                                                    SECOND DIVISION
                                                    March 28, 2006




No. 1-05-1301

CITY OF DES PLAINES, an Illinois          )    Appeal from the
home-rule municipality,                   )    Circuit Court of
                                          )    Cook County.
     Plaintiff-Appellee                   )
                                          )
           v.                             )
                                          )
RICHARD and BARBARA REDELLA,              )
KAREN SECCO, LESLIE BOULAY,               )
DAVID RIEKER, and JANUSZ                  )
SOSYNSKI,                                 )    Honorable
                                          )    Martin Agran,
     Defendants-Appellants.               )    Judge Presiding.

     JUSTICE WOLFSON delivered the opinion of the court:

     At issue in this case is whether Trailside Lane, a private

road, was properly declared a public highway pursuant to section

2-202 of the Illinois Highway Code (Code) (605 ILCS 5/2-202 (West

2002)).   The City of Des Plaines (City) sought a declaratory

judgment from the trial court that Trailside Lane had become a

public highway pursuant to the 15-year public use provision of

section 2-202 of the Code.    The trial court granted summary

judgment in favor of the City.

     On appeal, defendants Richard and Barbara Redella, Karen

Secco, Leslie Boulay, David Rieker, and Janusz Sosynski contend

the trial court erred in granting summary judgment because: (1)

section 2-202 of the Code is merely Adefinitional;@ (2) even if

the easements allowing the Woods Drive residents to use Trailside
1-05-1301

Lane terminated, the defendants retained fee simple title to the

land; (3) section 2-202 of the Code cannot be interpreted to

allow the City to take private property without compensating the

owners; and (4) material questions of fact existed.      We reverse

and remand for further proceedings.

FACTS

        This case concerns five contiguous lots located immediately

north of Ballard Road in a north-south line.      In 1949 the joint

owners of the entire parcel sold off the northernmost of the five

lots.    At the time of sale, they granted an easement over the

western edge of the remaining four lots as a means of ingress

from and egress to Ballard Road.       The easement was to cease "at

such time that a hard surfaced roadway is constructed along

either the Westerly or Northerly boundaries of the real estate."

 Trailside Lane is completely within the boundaries of the

easement.

        In 1953 the owners conveyed lot four, granting an

appropriate easement over the remaining property for purposes of

access to Ballard Road.    The easement was to cease and terminate

Aat such time as a hard surface roadway is constructed along the

Westerly boundaries of the real estate.@      When the owners

conveyed a portion of lot one to the Illinois State Toll Highway

Commission in 1957, they reserved the existing easement.


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     The record contains a few deeds from subsequent transfers of

the five lots.   The deeds that are included make no specific

mention of the easement.   However, a subdivision plat, filed in

1959 when lot five was divided into four residential lots,

contains a notation next to Trailside Lane indicating that it was

a "roadway easement."   The subdivision plat showed Trailside Lane

as the only means of ingress and egress to and from Forest Lane

and Ballard Road.   Forest Lane was subsequently renamed Woods

Drive.    Trailside Lane dead-ends into Woods Drive, a publicly

dedicated cul-de-sac.   Defendants, the current owners of lots one

through four, live on Trailside Lane.

     In 2000, defendants resurfaced part of Trailside Lane and

installed Aspeed bumps@ on the road.    On December 12, 2002, the

City filed a declaratory judgment action against defendants,

asking the trial court to declare Trailside Lane, pursuant to

section 2-202 of Code, had become a part of the City=s highway

system.   The City contended the residents of the Woods Drive

subdivision had traversed Trailside Lane since 1959 in order to

access Ballard Road, which made the road a publicly dedicated

right-of-way under section 2-202 of the Code.    The City also

contended that for more than 25 years, it had plowed snow,

patched pot holes, and picked up branches on Trailside Lane.

     An affidavit from Angelo Bernar, Assistant Director of the


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City of Des Plaines Public Works Department, was attached in

support of the City=s complaint.       Bernar stated he had been

employed by the department for more than 35 years.       According to

Bernar, the City had continually plowed snow, patched pot holes,

repaired water mains, trimmed bushes, and picked up branches on

Trailside Lane since the late 1960's.

