General Auto Service Station v. Maniatis, 1-01-0330.

• Decision Date: 08 March 2002
• Docket Number: No. 1-01-0330.,1-01-0330.
• Citation: 765 N.E.2d 1176,262 Ill.Dec. 568,328 Ill. App.3d 537
• Parties: GENERAL AUTO SERVICE STATION, an Illinois corporation, Plaintiff-Appellant, v. Sam MANIATIS; City of Chicago, a municipal corporation; YVS, Inc.; State-Elm, Inc.; and West Egg Cafe on State St., Ltd., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

765 N.E.2d 1176

328 Ill. App.3d 537

262 Ill.Dec. 568

GENERAL AUTO SERVICE STATION, an Illinois corporation, Plaintiff-Appellant, v. Sam MANIATIS; City of Chicago, a municipal corporation; YVS, Inc.; State-Elm, Inc.; and West Egg Cafe on State St., Ltd., Defendants-Appellees.

No. 1-01-0330.

Appellate Court of Illinois, First District, Fifth Division.

March 8, 2002.

Grey, Grey & Baltz, P.C., Chicago (Thomas E. Baltz, of counsel), for Appellant.

Patzik, Frank & Samotny Ltd., Chicago (Sheryl Jaffee Halpern, of counsel), for Appellee, State-Elm, Inc.

Mara S. Georges, Corporation Counsel of the City of Chicago; Lawrence Rosenthal, Deputy Corporation Counsel; Benna Ruth Solomon, Chief Assistant Corporation Counsel; and Suzanne M. Loose, Assistant Corporation Counsel, for Appellee, City of Chicago.

Presiding Justice CAMPBELL delivered the opinion of the court:

Plaintiff General Auto Service Station (GASS) appeals an order of the circuit court of Cook County granting summary judgment to defendant City of Chicago (City) on count I of plaintiff's complaint, which sought a declaration that a dead-end alley near the intersection of State and Elm Streets in Chicago is privately owned by the owners of the properties surrounding the alley.¹ This appeal is a continuation of the litigation previously before this court in Heerey v. Maniatis, 192 Ill.App.3d 868, 140 Ill.Dec. 40, 549 N.E.2d 691 (1989).

Although the facts of the case are largely detailed in the Heerey opinion, it is useful to review them and the prior proceedings briefly here. The first division of the property at issue appearing in the record on appeal, referred to as the "Assessor's Division," was recorded on July 28, 1860. The plat of the Assessor's Division depicts lots bounded by Elm and Cedar Streets on the north and south, by Lake Michigan on the east, and Green Bay Street (later referred to as Rush Street and State Street) on the west.

On November 25, 1882, George Healy filed a plat of subdivision (Healy's Subdivision), extending to Lake Shore Drive on the east, which subdivided Lot 1 of the Assessor's Division into 34 lots. Healy's Subdivision contains a strip of land abutting Lots 1-3 on the west and Lot 4 on the east. The strip runs to what was Lot 2 of the Assessor's Division on the south and has an open boundary with Elm Street on the north. The plat shows that the strip is 12' wide. Healy's Subdivision names the streets bounding the property, but does not name or otherwise refer to the strip as an alley. The northernmost part of this strip, measuring 12' x 49.36', is the "alley" at issue here.

In 1891, Healy conveyed Lot 4 of Healy's Subdivision to William Seymour "in consideration of Seven Thousand and Five Hundred Dollars ($7500) in hand paid." The conveyance from Healy to Seymour made no mention of the alley. Healy died in 1894; his real estate holdings were bequeathed to his wife Louisa. On April 13, 1899, William and Katherine Seymour conveyed Lot 4 to Suel and Florence Joss. A restrictive covenant contained in the April 1899 deed, stated as follows:

"A part of the consideration herein is that the grantee herein and all persons holding under and through him [of Lot 4] shall never join in any petition to vacate the public alley next west of those premises, but such alley shall forever remain a public alley situated in the City of Chicago."

On September 5, 1899, the Josses conveyed Lot 4 to Thomas Skinner; the deed did not mention the restrictive covenant, but referred to Lot 4 as "being the property on the south side of Elm Street next east of the public alley * * *." A deed apparently recorded in January 1900 (insofar as the photocopy thereof is legible), conveying Lot 4 from Thomas and Emily Skinner to Sherman T. Kimbell also referred to Lot 4 as "on the south side of Elm Street next east of the public alley about 120 feet east of State Street * * *."

It is undisputed that the deeds of the Josses, Skinner and Kimbell were subject to a $7,500 debt owed to Louisa Healy, which apparently was not paid. In 1901, Healy's widow sued Seymour, Joss and Skinner, Kimbell and others, reacquiring Lot 4 through a judicial sale. The restrictive covenant in the April 1899 deed does not appear in the deed obtained by Louisa Healy in the judicial sale. The deeds for Lot 4 recorded thereafter do not mention the restrictive covenant or the alley.

