portion of the disputed road at issue was the portion running
from the eastern border of the defendant’s property to the gate. Id.
¶ 52 There was testimony that the Township maintained the disputed road and removed
obstacles and debris that the defendant placed on the road. Id. at 182. There was also testimony
that residents of the subdivision and their guests used the disputed road to access Crooked Lake
and that the subdivision’s homeowner’s association maintained the road. Id. at 182-83.
¶ 53 The plaintiff filed suit against the defendant in small claims court to recover the
Township’s costs for removing the defendant’s obstructions and damage to the disputed road.
The defendant counterclaimed for trespass, claiming ownership of the portion of the disputed
road at issue. Id. at 183. The trial court determined that the portion at issue had been used by the
public for 15 years, and it dismissed the defendant’s trespass counterclaim; the trial court also
determined that the plaintiff had not followed the correct statutory procedure to recover damages
and had therefore failed to prove damages. Id. The defendant then moved to clarify the ruling,
- 25 -
2017 IL App (2d) 160601
requesting that the trial court define the prescriptive easement arising from the public’s use of the
disputed road. The trial court determined that the easement included the paved portion and six
feet on either side of the paved portion, and the plaintiff appealed. Id.
¶ 54 In considering the arguments, this court initially noted that the issues turned “largely on
the subtle facts of the case” and that, because the bystander’s report only summarized the
testimony, we would follow Foutch and presume that the trial court’s order conformed to the law
and had a sufficient factual basis when any ambiguities arose due to the incompleteness of the
record. Id. at 184-85. After resolving issues that are not pertinent here, we turned to the
plaintiff’s claim that the plat represented a statutory dedication of the disputed road. Id. at 186.
We held that the denomination of the disputed road as a “driveway,” especially when considered
in conjunction with Munn Road’s denomination as a “ ‘driveway for use of lot owners,’ ” was
“not a clear indication of an intent to dedicate the parcel to public use.” Id. at 187. We then
recited the principle for which plaintiff in this case cites Semmerling: “the mere fact that a plat
indicates the presence of streets is insufficient to effect a statutory dedication because there is no
general prohibition against private streets.” Id.
¶ 55 Semmerling is readily distinguishable. In the context of that case, a “driveway” is a
different type of roadway than a named street on a plat of an addition to a municipality.
Moreover, the fact that the disputed road ran from Crooked Lake to Munn Road, which was
labeled as a “driveway for use of lot owners,” added ambiguity to the disputed road’s
designation, making an intent to donate it to the public less likely. In other words, in
Semmerling, the markings on the plat undermined the conclusion that the disputed road was
donated to the public and supported the conclusion that it was intended to be a private roadway.
In the instant case, by contrast, there are no markings or words on the plat of the H.O. Stone
- 26 -
2017 IL App (2d) 160601
Addition that lead to any conclusion but that the roadways were intended to be dedicated to the
public. Accordingly, Semmerling is clearly distinguishable and offers little guidance here.
¶ 56 Plaintiff also cites Reiman, 83 Ill. App. 3d 773, for the same principle for which he cites
Bigelow and Semmerling. In Reiman, the highway commissioner of Downers Grove Township
sought an injunction to prevent the respondents from erecting barriers across a roadway in a
subdivision and, ultimately, a declaration that the disputed roadway was a public right-of-way.
Id. at 775. Though sparse, the facts of the case suggest that the subdivision was adjacent to a
private landing strip and that lot owners used the private landing strip. The disputed roadway
was one of two access roads into the subdivision, and it ran across a 29-acre lot that had been
purchased for development of smaller lots. However, two lot owners erected barricades across
the disputed roadway to prevent access to the 29-acre lot. Id.
¶ 57 This court determined that the central question on appeal was whether the trial court had
correctly declared that the disputed roadway was a public right-of-way. Id. at 776. Pertinent to
the issues here, we determined that the dedication of the disputed roadway in the original plat
was not a statutory dedication. Id. The plat did not state that the streets were dedicated to the
public, and the platted lot lines were solid and ran to the center of the streets, while the streets
were indicated by dotted lines. Id. We held that, based on these two factors, we could not say
that the plat indicated a donation to the public. Id.
