                                               FIRST DIVISION
                                               MARCH 19, 2007




No. 1-06-0292



PERRY BIGELOW, and THE BIGELOW            )    Appeal from the
GROUP, INC., an Illinois Corporation,     )    Circuit Court of
                                          )    Cook County.
            Plaintiffs-Appellees,         )
                                          )
     v.                                   )    No.   03 CH 04739
                                          )
THE CITY OF ROLLING MEADOWS, an           )
Illinois Municipal Corporation,           )    The Honorable
                                          )    Mary Anne Mason,
            Defendant-Appellant.          )    Judge Presiding.


     JUSTICE GARCIA delivered the opinion of the court.

     In March 2003, the plaintiffs, Perry Bigelow and the Bigelow

Group, filed a complaint for declaratory judgment against the

defendant, the City of Rolling Meadows (City).    The plaintiffs

asked the court to declare that they were the owners of a 33-foot

strip of property (Subject Property) and that the City had no

interest in the property.    Both parties filed motions for summary

judgment.    The trial court granted the plaintiffs' motion,

finding there was no statutory dedication of the Subject Property

and that the City waived its argument that there was a common-law

dedication.    The City appealed, arguing (1) the action is time-

barred, and (2) the Subject Property was dedicated to and
No. 1-06-0292


accepted by the City for the benefit of the public.    For the

reasons that follow, we affirm the judgment of the trial court.

                             BACKGROUND

     The Subject Property consists of a 33-foot strip of land

within the municipal boundaries of the City.    In 1926, the

Subject Property was platted as part of a subdivision known as

Arthur T. Macintosh and Company's Palatine Estates Unit No. 2

Subdivision (Palatine Estates) in what was then unincorporated

Cook County.    In the 1926 plat of subdivision, the Subject

Property was designated as Winnetka Avenue.

     Perry Bigelow is the beneficial owner of lot 7 of Palatine

Estates.   The record owner is the First National Bank and Trust

Company of Barrington (Bank); the Bank is the trustee pursuant to

a 1986 trust agreement.    The Bigelow Group is the beneficial

owner of lots 5 and 6.    The Bank is also the record owner of

those lots as trustee under a 1987 trust agreement.    The Subject

Property runs adjacent to lots 5, 6, and 7.

     In 1961, the City annexed property near Palatine Estates.

The plaintiffs contend the property was south of Palatine

Estates.   The City maintains that the property fell within the

plat of subdivision and included the Subject Property.    Although

the annexation agreement is included in the record, the map



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No. 1-06-0292


referenced in the agreement is not.1    Without the map, it is

difficult for this court to properly assess whether the property

was included in the agreement.

     In 1992, the City passed an ordinance annexing the Subject

Property.2    The ordinance referred to Winnetka Avenue as

"dedicated Winnetka Avenue" and "dedicated right-of-way Winnetka

Avenue."     The City has referred to the Subject Property as a

dedicated right-of-way in other documents, including a plat of

the Plum Grove Countryside Unit No. 11 Subdivision, where it is

referred to as "heretofore dedicated," and in an ordinance

vacating part of Winnetka Avenue, the City refers to Winnetka

Avenue as a "dedicated right-of-way."

     The Subject Property has never been paved or used as a

public way for vehicular or pedestrian traffic.      The Subject



     1
         On appeal, an appellant has the burden to present a

sufficiently complete record to support his claims of error.

Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958

(1984).    "From the very nature of an appeal it is evident that

the court of review must have before it the record to review in

order to determine whether there was the error claimed by the

appellant."     Foutch, 99 Ill. 2d at 391.
     2
         Portions of this ordinance are illegible.

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No. 1-06-0292


Property is burdened with the City's storm sewer and a drain tile

line installed by Northwest Mosquito Abatement District.

     In February 2003, the plaintiffs sent a letter to the mayor

of the City stating:

          "The [Subject Property] has never been

          donated or dedicated to the public; nor has

          it ever been improved or used as a public way

          for vehicular or pedestrian traffic.    As the

          owner of the strip, I am entitled to use it

          for any lawful purpose, including but not

          limited to the construction of a street or

          driveway.    Although my ownership of the strip

          is clear under Illinois law, please be

          advised that in the event it is determined by

          a court of competent jurisdiction that the

          recordation of the 1926 plat of subdivision

          was intended to constitute an offer of

          dedication of the strip to the public, I do

          hereby revoke and withdraw the offer to

          dedicate the strip to the public."

