Republic Bank of Chicago v. Village of Manhattan ( 2015 )

Illinois Official Reports
Appellate Court
Republic Bank of Chicago v. Village of Manhattan,
2015 IL App (3d) 130379
Appellate Court REPUBLIC BANK OF CHICAGO, Plaintiff-Appellant, v. THE
Caption VILLAGE OF MANHATTAN, Defendant-Appellee (Lakeside
Towns at Liberty Center Development, LLC, Lawerence W. Sisk,
Jennell M. Sisk, Michael K. Gallagher, Eastern and Smith Manhattan,
LLC, Gallagher Homes, LLC, Tramore Townhome Associations, Inc.,
Commonwealth Edison Company, Ameritech Corporation, Illinois
Bell Telephone Company, Unknown Owners, and Nonrecord
Claimants, Defendants).–REPUBLIC BANK OF CHICAGO,
Plaintiff-Appellant, v. THE VILLAGE OF MANHATTAN,
Defendant-Appellee (Eastern and Smith Manhattan, LLC, Lawrence
W. Sisk, Jennell M. Sisk, Michael K. Gallagher, Route 52 Manhattan,
LLC, E&S Development North, LLC, Krause Construction, LLC,
Beary Landscaping, Inc., Zausa Development Corporation, Stonegate
Duplex Association, Stonegate Phase I Homeowners Association,
Stonegate Phase II Homeowners Association, Stonegate Phase III
Homeowners Association, Stonegate Phase IV Homeowners
Association, Stonegate Phase V Homeowners Association,
Commonwealth Edison Company, Ameritech Corporation, Illinois
Bell Telephone Company, Nicor Gas Company, Kraus Cable
Television Systems, Lakeside Towns at Liberty Center Development,
LLC, Unknown Owners, and Nonrecord Claimants, Defendants).
District & No. Third District
Docket Nos. 3-13-0379, 3-13-0380 cons.
Filed May 15, 2015
Decision Under Appeal from the Circuit Court of Will County, Nos. 12-CH-1877,
Review 12-CH-2045; the Hon. Barbara Petrungaro, Judge, presiding.
Judgment Affirmed.
Counsel on Edward P. Freud (argued), Timothy S. Breems, and Michael B.
Appeal Bregman, all of Ruff, Freud, Breems & Nelson, Ltd., of Chicago, for
appellant.
James A. Murphy (argued), of Mahoney, Silverman & Cross, Ltd., of
Joliet, for appellee.
Panel JUSTICE LYTTON delivered the judgment of the court, with opinion.
Justice O’Brien concurred in the judgment and opinion.
Justice Carter dissented, with opinion.
OPINION
¶1 Plaintiff Republic Bank of Chicago filed two separate complaints against multiple
defendants to foreclose on roads and outlots contained in two failed subdivisions located in
the Village of Manhattan (Village). The Village filed motions to dismiss the complaints,
arguing that the roads and common areas had been dedicated to the Village. The trial court
granted the Village’s motions to dismiss. On appeal, Republic Bank argues that (1) the roads
and common areas were not properly dedicated to the Village, and (2) even if they were
properly dedicated, Republic Bank is still entitled to foreclose on them. We affirm.
¶2 In 2006, Eastern & Smith Manhattan, LLC (Eastern & Smith), purchased 134.51 acres of
land in the Village of Manhattan with plans to construct Stonegate Subdivision. Eastern &
Smith obtained the funds to purchase the property from Republic Bank, which held an initial
mortgage on the property in the amount of $8,351,646.66. The initial mortgage was executed
in July 2006, but was later amended and modified on six occasions. Republic Bank recorded
a junior mortgage on the property on February 26, 2007.
¶3 In preparation for development, Stonegate was subdivided and platted in five phases from
August 30, 2007, to April 14, 2009. The plats showed 352 residential lots, as well as streets
and common areas. The plats for Phases 1 through 3 were recorded on August 30, 2007. The
plat for Phase 4 was recorded on December 6, 2007, and the plat for Phase 5 was recorded on
April 14, 2009. Republic Bank signed each of the plats under a portion of the plat entitled,
“Mortgagee’s Certificate,” which states: “This is to certify that Republic Bank of Chicago as
Mortgagee *** consents to the recording of the subdivision as herein shown.”
¶4 Each plat identifies roads with names, followed by “(hereby dedicated)” and “(heretofore
dedicated),” as well as land identified as easements for stormwater draining and detention,
public utility and drainage, and surface overland flow. Each plat contains provisions stating
that stormwater draining and detention easements, public utility and drainage easements, and
surface overland flow easements are “reserved for and granted to the Village of Manhattan.”
The plats also contain a “Public Easement” provision, which states: “A public easement of
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ingress, egress, and the use and enjoyment of the Village of Manhattan over Outlots 5, 6, 7,
8, 9 and 10 is hereby reserved, granted and dedicated.”
¶5 Republic Bank released its lien on three lots located in Phase 1 of Stonegate Subdivision
and recorded releases for those lots on October 29, 2007. The releases refer to the lot
numbers contained in the plat for Phase 1 of the subdivision.
¶6 In 2007, Lakeside Towns at Liberty Center Development, LLC (Lakeside Towns),
purchased 23 acres of land in the Village of Manhattan with plans to construct Tramore
Subdivision. Lakeside obtained funds to purchase the property from Republic Bank, which
held a mortgage on the property in the amount of $7,105,000. Republic Bank recorded its
mortgage in February and May 2007.
¶7 In preparation for development, a final planned unit development plat of subdivision was
recorded in August 2007, showing 26 residential lots, containing 150 townhomes, and areas
designated for roadways and common areas. Republic Bank signed the plat for Tramore
Subdivision under a section entitled, “Mortgagee’s Certificate,” which states: “This is to
certify that Republic Bank of Chicago as Mortgagee *** consents to the recording of the
subdivision as herein shown.”
¶8 The plat for Tramore Subdivision identifies general easements “granted to the Village of
Manhattan” and easements for stormwater retention, public utility and drainage, and
emergency access. The plat states that all stormwater retention easements, public utility and
drainage easements and emergency access easements “are reserved for and granted to the
Village of Manhattan.” The plat also contains a provision for “Public Easement,” which
states: “A public easement for ingress, egress, public utilities and storm water detention and
drainage, and the use and enjoyment of the Village of Manhattan over lots 27-30, inclusive is
hereby reserved, granted and dedicated.”
¶9 Republic Bank released its lien on one lot in Tramore Subdivision and recorded its
release on April 13, 2010. The release refers to the lot number contained in the recorded plat
for Tramore Subdivision.
¶ 10 By early 2011, both Eastern & Smith and Lakeside Towns had defaulted on their respective
loans from Republic Bank. Although the infrastructure improvements had been started in
each subdivision, they had not been completed, and the properties remained largely
undeveloped.
¶ 11 In April 2012, Republic Bank filed complaints for partial foreclosure, seeking to
foreclose on the roads and outlots of Stonegate Subdivision and Tramore Subdivision. The
Village filed motions to dismiss the complaints, pursuant to section 2-619(a)(9) of the Code
of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)), arguing that Republic
Bank could not foreclose on the roads and common areas because they had been dedicated to
the Village and Republic Bank had consented to their dedication. In October 2012, Republic
Bank amended its complaint to include a count foreclosing on the roads and outlots of
Stonegate Subdivision under its junior mortgage.
¶ 12 The trial court granted the Village’s motions to dismiss, finding that the dedication of the
roads and outlots in the plats and Republic Bank’s acknowledgement of the plats amounted
to “a conveyance in fee simple as donated to the public.” Republic Bank filed motions to
reconsider the trial court’s orders dismissing their complaints. Thereafter, in February 2013,
the Village board of trustees passed resolutions confirming and ratifying their acceptance of
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the streets and easements set forth in the plats for Stonegate Subdivision and Tramore
Subdivision. The trial court denied Republic Bank’s motions to reconsider.
