Daily Development for Tuesday, August 6, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; CREATION; DEDICATION; ACCEPTANCE:   An implied dedication of a dead end alley will not be found without substantial evidence of offer and acceptance.  The implied offer expires upon the death of the alleged offeror, and acceptance must be manifest by that time.

General Auto Service Station v. Maniatis, 765 N.E.2d 1176 (Ill.App. 1 Dist. 2002).

The plaintiff General Auto Service Station (GASS) sought a declaration that a dead-end alley near the intersection of State and Elm Streets in Chicago was privately owned by the owners of the properties surrounding the alley.  GASS appealed when the circuit court granted summary judgment to the defendant City of Chicago (City) specifically finding that the alley was public due to a common-law dedication.

An 1882 plat of Healy's Subdivision  subdivided Lot 1 of the Assessor's Division into 34 lots.  The subdivision contained a 12-foot strip of land abutting Lots 1-3 on the west and Lot 4 on the east; the northernmost part of the strip was the "alley" at issue in this case.  Various conveyances and subdivisions recorded with the registry showed the disputed alley as being either public or private way.

Bernard Heerey (the plaintiff's predecessor-in-interest) to the property, submitted affidavits showing that he had never seen the City remove trash from the alley or perform resurfacing or repair work there, or any other indications that the alley was owned by the City.  Heerey also submitted affidavits from a private investigator and a janitor who stated that the cars parked in the alley were owned by employees of the adjacent property.

A statutory dedication vests the fee to the premises in the public, created by the recording of a plat, whereas a common law dedication, shown by the grantor's actions, keeps the fee vested in the donor, burdened with an easement over the way in question and subject to the acceptance of the easement by the public.  By contrast, a common law dedication must be established by clear and unequivocal evidence of:  (1) an intent to donate the property for the public use; and (2) acceptance by the public.  A survey and plat alone are sufficient to establish a dedication if it is evident from the face of the plat it was the intention of the proprietor to set apart certain grounds for public use.

In this case, there was no formal offer of a statutory dedication on the plat. The plat showed an unnumbered strip of land that had an open end intersecting with a marked street.  The mere completion of a plat containing a layout of an alley is not an offer of dedication.  The court noted that there is no rule against creating a street or alley available only to private parties.

The City pointed to the deeds in the record of abutting property referring to the "public alley" as evidence of donative intent, while GASS noted that the validity of title must be determined by law, not by any view entertained by those through whom it passed.  The record contained some evidence suggesting that Healy intended to dedicate the strip of the land to the City, but the evidence was equivocal.  Thus, it appeared that the court might have decided that there had been no offer of dedication, but it proceeded nevertheless to evaluate whether any such offer had been accepted.

Acceptance is an essential element of the claim of common law dedication.  Acceptance, which must be shown within a reasonable time, may be proved by the evidence of:  (1) direct municipal action, such as the filing of a suit; (2) the municipality's possession or maintenance of the property; or (3) public use of the road for a substantial time.  The court further noted, implictly, that an offer of dedication that does not otherwise set a time of expiration dies when the offeror dies. Thus, the City was required to show that  it accepted the offer to dedicate the alley prior to the death of Healey, the original subdivider.   It stated that the precedents in Illinois have established that only very slight evidence of acceptance is sufficient in the case of extremely important public ways, but opined that a dead end alley does not meet that standard of importance, and thus applied a higher standard.

The City argued that it had so accepted the offer by including the Subdivision in its official maps, but the court found that this is not sufficient proof of acceptance.  Ironically, on the official maps, someone at an earlier time had written "private" on the map of the alley in question, but when the original dispute arose in the 1980's, a public official had crossed that out and inserted the word "public."  Thus, the official map was a slender reed upon which to rely.

The City also noted that it had never given the alley a tax number and that no real estate taxes had ever been assessed.  But the court stated that failure to pay taxes in and of itself is not evidence of a dedication, and further the City's evidence did not show that there had not been any taxes assessed during the period prior to Healy's death.

Further, all other evidence of City maintenance and other activities from which the court might have inferred an acceptance dealt with periods following Healey's death.

Comment: Although each state has its own standards as to when an acceptance of an implied dedication must occur, and what standards must apply, this case has value because of the emphasis on the fact that the public agency has a greater burden when the significance of the alleged dedication to the public interest is small.

Further, the rule applied here that an implied offer of dedication dies with the offeror is one that will foreclose many arguments on the issue, and will be helpful in clearing title.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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