Limestone Development Corp. v. Village of Lemont

• Decision Date: 25 September 1996
• Docket Number: No. 1-95-2781,1-95-2781
• Citation: 219 Ill.Dec. 910,672 N.E.2d 763,284 Ill.App.3d 848
• Parties: , 219 Ill.Dec. 910 LIMESTONE DEVELOPMENT CORPORATION, Plaintiff-Appellee, v. The VILLAGE OF LEMONT and K.A. Steel Chemicals, Inc., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 763

672 N.E.2d 763

284 Ill.App.3d 848, 219 Ill.Dec. 910

LIMESTONE DEVELOPMENT CORPORATION, Plaintiff-Appellee, v. The VILLAGE OF LEMONT and K.A. Steel Chemicals, Inc.,

Defendants-Appellants.

No. 1-95-2781.

Appellate Court of Illinois,

First District, Third Division.

Sept. 25, 1996.

Rehearing Denied Nov. 25, 1996.

Butler, Rubin, Saltarelli & Boyd, Chicago (Gerald G. Saltarelli and Louis J. Aurichio, of counsel), for Defendant-Appellant, K.A. Steel Chemicals, Inc. Herbas, Sotos, Condon & Bersani, P.C., Chicago (Michael D. Bersani, of counsel), for Defendant-Appellant, Village of Lemont.

McDermott & McDermott, Ltd., Matteson (David G. McDermott, of counsel), for Limestone Development Corp.

Justice CERDA delivered the opinion of the court:

This dispute involves the use of an unpaved road that leads from Main Street in Lemont to a nearby quarry area and to the property of plaintiff, Limestone Development Corporation (LDC). The issue in this preliminary injunction case is whether the petitioner made a fair showing that the canal road became a public highway by prescriptive easement, implied easement, statutory dedication or common law dedication.

There are three sections of the road. The first section, which begins at the railroad crossing adjacent to Main Street, is privately owned by Michael O'Malley, who is not a party to this action. The next section (hereinafter called the Steel road) is owned by defendant, K.A. Steel Chemicals, Inc. (Steel), and proceeds to the 90-foot reserve strip along the south side of the Illinois & Michigan Canal (I & M Canal). Steel, which manufactures, repackages, and distributes hazardous chemicals, purchased its property on the north and south sides of the I & M Canal in 1963.

The remainder of the road (hereinafter called the Lemont road) is owned by defendant, the Village of Lemont (Lemont). It crosses the southern reserve strip and the I & M Canal, then proceeds east along the 90-foot reserve strip on the north side of the canal to LDC's property. The Steel road and a leased section of the Lemont Road lead into Steel's chemical plant located north of the I & M Canal. In 1970, Lemont purchased the 90-foot reserve strips along the I & M Canal from the State of Illinois, which acquired it from the federal government in 1947. When discussing the Steel and the Lemont roads together, it will be called the canal road.

LDC purchased 55 acres of vacant and unimproved land adjacent to the I & M Canal, including water-filled quarries, in 1989. None of its property, which is east of the Steel plant, is located in Lemont. LDC bought the property in anticipation of developing it into a recreational marina, knowing that there was no guaranteed access to the property.

In June or July 1990, LDC brought in heavy equipment to widen and clear the Lemont road without Lemont's knowledge or permission. During the road clearing, vegetation and trees were destroyed. When Doug Blocker, Lemont's building and zoning Administrator, learned of the clearing, he contacted Terry Regan, LDC's president, and expressed concerns about the nature and type of road improvements proposed by LDC as well as drainage, erosion, and public safety issues.

After several letters between the two men, Blocker told Regan that he had no approval for a temporary road, that he had to clean all the trees and bushes immediately, and that he should not assume that the I & M Canal reserve strip could be used as a road for LDC's proposed development plans. Blocker also told Regan to not use the road until LDC's overall development plans had been submitted to Lemont and reviewed. Lemont claimed that it had legitimate public safety and liability concerns about the use of the canal reserve strips. During that same time, Steel informed LDC that it could not use the Steel road without advance permission.

Nevertheless, LDC proceeded to use the canal road to bring landfill onto its property without Lemont's knowledge or permission. Subsequently, on September 26, 1990, Lemont posted a stop work order and locked the gate that crosses the Lemont road, thus blocking LDC's access to its property over the canal road.

In 1992, LDC brought an action for declaratory, injunctive, and monetary relief against Lemont, alleging that Lemont was wrongfully denying LDC access to its property by maintaining a locked gate on the Lemont road. In November 1994, LDC filed its fourth-amended complaint. The claims involved in this appeal are as follows.

In counts I through III, LDC requested a declaration that the canal road is a public highway by statutory dedication, common law dedication, or prescription, and sought to enjoin Lemont from interfering with LDC's use of the canal road to access its property. In counts VII and VIII, LDC requested a declaration and injunction against Steel, alleging that Steel's portion of the road is either a public or private road by prescription. In count X, LDC sought declaratory and injunctive relief against Lemont based on an implied easement by estoppel.