¶ 13 ANALYSIS
¶ 14 Section 2-619 of the Code allows a litigant to obtain an involuntary dismissal of an action
or claim based upon certain defects or defenses. See 735 ILCS 5/2-619 (West 2012). The
statute’s purpose is to provide litigants with a method for disposing of issues of law and
easily proven issues of fact early in a case. See Van Meter v. Darien Park District, 207 Ill. 2d
359, 367 (2003); Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755,
759 (2004). In a section 2-619 proceeding, the moving party admits the legal sufficiency of
the complaint but asserts an affirmative defense or other matter to defeat the nonmoving
party’s claim. Van Meter, 207 Ill. 2d at 367.
¶ 15 Under subsection (a)(9) of section 2-619, a litigant may obtain an involuntary dismissal
of an action if it is “barred by other affirmative matter avoiding the legal effect of or
defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). An “affirmative matter” is
something in the nature of a defense which negates the cause of action completely.
Van Meter, 207 Ill. 2d at 367. In ruling on a section 2-619 motion to dismiss, the court must
construe all of the pleadings and supporting documents in the light most favorable to the
nonmoving party. Id. at 367-68. On appeal, a dismissal pursuant to section 2-619 is reviewed
de novo. Id. at 368.
¶ 16 I. DEDICATION
¶ 17 A private party may make either a statutory or common-law dedication of property to a
municipality or other entity. First Illinois Bank of Wilmette v. Valentine, 250 Ill. App. 3d
1080, 1091 (1993). Statutory dedications of property are governed by the Plat Act (765 ILCS
205/1.01 et seq. (West 2012)). Bigelow v. City of Rolling Meadows, 372 Ill. App. 3d 60, 64-65
(2007). Section 3 of the Plat Act provides that acknowledgement and recording of a plat shall
be a conveyance in fee simple of such portions of the premises platted “as are marked or noted
on such plat as donated or granted to the public.” 765 ILCS 205/3 (West 2012).
¶ 18 In a statutory dedication, acknowledgement and recording of the plat constitutes a
dedication and vests title to the dedicated property in the governmental body. Road King
Petroleum Products, Inc. v. Village of Wood Dale, 23 Ill. App. 3d 181, 184 (1974); see also
Schwebl v. Seifer, 208 Ill. App. 3d 176, 181 (1991) (a statutory dedication results in a
conveyance of the dedicated portion in fee simple to the public). To create a valid statutory
dedication, the following two requirements must be satisfied: (1) the property owner must
file or record a plat which marks or notes portions of the premises as donated or granted to
the public, and (2) the public entity must accept the dedication. Bigelow, 372 Ill. App. 3d at
64.
¶ 19 The words on a plat indicate the intention of the dedicators. Township of Jubilee v. State,
405 Ill. App. 3d 489, 496 (2010). A plat of subdivision that identifies roads as “(hereby
dedicated)” shows a dedication and, at the same time, shows on its face the grantor’s intent to
donate the property to the public. Water Products Co. of Illinois, Inc. v. Gabel, 120 Ill. App.
3d 668, 672 (1983). A plat of subdivision that labels property as “public” is a dedication of
the property to public use. In re Petition of the Village of Mount Prospect, Illinois, To Sell
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Certain Public Property No Longer Feasible or Practicable for Public Purposes and To Apply
the Proceeds Thereof to Related Public Use Pursuant to the Doctrine of Cy Pres, 167 Ill. App.
3d 1031, 1036 (1988); see Township of Jubilee, 405 Ill. App. 3d at 496.
