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No. 2--04--1050

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE KAPALA delivered the opinion of the court:

Plaintiff, Mark D. Jamison, appeals from an order of the circuit court of Lake County dismissing with prejudice count I of his amended complaint for mandamus against defendant, the City of Zion (city). We reverse and remand.

Plaintiff lives at 3333 Sharon Place in the city. Sharon Place is a dedicated road. Plaintiff's next-door neighbor to the south, whose property also abuts Sharon Place, placed large lilac bushes and a fence in the right-of-way of Sharon Place. The bushes extend onto the roadway. Plaintiff avers that they create a dangerous condition by obstructing the width of the roadway and blocking motorists' ability to see oncoming traffic on Sharon Place when anyone pulls out of plaintiff's driveway onto Sharon Place.

On July 7, 2003, the city sent the property owner to plaintiff's south a notice that the lilac bushes encroached into the public right-of-way and directed that they be trimmed within seven days. The city attached copies of the pertinent ordinances to the letter. The owner did not trim the bushes, and the city took no further action although its ordinance provided that it "may" abate the encroachment itself and charge the owner for the abatement. Plaintiff requested the Lake County State's Attorney to abate the encroachment. The State's Attorney also declined. Thereafter, plaintiff filed suit. On July 6, 2004, plaintiff filed an amended complaint for mandamus. Count I is directed against the city and relies on statutory enactments as well as the city's ordinances. Count I also pleads a common-law duty on the city to remove the obstruction from the roadway. The trial court dismissed count I with prejudice, holding that any duty the city owes to plaintiff is discretionary. Plaintiff filed this timely appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).

"Mandamus is an extraordinary remedy to enforce, as a matter of right, 'the performance of official duties by a public officer where no exercise of discretion on his part is involved.' " Park Superintendents' Professional Ass'n v. Ryan, 319 Ill. App. 3d 751, 757 (2001), quoting Lewis E. v. Spagnolo, 186 Ill. 2d 198, 229 (1999). We agree with the trial court that the ordinance providing that the city "may" abate an obstruction gives the city discretion whether to do so. Therefore, the ordinance does not furnish a basis for plaintiff to seek mandamus against the city.

We also agree with the city that plaintiff cannot avail himself of the public nuisance statute, which appears in the Criminal Code of 1961 (720 ILCS 5/47--5 (West 2002)), because the State's Attorney, not the city, has the authority to prosecute crimes. See 720 ILCS 5/47--25 (West 2002); People v. Nash, 183 Ill. App. 3d 924, 930 (1989). Although the statute does not allow the city a right of action, as we shall see, the city has a common-law duty to remove obstructions from the roadway and, thus, plaintiff may use a mandamus action to compel the city to discharge this duty. Mamolella v. First Bank of Oak Park, 97 Ill. App. 3d 579, 583 (1981). The question then becomes whether plaintiff has sufficiently pleaded a cause of action for mandamus.

The trial court dismissed count I pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2002)). We reviewde novo the granting of a section 2--615 motion to dismiss a complaint for mandamus. Park Superintendents', 319 Ill. App. 3d at 757. When reviewing the dismissal of a complaint, we construe the allegations in the light most favorable to the plaintiff and determine whether the plaintiff has alleged sufficient facts to establish a cause of action on which relief may be granted. Park Superintendents', 319 Ill. App. 3d at 757. Rules for pleading mandamus are the same as those applicable to actions at law. Park Superintendents', 319 Ill. App. 3d at 757. To plead a cause of action for mandamus, a complaint must allege facts that establish a clear right to the relief requested, a clear duty of the defendant to act, and clear authority in the defendant to comply with the order. Park Superintendents', 319 Ill. App. 3d at 757.

1. Clear Right to the Relief Requested

Plaintiff alleged that he is a member of the public who has been a continuous user of Sharon Place as a public highway. He alleged that his property abuts Sharon Place and that he depends upon a circular driveway on his property for ingress from and egress to Sharon Place. He further alleged that he has the right to have the roadway free of encroachments and obstructions that exist within the public way, so that motor vehicles may be operated safely on the roadway. Plaintiff pleaded that the property owner to the south planted bushes and placed fencing within the right-of-way of Sharon Place. Paragraph 11 alleged:

"These bushes and fencing have been placed within the right-of-way and public way of Sharon Place by agents, servants, and/or employees of the 'Trust Owners,' substantially reducing *** the space of the roadway that may be used for travel by motor vehicles and totally reducing the ability to view south down the said road from [plaintiff's] property, which thereby creates a dangerous condition in need of abatement so as to prevent any vehicle accidents from occurring."