On December 15, 1994, LDC filed an emergency petition for a preliminary injunction, alleging that Lemont and Steel continued to deny LDC unfettered access to the canal road, thus prohibiting LDC from developing its property. Emergency relief was denied, but a hearing was set.

On July 10, 1995, the trial court found that LDC had the right to unfettered use of the canal road due to the existence of a prescriptive easement, an implied easement, a statutory dedication, and a common law dedication. A preliminary injunction was issued and Lemont was ordered to remove its lock from the gate. The court also ordered both defendants to allow LDC, its agents, and its invitees free and unfettered access over the canal road. However, the court refused to order Lemont to remove the gate and restore the road to its condition as of September 1, 1990, or to stay the preliminary injunction pending this appeal. We affirm in part; reverse in part; and modify in part.

The purpose of a preliminary injunction is to prevent a threatened wrong or a continuing injury pending a full hearing on the merits of the case. Wilson v. Wilson, 217 Ill.App.3d 844, 849, 160 Ill.Dec. 752, 577 N.E.2d 1323 (1991). The petitioner must establish: (1) a certain and clearly ascertained right in need of protection, (2) irreparable harm without the injunction, (3) absence of adequate legal remedies, and (4) a likelihood of success on the merits. Hartlein v. Illinois Power Co., 151 Ill.2d 142, 156, 176 Ill.Dec. 22, 601 N.E.2d 720 (1992). In deciding whether to grant a preliminary injunction, the trial court must balance the equities and relative inconvenience to the parties and determine whether a greater burden will be imposed on the defendant by granting the motion than on the plaintiff by denying it. Eldridge v. Eldridge, 246 Ill.App.3d 883, 888, 186 Ill.Dec. 818, 617 N.E.2d 57 (1993). Because a preliminary injunction is an extraordinary remedy, the status quo, which is the last actual, peaceable, uncontested status preceding the controversy, is to be preserved with the least injury to the parties. Hartlein, 151 Ill.2d at 156, 176 Ill.Dec. 22, 601 N.E.2d 720; Eldridge, 246 Ill.App.3d at 888-89, 186 Ill.Dec. 818, 617 N.E.2d 57.

Generally, the standard of review for a preliminary injunction is whether the trial court abused its discretion in determining that the plaintiff provided prima facie evidence to support his or her claim. Weitekamp v. Lane, 250 Ill.App.3d 1017, 1023, 189 Ill.Dec. 486, 620 N.E.2d 454 (1993). The question before the reviewing court is whether there was a sufficient showing to sustain the trial court's order. Hartlein, 151 Ill.2d at 157, 176 Ill.Dec. 22, 601 N.E.2d 720. Instead of deciding controverted facts on the merits of the case, the reviewing court decides only whether the plaintiff has demonstrated a prima facie case that there is a fair question as to the existence of the claimed rights; that the circumstances lead to a reasonable belief that the plaintiff will probably be entitled to the relief sought; and that the status quo should be preserved until the case can be decided on the merits. Hartlein, 151 Ill.2d at 157, 176 Ill.Dec. 22, 601 N.E.2d 720.

Instead of using the abuse of discretion standard, Steel urges this court to evaluate whether the trial court's conclusion was contrary to the manifest weight of the evidence, which is the standard used when the trial court's order effectively determines the case's merits instead of only preserving the status quo until there can be a hearing on the merits. Dixon Ass'n for Retarded Citizens v. Thompson, 91 Ill.2d 518, 524-25, 64 Ill.Dec. 565, 440 N.E.2d 117 (1982); Weitekamp, 250 Ill.App.3d at 1022, 189 Ill.Dec. 486, 620 N.E.2d 454. We decline to apply the heightened standard because the trial court issued a preliminary injunction to be in existence only until a hearing on the merits can be

[219 Ill.Dec. 915] held. The preliminary injunction was not intended to be a permanent remedy.

A CLEARLY ASCERTAINABLE RIGHT

The first factor to be considered for a preliminary injunction is whether LDC had a clearly ascertainable right to free and unfettered access over the canal road. To show a clear and ascertainable right, LDC must raise a fair question that it has a substantive interest recognized by statute or common law. Kilhafner v. Harshbarger, 245 Ill.App.3d 227, 229, 185 Ill.Dec. 456, 614 N.E.2d 897 (1993); Continental Cablevision of Cook County, Inc. v. Miller, 238 Ill.App.3d 774, 787, 179 Ill.Dec. 755, 606 N.E.2d 587 (1992). LDC claims that it has the right to unfettered use of the canal road because the road is a public highway due to the doctrines of prescriptive easement, statutory dedication, common law dedication, and implied easement.

PRESCRIPTIVE EASEMENT

To establish a public highway by prescription pursuant to section 2-202 of the Illinois Highway Code (605 ILCS 5/2-202 (West 1994)), public use of the...