¶ 58 In this case, the plat of the H.O. Stone Addition also did not expressly indicate that the
streets had been donated to the public. However, the streets were laid out and the lot boundaries
never crossed into the streets, which clearly supports the intent to donate the streets to the public.
Combine this with the fact that, on its face, the plat of the H.O. Stone Addition was designated as
- 27 -
2017 IL App (2d) 160601
an addition to Elmhurst, and we can conclude that the intent to donate to the public was
sufficiently demonstrated. Accordingly, Reiman is distinguishable.
¶ 59 Plaintiff also cites Township of Jubilee v. State of Illinois, 405 Ill. App. 3d 489 (2010), In
re Petition of the Village of Mount Prospect, 167 Ill. App. 3d 1031 (1988), and Water Products
Co. of Illinois, Inc. v. Gabel, 120 Ill. App. 3d 668 (1983), all to little effect. Most relevantly, in
Jubilee, the court considered the issue of whether the plaintiff had demonstrated that the original
proprietor intended to donate the disputed property for public use. Jubilee, 405 Ill. App. 3d at
495. There, the disputed property was labeled as a “ ‘public square,’ ” but, unlike the streets and
alleys designated in the plat, it was not also expressly dedicated “ ‘for public use forever.’ ” Id.
The court determined that designating the disputed property as a “public square” was sufficient.
Id. at 496. In Jubilee, unlike in this case, the streets and alleys were expressly dedicated for
public use, and the disputed property was also denominated “public,” which the court interpreted
as a dedication for public use. However, the relevant principle relied upon in that case was that
“ ‘[t]he words on the plat indicate the intention of the dedicators.’ ” Id. (quoting Melin v.
Community Consolidated School District No. 76, 312 Ill. 376, 380 (1924)). We have employed
the same principle in reaching our result in this case: we have looked at the plat, and only the
plat, in determining whether the proprietor intended to dedicate the streets to the public.
Bigelow, 372 Ill. App. 3d 65. However, the Jubilee court was not confronted with silence: all of
the public-use territory was expressly marked as dedicated for public use. Beyond limiting our
examination to the plat, then, Jubilee does not provide much guidance.
¶ 60 Mount Prospect’s relevance is even more tenuous. There, the court considered whether
the municipality could sell property once it had been dedicated to the public. Mount Prospect,
167 Ill. App. 3d at 1036-37. The fact that the property at issue had been dedicated “for public
- 28 -
2017 IL App (2d) 160601
purposes” pursuant to a village ordinance was incidental to the issue under consideration. Id. at
1035. Moreover, the court considered not whether the property had been dedicated to the public,
but only whether the village could sell it to a private builder once it had been dedicated for public
use. Id. at 1036-37. Mount Prospect, then, is wholly irrelevant to the issues in this case. The
entirely incidental fact that the plat at issue there followed a village ordinance and designated the
property “for public purposes” helps to illuminate none of the issues present in this case.
¶ 61 Finally, intermediate in plaintiff’s troika of irrelevancy is Gabel, in which the court
considered the issue of whether a lienor could enforce a lien where the improvement underlying
a street was not connected with an improvement on the subject properties. Gabel, 120 Ill. App.
3d at 671. The court noted that the street had been platted as “ ‘MILL (hereby dedicated)
STREET,’ ” and it considered how the municipality’s acceptance of the dedication after the lien
had been filed affected the lien’s viability. Id. at 672-73. Thus, while the court did consider
issues present in this case, it was not in the context of determining whether territory had been
dedicated for public use or whether the municipality accepted the dedication. Gabel, too,
provides little guidance here.
¶ 62 As a final consideration, we note that, in plaintiff’s reply brief, rather than respond to
Elmhurst’s contentions, plaintiff simply reiterates the same arguments, supported by the same
cases, that it made in its original brief. Plaintiff does add that the version of section 3 of the Plat
Act in effect when the H.O. Stone Addition was platted and the current version of section 3 are
effectively identical. This effectively undercuts any argument that the cases on which plaintiff
relies are distinguishable based on differences between the two versions of the Act; however, we
have not distinguished any of the cases on that ground. Moreover, although an argument that
Kennedy and Thompson have been superseded by more recent developments in the law might
- 29 -
2017 IL App (2d) 160601
have proved interesting and fruitful, plaintiff does not make such an argument, either expressly
or impliedly, and we therefore do not consider it now.