     Defendants filed a counterclaim seeking a declaratory

judgment that: (1) the easement remained in full force and

effect; (2) the easement property is owned in fee simple by each

defendant relative to the portion of the easement property on

their respective lots; (3) Trailside Lane, as part of the

easement property, is owned in fee simple by each defendant

relative to the portion of the easement property on their

respective lots; and (4) Trailside Lane is a private street and

not a publicly dedicated right-of-way or otherwise owned by the

City or part of the City=s highway system.       In the alternative,

defendants asked the trial court to declare the City must pay

them an amount representing the fair market value of their

respective fee simple interests in Trailside Lane.       Defendants

also asked the trial court to determine on what date the

conversion occurred and make an award to the defendants for all

costs and expenses they incurred relative to Trailside Lane.

     Defendants contended in their counterclaim that the City had


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1-05-1301

never indicated or asserted any ownership rights over Trailside

Lane.    Specifically, defendants contended the City had never

paved, installed improvements, or otherwise maintained Trailside

Lane, as required by the City=s code for all City-owned roadways.

 Defendants also contended the City actually acknowledged the

private nature of Trailside Lane during a Des Plaines City

Council committee meeting.

        In support of their counterclaim, defendants attached the

minutes from a committee meeting of the City Council held on

February 28, 2000.    During the meeting, Alderman Brookman

recommended that the Council continue to provide existing City

services to certain Aprivate streets,@ including Trailside Lane.

 On March 6, 2000, the City Council adopted Alderman Brookman=s

recommendation.    Defendants also attached a bill from Jacobs &

Son, Inc. in the amount of $9,000 for the paving of Trailside

Lane in 2000.

        On November 19, 2004, the City filed its motion for summary

judgment.    The City contended the easement referenced in the 1949

warranty deed ceased and terminated by its own terms after

Trailside Lane became a hard-surfaced roadway.    The City

contended that because the residents of the Woods Drive cul-de-

sac had used the hard-surfaced Trailside Lane for at least three

decades to access Ballard Road after the easement ceased,


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1-05-1301

Trailside Lane had become a public road by virtue of section 2-

202 of the Code.     The trial court granted the City=s motion for

summary judgment.     The trial court did not specifically rule on

the merits of defendants= counterclaim.    Defendants appealed.

DECISION

      Summary judgment is appropriate where the pleadings,

depositions, admissions, and affidavits on file, when taken in

the light most favorable to the nonmovant, show there is no

genuine issue of material fact and the movant is entitled to

judgment as a matter of law.     735 ILCS 5/2-1005(c) (West 2002);

Midland Properties Co. v. ACME Refining Co., 361 Ill. App. 3d

180, 183, 836 N.E.2d 95, 98 (2005).     Our review of the circuit

court=s grant of summary judgment is de novo.    Midland Properties

Co., 361 Ill. App. 3d at 183.

I.   Section 2-202

      Defendants contend the trial court erred in entering summary

judgment in favor of the City because section 2-202 of the Code

is merely Adefinitional@ for the purposes of the other sections

of the statute and does not affect private property rights.

Defendants contend the definition of a highway contained in

section 2-202 does not constitute an operable provision of the

Code, but rather governs the application of the operable

provisions in other sections.     See New York Life Insurance Co. v.


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1-05-1301

Murphy, 388 Ill. 316, 58 N.E.2d 182 (1944).

     Defendants also contend a review of the plain language of

the two earlier codifications of section 2-202 demonstrates the

current version of the section is meant to be definitional.    Both

the 1931 and 1953 versions of section 2-202 state that roads

which meet the statutory criteria are Ahereby declared to be

public highways.@   Ill. Rev. Stat. 1953, ch. 121, par. 152; Ill.

Rev. Stat. 1931, ch. 121, par. 152.    This affirmative declaratory

provision is absent from the current version of section 2-202.