¶ 20 “Acceptance may be shown by any act with respect to the property claimed to be
dedicated that clearly indicates an assumption of jurisdiction and dominion over it by the
public authorities.” Id. at 498. Acceptance of a statutory dedication may be express or
implied. Id. at 497. An express acceptance may be shown by direct municipal action,
including passing and recording an order, resolution or action accepting the dedication.
La Salle National Bank v. City of Chicago, 19 Ill. App. 3d 883, 886 (1974). An ordinance or
resolution accepting a dedication may be passed after suit has been filed to establish
ownership of the property. See Village of Maxwell v. Booth, 73 N.W.2d 177, 183 (Neb. 1955)
(finding resolution passed by village board of trustees to “open street” five months after
village filed suit to establish ownership of street was one of several “clear and unequivocal
acts of acceptance of the dedication by the village”); Township of Middletown v. Simon, 937
A.2d 949, 953-58 (N.J. 2008) (ordinance accepting dedication was timely where it was
passed five months after township filed suit to establish dedication of property).
¶ 21 An implied acceptance may be deduced from acts of public authorities recognizing the
existence of streets and treating them as public streets. La Salle National Bank, 19 Ill. App.
3d at 886. The acceptance of some platted streets raises the presumption of acceptance of all
of the streets platted. Id. It is not necessary, in order to indicate acceptance of a dedication,
for a city or village to make immediate use of the property. Id.; Trustees of Schools v.
Dassow, 321 Ill. 346, 352 (1926). A village or municipality is permitted to wait a reasonable
time for opening and improving its public streets, as its own resources and the public need
may allow and require. Id.; La Salle National Bank, 19 Ill. App. 3d at 886. If there is no
necessity, due to the general unoccupied character of the area, to improve the streets and
common areas in question, it is not incumbent on a municipality to improve streets and
public ways merely to establish acceptance of a dedication. Id. at 887. The unimproved
condition of streets and common areas does not rebut the presumption of an implied
acceptance by a public body. Id.
¶ 22 It is well settled that acceptance is timely if made before the offer to dedicate has been
formally withdrawn or revoked by the dedicator. See Dewey v. City of Chicago, 274 Ill. 268,
275 (1916); Village of Joppa v. Chicago & Eastern Illinois R.R. Co., 51 Ill. App. 3d 674, 680
(1977); Pasco County v. Johnson, 67 So. 2d 639, 642 (Fla. 1953); Hays v. Vanek, 217 Cal.
App. 3d 271, 283 (Cal. Ct. App. 1989); see also Di Cioccio v. Town of Wethersfield, 152 A.2d
308 (Conn. 1959) (town’s acceptance 18 years after offer to dedicate was timely); Booth, 73
N.W.2d at 183-84 (finding “clear and unequivocal acts of acceptance of the dedication by the
village over a period of years” 23 to 44 years after offer of dedication); West Center
Congregational Church v. Efstathiou, 627 N.Y.S.2d 727 (N.Y. App. Div. 1995) (city
accepted dedication of road by ordinance 42 years after offer to dedicate); Quacchia v.
County of Santa Cruz, 331 P.2d 216 (Cal. Ct. App. 1958) (county board of supervisors could
accept offer to dedicate 15 years later after it initially rejected offer). In Illinois, a formal
acceptance made over 30 years after an offer to dedicate was timely where no affirmative
action was taken by the dedicator to withdraw the offer. See Village of Joppa, 51 Ill. App. 3d
at 680.
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¶ 23 All parties agree that the plats for Stonegate Subdivision and Tramore Subdivision were
recorded and comply with the requirements of the Plat Act. However, Republic Bank (Bank),
argues that (1) the face of the plat does not show an intent to donate the property for the
public, (2) the Village’s resolution expressly accepting the dedications was untimely, and (3)
the Village failed to impliedly accept the dedications because the Village has not improved,
maintained or used the roads or outlots in question.