Plaintiff attached as an exhibit to his complaint a survey depicting the paved portion of Sharon Place, the right-of-way, and the placement of the fence and bushes in the right of way. The survey also shows the encroachment of the bushes onto the paved portion of the road. We believe that plaintiff has adequately pleaded the existence of a purpresture, which is defined as "an encroachment upon public rights and easements by appropriation to private use of that which belongs to the public." Black's Law Dictionary 1272 (8th ed. 2004). Plaintiff has pleaded that (1) Sharon Place is a public road; (2) there is a public right-of-way adjacent to the paved portion of Sharon Place; (3) the owner of the property to the south of plaintiff's property planted large lilac bushes in the public right-of-way and built a fence in the public right-of-way; and (4) the bushes in the public right-of-way encroach onto the paved portion of the public road, thus obstructing both a portion of the paved road to vehicular traffic and visibility of the paved road from plaintiff's driveway.

2. Clear Duty of the Defendant to Act

"Mandamus is an extraordinary remedy traditionally used to compel a public official to perform a ministerial duty." People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 464 (2004). Mandamus cannot be used to direct a public body to reach a particular decision or to exercise its discretion in a particular manner. Hadley v. Ryan, 345 Ill. App. 3d 297, 301 (2003). Long-settled case law convinces us that the city has a mandatory, rather than discretionary, duty to remove the obstruction from Sharon Place. "Illinois courts have long held that an action for mandamus will lie to compel a municipality to discharge its duty to remove purprestures and obstructions from public streets." Mamolella, 97 Ill. App. 3d at 583. The source of this duty was explained by our supreme court in People ex rel. Faulkner v. Harris, 203 Ill. 272, 279 (1903):

"When a public highway is once established all the beneficial uses of it vest in and devolve upon the public, and where, as in incorporated cities, the title to the streets is vested in the municipality, they are nevertheless charged with the public right. *** [T]he city could have no authority to accept public streets upon any other conditions than that they should be for public use, and what is meant by public use is that the public shall have the uninterrupted, unimpeded and unobstructed use of every portion and part of such public highway ***[.]"

There is no doubt that plaintiff has pleaded an obstruction of a public street and that this obstruction impairs the ability of vehicles to enter upon the roadway from plaintiff's driveway. "The use of the streets by the public includes the uninterrupted, unimpeded and unobstructed use of every portion thereof. It has the right to use all the ground to travel upon." People ex rel. Jeffrey v. Murphy, 254 Ill. App. 109, 113 (1929). Use includes the right to safely enter the roadway. Plaintiff pleaded that the encroachment of the lilac bushes onto the paved portion of Sharon Place narrows the space available for vehicles to negotiate it and that he and others attempting to enter the roadway from his driveway cannot see to make the maneuver safely. Consequently, the public does not enjoy its right to use all of the ground upon which to travel. Plaintiff thus has pleaded that the city has a clear duty to remove the obstruction.

3. Clear Authority in the Defendant to Comply With the Order

Plaintiff pleaded that the city has no power or authority to grant exclusive use of its streets to any private person or for any private purpose, but must hold and control possession exclusively for public use. Plaintiff also pleaded the fact that the city sent the homeowner who planted the bushes in the right-of-way a notice that it may abate the encroachment pursuant to its ordinances. It is true that a city holds streets in trust for the public and has no power to grant an easement for private use. Mamolella, 97 Ill. App. 3d at 583, citing Snyder v. City of Mt. Pulaski, 176 Ill. 397, 402 (1898). We have no doubt that the city in our case has the authority to comply with a trial court's order to remove the obstruction from Sharon Place. While the legislature placed in the State's Attorney the authority to prosecute public nuisances as criminal offenses, it reserved the power of municipalities and counties to declare and abate nuisances within their limits. 720 ILCS 5/47--5 (West 2002). A purpresture is akin to a public nuisance. 58 Am. Jur. 2d Nuisances