See 605 ILCS 5/2-202 (West 2002).     According to defendants, the

omission evidences a clear legislative intent to substantively

change the operation of section 2-202.

     AThe primary goal of statutory construction is to ascertain

and give meaning to the legislature=s intent.@    Lauer v. American

Family Life Insurance Co., 199 Ill. 2d 384, 388, 769 N.E.2d 924,

926 (2002).    AThe best indication of legislative intent is the

statutory language, given its plain and ordinary meaning.@

Lauer, 199 Ill. 2d at 388.

     Section 2-202 of the Code defines a highway as:

            Aany public way for vehicular travel which

            has been laid out in pursuance of any law of

            this State, or of the Territory of Illinois,

            or which has been established by dedication,


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1-05-1301

            or used by the public as a highway for 15

            years, or which has been or may be laid out

            and connect a subdivision or platted land

            with a public highway and which has been

            dedicated for the use of the owners of the

            land included in the subdivision or platted

            land where there has been an acceptance and

            use under such dedication by such owners, and

            which has not been vacated in pursuance of

            law.@   605 ILCS 5/2-202 (West 2002).

     Contrary to defendants= contentions, the purpose of section

2-202 is well-settled.     Under Illinois law, a public highway can

be established by any of three methods: by statute; by

dedication; or by prescription.     People ex rel. Carson v.

Mateyka, 57 Ill. App. 3d 991, 997, 373 N.E.2d 471, 475 (1978).

Several courts in Illinois have recognized that Aa public highway

may be established through a prescriptive easement pursuant to

section 2-202 of the Illinois Highway Code.@        See e.g. County of

Kendall v. Rosenwinkel, 353 Ill. App. 3d 529, 544, 818 N.E.2d

425, 438 (2004); Alpine Acres Homeowners Assoc. v. Leonard, 213

Ill. App. 3d 634, 642, 571 N.E.2d 1150, 1155 (1991); Mateyka, 57

Ill. App. 3d at 997-98.     These cases were decided on the wording

of the current section 2-202.     We find section 2-202 of the Code


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1-05-1301

is not merely Adefinitional@ in nature.

II.   Just Compensation

      Defendants contend the trial court erred when it granted

summary judgment because section 2-202 of the Code may not be

interpreted to allow the seizure of Trailside Lane by the City, a

government entity, without compensation to the owners of the

easement property.

      The takings clauses of the United States and Illinois

Constitutions express a well-settled prohibition on the

government taking the private property of its citizens without

due process and just compensation.   See U.S. Const., amend. V;

Ill. Const. 1970, art. I, '5.

      Defendants contend that rather than commence an eminent

domain proceeding where the owners would be afforded due process

and awarded compensation for their confiscated property, the City

sought to improperly seize the property by way of section 2-202.

 Contrary to defendants= contention, the trial court=s ruling

granted the City only a prescriptive easement over the road, not

fee title to the easement property itself.   See Minnie Creek

Drainage District v. Streeter, 327 Ill. 236, 245, 158 N.E. 383,

386 (1927); Hudgens v. Dean, 53 Ill. App. 3d 126, 131, 368 N.E.2d

944, 948-49 (1977).   Granting a public prescriptive easement over

a private road pursuant to section 2-202 of the Code does not


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1-05-1301

necessarily constitute a taking under the Illinois or United

States constitutions.

     While no case in Illinois has directly addressed this issue,

courts in other states have determined compensation is not

required when a private road is converted to a public highway by

prescriptive easement.   See e.g., Algermissen v. Sutin, 61 P.3d

176, 185 (N.M. 2002) (AThe general rule is that acquisition of an

easement by prescription is not a taking and does not require

compensation to the landowner); Board of County Commissioners of

Saguache County v. Flickinger, 687 P.2d 975, 984 (Colo. 1984).

But See Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F.

Supp. 2d 206, 217-27 (D.R.I. 2002).

     In Flickinger, the Colorado Supreme Court recognized the

defendant originally had a fee interest in the private road

across his property, subject to certain conditions imposed by

state law.   By virtue of section 43-2-201(1)(c), a private road

could be declared a public highway if the public used the road

without interruption for the statutory period of twenty years.

