                         Illinois Official Reports

                                Appellate Court



                  Republic Bank of Chicago v. Village of Manhattan,
                             2015 IL App (3d) 130379



Appellate Court     REPUBLIC BANK OF CHICAGO, Plaintiff-Appellant, v. THE
Caption             VILLAGE OF MANHATTAN, Defendant-Appellee (Lakeside
                    Towns at Liberty Center Development, LLC, Lawerence W. Sisk,
                    Jennell M. Sisk, Michael K. Gallagher, Eastern and Smith Manhattan,
                    LLC, Gallagher Homes, LLC, Tramore Townhome Associations, Inc.,
                    Commonwealth Edison Company, Ameritech Corporation, Illinois
                    Bell Telephone Company, Unknown Owners, and Nonrecord
                    Claimants, Defendants).–REPUBLIC BANK OF CHICAGO,
                    Plaintiff-Appellant, v. THE VILLAGE OF MANHATTAN,
                    Defendant-Appellee (Eastern and Smith Manhattan, LLC, Lawrence
                    W. Sisk, Jennell M. Sisk, Michael K. Gallagher, Route 52 Manhattan,
                    LLC, E&S Development North, LLC, Krause Construction, LLC,
                    Beary Landscaping, Inc., Zausa Development Corporation, Stonegate
                    Duplex Association, Stonegate Phase I Homeowners Association,
                    Stonegate Phase II Homeowners Association, Stonegate Phase III
                    Homeowners Association, Stonegate Phase IV Homeowners
                    Association, Stonegate Phase V Homeowners Association,
                    Commonwealth Edison Company, Ameritech Corporation, Illinois
                    Bell Telephone Company, Nicor Gas Company, Kraus Cable
                    Television Systems, Lakeside Towns at Liberty Center Development,
                    LLC, Unknown Owners, and Nonrecord Claimants, Defendants).


District & No.      Third District
                    Docket Nos. 3-13-0379, 3-13-0380 cons.


Filed               May 15, 2015


Decision Under      Appeal from the Circuit Court of Will County, Nos. 12-CH-1877,
Review              12-CH-2045; the Hon. Barbara Petrungaro, Judge, presiding.
     Judgment                Affirmed.


     Counsel on              Edward P. Freud (argued), Timothy S. Breems, and Michael B.
     Appeal                  Bregman, all of Ruff, Freud, Breems & Nelson, Ltd., of Chicago, for
                             appellant.

                             James A. Murphy (argued), of Mahoney, Silverman & Cross, Ltd., of
                             Joliet, for appellee.


     Panel                   JUSTICE LYTTON delivered the judgment of the court, with opinion.
                             Justice O’Brien concurred in the judgment and opinion.
                             Justice Carter dissented, with opinion.



                                              OPINION

¶1         Plaintiff Republic Bank of Chicago filed two separate complaints against multiple
       defendants to foreclose on roads and outlots contained in two failed subdivisions located in
       the Village of Manhattan (Village). The Village filed motions to dismiss the complaints,
       arguing that the roads and common areas had been dedicated to the Village. The trial court
       granted the Village’s motions to dismiss. On appeal, Republic Bank argues that (1) the roads
       and common areas were not properly dedicated to the Village, and (2) even if they were
       properly dedicated, Republic Bank is still entitled to foreclose on them. We affirm.
¶2         In 2006, Eastern & Smith Manhattan, LLC (Eastern & Smith), purchased 134.51 acres of
       land in the Village of Manhattan with plans to construct Stonegate Subdivision. Eastern &
       Smith obtained the funds to purchase the property from Republic Bank, which held an initial
       mortgage on the property in the amount of $8,351,646.66. The initial mortgage was executed
       in July 2006, but was later amended and modified on six occasions. Republic Bank recorded
       a junior mortgage on the property on February 26, 2007.
¶3         In preparation for development, Stonegate was subdivided and platted in five phases from
       August 30, 2007, to April 14, 2009. The plats showed 352 residential lots, as well as streets
       and common areas. The plats for Phases 1 through 3 were recorded on August 30, 2007. The
       plat for Phase 4 was recorded on December 6, 2007, and the plat for Phase 5 was recorded on
       April 14, 2009. Republic Bank signed each of the plats under a portion of the plat entitled,
       “Mortgagee’s Certificate,” which states: “This is to certify that Republic Bank of Chicago as
       Mortgagee *** consents to the recording of the subdivision as herein shown.”
¶4         Each plat identifies roads with names, followed by “(hereby dedicated)” and “(heretofore
       dedicated),” as well as land identified as easements for stormwater draining and detention,
       public utility and drainage, and surface overland flow. Each plat contains provisions stating
       that stormwater draining and detention easements, public utility and drainage easements, and
       surface overland flow easements are “reserved for and granted to the Village of Manhattan.”
       The plats also contain a “Public Easement” provision, which states: “A public easement of

