                                                                      FIFTH DIVISION
                                                                      June 22, 2007


No. 1-06-1230

JOAN L. MILLER and RICHARD A. MILLER,                          )      Appeal from the
                                                               )      Circuit Court of
          Plaintiffs-Appellants,                               )      Cook County.
                                                               )
v.                                                             )      No. 03 CH 06001
                                                               )
METROPOLITAN WATER RECLAMATION                                 )
DISTRICT OF GREATER CHICAGO                                    )
and THE CITY OF EVANSTON,                                      )
                                                               )
          Defendants-Appellees                                        )
                                                               )
and                                                            )
                                                               )
(Evanston Wilmette Golf Course Association,                    )
Descendants and Assigns of Laura N. Kline,                     )
Unknown Owners and Non-Record Claimants,                       )      Honorable
                                                               )      Julia M. Nowicki,
          Defendants).                                         )      Judge Presiding.


          PRESIDING JUSTICE O'BRIEN delivered the opinion of the court:

          Plaintiffs, Richard and Joan Miller, appeal the order of the circuit court granting summary

judgment in favor of defendants, Metropolitan Water Reclamation District of Greater Chicago

(the District) and the City of Evanston, on plaintiff's complaint for adverse possession. We

affirm.

          In 1971, plaintiffs, Richard and Joan Miller, purchased a house adjacent to land (the

subject property) belonging to the District. The District leases the subject property to the City of

Evanston with the right of reentry. The City of Evanston in turn subleases the subject property to

the Evanston Wilmette Golf Course Association, a private corporation that operates the Peter
No. 1-06-1230

Jans Community Golf Course.        Plaintiffs discovered that portions of their garage and other parts

of their residential property were built or sited on the subject property. For purposes of this

appeal, plaintiffs do not dispute that the District holds legal title to the subject property.

        In 1996, the District notified plaintiffs of the encroachment and requested the City of

Evanston to take corrective action to eliminate the encroachments. In 2001, plaintiffs indicated

that they wanted a permit for the encroachments that would require permission from the City of

Evanston, the golf course, and the District. Plaintiffs later abandoned that request.

        Plaintiffs then filed a complaint alleging adverse possession against the District and the

City of Evanston (collectively referred to as defendants), as well as the Evanston Wilmette Golf

Course Association. The Evanston Wilmette Golf Course Association was served but never

appeared. The parties filed cross-motions for summary judgment. The District argued in

relevant part that adverse possession will not lie where, as here, a municipal corporation is

holding the subject property for the use of the public of the state at large. Plaintiffs responded

that the District did not hold the subject property for public use by the people of the state. The

trial court granted summary judgment in favor of defendants. Plaintiffs appeal pursuant to

Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).

        Summary judgment is appropriate where the pleadings, depositions and admissions on

file, together with any affidavits, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. Adams v. Northern Illinois Gas Co., 211

Ill. 2d 32, 43 (2004). Review is de novo. Adams, 211 Ill. 2d at 43.

        To establish title by adverse possession as provided by section 13-101 of the Limitations


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Act, the party must possess the disputed land for 20 years.    735 ILCS 5/13-101 (West 2000).

The party must prove that the 20 years of possession was: "(1) continuous; (2) hostile or adverse;

(3) actual; (4) open, notorious and exclusive; and (5) under a claim of title inconsistent with that

of the true owner." General Iron Industries, Inc. v. A. Finkl & Sons Co., 292 Ill. App. 3d 439,

441 (1997).

       This case involves a claim of adverse possession against land held by a municipal

corporation. The 20-year statute of limitations runs against a municipal corporation with respect

to property held in a private capacity, but not with respect to property held in trust for the public.

The supreme court case Brown v. Trustees of Schools, 224 Ill. 184 (1906), is informative. In

Brown, the trustees sued to recover possession of part of a schoolhouse lot to which the trustees

held legal title for the use of the school district. A private citizen, Frank Brown, claimed title by

adverse possession on the basis that he and his predecessors in title had been in the open,

exclusive and adverse possession of that part of the schoolhouse lot for more than 20 years. The

Illinois Supreme Court stated:

       "The rule that statutes of limitations do not run against the state also extends to minor

       municipalities created by it as local governmental agencies, in respect to governmental

       affairs affecting the general public. The exemption extends to counties, cities, towns, and

       minor municipalities in all matters respecting strictly public rights as distinguished from

       private and local rights, but as to matters involving private rights they are subject to

       statutes of limitation to the same extent as individuals. [Citations.]

                The question *** is whether there is an implied exemption from the statutes of


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       limitation in favor of trustees of schools with respect to property held for the use of a

       particular school district, and that depends upon the meaning of the term 'public rights,' as

       used in the decisions. *** [T]he public right and public use must be in the people of the

       state at large, and not in the inhabitants of a particular local district. *** [T]here is a well-

       founded distinction between cases where the municipality is seeking to enforce a right in

       which the public in general have an interest in common with the people of such

       municipality, and cases where the public have no such interest ***.