¶ 24 Here, the plats for Stonegate Subdivision identify roads with names, followed by
“(hereby dedicated)” and “(heretofore dedicated).” These designations show Eastern &
Smith’s intent to donate the property to the public. See Gabel, 120 Ill. App. 3d at 672.
Furthermore, the plats for both subdivisions identify outlots as “public” and state that they
are “hereby reserved, granted and dedicated” to “the use and enjoyment of the Village of
Manhattan.” The terms “public” and “dedicated” show Eastern & Smith’s and Lakeside
Towns’ intentions to dedicate that property to the public. See id.; Township of Jubilee, 405
Ill. App. 3d at 496; In re Village of Mount Prospect, 167 Ill. App. 3d at 1036.
¶ 25 There is no question that the Village can accept the dedication through a resolution
passed by its board of trustees. See Hooper v. Haas, 332 Ill. 561, 567 (1928); La Salle
National Bank, 19 Ill. App. 3d at 886. Here, Eastern & Smith and Lakeside Towns made
offers to dedicate various roads and outlots to the Village between 2007 and 2009. The
Village expressly accepted those offers by resolution in 2013. At no time did Eastern &
Smith or Lakeside Towns attempt to revoke or withdraw their offers to dedicate. Thus, the
Village’s acceptance was timely, and the dedications were complete in 2013. See Dewey, 274
Ill. at 275; Village of Joppa, 51 Ill. App. 3d at 680.
¶ 26 We disagree with the dissent’s contention that the Bank’s filing of the foreclosure
complaint acted as a revocation of Eastern & Smith’s and Lakeside Towns’ offers to
dedicate. Courts have held that once foreclosure is complete and the property is sold, an
attempted dedication that has not been accepted is extinguished. See H.A. Hillmer Co. v.
Behr, 264 Ill. 568, 577 (1914); Western Fertilizer & Cordage Co. v. City of Alliance, 504
N.W.2d 808, 814 (Neb. 1993); Highland Beach Realty Co. v. Turner, 139 So. 2d 467, 470
(Fla. Dist. Ct. App. 1962). However, no court has held that the mere filing of a complaint for
foreclosure acts as a revocation of an offer to dedicate. Acceptance of a dedication can take
place any time prior to foreclosure being completed. See Turner, 139 So. 2d at 470. Here,
where the Village accepted the offers to dedicate after the Bank filed its foreclosure
complaint but before a judgment for foreclosure was entered, the acceptance was timely and
effective.
¶ 27 Moreover, the unimproved condition of the dedicated property does not establish a lack
of implied acceptance since the area surrounding the streets and outlots has remained, for the
most part, undeveloped land. Because of the general undeveloped character of the area, it
was not necessary for the Village to improve the streets and common areas to prove
acceptance. See La Salle National Bank, 19 Ill. App. 3d at 886-87.
¶ 28 The Village satisfied both requirements necessary for a valid statutory dedication. The
trial court did not err in finding that the roads and outlots depicted on the plats were
dedicated to the Village, which held them in fee simple.
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¶ 29 II. EFFECT OF DEDICATION ON MORTGAGEE
¶ 30 A mortgagor has no authority to dedicate land, as against the mortgagee, without the
mortgagee’s consent. City of Alton v. Fischback, 181 Ill. 396, 398 (1899); Weills v. City of
Vero Beach, 119 So. 330, 332 (Fla. 1928). However, if the mortgagee assents to the
dedication, it is bound by it. Smith v. Heath, 102 Ill. 130 (1882); see also Phillips v. Arkansas
Valley Interurban Ry. Co., 133 P. 429 (Kan. 1913) (where a plat is made with the consent and
acknowledgement of the mortgagee, mortgagor’s dedication is accomplished).