     In March, the plaintiffs filed their complaint for

declaratory relief, asking that the trial court declare that they

are the owners of the Subject Property.    The plaintiffs filed a

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No. 1-06-0292


motion for summary judgment, arguing that the Subject Property

was not a dedicated public right-of-way.    The City filed a cross-

motion for summary judgment, arguing that the Subject Property

was a dedicated public right-of-way and that the City accepted

the dedication for the benefit of the public.    The trial court

granted the plaintiffs' motion and denied the City's.    This

appeal followed.

                             ANALYSIS

     The City argues that the trial court erred when it granted

the plaintiffs' motion for summary judgment because (1) the

action was time-barred, and (2) the Subject Property was

dedicated to and accepted by the City for the benefit of the

public.

     Summary judgment is proper where "the pleadings,

depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

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

judgment should only be granted where the right of the moving

party is clear and free from doubt.     Horwitz v. Holabird & Root,

212 Ill. 2d 1, 8, 816 N.E.2d 272 (2004).    We review the grant of

summary judgment de novo.   Horwitz, 212 Ill. 2d at 8.



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No. 1-06-0292


                      A. Timeliness of the Action

     The City argues that this action was untimely because it was

filed outside the one-year statute of limitations of the Local

Governmental and Governmental Employees Tort Immunity Act (Tort

Immunity Act) (745 ILCS 10/8-101 (West 2002)). Section 8-101

provides: "No civil action may be commenced in any court against

a local entity or any of its employees for any injury unless it

is commenced within one year from the date that the injury was

received or the cause of action accrued."     745 ILCS 10/8-101

(West 2002).    However, section 2-101 of the Tort Immunity Act

explains: "Nothing in this Act affects the right to obtain relief

other than damages against a local public entity or public

employee."   745 ILCS 10/2-101 (West 2002).

     In Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.

2d 248, 256, 807 N.E.2d 439 (2004), the supreme court held that

where a plaintiff seeks relief other than damages, his claim is

excluded from the Tort Immunity Act.    In that case the plaintiffs

sought a declaration that an ordinance was unlawful and they

sought restitution for wrongly obtained fees.       As the plaintiffs

did not state a claim for damages, their cause of action was not

barred by the one-year statute of limitations.       Raintree Homes,

209 Ill. 2d at 258.


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No. 1-06-0292


     In this case, the plaintiffs sought declaratory relief, not

damages.   Specifically, the plaintiffs sought a declaration that:

(1) plaintiffs are the owners of the Subject Property and the

City has no interest in the property; (2) the Subject Property is

not a dedicated right-of-way and the City's actions prohibiting

the use of the Subject Property are unconstitutional and void;

(3) the City's actions constitute the taking of the plaintiffs'

property without due process of law; and (4) the plaintiffs have

a clear legal right to use the Subject Property as access to the

public portion of Winnetka Road.       The plaintiffs also asked the

court to enjoin and restrain the City from preventing the

reasonable use of the Subject Property.      The plaintiffs' action,

therefore, is not barred by the Tort Immunity Act's one-year

statute of limitations.

     Alternatively, the City argues that the plaintiffs' cause of

action is barred by the doctrines of laches and waiver.       The City

contends that until the filing of their complaint, the plaintiffs

did not make any claim to the Subject Property.      Specifically,

the City alleges that the plaintiffs failed to pay taxes on the

Property, failed to take any action to claim title, and proposed

an annexation agreement with the City that included terms

regarding the vacation of the Subject Property.      The City,


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No. 1-06-0292


however, cites no authority to support this argument.    Because

this argument is not supported by any authority, it is waived.

Ruback v. Doss, 347 Ill. App. 3d 808, 816, 807 N.E.2d 1019 (2004)

(citing Supreme Court Rule 341(e)(7) 210 Ill. 2d R. 341(e)(7),

which requires a party to provide citations to relevant authority

supporting arguments advanced on appeal).

