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Klose v. Mende

Case Date: 04/18/2002
Court: 3rd District Appellate
Docket No: 3-01-0098 Rel

No. 3-01-0098


APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002


JEROME B. KLOSE and RUTH C. KLOSE,

          Plaintiffs-Appellants,

          v.

FREDERICK E. MENDE, Commissioner
of Highways Meriden township
LaSalle County, Illinois,

          Defendant-Appellee.             

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) 		Appeal from the Circuit Court
for the 13th Judicial Circuit,
LaSalle County, Illinois

No. 00-MR-123


Honorable Robert L. Carter
Judge, Presiding.

Modified Upon Denial of Petitions for Rehearing
JUSTICE McDADE delivered the opinion of the court:

Jerome and Ruth Klose (plaintiffs) filed an amendedcomplaint for declaratory judgment (complaint) against FrederickE. Mende (defendant), seeking a court order that would establishplaintiffs' fee simple title in two roadways. The trial courtfound that the Meriden Township road district held validdedications for the two roads and dismissed plaintiffs'complaint. Plaintiffs then moved for leave to file a secondamended complaint, which the court denied. Plaintiffs now appealfrom the dismissal of their claim.

FACTS 

On October 6, 1995, plaintiffs recorded a warranty deed(deed) in the LaSalle County recorder's office (recorder'soffice) for the north one-half of the southwest quarter ofsection 14 in Meriden Township (section 14). The deed statedthat plaintiffs' portion of section 14 was to extend 2,354.17feet west on the east-west half section line of section 14, andnorth, 877.20 feet, starting at section 14's west section line. This property encompassed portions of the rights-of-way of North4550th Road and East 10th Road. North 4550th Road and East 10thRoad are township roads that run east-west and north-south,respectively, along the northern and western boundaries ofplaintiffs' portion of section 14.

Defendant is the commissioner of highways for the MeridenTownship road district in LaSalle County. On January 12, 2000,defendant mailed plaintiffs a right-of-way agreement (agreement)requesting that they make available two 66-foot right-of-waysrunning through both roads because the highway district wasplanning to make improvements on North 4550th Road. Plaintiffsrefused defendant's request.

Defendant then produced a ledger that had been kept by theMeriden Township clerk. The ledger indicated that in 1856, North4550th Road and East 10th Road (named Highways No. 5 and 1,respectively, in the ledger) had been dedicated to MeridenTownship. The ledger established that North 4550th Road ranthrough sections 13 and 14 along the east-west half section line,and that East 10th Road ran through sections 14 and 15, and thatboth roads were four rods wide (66 feet). The ledger also statedthat section 14 had a width of 80.57 chains (5317.62 feet), whichexceeded the original government survey (80.08 chains, or 5285.28feet) by 32.34 feet.

Plaintiffs filed an amended complaint for declaratoryjudgment on August 9, 2000, to confirm their fee simple title tothe North 4550th Road and East 10th Road right-of ways, asdefendant was claiming ownership by dedication to the same 33feet of right-of-way in North 4550th Road and East 10th Road thatplaintiffs were claiming through warranty deeds. The trial courtdismissed plaintiffs' action, finding the 1856 road dedicationsto be valid. Plaintiffs' motion to file a second amendedcomplaint was denied.

Plaintiffs raise three issues on appeal: (1) whether thetrial court erred in dismissing their complaint, (2) whether thetrial court abused its discretion in denying their motion to filea second amended complaint, and (3) whether sanctions should beimposed against defendant for his assertion of fee simple titlein the two roadways.

ANALYSIS

I. Dismissal of Complaint for Declaratory Judgment

Plaintiffs contend that the trial court erred in dismissingtheir complaint for declaratory judgment. They assert that thecourt's finding that the township's 1856 road dedications werevalid is not supported by the record.

The standard for reviewing a decision granting a motion todismiss is de novo. The motion should only be granted when,viewing the allegations of the complaint in the light mostfavorable to the nonmoving party, it clearly appears that thenonmoving party would not be entitled to relief under any set offacts. Board of Directors of Bloomfield Club Recreation Ass'n v.The Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d 330,335 (1999).

In 1856, the Meriden Township clerk recorded an entry in theMeriden Township ledger (ledger) of the dedication of North4550th Road and East 10th Road as public highways. Plaintiffscontend that the 1856 dedications are invalid because they failedto comply with the statutory requirements of article 24, sections1 through 5, of "An Act to provide for township organization"(the Act) (1851 Ill. Laws 35 (