¶ 31 The mortgagee’s assent will be implied where it recognizes the plat as having been
properly made, sells lots pursuant to the plat and executes releases therefor. Boone v. Clark,
129 Ill. 466 (1889); Smith, 102 Ill. 130; see also Samuel Nardone & Co. v. Bianchi, 524 A.2d
1114, 1116 (R.I. 1987) (“when a plat is recorded with streets delineated thereon and lots are
sold by reference to that plat, there is an incipient dedication of such streets inuring to the
public”); Weills, 119 So. at 332 (“ ‘where the mortgagee is present at sales according to a plat
and does not object then or afterward, his assent to the dedication of the streets indicated on
the plat will be presumed’ ” (quoting 18 C.J. Mortgages § 20 (1919))).
¶ 32 When a mortgagee executes and records mortgage releases on lots shown on a plat of
subidivision, the mortgagee impliedly consents to the entire plat, including the streets shown
thereon, and can no longer revoke its assent to dedication of the streets and alleys set forth in
the plat. See Boone, 129 Ill. at 483; Smith, 102 Ill. at 138, 142; see also Weills, 119 So. at 332
(mortgagee estopped from foreclosing on streets shown on plat where mortgagee stood by
seeing lots sold according to the plat and releasing mortgage liens on those lots). The release
of any lots depicted in a plat is sufficient to estop the mortgagee from denying the validity of
the dedication of all streets and common areas shown on the plat. See Tower Development
Partners v. Zell, 461 S.E.2d 17, 21 (N.C. Ct. App. 1995); Weills, 119 So. at 332.
¶ 33 In Smith, our supreme court held that “[c]onsenting to a subdivision of the property into
lots, implies a consenting to laying out the usual streets and alleys.” Smith, 102 Ill. at 138.
Otherwise, the lots would be “valueless and unsalable” because there would be no means of
ingress or egress to them. Id. “Releasing the lot, unless it released also the street in front of it,
would be of no use to the purchaser.” Id. at 138-39. When a mortgagor subdivides the
mortgaged premises into lots and lays out streets and alleys, a mortgagee’s release of lots in
the subdivision also releases that portion of the mortgaged premises designated as streets and
alleys. Id. at 139. A mortgagee’s release of lots from its mortgage would be of little use to
purchasers if the mortgagee could later “shut up the street by which access to [the lots] could
be had.” Id. at 146. By recognizing the plat created by the mortgagor and executing releases
to lots set forth in the plat, the mortgagee is effectually bound by the plat, including the
streets and common areas depicted therein. Id. at 147.
¶ 34 When lots are sold with clear reference to a plat, the purchasers are entitled to rely on the
plat, including the streets and other public places indicated thereon. Saunders v. City of
Chicago, 212 Ill. 206, 215 (1904). Streets and alleys delineated on a plat are presumed to add
value to all of the lots embraced in the general plan, and purchasers invest their money on the
assurance that such access ways will belong to the public. Cassell v. Reeves, 265 S.W.2d 801,
802 (Ky. Ct. App. 1954). The purchasers of lots have the right to have streets indicated in the
plat remain open forever. Id. Such a right is irrevocable because streets are valuable to lot
owners. See Saunders, 212 Ill. at 214; Smith, 102 Ill. at 143; Clark v. City of Providence, 10
R.I. 437, 440 (R.I. 1873) (a street is generally taken into consideration in the sale of lots and
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“adds to the value of the lots”). The absence of streets would “utterly destroy” the value of
subdivided lots and injure property owners who purchased lots relying on the streets depicted
in a plat. Smith, 102 Ill. at 143-44.
¶ 35 Here, Republic Bank executed and recorded mortgage releases on lots shown on the plats
for each subdivision. The releases specifically referred to the lots by the lot numbers shown
on the plats. By executing and recording these releases, Republic Bank impliedly consented
to the entire plats, including the streets and outlots shown thereon. See Boone, 129 Ill. at 483;
Smith, 102 Ill. at 138, 142. Once Republic Bank executed the mortgage releases, it could no
longer revoke its assent to the dedication of the streets and outlots set forth in the plat. See
Smith, 102 Ill. at 138, 142; see also Weills, 119 So. at 332; Zell, 461 S.E.2d at 21. Republic
Bank cannot now deny the validity of the dedication of the streets and common areas shown
on the plats, and the trial court properly dismissed Republic Bank’s complaints seeking
foreclosure of that property.