                   B. Dedication and Acceptance

     Section 3 of the Plat Act provides:

                "The acknowledgment and recording of

          such plat, or the acknowledgment and the

          filing of the same shall be held in all

          courts to be a conveyance in fee simple of

          such portions of the premises platted as are

          marked or noted on such plat as donated or

          granted to the public *** for their use or

          for the use and purposes therein named or

          intended, and for no other use or purpose;

          and the premises intended for any street,

          alley, way, common or other public use in any

          city, village or town, or addition thereto,

          shall be held in the corporate name thereof

          in trust to and for the uses and purposes set


                                 8
No. 1-06-0292


            forth or intended."   765 ILCS 205/3 (West

            2002).3

     In other words, a statutory dedication occurs when: (1) the

property owner files or records a plat which marks or notes on

the plat portions of the premises as donated or granted to the

public, and (2) the public entity accepts the dedication.

Emalfarb v. Krater, 266 Ill. App. 3d 243, 248, 640 N.E.2d 325

(1994).    "In order to effect a statutory dedication, the

provisions of the Plat Act must be fully complied with, and the

plat must clearly indicate a donation to the public of the real

estate in question."     Emalfarb, 266 Ill. App. 3d at 252.    In

addition, a statutory dedication requires an ascertainable

grantee to take title.     Woodward v. Schultz, 15 Ill. 2d 476, 482,

155 N.E.2d 568 (1959);     Emalfarb, 266 Ill. App. 3d at 253.

"However, the nonexistence of such a grantee at the time the plat

is filed or recorded is not fatal; ' "where the municipality is

not in existence at the time of the dedication, the fee of the

streets, alleys and public grounds remains in abeyance, subject

to vest in the corporation as soon as it is created." '


     3
         The 1925 version of section 3 of the Plat Act is virtually

the same at the current version.       See Ill. Rev. Stat. 1925, ch.

109, par. 3.

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No. 1-06-0292


[Citations.]"   Emalfarb, 266 Ill. App. 3d at 253; see also Board

of Trustees of the Illinois & Michigan Canal v. Haven, 11 Ill.

554, 557 (1850).   To determine whether there is a statutory

dedication, courts are limited to an examination of the plat and

the marks and notations appearing on the plat.     Emalfarb, 266

Ill. App. 3d at 252.

     The City cites Kimball v. City of Chicago, 253 Ill. 105, 97

N.E. 257 (1911), to support its argument that the plat need not

contain express words of dedication to effectuate a proper

dedication.   The City of Chicago argued that a strip of platted

land was an alley dedicated to the public.    Although the strip

was not marked or designated as an alley, the court held that it

was clear from the plat that the plattor intended that the land

be dedicated to the City for use as an alley.     Kimball, 253 Ill.

at 110.   Specifically, the court noted that the street lines did

not cross the alley and the alley connected directly to the

streets, indicating "an intention on the part of the plattor, we

think, to connect said strip at each street intersection in said

subdivision, and to indicate that said strip has been left open

as an alley, as plainly as though the strip had been marked with

the word 'alley' upon the plat."     Kimball, 253 Ill. at 110.

     The Kimball court also noted that "in order to show an


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No. 1-06-0292


intention to dedicate a strip of land for the use of the public

as a street it is not essential that the strip be designated on

the plat as a street, if, upon consideration of the entire plat,

there is manifested an intention to dedicate the strip as a

street."   Kimball, 253 Ill. at 110, citing Thompson v. Maloney,

199 Ill. 276, 284, 65 N.E. 236 (1902) ("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 Reiman v. Kale, 83 Ill. App. 3d 773, 776, 403 N.E.2d 1275

(1980), the plaintiffs argued that marked roads on a plat were

statutorily donated to Downers Grove Township.   The roads were

designated by dotted lines, while the lot lines were designated

by solid lines.   The lot lines ran to the center of the street.

The appellate court held that the plat was insufficient to create

a statutory dedication because it failed to indicate that the

streets were granted to the public.   Specifically, the court

pointed out that the streets were not marked as donated or

dedicated to the public, and the lot lines ran to the center of

the street.   Thus, the court held there was no clear indication

on the plat that the owner intended to make dedication.   "The

mere fact that the plat indicates the presence of streets, which


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No. 1-06-0292


are generally considered public places, is insufficient to effect

a statutory dedication, since there is no general prohibition

against private streets."   Reiman, 83 Ill. App. 3d at 776; see

also People ex rel. Schimpff v. Norvell, 368 Ill. 325, 327, 13

N.E.2d 960 (1938) ("There is no rule of law which forbids the

subdivision of land by its owner in such a way as to establish

over it only private ways for the sole benefit of those who may

become owners of lots in the tract, and in which the public, as

such, will have no interest and over which it will have no

control").