Flickinger, 687 P.2d at 984.    The effect of the section was

simply to require an owner desirous of retaining his interest in

the private road to prohibit continuous public use, or to

manifest his objection to it.    AThe failure of the [defendants]

to comply with these statutory conditions resulted in the loss of


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1-05-1301

their interest in the road as a private road and in the creation

of a public highway, with the result that the application of

section 43-2-201(1)(c) to the road did not constitute a

governmental taking for which compensation was required.@

Flickinger, 687 P.2d at 984-85.

       We find persuasive the Colorado Supreme Court=s decision in

Flickinger.    If the trial court did not err by declaring

Trailside Lane a public highway pursuant to section 2-202 of the

Code, it was proper to do so without compensating defendants.

III.    Prescriptive Easement

       In order for a road to constitute a Ahighway@ within the

meaning of section 2-202, it must fall within one of the

definitions of a highway set forth in that section.    Leonard, 213

Ill. App. 3d at 642.    The City does not contend defendants

dedicated portions of Trailside Lane to the public, and there is

no evidence in the record indicating Trailside Lane was laid out

pursuant to state or territorial law.    Therefore, Trailside Lane

is not a public highway under the first two definitions contained

in section 2-202.    That leaves the central question in this case:

whether Trailside Lane was properly deemed a public highway under

the 15-year public use provision of section 2-202.

       Under Section 2-202 of the Code, a private road becomes a

public highway if used by the public for the requisite 15 year


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1-05-1301

period.   605 ILCS 5/2-202 (West 2002).      AThe requirements

necessary to establish a public highway by prescription under the

statute are the same as those necessary to establish a private

easement by prescription.@   Mateyka, 57 Ill. App. 3d at 997.        The

use by the public must be adverse, exclusive, under a claim of

right, continuous and uninterrupted, with the knowledge of the

owner, but without his consent.    Sparling v. Fon Du Lac Township,

319 Ill. App. 3d 560, 563, 745 N.E.2d 660, 664 (2001); People ex

rel. Kenney v. City of Goreville, 154 Ill. App. 3d 1091, 1097,

507 N.E.2d 1247, 1250-51 (1987);       Mateyka, 57 Ill. App. 3d at

997-98; Corbridge v. Auburn St. Hardware, Inc., 5 Ill. App. 3d

293, 296, 282 N.E.2d 196, 198 (1972).

     To determine whether a road has become a public highway,

courts look to whether the public generally had the free and

unrestricted right to use the road.      People ex rel. Kenney, 154

Ill. App. 3d at 1097-98.

     The establishment of an easement by prescription almost

always is a question of fact.   Batchelder Co. v. Gustafson, 32

Ill. App. 3d 14, 18, 335 N.E.2d 565, 569 (1975), citing Peterson

v. Corrubia, 21 Ill. 2d 525, 173 N.E.2d 499 (1961).

     With respect to adversity, the claimant must show the use of

the property was with the knowledge and acquiescence of the

owner, but without his permission.      Sparling, 319 Ill. App. 3d at


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1-05-1301

563.   Where property has been used in an open, uninterrupted,

continuous, and exclusive manner for the required period,

adversity is presumed and the burden shifts to the party denying

the prescriptive easement to rebut the presumption and show the

use was A>under some license or indulgence inconsistent with the

claim of right by the public.=@   People ex rel. Kenney, 154 Ill.

App. 3d at 1097-98, quoting Neely v. Coffey, 81 Ill. 2d 439, 443,

410 N.E.2d 839, 841-42 (1980); Sparling, 319 Ill. App. 3d at 563.

       The City contends the public use of Trailside Lane for more

than 15 years by the residents of the Woods Drive cul-de-sac, the

residents= invitees and guests, the U.S. postal service, City

public works vehicles, police and fire vehicles, garbage pickup

services, and newspaper delivery services, support the trial

court=s grant of summary judgment.

