Sass v. Kramer

MR. JUSTICE MORAN, dissenting:

The majority holds that whenever the State of Illinois abandons an easement which has been used for highway purposes, the underlying fee simple titl eh older is without a remedy to quiet title. It is no answer to argue that such person has an adequate remedy in the Illinois Court of Claims, for that entity does not have equitable jurisdiction.

Nonuse, by itself, does not constitute abandonment of an easement by grant. (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 390 .) There must be a relinquishment of the property accompanied by an intent to abandon — the intent being the important factor in determining abandonment. Whether these two elements have been proved are questions to be resolved by the trier of fact. Once an abandonment has occurred, by operation of law, the fee simple titleholder is automatically reinvested with complete ownership of the property, which is then unencumbered by the easement. Chicago & Eastern Illinois R.R. Co. v. Clapp (1903), 201 Ill. 418, 424-26 .

The opinion views plaintiff’s claim as one in which the State of Illinois is “vitally interested,” one which “clearly affects property of the State” and one in which the State is, therefore, the real party in interest. (72 Ill. 2d at 491-92.) I cannot accept this premise in light of the evidence that established the State’s abandonment of the easement before plaintiff instituted the instant suit.

One of defendant’s exhibits, introduced by agreement, specifically stated, “Dedicated Right of Way *** No longer needed for highway purposes *** 1.307 acres.” The evidence further revealed that the State removed the pavement from both ends of the bypass, thereby preventing any vehicular use of the easement. Also before the trial court was Public Act 79 — 1020, section 1 of which declared, “the right of way easement for highway purposes *** is vacated, extinguished, abandoned and released ***.” Included in the Act was the requirement that plaintiff pay a certain sum of money for release of any State interest.

Defendant’s right-of-way engineer related the Department’s attitude. He testified that, although the State’s easement was not in use, it continued in effect, for it was possible that the easement could be used at some future date. He was asked if it was the Department’s position that, until the appraised value was paid, the easement would remain the State’s highway, and he responded, “That is correct.”

The Department’s positions are thus inconsistent. It admits nonuse of the easement, but speculates on a possible future need, then states that that possible need can be eliminated upon plaintiff’s payment of a certain sum of money. The Department cannot have it both ways.

In my opinion, the trial court correctly found that the State did abandon the easement, that any interest the State had in the easement ceased upon abandonment, and that, by operation of law, the plaintiff then became fully seized of the fee simple title, unencumbered by the easement.

“ ‘Whether or not a particular action falls within the prohibition of the constitution has not been determined solely by an identification of the formal parties to the record. The determination has rather depended upon the particular issues involved and the relief sought. [Citations.] ’ ” E.H. Swenson & Son, Inc. v. Lorenz (1967), 36 Ill. 2d 382, 385 .

Inasmuch as the State divested itself of any right or interest in and to the easement at the time of abandonment, and since plaintiff’s right, by operation of law, at that time accrued, it cannot be said that plaintiff now seeks to assert any right against the State. The relief plaintiff seeks is to have the court recognize that such right did in fact exist at the time he filed his suit to quiet title. Therefore, under this view, suit against John Kramer, Secretary, Department of Transportation, should not be considered an action against the State of Illinois. See Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37 .