In 1928, another plat was filed by a successor owner of Lot 4, which described the alley as a private alley. This plat, referred to as the "Owner's Division," expressly excludes the area taken by Lots 1-3 of Healy's Subdivision, but does include Lot 4 and the lot south of the alley.

On February 6, 1985, Bernard A. Heerey, GASS's predecessor-in-interest to property including Lot 4, filed a three-count complaint against Sam Maniatis, the beneficial owner of other property abutting the disputed alley, the City, and the Western National Bank of Cicero as the title owner of Maniatis' property. Count I of Heerey's complaint sought a declaration that the alley is privately owned. The record shows that in January 1985, when Heerey's attorney went to the Department of Maps to find out who was the private owner of the alley, the Superintendent of Maps took a pen and crossed out the word "private" and wrote in the word "public" on the 1928 plat. An affidavit by the Superintendent of Maps states that he corrected the City's official maps to reflect this change.

On March 29, 1988, the trial court granted summary judgment in favor of defendant Maniatis and against Heerey on cross-motions for summary judgment, dismissing Heerey's complaint on the ground that Heerey was prohibited from litigating to have the alley declared private by the April 1899 restrictive covenant. The trial court expressly declined to reach the issue of the public or private status of the alley.

On appeal, this court held that the trial court had misapplied the restrictive covenant in holding that it barred Heerey from seeking his declaratory action, because his complaint could not be construed as an action to vacate a public alley. Heerey, 192 Ill.App.3d at 871-72, 140 Ill. Dec. 40, 549 N.E.2d at 693. This court also held that genuine issues of material fact existed and therefore the court erred in granting summary judgment to Maniatis. Heerey, 192 Ill.App.3d at 871-72, 140 Ill.Dec. 40, 549 N.E.2d at 693. In particular, this court ruled "that `if the alley is public and `if the restrictive covenant is binding on Heerey" were both material questions of fact, which precluded entry of summary judgment. Heerey, 192 Ill. App.3d at 872, 140 Ill.Dec. 40, 549 N.E.2d at 694. After reviewing the history of the property at issue, this court concluded that "the foregoing facts do not support a finding beyond question that the alley is public, apparently the conclusion the trial court indirectly reached in its interpretation of the restrictive covenant as a bar to Heerey's action." Heerey, 192 Ill.App.3d at 873, 140 Ill.Dec. 40, 549 N.E.2d at 694 (emphasis in original). This court went on to "observe that even assuming arguendo that the language of the restrictive covenant `intended' that the alley be public rather than private, it is unclear whether defendants' position can be supported upon a common law or statutory dedication of the alley, especially since the trial court did not reach this issue." Heerey, 192 Ill.App.3d at 873, 140 Ill.Dec. 40, 549 N.E.2d at 694. Accordingly, this court remanded the case to the trial court with directions that it declare the ownership status of the alley, and, thereafter, conduct hearings on counts II and III of Heerey's complaint. Heerey, 192 Ill. App.3d at 873, 140 Ill.Dec. 40, 549 N.E.2d at 695.

It is undisputed that at some unspecified time following remand, Heerey apparently voluntarily dismissed his suit, refiling the action on or about December 26, 1995. The parties here have raised no issue arising out of the voluntary dismissal and subsequent refiling.

On November 16, 1998, Heerey moved for summary judgment on count I of the refiled complaint, which sought the same declaratory relief he had sought in the initial suit. The City filed its response on January 20, 1999, arguing that summary judgment should be entered in its favor. Both parties submitted evidence regarding the history of the property at issue.

Both parties also relied in part on deposition testimony by Maniatis take in August 1985 regarding the alley. Maniatis testified that in winter, the alley was cleared of accumulated snow and ice by restaurant employees. Maniatis also testified that he had seen the City plow the alley to clean up snow. Maniatis testified that he had never paid real estate taxes on the alley property. Maniatis testified that members of the public would walk into the alley at lunchtime to eat fast food procured elsewhere, which would require the area to be cleaned.

Maniatis further testified that the alley is semi-paved, and that the City paved its alley. Heerey stated in an October 26, 1998, affidavit that from the late 1940s through 1997, he had walked by and viewed the alley on an almost daily basis, but never saw the City remove trash from the alley or perform resurfacing or repair work there. Heerey attached four photographs as exhibits to his affidavit depicting the alley and surrounding properties as they appeared on October 7, 1998. These photographs appear to show that the alley has a cracked concrete surface from its dead end at the south to the public sidewalk, whereas the portion of the strip of land interrupting the sidewalk appears to be surfaced with blacktop.

Heerey also submitted affidavits by Kai Joy, a licensed private investigator hired to observe activity in the alley, and Mirzet Biser, who provided janitorial services and handled tenant complaints for two of Heerey's buildings. Joy stated that the vast majority of the occupants of vehicles parking in the alley entered the rear door of the restaurant...