       We find there are fact issues concerning whether the

general public=s use of Trailside Lane was exclusive.   ATo

establish exclusivity, it is unnecessary to show that only the

claimant has made use of the way, because exclusive use means

that the claimant=s right to use the lane does not depend upon a

like right in others. [Citation omitted].   However, exclusivity

does require that the rightful owner be altogether deprived of

possession.@   Chicago Steel Rule Die & Fabricators Co. v. Malan

Construction Co., 200 Ill. App. 3d 701, 707, 558 N.E.2d 341, 344


                                  13
1-05-1301

(1990)(Chicago Steel).

        Here, as in Chicago Steel, where a claim for a private

easement was made, there was no allegation in the pleadings that

the true owners were deprived of use or possession of Trailside

Lane.     A>A joint possession by two, even though the claim of each

is adverse to the other, will not be disseizin [a deprivation of

possession] unless the rightful owner is altogether deprived of

possession.=@    Chicago Steel, 200 Ill. App. 3d at 707, quoting

Towle v. Quante, 246 Ill. 568, 576, 92 N.E. 967 (1910).



        The City also contends unrebutted evidence of public

maintenance on the road supported the trial court=s decision to

grant summary judgment.     Public maintenance of a road is strong

evidence that the roadway is in fact a public highway.     People ex

rel. Kenney, 154 Ill. App. 3d at 1098.

        Defendants counter that issues of material fact exist as to

whether the City actually performed maintenance on Trailside

Lane, and to what extent such maintenance should be taken into

account in light of the Woods Drive residents= use of the road.



        Here, Bernar=s affidavit stated the City had continually

plowed snow, patched pot holes, repaired water mains, trimmed

bushes, and picked up branches on Trailside Lane since the late


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1-05-1301

1960's.   A public works record attached to the City=s response to

defendants counterclaim also reflects that Leslie Boulay and

David Rieker, two of the defendants in this case, called the City

and requested Asalting@ on Trailside Lane.   According to the

record, a City truck was sent to salt the road.

     While the defendants admitted in their verified answer to

the City=s amended complaint that the City made branch pickups on

Trailside Lane, they contended a fee was paid for the service.

The defendants also stated in their response that they plowed,

patched potholes, and otherwise maintained Trailside Lane at

their own expense.   In support of their contentions, defendants

attached a bill to their counterclaim in the amount of $9,000 for

the pavement of Trailside Lane in 2000.   The bill was addressed

to the Redellas.

     Defendants also presented evidence indicating City services

were routinely performed on both private and public streets.

Minutes of a committee meeting attached to defendants=

counterclaim indicated Alderman Brookman recommended to the City

Council that the City continue to provide existing services to

certain Aprivate streets,@ including Trailside Lane.   The City

Council agreed.

     Furthermore, the record indicates defendants paid property

taxes on Trailside Lane.   While the fact that a road is assessed


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1-05-1301

and taxed as private property does not compel a finding that the

road is not a public highway, it is a factor to be considered.

Meade v. Commonwealth Edison Co., 48 Ill. App. 3d 312, 314, 362

N.E.2d 779, 781 (1977).

     It is apparent the trial court considered no other issue but

the applicability of section 2-202 of the Code.   After carefully

reviewing the record, we find material questions of fact exist

regarding whether Trailside Lane was used by the public as a

highway for 15 years.

IV. Termination of the Easements

     In its summary judgment motion, the City contended the 1949

and 1953 easements, which allowed residents of the Woods Drive

cul-de-sac to use Trailside Lane to access Ballard Road, had

terminated decades earlier when Trailside Lane became a hard-

surfaced roadway.   The City contended because the residents of

Woods Drive used Trailside Lane for more than 15 years after the

easements expired, the road had become a public highway under

section 2-202 of the Code.

     Defendants initially contend on appeal that even if the 1949

and 1953 easements terminated by their own terms after Trailside

Lane was hard-surfaced, the defendants retained title to the

easement property itself.    Because defendants retained title to

the easement property, they contend it was improper for the trial


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1-05-1301

court to declare the road a public highway under section 2-202 of

the Code.

