Streeter v. Winnebago County

• Decision Date: 21 April 1980
• Docket Number: No. 79-106,No. 1122,1122,79-106
• Citation: 39 Ill.Dec. 67,404 N.E.2d 451,85 Ill.App.3d 116
• Parties: , 39 Ill.Dec. 67 Melvin E. STREETER, Mary L. Streeter, Joseph R. Shields and Marijule Shields, Plaintiffs-Appellants, v. COUNTY OF WINNEBAGO, a body politic and corporate, Defendant and Third Party Plaintiff-Appellee, v. CITY NATIONAL BANK AND TRUST CO. OF ROCKFORD, as Trustee of Trust, and Cherryvale Development Company, Third Party Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 451

404 N.E.2d 451

85 Ill.App.3d 116, 39 Ill.Dec. 67

Melvin E. STREETER, Mary L. Streeter, Joseph R. Shields and Marijule Shields, Plaintiffs-Appellants, v. COUNTY OF WINNEBAGO, a body politic and corporate, Defendant and Third Party Plaintiff-Appellee, v. CITY NATIONAL BANK AND TRUST CO. OF ROCKFORD, as Trustee of

Trust No. 1122, and Cherryvale Development

Company, Third Party Defendants-Appellees.

No. 79-106.

Appellate Court of Illinois, Second District.

April 21, 1980.

Connolly, Oliver, Goddard, Coplan & Close, Robert G. Coplan, Rockford, for plaintiffs-appellants.

Daniel D. Doyle, State's Atty., James M. Hess, Asst. State's Atty., Curtis D. Worden, Rockford, for defendant and third party plaintiff-appellee.

SEIDENFELD, Presiding Justice:

The plaintiffs claim that they have been damaged because their right of access was materially impaired by the vacation and relocation of a county road. In a previous appeal to this court based on the pleadings, we reversed and remanded for a trial on the merits. (Streeter v. County of Winnebago, 44 Ill.App.3d 392, 2 Ill.Dec. 928, 357 N.E.2d 1371 (1976).) The cause then proceeded to hearing on plaintiffs' complaint, the answer of the defendant, the County of Winnebago, and upon the county's third party complaint against the developer of the property. The trial court granted the motion of the county and the third party defendant for summary judgment and denied the motion of the plaintiffs for summary judgment. The plaintiffs appeal.

The trial court concluded that the undisputed facts show that there is no material impairment of defendant's right of access caused by the vacation and relocation of what will be referred to as Bell School Road. We agree.

The subject matter of this litigation is a triangular piece of land, composed of two parcels. The right of way for Harrison Avenue forms the southern boundary of the property, while Bell School Road runs along its western boundary. An access road surrounds the property on the south and east. This action arose when the county relocated Bell School Road, vacating the south 560 feet of the road and relocating the road so that it now runs west from the plaintiffs' property, and then south, and enters Harrison approximately 1440 feet west of where it originally entered. We have prepared a sketch of the property and its surrounding access based on our review of the record for aid in visualizing the controversy:

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

Prior to December, 1959 the entire triangle was owned by Joseph Carlson, plaintiffs' predecessor in title. On December 11, 1959 Carlson conveyed a strip of land 215 feet deep along Harrison Avenue to the State of Illinois for the widening of Harrison. The deed of conveyance contained a reservation clause in which the State promised to

supplement the main freeway pavement with a parallel, all weather direct access entrance from the present abutting land of the Grantor to provide access for the Grantor only via said direct access entrance to relocated Bell School Road at * * * a new point of access * * * (which was approximately 1440 feet west of the present access point to Harrison Avenue).

It is clear that where a property owner's right of access is materially impaired by the action of the State the owner is entitled to compensation. (Dept. of Pub. Wks. & Bldgs. v. Wilson & Co., 62 Ill.2d 131, 140-41, 340 N.E.2d 12 (1975).) The issue of materiality of impairment is a question of law for the court to determine in the first instance. (62 Ill.2d at 141, 340 N.E.2d 12) "If, however, there is no physical disturbance of the right of access vis-a-vis the abutting highway, then any damages which may result to the property owner as a consequence of a change in the use of the highway by the public are damnum absque injuria even though such damages may be very substantial." 62 Ill.2d at 141, 340 N.E.2d at 17.

The initial inquiry is whether the plaintiffs or their predecessors in title had direct access to Harrison Avenue following the conveyance to the State and prior to the relocation of Bell School Road by the county. The plaintiffs contend that the reservation clause in the deed which conveyed the right of way abutting Harrison Avenue to the State of Illinois continued to afford them direct access to Harrison Avenue. They state that, in addition, they were given a contractual right of direct access to Harrison Avenue by the State. The difficulty with this argument is that the reservation in the deed does not afford plaintiffs direct access to Harrison Avenue over the State right-of-way. Of course, if it did, plaintiffs could enforce such right against the State and are not deprived of direct access to Harrison Avenue because of the county's action in relocating Bell School Road. However, the access which was reserved in the State's deed to Harrison Avenue was by way of Old Bell School Road which the State did not own.

Even if plaintiffs have a contractual right to enforce access to Harrison against the State, the State could give them no right against the County of Winnebago. The county has the statutory right to vacate roads and streets in the public interest. (Ill.Rev.Stat.1977, ch. 24, par. 11-91-1). The State cannot unilaterally promise that the county will not exercise its statutory rights. It therefore appears that the reservation clause is neither enforceable against the county nor does it give the plaintiff direct access to Harrison Avenue.

Plaintiffs or their predecessors in interest gave up all right of direct access to Harrison Avenue when they sold their land which abutted on Harrison to the State. Following this conveyance the plaintiffs' access to Harrison Avenue was indirect access by way of Old Bell School Road. After the relocation of that county road the...