¶ 63 For the foregoing reasons, then, we hold that trial court correctly determined that
Elmhurst demonstrated that the proprietor of the plat of the H.O. Stone Addition effected a
statutory dedication of West Avenue for public use. Because we determine that West Avenue
was the subject of a statutory dedication, we need not consider plaintiff’s contentions regarding
common-law dedication.
¶ 64 B. Acceptance of Dedication
¶ 65 Plaintiff next argues that the trial court erred in determining that Elmhurst accepted the
dedication for public use of West Avenue. As noted, a statutory dedication occurs when the
property owner records a plat indicating that portions of the premises are donated to the public
and the public entity accepts the dedication. Bigelow, 372 Ill. App. 3d at 64.
¶ 66 The acceptance of a dedication can be shown by any act that clearly indicates the public
entity’s assumption of jurisdiction and dominion over the property at issue. Republic Bank, 2015
IL App (3d) 130379, ¶ 20. The acceptance of a dedication can be either express or implied. Id.
An express acceptance can be shown by a direct municipal action, such as the passing and
recording of an order, resolution, or other action accepting the dedication, and this may occur
after suit has been filed to determine the ownership of the property. Id.
¶ 67 On the other hand, an implied acceptance can be deduced from municipal acts
recognizing the existence of platted streets and treating them as public streets. Id. ¶ 21. The
acceptance of some of the platted streets raises the presumption that the public entity accepted all
of the platted streets. Id. The public entity need not make immediate use of the dedicated
property to indicate its acceptance; the public entity is allowed to wait a reasonable time for
- 30 -
2017 IL App (2d) 160601
opening and improving its public streets, as its own resources and the public need allow and
require. Id. If, due to the general unoccupied character of the area, there is no need to improve
the property in question, the public entity is not required to improve it simply to establish that it
accepted the dedication. Id. The unimproved condition of streets and common areas does not
rebut the presumption of an implied acceptance by a public entity. Id. Regarding timeliness, it is
well settled that an acceptance is timely if it is made before an offer to dedicate has been
formally withdrawn or revoked by the dedicator. Id. ¶ 22.
¶ 68 With these general principles in mind, we turn to the facts of this case. In 1925, the plat
of the H.O. Stone Addition was recorded. In 1927, Elmhurst annexed much of the territory in
the H.O. Stone Addition, all of it lying to the east of Salt Creek, not including the disputed
property. In 1962, Elmhurst annexed the rest of the territory in the H.O. Stone Addition (the
territory to the west of Salt Creek), including the disputed property as the western boundary of
the territory. The 1962 annexation appeared to include both Elmhurst’s portion of the disputed
property and the 25-foot-wide remainder of West Avenue currently claimed by Villa Park. At
some point, Elmhurst paved the streets in the H.O. Stone Addition that were annexed in 1927,
and it has continued to maintain and repair them. The record does not reveal whether any of the
paving took place after 1962, so we will assume that it did not.
¶ 69 In 1968, Elmhurst expressly vacated portions of Coolidge Street, Wilson Street, and
Harding Street from the H.O. Stone Addition. The vacated portions of the streets begin at their
intersections with West Avenue and extend east for 200 feet. The Vacation Ordinance did not
include West Avenue, even though West Avenue had not been developed by this time. Also in
1968, Elmhurst approved the Matthew’s Subdivision plat. This plat recognized that 200-foot
portions of Coolidge, Wilson, and Harding Streets had been vacated, beginning at West Avenue
- 31 -
2017 IL App (2d) 160601
and extending east. The plat of Matthew’s Subdivision depicts Elmhurst’s portion of West
Avenue as the western boundary of Matthew’s Subdivision.