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       ingress, egress, and the use and enjoyment of the Village of Manhattan over Outlots 5, 6, 7,
       8, 9 and 10 is hereby reserved, granted and dedicated.”
¶5         Republic Bank released its lien on three lots located in Phase 1 of Stonegate Subdivision
       and recorded releases for those lots on October 29, 2007. The releases refer to the lot
       numbers contained in the plat for Phase 1 of the subdivision.
¶6         In 2007, Lakeside Towns at Liberty Center Development, LLC (Lakeside Towns),
       purchased 23 acres of land in the Village of Manhattan with plans to construct Tramore
       Subdivision. Lakeside obtained funds to purchase the property from Republic Bank, which
       held a mortgage on the property in the amount of $7,105,000. Republic Bank recorded its
       mortgage in February and May 2007.
¶7         In preparation for development, a final planned unit development plat of subdivision was
       recorded in August 2007, showing 26 residential lots, containing 150 townhomes, and areas
       designated for roadways and common areas. Republic Bank signed the plat for Tramore
       Subdivision under a section entitled, “Mortgagee’s Certificate,” which states: “This is to
       certify that Republic Bank of Chicago as Mortgagee *** consents to the recording of the
       subdivision as herein shown.”
¶8         The plat for Tramore Subdivision identifies general easements “granted to the Village of
       Manhattan” and easements for stormwater retention, public utility and drainage, and
       emergency access. The plat states that all stormwater retention easements, public utility and
       drainage easements and emergency access easements “are reserved for and granted to the
       Village of Manhattan.” The plat also contains a provision for “Public Easement,” which
       states: “A public easement for ingress, egress, public utilities and storm water detention and
       drainage, and the use and enjoyment of the Village of Manhattan over lots 27-30, inclusive is
       hereby reserved, granted and dedicated.”
¶9         Republic Bank released its lien on one lot in Tramore Subdivision and recorded its
       release on April 13, 2010. The release refers to the lot number contained in the recorded plat
       for Tramore Subdivision.
¶ 10       By early 2011, both Eastern & Smith and Lakeside Towns had defaulted on their respective
       loans from Republic Bank. Although the infrastructure improvements had been started in
       each subdivision, they had not been completed, and the properties remained largely
       undeveloped.
¶ 11       In April 2012, Republic Bank filed complaints for partial foreclosure, seeking to
       foreclose on the roads and outlots of Stonegate Subdivision and Tramore Subdivision. The
       Village filed motions to dismiss the complaints, pursuant to section 2-619(a)(9) of the Code
       of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)), arguing that Republic
       Bank could not foreclose on the roads and common areas because they had been dedicated to
       the Village and Republic Bank had consented to their dedication. In October 2012, Republic
       Bank amended its complaint to include a count foreclosing on the roads and outlots of
       Stonegate Subdivision under its junior mortgage.
¶ 12       The trial court granted the Village’s motions to dismiss, finding that the dedication of the
       roads and outlots in the plats and Republic Bank’s acknowledgement of the plats amounted
       to “a conveyance in fee simple as donated to the public.” Republic Bank filed motions to
       reconsider the trial court’s orders dismissing their complaints. Thereafter, in February 2013,
       the Village board of trustees passed resolutions confirming and ratifying their acceptance of


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       the streets and easements set forth in the plats for Stonegate Subdivision and Tramore
       Subdivision. The trial court denied Republic Bank’s motions to reconsider.

¶ 13                                            ANALYSIS
¶ 14       Section 2-619 of the Code allows a litigant to obtain an involuntary dismissal of an action
       or claim based upon certain defects or defenses. See 735 ILCS 5/2-619 (West 2012). The
       statute’s purpose is to provide litigants with a method for disposing of issues of law and
       easily proven issues of fact early in a case. See Van Meter v. Darien Park District, 207 Ill. 2d
       359, 367 (2003); Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755,
       759 (2004). In a section 2-619 proceeding, the moving party admits the legal sufficiency of
       the complaint but asserts an affirmative defense or other matter to defeat the nonmoving
       party’s claim. Van Meter, 207 Ill. 2d at 367.
¶ 15       Under subsection (a)(9) of section 2-619, a litigant may obtain an involuntary dismissal
       of an action if it is “barred by other affirmative matter avoiding the legal effect of or
       defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). An “affirmative matter” is
       something in the nature of a defense which negates the cause of action completely.
       Van Meter, 207 Ill. 2d at 367. In ruling on a section 2-619 motion to dismiss, the court must
       construe all of the pleadings and supporting documents in the light most favorable to the
       nonmoving party. Id. at 367-68. On appeal, a dismissal pursuant to section 2-619 is reviewed
       de novo. Id. at 368.

¶ 16                                        I. DEDICATION
¶ 17        A private party may make either a statutory or common-law dedication of property to a
       municipality or other entity. First Illinois Bank of Wilmette v. Valentine, 250 Ill. App. 3d
       1080, 1091 (1993). Statutory dedications of property are governed by the Plat Act (765 ILCS
       205/1.01 et seq. (West 2012)). Bigelow v. City of Rolling Meadows, 372 Ill. App. 3d 60, 64-65
       (2007). Section 3 of the Plat Act provides that acknowledgement and recording of a plat shall
       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.” 765 ILCS 205/3 (West 2012).
¶ 18        In a statutory dedication, acknowledgement and recording of the plat constitutes a
       dedication and vests title to the dedicated property in the governmental body. Road King
       Petroleum Products, Inc. v. Village of Wood Dale, 23 Ill. App. 3d 181, 184 (1974); see also
       Schwebl v. Seifer, 208 Ill. App. 3d 176, 181 (1991) (a statutory dedication results in a
       conveyance of the dedicated portion in fee simple to the public). To create a valid statutory
       dedication, the following two requirements must be satisfied: (1) the property owner must
       file or record a plat which marks or notes portions of the premises as donated or granted to
       the public, and (2) the public entity must accept the dedication. Bigelow, 372 Ill. App. 3d at
       64.
¶ 19        The words on a plat indicate the intention of the dedicators. Township of Jubilee v. State,
       405 Ill. App. 3d 489, 496 (2010). A plat of subdivision that identifies roads as “(hereby
       dedicated)” shows a dedication and, at the same time, shows on its face the grantor’s intent to
       donate the property to the public. Water Products Co. of Illinois, Inc. v. Gabel, 120 Ill. App.
       3d 668, 672 (1983). A plat of subdivision that labels property as “public” is a dedication of
       the property to public use. In re Petition of the Village of Mount Prospect, