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Wednesday, June 7, 2017

Failure to Formally Accept a Public Dedication Leads to Property Dispute

In J&A Cantore LP v. The City of Elmhurst, 2017 Ill App 2d, 160601, a property owner claimed ownership in a disputed portion of real estate of approximately 58 feet in width, and located immediately adjacent to the owner's parcel.  The owner had fenced and used the property for more than twenty (20) years and claimed ownership by adverse possession. 

The City of Elmhurst disputed the owner's claim to the 58 foot wide parcel because adverse possession does not run against property held for public use.  Elmhurst alleged it had acquired a fee interest in the disputed parcel in 1925 when H.O. Stone Addition was platted and recorded.  The 1925 Plat showed the disputed parcel as West Avenue.  

To complete a statutory dedication, a municipality must accept the dedication.  Acceptance can either be expressed or implied.  An express acceptance is shown by direct municipal action, such as an Ordinance or Resolution stating acceptance.  An implied acceptance is based on municipal acts recognizing the street and treating it as public.  Acceptance may come a reasonable time after dedication and is valid as long as it occurs prior to withdrawal or revocation of the dedication.  

In this case, the court held that the City of Elmhurst had failed to take express action accepting the dedication of the streets shown on the 1925 Subdivision Plat.  The court, however, found that the City had accepted the dedicated streets by implication. The court found sufficient evidence of donative intent on the Plat, despite the absence of express language dedicating the roads to the public, to conclude that the parcel had been dedicated to the City.  The court pointed to the number of streets shown on the Plat and that the individual lot lines did not encompass the street areas.  Also, the Plat was an addition to the City of Elmhurst, thereby evidencing a donative intent to the City.  In addition, the City had taken action to improve most of the streets in the 1925 Subdivision.  The City had also taken action to vacate some of the streets shown on the 1925 Plat.  Moreover, the City leased the disputed parcel to the Elmhurst Park District in 1983 for trail purposes and open space.  All of these acts showed acceptance of the dedication by the City.  Although some of these acts occurred many decades after dedication of the roadway, the court found such acceptance was still valid because there had been no withdrawal or revocation of the dedication. 

Finally, the court concluded that Plaintiff’s claim of ownership by adverse possession did not apply because the City of Elmhurst acquired ownership of West Avenue and the property was being used for a public purpose.  Adverse possession does not run against property being held for public purposes.  The court stated that the City, as fee owner of West Avenue, had the right to re-enter the property and use it for public street purposes.

Municipalities are best served by promptly accepting a dedication of property by formal council action.  Such express action would avoid a future dispute over ownership, such as occurred in the Cantore case. 

Post Authored by Steve Mahrt, Ancel Glink


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