¶ 70 In 1974, Elmhurst obtained fee simple title to lot 1 (excluding some territory not relevant
to our case). In 1983, Elmhurst leased certain property, including its portion of the disputed
property, to the Park District. In 1995, Elmhurst again leased certain property, including its
portion of the disputed property, to the Park District. At some time in the mid-1980s, the then-
owner of plaintiff’s property erected a fence along the eastern boundary of West Avenue. This
fence apparently continued undisturbed until April 2014, when Elmhurst or Villa Park removed
it and placed another fence along plaintiff’s lot line. Sometime between 2002 and 2005, plaintiff
began to store vehicles and trailers on the disputed property. The record contains no indication
that, at any time before plaintiff instituted its suit in this case, the dedicator, or its successors, of
the H.O. Stone Addition withdrew or revoked the dedication of West Avenue. Likewise, there is
nothing in the record indicating that Elmhurst passed an ordinance expressly accepting the streets
on the H.O. Stone Addition plat.
¶ 71 Applying the principles outlined above to these facts results in the conclusion that
Elmhurst accepted the dedication of West Avenue for public use. We note that the act of
approving a plat does not signify the municipality’s acceptance of the streets dedicated for public
use. Gabel, 120 Ill. App. 3d at 672. However, the acceptance of some of the streets on a plat
raises the presumption that all of the streets have been accepted, and even a failure to improve
the streets does not rebut the presumption of acceptance. Republic Bank, 2015 IL App (3d)
130379, ¶ 21. Here, most of the streets in the H.O. Stone Addition were improved. This is a
clear acceptance of the streets dedicated for public use, and it raises the presumption that all of
the streets were accepted. In 1962, Elmhurst annexed the remainder of the territory in the H.O.
- 32 -
2017 IL App (2d) 160601
Stone Addition, and this action extended its acceptance to that territory. The fact that West
Avenue had not been improved does not rebut the presumption of acceptance raised by the
acceptance of the other streets. The vacation of portions of Coolidge, Wilson, and Harding
Streets reinforces the conclusion that Elmhurst accepted the dedication of West Avenue for
public use. Elmhurst vacated the portions of Coolidge, Wilson, and Harding Streets beginning at
their intersections with West Avenue and extending east for 200 feet. Had Elmhurst intended
also to vacate West Avenue, it would have indicated that intent at that time, but West Avenue
was excluded from the vacation. Accordingly, the Vacation Ordinance actually supports
Elmhurst’s acceptance of the dedication of West Avenue for public use.
¶ 72 In 1974, Elmhurst received fee simple title to lot 1 of Matthew’s Subdivision, which
forms the eastern boundary of West Avenue. Because it had accepted the dedication for public
use of West Avenue, it also had fee simple title to its portion of the disputed property. Id. ¶ 18.
In 1983, Elmhurst leased lot 1 of Matthew’s Subdivision and its portion of the disputed property
to the Park District. Even if it had not accepted the dedication before this time, its lease of the
property it owned was a clear acceptance of the property’s dedication. In 1995, Elmhurst again
leased its portion of the disputed property to the Park District. At some point, the Park District
incorporated the leased territory into a park, and Elmhurst zoned nearby territory, including its
portion of the disputed property, for use as a park. Based on these facts, we believe that the
evidence unequivocally supports Elmhurst’s position that it accepted the dedication for public
use of its portion of the disputed property.
¶ 73 Plaintiff argues that we are to properly consider such factors as: (1) a municipality’s
filing suit to establish a dedication or taking other direct action; (2) the municipality’s possession
or maintenance of the property; and (3) the public use of the property for a substantial period of
- 33 -
2017 IL App (2d) 160601
time. Plaintiff correctly cites First Illinois Bank of Wilmette v. Valentine, 250 Ill. App. 3d 1080,
1092 (1993), for this point. However, Valentine does not conflict with the more general rule that
acceptance can be determined by any act with respect to the property at issue. Republic Bank,
2015 IL App (3d) 130379, ¶ 20. Thus, Valentine’s narrow focus might be a useful analytical
tool, but we may still consider the totality of the circumstances. Moreover, Valentine appears to
offer only a list of examples rather than an exclusive list of factors that can show a
municipality’s acceptance, and it notes that, in any event, the inquiry is based on the particular
facts of each case. Valentine, 250 Ill. App. 3d at 1092.
¶ 74 Referring to Valentine’s factors, plaintiff contends that Elmhurst cannot demonstrate an
acceptance. We agree that Elmhurst cannot satisfy the first and third Valentine factors.
