Cook v. Mighell Const. Co., Inc.

• Decision Date: 05 August 1976
• Docket Number: No. 75--485,75--485
• Parties: Charles M. COOK et al., Plaintiffs-Appellees, v. MIGHELL CONSTRUCTION CO., INC., an Illinois Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 43

353 N.E.2d 43

40 Ill.App.3d 1032

Charles M. COOK et al., Plaintiffs-Appellees, v. MIGHELL CONSTRUCTION CO., INC., an Illinois Corporation Defendant-Appellant.

No. 75--485.

Appellate Court of Illinois, Second District, First Division.

Aug. 5, 1976.

Connolly, Oliver, Goddard, Coplan & Close, Rockford, for defendant-appellant.

Merrick & Merrick, Dixon, for plaintiffs-appellees.

GUILD, Presiding Justice.

The plaintiffs filed their complaint to enjoin the defendant from obstructing a former public highway in the City of Dixon. Defendant's motion to dismiss the complaint was denied and the trial court entered a temporary injunction requiring the removal of the barrier placed over the street by defendant. Defendant subsequently moved to dissolve the injunction. This was denied and on August 22, 1975 a permanent injunction was entered restraining the defendant from obstructing the roadway and street known as VanBuren Avenue in the City of Dixon. This appeal followed.

In understanding of the facts in this case would be best served by examination of the following diagram of the street in question and the contiguous property appurtenant thereto.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The property herein is located in the Gilbraith subdivision which was platted in 1869 and by which the one block street, VanBuren, was dedicated. In 1887 VanBuren Street was vacated from First Street north to the railroad tracks. However, since that time the street has been maintained by the City of Dixon and was last paved by the City of Dixon in 1958--59. The plaintiffs, Decker, Mulkins and Cook, occupy residences on the three lots as indicated in the diagram above. Mighell Construction Company is the owner of the property abutting VanBuren Street south of the railroad tracks on both sides of the street. A factory is located on that portion of the Mighell property to the west of VanBuren Street and the Mighell property to the east side of VanBuren is unimproved. This property was formerly owned by the Freeman Shoe Company. On January 24, 1975 the defendant erected a barrier across VanBuren at the southerly end of VanBuren at its intersection with First Street. This barrier prevented the plaintiffs from egress or ingress from VanBuren Street to First Street. The City of Dixon ordered the barrier taken down but it was re-erected on January 27, 1975. This suit followed, seeking the removal of the barrier across VanBuren and to enjoin the defendant from obstructing VanBuren in any manner whatsoever.

Succinctly stated, the issue in this case is whether a party who owns the property on both sides of a vacated street, and therefore by law the property formerly constituting the street, can be properly enjoined from closing the street on the complaint of other owners who abut the street on the basis that these property owners have a private legal right of access to the vacated street.

The defendant argues that where any street is vacated the title thereto passes to the owners of the abutting lots free from any easement on the part of the municipality, citing Prall v. Burckhartt (1921), 299 Ill. 19, 132 N.E. 280. The plaintiffs have cited the statute relating to the vacation of streets or alleys by a municipality as found in Ill.Rev.Stat.1975, ch. 24, 11--91--2 which provides as follows:

'Except in cases where the deed, or other instrument, dedicating a street or alley, or part thereof, has expressly provided for a specific devolution of the title thereto upon the abandonment or vacation thereof, whenever any street or alley, or any part thereof, is vacated under or by virtue of any ordinance of any municipality, the title to the land included within the street or alley, or that part thereof, so vacated, vests in the then owners of the land abutting thereon, in the same proportions and to the same extent, as though the street or alley has been dedicated by a common law plat (as distinguished from a statutory plat) and as though the fee of the street or alley had been acquired by the owners as a part of the land abutting on the street or alley.'

Defendants, likewise, have cited the comparable statute found in Ill.Rev.Stat.1975, ch. 121, 9--127 pertaining to vacation of highways, which, in pertinent part, is substantially the same as the vacation of streets by a municipality as set forth above.

The rule of the above statutes and the cases cited by the defendant is generally acknowledged by both parties to be that when a street is vacated, title to the land on which the street is located becomes absolute in adjacent lot owners and their ownership extends to the middle of the street. See, Prall, supra; Counselman v. Wisc. Cement Co. (1921), 299 Ill. 84, 132 N.E. 289; People ex rel. Alexander v. Mt. Vernon (1949), 404 Ill. 58, 88 N.E.2d 45.

Plaintiffs contend, however, that the foregoing rule does not extinguish the rights of plaintiffs as property owners abutting the vacated platted street from ingress and egress over the vacated street.

In its memorandum opinion the trial court relied upon Welter v. Eaton (1937), 366 Ill. 143, 7 N.E.2d 855. This case is not appropos on its facts to the case before us, for there the holding was summarized in the single headnote as follows:

'The rule that one cannot complain of the vacation of a street without showing special damage or that he owns property abutting on the highway sought to be closed applies only to a vacation by public authorities and does not apply where private owners attempt to vacate, fence or plow up highways designated on a plat, the rule in such case being that purchasers of lots in the platted subdivision have a right, as against the plattor or his privies, to have the tracts marked on the plat as roadways kept open for their use, regardless of whether they have been accepted as highways by the authorities.' 366 Ill. 143, 7 N.E.2d 855.

All properties in question herein are included in the Gilbraith subdivision platted in 1969 at which time VanBuren Street was dedicated to public use. As indicated above, on April 22, 1887 the City of Dixon, by appropriate ordinance, vacated VanBuren Street from First Street north to the railroad tracks.

We agree with the contentions of the plaintiffs that they have the right of ingress and egress on the vacated street in question. In Wattles v. Village of McHenry (1922), 305 Ill. 189, 137 N.E. 114 the court, in considering the application of the right of ingress and egress to a platted street, stated as follows:

'No law is better settled in this State than that which controls this case. Where the owner of land lays it out in lots and blocks and makes and exhibits a plat thereof showing streets and alleys and sells some of the lots with a clear reference to the plan, the purchaser acquires as appurtenant to the lots every easement, privilege and advantage which the plan represents as belonging to them as a part of the platted territory.' 305 Ill. at 192, 137 N.E. at 116.

In Marshall v. Pfeiffer (1924), 314 Ill. 286, 145 N.E. 411, in considering the same question, the court stated:

'Jones and Miller, the original proprietors, sold to their vendees the rights and privileges of the streets, and each subsequent vendor passed such rights to his vendee. The law implies mutual agreements between all such parties that the streets shall always remain open for use as platted. (Citations.)' 314 Ill. at 290--91, 145 N.E. at 413.

Likewise, in Trustees of Schools v. Dassow (1926), 321 Ill. 346, 353, 151 N.E. 896, 899, the court again considered this question, stating:

'It is also the rule, however, that, as against the owner of a platted tract and those who claim under him, parties purchasing lots with reference to the plat are entitled to have the streets designated thereon remain open. (Corning & Co. v. Woolner, 206 Ill. 190, 69 N.E. 53.)'

In Gerstley v. Globe Wernicke Co. (1930), 340 Ill. 270, 172 N.E. 829, we find a case where defendants sought to erect a bridge of passageway over a platted alley. After considerable controversy the City of Chicago passed an ordinance allowing the same. The court,...