¶ 36 CONCLUSION
¶ 37 The judgment of the circuit court of Will County is affirmed.
¶ 38 Affirmed.
¶ 39 JUSTICE CARTER, dissenting.
¶ 40 I respectfully dissent from the majority’s decision in the present case. Unlike the
majority, I would find that the trial court erred in granting the Village’s motion to dismiss
Republic Bank’s foreclosure complaints. I would, therefore, reverse the trial court’s ruling
and remand this case for further proceedings.
¶ 41 I disagree with the majority’s conclusion and analysis in the instant case for two reasons.
First, I would find that the plats of the two subdivisions failed to establish the requisite
donative intent necessary for a statutory dedication to arise because the face of the plats did
not clearly and unequivocally establish that the owners of the subject property intended to
donate legal title in fee simple to the property to the Village. See Reiman v. Kale, 83 Ill. App.
3d 773, 776 (1980); Bigelow, 372 Ill. App. 3d at 64-67. To the contrary, the Tramore plats
granted only easement rights to the Village and clearly and specifically stated that the areas
in question were to remain private property, which is the exact opposite of the donative intent
necessary for a statutory dedication. As for the Stonegate plats, they were ambiguous as to
any rights and interests that were being granted to the Village. The use of the phrases “hereby
dedicated” or “heretofore dedicated” on the Stonegate plats next to or under the name of each
road was not enough, in my opinion, to establish that the owner clearly intended to convey
legal title in fee simple to those areas in Stonegate to the Village. See Reiman, 83 Ill. App. 3d
at 776 (the mere fact that the subdivision plat indicated the presence of streets, which were
generally considered public places, was not sufficient to establish donative intent as
necessary for a statutory dedication, since there was no general prohibition against private
streets); Bigelow, 372 Ill. App. 3d at 66-67 (same). It is equally possible that the owner
intended to dedicate the roads only for the private use of the residents of the subdivision and
did not intend to create any interest in the public. See id.
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¶ 42 The second reason I disagree with the majority’s conclusion and analysis in the present
case is because I would find that the evidence was insufficient at this stage of the proceedings
to establish that the Village had accepted the dedication of the subject property. The Village
presented no credible evidence whatsoever to establish that an acceptance of the dedication
was made in this case prior to the filing of the foreclosure action. There was no credible
evidence to suggest that the Village had improved or maintained the subject property, that the
subject property had been used in any way by the Village or the public, or that the subject
property had been added to Village maps or removed from the tax rolls. The subdivision
developments had been abandoned, there was no one living on the properties, and there was
no credible evidence to suggest that the subject property was of any special benefit or
necessity to the public so as to require that only slight evidence would be necessary to prove
acceptance. See H.A. Hillmer Co., 264 Ill. at 577. Although the Village passed a
postjudgment resolution accepting the dedication, the resolution could not have had that
effect because the mortgage complaint had already been filed, which effectively revoked the
offer to dedicate the subject property. See id. at 577-78 (foreclosure of trust deed amounted
to a practical revocation of the offer to dedicate the property and of the right to accept the
dedication).
¶ 43 Because the purported dedication in this case was not a statutory dedication, the warranty
of section 3 of the Plat Act does not apply to vest legal title to the subject property in the
Village. See 765 ILCS 205/3 (West 2012); Bigelow, 372 Ill. App. 3d at 64. Therefore, the
Village’s motion to dismiss, which was based solely upon that argument, should have been
denied. I respectfully dissent from the majority’s decision, which found to the contrary. I
would reverse the trial court’s order, granting the Village’s motion to dismiss Republic
Bank’s foreclosure complaints, and would remand this case for further proceedings in the
trial court.
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