¶ 75 However, regarding the second Valentine factor, we reject plaintiff’s assertion that
Elmhurst cannot show possession or maintenance, especially in light of the aerial photos. First,
Elmhurst demonstrated possession of its portion of the disputed property as we outlined above.
The key points are the eventual annexation of the territory including its portion of the disputed
property, which gave rise to the presumption of acceptance of West Avenue in light of the
acceptance of other platted streets; the Vacation Ordinance, in which Elmhurst expressly vacated
other platted streets but not West Avenue; Elmhurst’s obtaining fee simple title to the property
adjacent to West Avenue; and Elmhurst’s lease of the territory over which it held title, including
its portion of the disputed property, to the Park District. These adequately demonstrate
Elmhurst’s possession of its portion of the disputed property, and the fact that the property
remained unimproved does not rebut the possession, especially in light of the fact that it was
zoned and used for recreational and conservational purposes upon its lease to the Park District.
Thus, Elmhurst has satisfied the second of Valentine’s factors to demonstrate acceptance.
- 34 -
2017 IL App (2d) 160601
¶ 76 Plaintiff urges that the aerial photos dispute Elmhurst’s possession, because they show
that plaintiff has been storing vehicles and trailers on the disputed property. However, only two
photos, the 2005 and 2013 photos, show vehicles and trailers on the disputed property; the 2002
photo does not show anything on the disputed property. Even if the previous owner of plaintiff’s
property enclosed the disputed property with a fence, this fact does not assume any particular
significance in an undeveloped, unimproved park, whereas placing a barricade across a street
would be immediately noticeable.
¶ 77 Plaintiff also argues that Elmhurst’s plat of its wastewater-treatment plant fails to show
that the disputed property is included within lot 1 of Matthew’s Subdivision. We disagree. The
plat of the plant does not show any section lines or municipal boundaries. Instead, it shows
territory owned by Elmhurst. By operation of law, the territory representing West Avenue is also
owned by Elmhurst. Republic Bank, 2015 IL App (3d) 130379, ¶ 18. Plaintiff’s reliance on
Valentine, therefore, is unavailing.
¶ 78 Plaintiff argues that Elmhurst did not timely accept the dedication of its portion of the
disputed property. According to plaintiff, something short of 55 years is the outer limit for a
timely acceptance. City of Venice v. Madison County Ferry Co., 216 Ill. 345, 353 (1905). To
the contrary, Venice turned on its unique facts. In Venice, the city’s predecessor platted territory
that was washed away by the Mississippi River. The court held that this constituted a sort of
constructive withdrawal of the dedication of the streets. When the city attempted to claim that it
had accepted the dedication, the court determined that the river’s inundation and the lack of
public use of the platted territory constituted a withdrawal occurring well before the city’s
purported act of acceptance. Id. at 350-53. In particular, the court reasoned that 15 years before
the city’s predecessor was incorporated, the disputed property had been abandoned when the
- 35 -
2017 IL App (2d) 160601
ferry that served the disputed property was moved outside of the platted territory altogether due
to the vagaries of the river. Id. at 351. Venice did not decide that 55 years was an outer limit of
a reasonable time for acceptance; rather, it determined that the original dedication was
withdrawn when the river caused the ferry to relocate and the public stopped using the disputed
property. Moreover, Venice observed the rule that an owner can withdraw a dedication if it has
not been accepted within a reasonable time. Id. at 350. Because the withdrawal occurred before
the acceptance was even possible in Venice, we see little application to the facts of this case.
¶ 79 Instead, we believe that Republic Bank states the proper rule: “acceptance is timely if
made before the offer to dedicate has been formally withdrawn or revoked by the dedicator.”
Republic Bank, 2015 IL App (3d) 130379, ¶ 22. Here, the record does not indicate that the
dedicator or its successor ever attempted to withdraw the dedication before the acceptance
occurred. More importantly, plaintiff does not stand in the shoes of the dedicator; rather plaintiff
is attempting to claim the disputed property through adverse possession. Therefore, any actions
undertaken by plaintiff or the previous owner had no effect on the offer of dedication and could
not operate to withdraw the dedication. Because Elmhurst demonstrated acceptance of a
dedication that was never withdrawn, and because the record reflects nothing like the river’s
inundation and the abandonment of the disputed property in Venice, we cannot say that
Elmhurst’s acceptance was not timely.
