Village of Plainfield v. American Nat. Bank and Trust Co.

• Decision Date: 19 February 1975
• Docket Number: No. 74--49,74--49
• Citation: 323 N.E.2d 841,25 Ill.App.3d 1026
• Parties: In re Annexation to the Village of Plainfield. The VILLAGE OF PLAINFIELD, Petitioner-Appellant, v. AMERICAN NATIONAL BANK AND TRUST COMPANY, Trustee, et al., Objectors-Appellees.
• Court: United States Appellate Court of Illinois

Page 841

323 N.E.2d 841

25 Ill.App.3d 1026

In re Annexation to the Village of Plainfield The VILLAGE OF PLAINFIELD, Petitioner-Appellant, v. AMERICAN NATIONAL BANK AND TRUST COMPANY, Trustee, et al Objectors-Appellees.

No. 74--49.

Appellate Court of Illinois, Third District.

Feb. 19, 1975.

McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, Joliet, for petitioner-appellant, Douglas Hutchison, Joliet, of counsel.

Siegel & Stonesifer, Ltd., Chicago, for objectors-appellees, Jack M. Siegel, Chicago, of counsel.

STENGEL, Justice.

The Village of Plainfield, plaintiff, appeals an order of the Circuit Court dismissing an annexation proceeding instituted under provisions of Ill.Rev.Stat. c. 24, Sec. 7--1--2 (1971).

An ordinance to annex certain territory was adopted by the Village and filed in Circuit Court. At the conclusion of the hearing on the objections, the court sustained eight of the objections, and dismissed the ordinance after denying plaintiff's motion to amend the ordinance by deleting certain parcels.

The first issue presented for review is the propriety of sustaining an objection that the State of Illinois was an owner of property included in the ordinance and that plaintiff had failed to obtain the required written consent of the Governor.

Section 7--1--2 of Ill.Rev.Stat. c. 24, provides in part as follows:

'Where real estate owned by the State of Illinois, or any board, agency or commission thereof, is situated in unincorporated territory adjacent to a municipality, the corporate authorities of such municipality may annex any part or all of such real estate only with the written consent of the Governor of the State of Illinois or the governing authority of such board, agency or commission, without any such petition or proceedings required by this Article by resolution of such corporate authorities.'

Failure to obtain consent for annexation from State authorities was held to be a fatal defect where a park owned by the State of Illinois was situated within a greater territory sought to be annexed by an ordinance proceeding in City of East St. Louis v. Touchette, 14 Ill.2d 243, 150 N.E.2d 178 (1958).

The property in question in the case at bar included part of the right-of-way for public highways within Route 30 and Route I--55. Use and occupancy by the State is not disputed. The plats of dedication for the parcels constituting the right-of-way provide that the grantors 'hereby grant, convey and dedicate to the People of the State of Illinois for the purpose of a public highway . . ..' Plaintiff contends that a dedication of a right-of-way for highway purposes is a grant of a determinable fee to the State, with the grantor retaining the underlying fee, and that such interest as the State acquires is not ownership within the meaning of the statute requiring the Governor's consent for annexation. Defendants argue that the decisions of Illinois courts which construe the term 'owner' to include the holder of an easement, under the Disconnection Statute, are controlling here, so that the Governor's consent is required under the Annexation Statute. The consent provision of Sec. 7--1--2 has not previously been construed by any court.

The Disconnection Statute (Ill.Rev.Stat. c. 24, Sec. 7--3--6) provides that 'The owner or owners of record of any area of land consisting of one or more tracts, lying within the corporate limits of any municipality . . .' may disconnect from the municipality if certain conditions are met.

