City of Rochelle v. Suski ( 1990 )

JUSTICE INGLIS,

dissenting:

I respectfully dissent from the well-motivated but potentially dangerous position adhered to by the majority. Ownership, use, control and benefit from public lands is a trust accepted by public officials. (City of Quincy v. Sturhahn (1960), 18 Ill. 2d 804, 615.) The courts should be cautious in approving a violation of that trust whether by error, ignorance or malevolence. The decision of the majority will allow the mobile home park owner to reap profit from the rental of public land for an indeterminate period of time with no benefit to the public, thereby denying the public the right to use or improve the property for its intended purpose.

The majority agrees with the widely accepted rule that adverse possession cannot be asserted against a public body. (Terwelp v. Sass (1982), 111 Ill. App. 3d 133, 138.) Although the majority asserts that title cannot be lost to public lands by adverse possession, it ultimately finds that use of and benefit from public lands can be obtained by way of laches or estoppel. While it is apparently an accepted proposition of law in Illinois that laches (Village of Northbrook v. County of Cook (1984), 126 Ill. App. 3d 145, 148) and estoppel (Wachta v. Pollution Control Board (1972), 8 Ill. App. 3d 436, 439) may be asserted against a municipal corporation, the cases cited by the majority do not apply such equitable principles against a municipality to deprive it of title, use or benefit of public land. They are used to curb a municipality from conduct that would deprive another of use or benefit of nonpublic property.

I do not agree that the protection provided to the public in Terwelp should be so easily circumvented by the doctrine of laches or estoppel. To do so could result in public officials allowing improper profit from the public lands they are entrusted to preserve due to their own inattention to duty or, worse, by intentional failure to act promptly.

The City may have improperly issued building permits, but the mobile home park owner voluntarily improved public lands for his own financial profit. It has been held that “[tjhose who voluntarily improve public lands to which they have no right or title, acquire no right, vested or otherwise, to continue to maintain thereon that which they have erected.” (Sturhahn, 18 Ill. 2d at 615.) Title to public lands, once acquired by a municipality, cannot be lost by mere nonaction of the public officers or impaired by the voluntary acts of others. Sturhahn, 18 Ill. 2d at 615.

The protection afforded to public lands was illustrated in Trustees of Schools v. Village of Cahokia (1934), 357 Ill. 538. In Cahokia, relief prayed for on the grounds of estoppel was denied to a public school that had built a school house over 60 years ago on a parcel of ground dedicated as a public square. If a school cannot impair the right of a Village after using municipality property for 60 years, then a profit-motivated business person should receive no right to use public land by the application of laches. I, therefore, respectfully dissent.