¶ 80 Plaintiff contends that a municipality may accept only a part of a dedicator’s offer to
dedicate property for public use. We agree that there is authority to that effect. However, under
the circumstances of this case, we believe that Elmhurst has demonstrated its acceptance of the
dedication of its portion of the disputed property for public use and that therefore the principle
urged by plaintiff does not apply to this case.
- 36 -
2017 IL App (2d) 160601
¶ 81 Plaintiff also contends that Elmhurst has failed to explain how it accepted its portion of
the disputed property’s dedication as a public street whenever it finally made that acceptance, but
is currently claiming that the property was dedicated as a public park, in conformance with its
current use. We agree that Elmhurst has not explained the apparent change in purpose from a
public street to a public park. However, plaintiff does not argue or support with authority the
claim that, once a public roadway, always a public roadway. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,
2013) (arguments not raised or supported by citation to pertinent authority are forfeited).
Moreover, we have held that the dedicator donated the disputed property for public use, and the
property’s lease to the Park District and its subsequent use as a park is consistent with public use.
Thus, although Elmhurst might be guilty of moving the goalpost by claiming that its portion of
the disputed property was dedicated as a public street but is now deemed part of a public park,
the overarching dedication of the disputed property was for public use, and nothing in the record
suggests that Elmhurst has attempted to change the fundamental nature of that designation.
¶ 82 For the foregoing reasons, then, we hold that Elmhurst accepted the dedication of its
portion of the disputed property.
¶ 83 C. Public Use
¶ 84 Plaintiff last argues that the trial court erred in determining that Elmhurst’s portion of the
disputed property was subject to public use. Plaintiff asserts a claim of adverse possession
against the disputed property. As we have determined, Elmhurst is vested with fee simple title to
the property. Generally, in order to make a claim of adverse possession, the claiming party must
possess the land for 20 years and must prove that the 20 years of possession was (1) continuous,
(2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive, and (5) under a claim of title
inconsistent with that of the true owner. Miller v. Metropolitan Water Reclamation District of
- 37 -
2017 IL App (2d) 160601
Greater Chicago, 374 Ill. App. 3d 188, 189-90 (2007). However, where the claim of adverse
possession is against a municipality, if the disputed property is held by the municipality in trust
for public use, the 20-year limitations period will not run. Id. at 190. Thus, whether a claim of
adverse possession against property owned by a municipality will lie turns on whether the
property is for public use. Id.
¶ 85 Close to the turn of the previous century, our supreme court considered the meaning of
public use in the context of adverse possession:
“The rule that statutes of limitation do not run against the State also extends to minor
municipalities created by it as local governmental agencies, in respect to governmental
affairs affecting the general public. This exemption extends to counties, cities, towns and
minor municipalities in all matters respecting strictly public rights as distinguished from
private and local rights, but as to matters involving private rights they are subject to
statutes of limitation to the same extent as individuals. [Citations.]
The question in this case is whether there is an implied exemption from the
statutes of limitation in favor of trustees of schools with respect to property held for the
use of a particular school district, and that depends upon the meaning of the term ‘public
rights,’ as used in the decisions. In one sense, all property held by a municipal
corporation is held for public use, and the public at large, or some portion of the public,
have rights or interests in such property. It may be held for the use of the people of the
State generally, or the use may be limited to the inhabitants of the local subdivision or
municipality, such as the city, village, or school district. *** [T]he public right and
public use must be in the people of the State at large, and not in the inhabitants of a
particular local district. *** [T]here is a well-founded distinction between cases where
- 38 -
2017 IL App (2d) 160601
the municipality is seeking to enforce a right in which the public in general have an
interest in common with the people of such municipality, and cases where the public have
no such interest ***.
There are numerous cases where it has been held that municipalities or minor
political subdivisions of the State are not subject to limitation laws in respect to streets
and public highways [citation]; but streets and highways are not for the use of the
inhabitants of any municipality or locality alone, but for the free and unobstructed use of
all the people in the State. Such rights are clearly distinguishable from the rights or
interests of the inhabitants of a locality in property acquired for a mere local use, such as
city offices, a library site, or the use of the fire department. Such property is held and
used for strictly local purposes.” Brown v. Trustees of Schools, 224 Ill. 184, 186-88
(1906).
