Norman Tp. v. ETI Explosives Technologies Intern., Inc.

• Decision Date: 04 February 1992
• Docket Number: No. 3-91-0214,3-91-0214
• Parties: , 167 Ill.Dec. 169 NORMAN TOWNSHIP, a Body Politic, Plaintiff-Appellee, v. ETI EXPLOSIVES TECHNOLOGIES INTERNATIONAL, INC. Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 51

587 N.E.2d 51

224 Ill.App.3d 596, 167 Ill.Dec. 169

NORMAN TOWNSHIP, a Body Politic, Plaintiff-Appellee, v. ETI EXPLOSIVES TECHNOLOGIES INTERNATIONAL, INC. Defendant-Appellant.

No. 3-91-0214.

Appellate Court of Illinois Third District.

Feb. 4, 1992.

Rehearing Denied March 10, 1992.

Stephen C. Myers (argued), Myers, Daugherity, Berry & O'Conor, Ltd., Streator, for ETI Explosives Technologies.

Paul E. Root (argued), Gomien, Root & Rigazio, Morris, for Norman Tp.

Justice BARRY delivered the opinion of the court.

On May 12, 1987, plaintiff Norman Township filed a two-count suit in the circuit court of Grundy County for declaratory and injunctive relief. The township claimed public ownership, by the public's adverse use for more than 15 years, of a 1.8-mile segment of a two-lane 10.4-mile roadway between State Routes 47 and 170 in Grundy County known as DuPont Road. Record title to the road segment is currently held by defendant ETI Explosives Technologies Int'l., Inc. ("ETI"). After trial, the court entered judgment for plaintiff on both counts. Defendant appeals. We reverse.

According to the record on appeal, plaintiff sold the road segment to defendant's predecessor-in-title, Grasselli Powder Company, in 1927 for $2000. Township records establish that at a public meeting called by plaintiff's highway commissioner on January 24, 1927, the township publicly vacated the road, declaring that it was "in a deplorable condition and is very expensive to maintain and that said Road is very little travelled." According to defense witnesses, Grasselli Powder sold the property to DuPont De Nemours Co. in 1928. Thereafter from as early as 1929, the road was maintained privately by DuPont De Nemours & Co. from State Route 170, about a mile west of the western border of defendant's property, to Dunn Road, which runs along defendant's eastern boundary. At the western entrance to defendant's property are two concrete pillars on either side of the road, the one on the right containing an insert reading "Private Road," and the one on the left reading "DuPont." There were company signs posted at the eastern entrance at Dunn Road as well. In November, 1986, DuPont employees barricaded the road at both borders to the property to prevent the public's use of it, giving rise to this lawsuit. Ultimately, in 1988, DuPont sold the property to ETI. ETI is a manufacturer of explosives, as was DuPont for some time prior to the transfer of the property to ETI. For purposes of this appeal, we will hereafter refer to ETI and its predecessors-in-title simply as "the Company."

At trial, defendant stipulated that the road had been used by the public despite the posted signs indicating private ownership for a period of at least 15 years since 1929. Defendant acknowledged that by its stipulation a presumption of prescriptive usage in favor of plaintiff arose, and that the burden thereby shifted to defendant to establish that the public's usage was by permission. Defendant established, inter alia, that extensive repairs, as well as maintenance and construction activities, had been performed exclusively by the Company since at least 1950. Moreover, the Company was aware of the public's usage of the road segment from 1927 until November, 1986, and never took any action to obstruct such use except during periods of repair. Prior to 1986, permission to use the road was, in fact, granted on several occasions when such requests were made of the Company. In November and December, 1986, the Company posted signs closing the road to the public during the deer hunting season.

According to ETI's plant manager, Jerry Baker, if the road segment in question were a public highway, Federal Bureau of Alcohol, Tobacco and Firearms regulations would require a reduction in the explosives manufacturing operation such that it would virtually require closing the plant. Baker explained that the hilly terrain of the only area available for expansion would make it economically impractical to comply with federal regulations by moving the manufacturing operations farther from the road.

At the close of all evidence, the trial court noted that defendant's evidence of the Company's control over the road segment related almost exclusively to the period after 1944. The trial court also noted that the applicable statute (Ill.Rev.Stat.1989, ch. 121, par. 2-202), which allows for public acquisition of roads by prescription, has remained essentially unchanged since 1913. That statute defines as a public highway any road that has been "used by the public as a highway for 15 years, ... and which has not been vacated in pursuance of law." (Emphasis added.) The court ruled that since defendants had not presented evidence rebutting a presumption of public usage for a 15 year period from 1929 to 1944, the Company's road segment became a public highway in 1944. The court further ruled that the Township, as a sovereign, was not estopped from asserting its claim by its failure to act during the period between 1944 and 1987 when this suit was...