     We agree with defendants that they retained title to the

easement property even if the easements had terminated.       See

Streeter, 327 Ill. at 245; Hudgens, 53 Ill. App. 3d at 948-49

(Aeven assuming [the road] did in fact become a public highway

[pursuant to section 2-202 of the Code], it must be noted that

only an easement and not fee title can be acquired by

prescription@).   However, the fact that defendants retained fee

title to the easement property was irrelevant when determining

whether Trailside Lane was properly declared a public highway

pursuant to section 2-202 of the Code.    See 605 ILCS 5/2-202

(West 2002).

     Defendants contend there is an issue of material fact as to

whether the easements ceased after the construction of a hard-

surfaced road on Trailside Lane.     While defendants admit

residents of Woods Drive traversed Trailside Lane for decades,

the defendants contend the use of the road was permitted pursuant

to the easements.   Defendants also contend that the absence of

any express grant of the easement in the later deeds to the

defendants is completely irrelevant and non-determinative because

easements are intended to pass with the land upon which they are

created and bind subsequent purchasers.    See Flower v. Valentine,


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1-05-1301

135 Ill. App. 3d 1034, 1039, 482 N.E.2d 682, 687 (1985).

     In Mateyka, the court noted the disputed road was used by

four classes of people: (1) adjoining landowners; (2) social

invitees of the adjoining landowners; (3) people servicing the

needs of the landowners; and (4) people entering the roadway by

mistake.    Mateyka, 57 Ill. App. 3d at 998.    The court concluded

the use of the road by the adjoining landowners was predicated

upon the grant of an easement for road purposes in their

respective deeds.   The adjoining landowners and those who entered

the roadway to reach their homes used the road with permission of

the fee owner.   Mateyka, 57 Ill. App. 3d at 998-99.     Because the

use of the roadway was by permission, the right to use never

could ripen into a prescriptive right.     It was not adverse use.

Mateyka, 57 Ill. App. 3d at 998-99, citing Monroe v. Shrake, 376

Ill. 253, 256, 33 N.E.2d 459 (1941).

     Here, as in Mateyka, Trailside Lane apparently was used by

four classes of people: (1) the residents of Woods Drive; (2)

social invitees of the Woods Drive residents; (3) people

servicing the needs of the Woods Drive residents; and (4) people

entering the roadway by mistake.

     If the 1949 and 1953 easements were in effect, the Woods

Drive residents= use of the road was permissive and could not

ripen into a prescriptive right.      See Mateyka, 57 Ill. App. 3d at


                                 18
1-05-1301

998-99.   If the easements ceased, the City still had the burden

of satisfying the requirements of section 2-202 of the Code.

     While the terms of the 1949 and 1953 easements clearly

stated they were to terminate when a hard-surfaced roadway was

constructed along the westerly boundary of the properties, the

1949 and 1953 grants are ambiguous as to whether the construction

of a hard-surfaced roadway on the easement property itself would

terminate the easements.   Questions of fact also exist as to

whether the easements ceased because they were not properly

identified in subsequent purchasers= deeds.

     Moreover, it is unclear when Trailside Lane actually became

a hard-surfaced roadway.   While the City contends the residents

of Woods Drive had traversed over a hard-surfaced Trailside Lane

for decades, nothing in the record supports this contention.

Because of the ambiguity in the easements= terms, the uncertainty

as to whether the easements were properly identified in

subsequent deeds, and the uncertainty as to when Trailside Lane

was actually paved, we find defendants raised a material issue of

fact as to when and whether the easements ceased.

CONCLUSION

     We conclude the City was not entitled to summary judgment as

a matter of law because genuine issues of material fact remain as

to whether Trailside Lane had become a public highway under


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1-05-1301

section 2-202 of the Code.    See People ex rel. Kenney, 154 Ill.

App. 3d at 1099.   We reverse the trial court=s order granting

summary judgment in favor of the City and remand this cause for

further proceedings.

     Reversed and Remanded.

     SOUTH, and HALL., JJ., concur.




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