¶ 86 Thus, “public use,” for purposes of a claim of adverse possession, means that the people
of the state at large must have a general interest in the property at issue. This does not mean that
the people of the state at large must have total and unlimited access to the property but, rather,
that the property must be for the general benefit of the people of the state. If the property is for
“public use” in this sense, then a claim of adverse possession against the property cannot lie. See
Miller, 374 Ill. App. 3d at 191 (considering the implications of Brown’s definition of public use).
¶ 87 Of particular interest in Brown is the differentiation between local uses—such as of city
offices, library sites, or fire departments—and of streets and highways—which are, almost by
definition, the sorts of public uses Brown considered. Brown, 224 Ill. at 188. Plaintiff extends
this differentiation to local park districts, contending that there is no statewide interest in park
districts. Board of Education of School District No. 150 v. City of Peoria, 76 Ill. 2d 469, 477
- 39 -
2017 IL App (2d) 160601
(1979). Plaintiff concludes that, because there is no statewide interest in park districts, the use of
Elmhurst’s portion of the disputed property as part of a park, leased to and formed by the Park
District, must not be a “public use” in the sense of Brown. We disagree.
¶ 88 We first note that Board of Education discussed not an issue of adverse possession, but
whether a local home-rule unit may incidentally burden local park districts with an amusement
tax. Id. While there might not be a statewide interest sufficient to preclude one municipal entity
from placing incidental burdens upon another municipal entity, this does not even come close to
addressing whether the property comprising a park presents a “public use” for purposes of a
claim of adverse possession. Thus, plaintiff’s reliance on Board of Education to extend the
definition of “public use” is inapt.
¶ 89 In our view, the disputed property was dedicated and accepted as a public street. This
places it squarely within the definition of “public use.” Brown, 224 Ill. at 188; see also Zemple v.
Butler, 17 Ill. 2d 434, 439 (1959) (streets are dedicated for “public use”; while a municipality
can be estopped by its conduct to assert its right to a platted street, where, for example, there has
been a long period of nonuse and permanent improvements have been constructed in good faith
upon the land, where there are no permanent improvements the municipality will not be
estopped). Thus, when Elmhurst accepted the dedication of its portion of the disputed property,
it was for a public use. This public use continues to color the use of Elmhurst’s portion of the
disputed property, because it remains a portion of a platted, dedicated, and accepted public street,
even if it has not been developed as a street. Moreover, the fact that Elmhurst’s portion of the
disputed property is under lease to the Park District does not necessarily change this view,
because the lease provides Elmhurst with the right of reentry. In other words, the lease is
- 40 -
2017 IL App (2d) 160601
necessarily impermanent, and Elmhurst has the ability to decide the necessity of developing its
portion of the disputed property as a public street, the use for which it was originally dedicated.
¶ 90 However, we recognize that the lease of Elmhurst’s portion of the disputed property to
the Park District and its subsequent use as a park muddies the picture. Plaintiff argues that we
should consider the current use of the property in determining whether a claim of adverse
possession may lie. Miller clearly answers plaintiff’s contention.
¶ 91 In that case, the plaintiffs purchased land adjacent to property belonging to the
Metropolitan Water Reclamation District of Greater Chicago (the District). Miller, 374 Ill. App.
3d at 189. The District leased the subject property to the City of Evanston with the right of
reentry; the city in turn sublet the subject property to a private corporation that operated a
community golf course. Id. The plaintiffs discovered that portions of their garage and other
parts of their residential property were built or sited on the subject property. Id. The court first
determined that the District’s ownership of the land was for a public use, because the purpose for
which the District was created was to preserve the health of the people of Chicago, the people
living around Lake Michigan, the people living along the Des Plaines and Illinois Rivers, and the
people of the State of Illinois. Id. at 191. The court concluded that “the subject property, to
which the District holds title and to which it retains the right under the lease to reenter, is public
property for the use and benefit of the people of the State. As such, it is not subject to adverse
possession.” Id. at 192.