     The Emalfarb court, following Reiman, held that the fact the

land as issue was labeled "park" on the plat and that such a use

was normally a public, rather than a private, use was

insufficient to establish a statutory dedication in the absence

of a specific designation of the land as public or other words

expressing an intent to donate the land for public use.

Emalfarb, 266 Ill. App. 3d at 255.   The court held that "to the

extent that parks are generally considered public places, they

obviously may be maintained privately," and pointed out that the

original plat noted that all parks were "for the use only of the

present owners."   Emalfarb, 266 Ill. App. 3d at 255.

     The court further explained that even if the word "park" was


                                12
No. 1-06-0292


sufficient to dedicate the property to a public use, it did not

establish the intent to dedicate the property to a specific

entity.   The land at issue was part of a private subdivision in

an unincorporated area of Lake County.    Lake County was not

identified on the plat, and specifically it was not identified as

a grantee.    Because the plat evidenced no intent to dedicate the

land to Lake County, the court held no statutory dedication

occurred.    Emalfarb, 266 Ill. App. 3d at 255-56.

     The language of the Plat Act states that the dedicated land

must be "marked or noted on such plat as donated or granted to

the public."    765 ILCS 205/3 (West 2002).   That means that it

must be clear on the face of the plat that a dedication was

intended.    We find the facts in Kimball distinguishable from the

facts in this case.    In Kimball, there were no allegations that

the streets marked on the plat were not dedicated, and hence, for

public use.    Because the alley opened onto and connected the

streets, it was clear, from the plat alone, that the alley was

dedicated for public use.

     In this case, although the Subject Property was designated

as Winnetka Avenue, there were no marks or notations on the plat

evidencing an intent to dedicate the Property for use by the

public.   Although we recognize that most roads are public, there


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No. 1-06-0292


is no prohibition against private streets.    Where the subdivision

was located not within the boundaries of a municipality, but in

unincorporated Cook County, we will not assume dedication in the

absence of such evidence.    Accordingly, we hold that there was no

statutory dedication.   Because there was no dedication, we need

not determine whether there was acceptance.

     The City argues that if there was no statutory dedication,

then there was sufficient evidence to establish a common-law

dedication.   When the requirements of a statutory dedication are

not met, the facts may still disclose a common-law dedication, in

which case the fee remains in the dedicator, subject to an

easement for the benefit of the public.    Emalfarb, 266 Ill. App.

3d at 252-53.   For a common-law dedication to be effective, there

must be: (1) an intention to dedicate the property for public

use; (2) acceptance by the public; and (3) unequivocal evidence

of the first two elements.    Emalfarb, 266 Ill. App. 3d at 253.

The trial court found that the City waived any argument that

there was a common-law dedication because it failed to respond or

raise the issue in its combined response to the plaintiffs'

motion for summary judgment and cross-motion for summary

judgment.

     "It is well settled that issues not raised in the trial


                                 14
No. 1-06-0292


court are deemed waived and may not be raised for the first time

on appeal."     Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536,

662 N.E.2d 1248 (1996).    Because the City addressed only the

statutory dedication of the Subject Property, we find that any

argument concerning a common-law dedication is waived.

     Waiver aside, we agree with the trial court that the City

has not met its burden of establishing a common-law dedication.

The intent to dedicate "may be manifested by a formal dedication

or by acts of the donor from which the intent may be so fairly

presumed as to equitably estop the donor from denying a donative

intent."   Limestone Development Corp. v. Village of Lemont, 284

Ill. App. 3d 848, 858-59, 672 N.E.2d 763 (1996).    "Proof of any

act by the dedicator that evidences an intention to dedicate must

be clear, unequivocal, and unambiguous."     Limestone Development

Corp., 284 Ill. App. 3d at 859.

     As we explained above, there was no express intent to

dedicate the Subject Property on the face of the plat.    While we

recognize that by labeling the Subject Property "Winnetka

Avenue," the argument could be made that it was dedicated for use

as a public road, that conclusion is neither unequivocal nor

unambiguous where there was no prohibition against private roads

and the Subject Property was not located within the boundaries of


                                  15
No. 1-06-0292


a municipality.   Because there is no evidence of "clear,

unequivocal, and unambiguous" donative intent, we find there was

no common-law dedication.

                              CONCLUSION

     For the reasons stated, we affirm the judgment of the trial

court.

     Affirmed.

     McBRIDE, P.J., and     CAHILL, J., concur.




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