Hess v. Miller
| Decision Date | 05 June 2019 |
| Docket Number | NO. 4-18-0591,4-18-0591 |
| Parties | Marcella M. HESS and Steven L. Hess, Plaintiffs-Appellees, v. Jeffrey L. MILLER, as Highway Commissioner of Lima Township, Adams County, IL; James Frankenhoff, as Superintendent of Highway of Adams County, IL; and Hunt-Lima Drainage & Levee District, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
John N. Hauk, of Hauk & Owens, LLC, of Quincy, for appellant Hunt-Lima Drainage & Levee District.
No brief filed for appellees.
¶ 1 In December 2016, Marcella M. Hess and Steven L. Hess (landowners) filed a two-count complaint against (1) Jeffrey L. Miller, the highway commissioner of Lima Township, and (2) the Hunt-Lima Drainage & Levee District (drainage district). In essence, Miller had closed a township bridge which crossed over the drainage district's property. Landowners sought an easement across the vacated bridge. Relying upon Cook v. Mighell Construction Co., 40 Ill. App. 3d 1032, 1038, 353 N.E.2d 43, 48 (1976) (), the trial court granted landowners an easement across the vacated portion of the road and the bridge.
¶ 2 The drainage district appeals, arguing that landowners are not entitled to an easement. We agree and reverse.
¶ 5 In December 2016, landowners filed a two-count complaint against (1) Miller and (2) the drainage district. Count I, which the trial court ultimately dismissed with prejudice and is not appealed to this court, sought administrative review of Miller's closure of the bridge and the partial closure of the road.
¶ 6 Count II, which was a request for declaratory judgment, sought an easement across the vacated bridge that crossed the drainage district's levee. . Landowners sought "a common law private and perpetual easement right to use the subject vacated road, which includes the bridge, for the purpose of traveling the same to and from their properties that lie adjacent to the vacated road." Landowners sued the drainage district for an easement because the drainage district owned "the land under which the subject bridge is situated, and by virtue of the subject road vacation and by operation of law, now owns the bridge structure that is affixed to its land." Citing Cook, landowners argued as follows:
¶ 7 Within this complaint, landowners explained that they had recently purchased a residence at 510 North 2900th Avenue, Ursa, Illinois. Landowners argued that "no one made them aware that the Lima Township was planning to vacate that section of the township road known as North 2900th Avenue that lies South of, adjacent to[,] and immediately in front of their residence." Landowners noted that in September 2015, Miller "physically closed the subject portion of the public road, including the steel truss bridge that lies over the lands of [the drainage district] by, inter alia, cutting the wood oak floor planks at both ends of the bridge."
¶ 8 Attached to landowners' complaint was an "affidavit in opposition to road vacations." Within this affidavit, landowners explained that they "had only two ways to get to our Home: 1) access from the West by way of the subject North 2900th Avenue and its bridge that quickly leads to the hard-paved Bottom Road (the ‘Blacktop Road Access’) or 2) access from the East by way of North 2900th Avenue and other gravel township roads that eventually lead to Highway 96 (the ‘Gravel Road Access’)." Landowners explained that the "Blacktop Road Access allows us the most efficient and safe route to get to Quincy, Illinois[,] for our medical, shopping and other needs within approximately 20 minutes from our Home." Landowners further explained that the "Gravel Road Access takes us approximately 35 minutes to get [to] Quincy, Illinois[,] for our medical, shopping and other needs from our Home." Landowners elaborated that elimination of the bridge "would completely eliminate the Blacktop Road Access to our Home, which means of access is the most reasonable, efficient[,] and safe route for us to get to and from Quincy, Illinois[,] because it is hard pavement, dust free[,] and is the quickest route."
¶ 9 Landowners' statements can be better understood with the assistance of Google Maps (see Winters v. MIMG LII Arbors at Eastland, LLC , 2018 IL App (4th) 170669, ¶ 15, 425 Ill.Dec. 727, 115 N.E.3d 282 ()):
¶ 10 Landowners also attached the warranty deeds they received from the prior landowners. These warranty deeds included a legal description of landowners' property. The legal description did not refer to a subdivision plat. See 765 ILCS 205/1, 2 (West 2016) (discussing the surveying, platting, and recording requirements for subdividing property).
¶ 11 Landowners took their warranty deeds "subject to" the "[r]ights of the public, the State of Illinois, the [t]ownship and municipality in and to that part of the premises in question taken, used or dedicated for roads, sheets, alleys or highways." The legal description also stated that the property was "subject to the right of the public for roadway purposes along the existing public roadway." Neither the warranty deeds nor the legal description of the property indicated that landowners had an easement or some other right to cross the vacated bridge.
¶ 13 In June 2017, the drainage district filed a motion to dismiss. 735 ILCS 5/2-615 (West 2016). The drainage district argued that the rationale of Cook applied only when an "owners' rights to a property are derived from the platting of a subdivision." Accordingly, the drainage district argued that landowners were not entitled to an easement "because their rights are not derived from the platting of a subdivision." In September 2017, the trial court denied this motion.
¶ 15 In February 2018, landowners filed a brief in support of their complaint in which they argued that
¶ 16 Later in February 2018, the trial court conducted a hearing on landowners' motion for declaratory judgment. The drainage district argued that the rationale of Cook only applied to platted subdivisions and that landowners' property rights did not arise from a platted subdivision.
Landowners argued that whether they acquired their property from the plat of a subdivision was "a technical point without any distinction" and further argued that "when a public road gets closed, those adjacent landowners * * * have a private easement right over that road" because "they bought the property reliant on that road."
¶ 18 At the hearing, the trial court concluded that whether landowners rights derived from a subdivision was "a distinction without a difference." The court reasoned that it should not "treat people who live out in the country different than * * * people in the city in a platted subdivision." In March 2018, citing to Cook, 40 Ill. App. 3d at 1032, 353 N.E.2d 43, the trial court issued a written order which granted landowners an easement across the bridge.
¶ 19 This appeal followed.
¶ 21 The drainage district appeals, arguing that landowners are not entitled to an easement. We agree.
¶ 23 We initially note that neither landowners nor Miller have filed a brief in this appeal. A reviewing court will not act as an advocate for a party who fails to file an appellate brief. Diane P. v. M.R., 2016 IL App (3d) 150312, ¶ 9, 404 Ill.Dec. 112, 55 N.E.3d 208. However, when the record is clear and the claimed errors can be decided without the aid of an appellate brief, a reviewing court should decide the appeal on the merits. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976). Because these criteria apply here, this court will proceed to the merits of this case.
¶ 25 The trial court may grant declaratory relief pursuant to section 2-701 of the Code of Civil Procedure. 735 ILCS 5/2-701(a) (West 2016). "The essential requirements of a declaratory judgment action are: (1) a plaintiff with a legal tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy between the parties concerning such interests." Beahringer v. Page, 204 Ill. 2d 363, 372, 273 Ill.Dec. 784, 789 N.E.2d 1216, 1223 (2003). When reviewing the trial court's grant of declaratory judgment, our review is de novo to the extent that the trial court's order was not based on factual determinations. Motorola Solutions, Inc. v. Zurich Insurance Co., 2017 IL App (1st) 161465, ¶ 17, 416...
To continue reading
Request your trial
- Bailey v. Pritzker
-
In re Marriage of Allen
...may grant declaratory relief pursuant to section 2-701 of the Code of Civil Procedure." Hess v. Miller, 2019 IL App (4th) 180591, ¶ 25, 133 N.E.3d 1235 (citing 735 5/2-701(a) (West 2016)). In a declaratory judgment action, the trial court's factual and credibility findings "will not be dist......