Streeter v. Winnebago County, 75--434

• Court: United States Appellate Court of Illinois
• Citation: 2 Ill.Dec. 928,44 Ill.App.3d 392,357 N.E.2d 1371
• Docket Number: No. 75--434,75--434
• Parties: , 2 Ill.Dec. 928 Melvin E. STREETER et al., Plaintiffs-Appellants, v. COUNTY OF WINNEBAGO, a body politic and corporate, Defendant-Appellee.
• Decision Date: 03 December 1976

Page 1371

357 N.E.2d 1371 44 Ill.App.3d 392, 2 Ill.Dec. 928 Melvin E. STREETER et al., Plaintiffs-Appellants,
v.
COUNTY OF WINNEBAGO, a body politic and corporate, Defendant-Appellee. No. 75--434. Appellate Court of Illinois, Second District, Second Division. Dec. 3, 1976.

[44 Ill.App.3d 393] Connolly, Oliver, Goddard, Coplan & Close, Robert G. Coplan, Rockford, for plaintiffs-appellants.

Philip G. Reinhard, State's Atty., James M. Hess, Asst. State's Atty., Rockford, for defendant-appellee.

RECHENMACHER, Justice.

This is an appeal from the judgment of the circuit court of Winnebago County dismissing the plaintiffs' complaint for money damages resulting from the vacating of a county road abutting the plaintiffs' property.

The property in question is located at the corner of a State highway known as FAS 1044 (also called Harrison Avenue) which

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[2 Ill.Dec. 929] runs east and west, and Bell School Road (a county highway also known as County highway No. 26), which runs north and south and deadends at Harrison Avenue. The property extends about 1130 feet north of Harrison Avenue on the east side of Bell School Road and is improved with several buildings, including a restaurant and service station. It is divided into two parcels, one of which has approximately 375 feet of frontage on Bell School Road, the other adjacent parcel having about 759 feet of frontage.

On November 9, 1972, the County Board of Winnebago County passed a resolution vacating the south 560 feet of Bell School Road (Highway No. 26), which is the portion of the road running north from Harrison Avenue along the plaintiffs' property, so that the road then ran west from the northerly part of plaintiffs' property and then south and entered Harrison Avenue at a point some 1440 feet west of where it originally connected with Harrison Avenue. On October 11, 1974, the plaintiffs filed a complaint against the County alleging that as to each of the two tracts the County had deprived the plaintiffs of access to Bell School Road by vacating the south 560 feet of that road; that they were deprived 'totally of access from Harrison Avenue and totally of direct access from Bell School Road', which reduced the value of their property; that no compensation had been paid for said damages and that the plaintiffs were entitled to damages in the amount (for both tracts) of $300,000. In a second count the plaintiffs alleged that the vacating of the 560 feet of Bell School Road diminished the value of their property by cutting off their access to Bell School Road and Harrison Avenue, and that this amounted to a taking of private property for public use without just compensation, [44 Ill.App.3d 394] in violation of the Illinois Constitution, whereby they are entitled to compensation in the amount of $300,000.

The County moved to dismiss the complaint for failure to state a cause of action based on the following grounds:

(1) That the Tort Immunity Act (Ill.Rev.Stat.1973, ch. 85, sec. 8--102) (officially the Local Governmental and Governmental Employees Tort Immunity Act) provides that notice must be given within one year of a cause of action accruing against a local public entity and in this case no notice was given within one year as required by that Act;

(2) That under the Tort Immunity Act, ch. 85, sec. 2--103, a local public entity is not liable for an injury caused by adopting or failing to adopt an enactment;

(3) That the County Board relocated the part of the road vacated and hence there is no ground for action against the Board because, while sec. 5--109 of the Roads and Bridges Statute (Ill.Rev.Stat.1973, ch. 121, par. 5--109) provides that compensation shall be paid for damages caused by vacation of a county highway, sec. 5--110 of that statute states that the provisions of sec. 5--109 'shall not apply where the county board had ordered a highway or part thereof to be vacated permanently to be reconstructed and dedicated in a new location', which is what occurred in this case.

The trial court granted the County's motion and dismissed the complaint. No testimony was heard.

In this appeal the plaintiffs contend that the suit in question is not subject to the notice provisions of sec. 8--102 of the Tort Immunity Act. It is the plaintiffs' theory that that Act and the notice provision thereof refers only to Torts and this is intended to mean cases of personal injury arising out of an accident or the other usual bases of common law negligence. Plaintiffs admit there are no Illinois cases so holding but cite the U.S. District Court case of Luker v. Nelson, 341 F.Supp. 111 (1972) as indicating that the notice provisions were intended to apply only to the usual common law torts arising out of fortuitous events where the circumstances require prompt notice. As pointed out by the County in its reply brief, the Federal District Court's remarks were mostly dicta and what was actually decided in the Luker case was simply

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[2 Ill.Dec. 930] that the notice provisions of the Tort Immunity Act did not apply to a Civil Rights case under sec. 1983 of the U.S. Code.

While we have found cases involving other circumstances than the common garden variety of tort actions for negligence arising out of accidental injury, where the notice provisions of the Act have been applicable (false arrest--Ramos v. Armstrong (1972), 8 Ill.App.3d 503, 289 N.E.2d 709; wrongful discharge--Kepper v. La Salle-Peru Twp. Sch. Dist. [44 Ill.App.3d 395] No. 120 (1972), 7 Ill.App.3d 138, 287 N.E.2d 180; malicious prosecution--Dear v. Locke (1970), 128 Ill.App.2d 356, 262 N.E.2d 27; wrongful demolition of a building--Hecko v. City of Chicago (1975), 25 Ill.App.3d 572, 323 N.E.2d 595), we are not persuaded that the...