In Woodward Governor Co. v. City of Louis Park, 335 Ill.App. 528, 82 N.E.2d 387 (2d Dist., 148), the court held that a railroad with an easement to so much of the land in question as it found necessary to use, was an 'owner' within the meaning of the Disconnection Statute and could properly be the only signer representing that property on the petition to disconnect. The court said:

'In light of our analysis of the numerous cases, defining the word 'owner' when used in statutory enactment, we are of the opinion that Section 7--42 of the Cities and Villages Act of 1941 should be construed liberally; that it was enacted for the purpose of granting relief to taxpayers; that the class of persons entitled to its benefits, namely owners, are not necessarily persons owning a fee simple title; that in determining who are its owners, it is necessary to consider the purposes of the acts and all the surrounding circumstances. Applying those conclusions to our problem before us, we are clearly of the opinion that the Chicago & North Western Railway Company held such title in the premises involved that they were 'owners' and were entitled to the relief sought under the foregoing statute . . ..' 82 N.E.2d at 393.

In an earlier case construing the word 'owner' in the same Disconnection Statute, the court stated the general rule to be:

'The word owner, when applied to real estate is not confined to the holder of a fee simple title, and, unless there is somthing in the act to the contrary, the legislature will be understood as using the word in its popular sense.' Vance v. Rankin, 95 Ill.App. 562, 565, (3d Dist., 1900), rev'd. on other grounds, 194 Ill. 625, 62 N.E. 807 (1902).

In Vance, supra, two railroads with right-of-way interests were held to be 'owners.'

More recently a disconnection petition involving land previously conveyed to Northern Illinois Gas Co., subject to a perpetual easement for access and with reservation to the grantor of the right to farm the tract, was ruled to require the signature of both the gas company, who owned the fee, and the grantor who retained an access easement and the right to farm. Nicholson v. Village of Schaumberg Center, 33 Ill.App.2d 197, 178 N.E.2d 680 (1st Dist., 1961).

We find only one case involving public highway ownership under the Disconnection Statute. In American Community Builders v. City of Chicago Heights, 337 Ill.App. 263, 85 N.E.2d 837 (1st Dist., 1948), the municipality attempted to prevent a disconnection on the grounds that some of the land consisted of city streets and that the city was, therefore, a necessary party to the petition. The court rejected the theory that the city was an 'owner' of the streets by virtue of an easement for public highway purposes. The court said that to permit the city to defeat the disconnection would destroy the purpose of the statute in all cases where the limits of the city are city streets, and held that the signature of the owner of the underlying fee was sufficient. There was no evidence in that case of a specific grant of right-of-way or easement to the city, and the streets in question were in fact maintained by the County Highway Department. Thus that case is clearly distinguishable on its facts from the Plainfield annexation.

Plaintiff cites Secs. 7--1--10 and 7--1--13 as statutory recognition of distinctions between right-of-way dedication and fee simple title to State highways. We agree with defendant that these sections concern alternate methods of annexation for factual situations at variance with those applicable here and are unrelated to proceedings brought under Sec. 7--1--2.

Whether the property interest of the State in the highways sought to be annexed is a fee simple absolute or a determinable fee, that interest of sufficient importance to come within the protection afforded by Sec. 7--1--2. Thus we hold that 'real estate owned by the State of Illinois, or any board, agency or commission thereof,' in Section 7--1--2, includes the land dedicated to the State for public highway purposes whether the State owns the underlying fee or not. The trial court correctly sustained the objection to inclusion of State Highway property without the Governor's prior written consent.

The second question before us is whether the trial court erred in ruling that the territory described in the ordinance was not contiguous to the Village. The unincorporated territory sought to be annexed included several subdivisions and was extensive and irregular in shape, and at one point is intersected by Interstate Route 55; the parcels on either side of I--55 are connected only by a 60 foot wide strip of highway (Route 30), constituting a connecting corridor approximately one-half mile in length, which passes under I--55 and through a cloverleaf exchange.

The trial court sustained defendant's objection that the territory to be annexed was not contiguous to the village, and also sustained objections that the territory was not a contiguous parcel in that it consisted of two or more separate parcels and that it contained strips and corridors connecting separate parcels.

Section 7--1--1 of the Annexation Statute provides:

'Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality, may be annexed thereto as provided in this Article.'

In interpreting this statute, it has been held that use of the word 'territory' does not permit the annexation of two...