¶ 92 This analysis, by itself, would seem to foreclose plaintiff’s argument. Like the District in
Miller, Elmhurst holds title to its portion of the disputed property, with a right of reentry under
the lease. The disputed property was dedicated and accepted as a public street, so, under Brown,
- 41 -
2017 IL App (2d) 160601
it was dedicated and accepted for a “public use.” Because the disputed property is public
property for the use and benefit of the people of the state, it is not subject to adverse possession.
¶ 93 Miller, however, went a step further. The plaintiffs in Miller argued that the subject
property had lost whatever public character it possessed, because it was used as a golf course
owned by a private corporation. Id. The plaintiffs noted that Brown held that a municipality is
treated as a private individual for purposes of adverse possession where the land at issue was
held in partnership with individuals or for purposes of private business. Id. The plaintiffs
concluded that the use of the subject property as a golf course owned by a private corporation
divested it of protection from adverse possession. Id. The court distinguished Brown on the
ground that the land at issue there was a school site to which the people of the state at large had
no general interest in common with the inhabitants of the school district. Id. The court then held
that the subject property, which started as a property owned for public use, was currently
operated as a golf course open to all persons in the state at large and that, as such, the people of
the state at large held a continuing general interest in the subject property during the leasehold,
allowing the subject property to retain its public character. Id.
¶ 94 That reasoning fully applies here. The disputed property was dedicated and accepted for
public use under Brown. When Elmhurst leased its portion of the disputed property, it did so
under a right of reentry. The park is open to all persons of the state even though it is leased to a
local park district. Moreover, the park is part of the Salt Creek Greenways Trail, a pedestrian
and bicycle trail running through 12 municipalities and extending some 30 miles in length. “As
such, the people of the state at large have a continuing general interest in the [disputed property]
during the leasehold and, therefore, the [disputed property] retains its public character.” Id.
- 42 -
2017 IL App (2d) 160601
¶ 95 Plaintiff argues that Elmhurst does not own any of the disputed property, so it could not
lease it to the Park District. This contention is a nonstarter in light of our determinations above.
Elmhurst holds fee simple title to its portion of the disputed property; it could properly lease that
property to the Park District.
¶ 96 Plaintiff argues that, pertinently, the only portion of Elmhurst’s property leased to the
Park District was lot 1 of Matthew’s Subdivision, which did not include its portion of the
disputed property. As such, the lease cannot demonstrate any sort of dominion of the disputed
property by Elmhurst, and it cannot be used to bootstrap onto the property any public character.
¶ 97 Again, we have answered the ownership question above. If Elmhurst’s portion of the
disputed property is not leased to the Park District, then Elmhurst retains it, and it maintains its
public character as a dedicated and accepted public street, defeating plaintiff’s argument. If the
property is included in the lease to the Park District, plaintiff’s argument still fails pursuant to the
analysis in Miller discussed above. Either way, plaintiff’s argument is unpersuasive.
¶ 98 Finally, plaintiff contends that the court erred by accepting the conclusory and
argumentative averments from Rogers’s affidavit that the disputed property is part of a local park
used by the people of the state at large. However, the acceptance of the challenged averments is
not critical to our analysis. Even if we reject the averments that the disputed property is used by
the people of the state at large, the public character of the disputed property is established
through the dedication and acceptance of it for use as a public street. Because Elmhurst owns its
portion of the disputed property in fee simple, its subsequent lease of it (or not) to the Park
District does not extinguish its public character, because Elmhurst has the right of reentry and the
people of the state at large have a continuing general interest in the disputed property during the
- 43 -
2017 IL App (2d) 160601
leasehold, by virtue of its underlying public character. Accordingly, plaintiff’s contention about
Rogers’s affidavit does not affect our analysis.
¶ 99 In a related fashion, plaintiff contends that Elmhurst failed to produce evidence sufficient
to demonstrate that its portion of the disputed property is subject to “public use” in the sense of
Brown. This contention fails because our analysis depends not on evidence that the park is used
by persons of the state at large, but only on the operation of the legal principles we have
identified and the ownership interests we have discussed above. Accordingly, we reject
plaintiff’s contentions.
¶ 100 III. CONCLUSION
¶ 101 For the foregoing reasons, the judgment of the circuit court of Du Page County is
affirmed.
¶ 102 Affirmed.
- 44 -