                There are numerous cases where it has been held that municipalities or minor

       political subdivisions of the state are not subject to limitation laws in respect to streets

       and public highways [citation], but streets and highways are not for the use of the

       inhabitants of any municipality or locality alone, but for the free and unobstructed use of

       all the people in the state. Such rights are clearly distinguishable from the rights or

       interests of the inhabitants of a locality in property acquired for a mere local use, such as

       city offices, a library site, or the use of a fire department. Such property is held and used

       for strictly local purposes." Brown, 224 Ill. at 186-88.

       The supreme court held that "[t]he people of the State in general have no interest, in

common with the inhabitants of a school district, in the school house site or the proceeds of it."

Brown, 224 Ill. at 189. Accordingly, the supreme court held that adverse possession could lie

against the property. Brown, 224 Ill. at 189. Brown remains good law. See Wanless v.

Wraight, 202 Ill. App. 3d 750 (1990) (holding that parking lot did not fall qualify as a "public

use" as defined by Brown.)


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        Thus, the term "public use," as defined by Brown, means that the people of the state at

large must have a general interest in the property at issue. It does not mean that the public

necessarily must have total and unlimited access to the property, but rather that the property is for

the general benefit of the people of the state. If the property is for such "public use", then adverse

possession cannot lie against the property.

        As discussed, the District holds legal title to the subject property. The District's

predecessor, the Sanitary District of Chicago, was organized on May 29, 1889, under "An Act to

create sanitary districts, and to remove obstructions in the Des Plaines and Illinois rivers." See

People ex rel. Longenecker v. Nelson, 133 Ill. 565 (1890). The act created certain districts made

up of areas of contiguous territory, and empowered those districts to construct and maintain a

common outlet for the drainage and sewage of the municipalities within the limits of each

district. See Nelson, 133 Ill. at 580. The supreme court noted that "[t]he object of the system of

drainage proposed by said act is to prevent the drainage and sewage of the city [of Chicago] and

its environs being carried into Lake Michigan, thereby contaminating the waters of the lake. This

result is to be reached by cutting a channel which will give an outlet for the drainage and sewage

of the city in the direction of the Des Plaines and Illinois rivers, and which will also cause a large

flow of water from the lake through the proposed artificial channel into those rivers for the

purpose of diluting the sewage, and rendering it innocuous to the people living along the course

of those streams." Nelson, 133 Ill. at 581. Clearly, this was intended to preserve the health of

the people of Chicago, those persons living around Lake Michigan and along the Des Plaines and

Illinois rivers, and the people of the state.


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       The public purpose continues today, as "the State of Illinois *** has delegated to the

Metropolitan Sanitary District of Greater Chicago the police power to protect the public health

with respect to certain waters. More specifically, the District is authorized by statute to prevent

the pollution of Lake Michigan and other waters within its jurisdiction." Village of Glencoe v.

Metropolitan Sanitary District of Greater Chicago, 23 Ill. App. 3d 868, 872 (1974).

       The supreme court also has noted:

                "A sanitary district of this character is a municipal corporation, created by

       legislative authority. It is a part of the machinery of government. Its functions are public.

       The property held by such corporation is public property in the hands of the trustees, as

       agents for the State, for the purposes designated in the act authorizing its creation ***."

       Chicago & Eastern Illinois Ry. Co. v. Sanitary District of Bloom Township, 350 Ill. 542,

       548 (1932).

       Thus, the subject property, to which the District holds title and to which it retains the

right under the lease to reenter, is public property for the use and benefit of the people of the

state. As such, it is not subject to adverse possession.

       Plaintiffs argue, though, that the subject property is currently being used as a golf course,

and that the property "thus lost whatever public use character it might have had, because it is part

of a proprietary business." In support, plaintiffs cite Brown, which held that "if the State

becomes a partner with individuals, or engages in business, it divests itself of its sovereign

character and is subject to [the adverse possession statute]." Brown, 224 Ill. at 186. However,

unlike in Brown, which involved a school site to which the people of the state at large had no


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general interest in common with the inhabitants of the school district, the subject property here

was subleased to the Evanston Wilmette Golf Course Association, which operates a golf course

thereon that is open to all persons in the state. As such, the people of the state at large have a

continuing general interest in the subject property during the leasehold and, therefore, the subject

property retains its public character.

       Plaintiffs insist that "the [subject] property is not held for public use because the District

leased the property and property alienated in that manner cannot be classified as property for

public use." In support, plaintiffs cite Chanslor-Western Oil & Development Co. v. Metropolitan

Sanitary District of Greater Chicago, 131 Ill. App. 2d 527 (1970). Chanslor-Western Oil

addressed whether the District unreasonably withheld consent to a sublease. Chanslor-Western

Oil did not involve adverse possession and thus is not relevant to the issues presented here.

       Plaintiffs also cite Sanitary District of Chicago v. Rhodes, 386 Ill. 269 (1944). Rhodes

addressed the question whether the main channel prism in Du Page and Lockport townships was

taxable. Rhodes did not involve adverse possession and is inapplicable to the case at bar.

       In sum, as the subject property is for public use, plaintiffs' complaint for adverse

possession fails. Accordingly, we affirm the order granting summary judgment in favor of

defendants.

       Affirmed.

       GALLAGHER and O'MARA FROSSARD, JJ's concur.




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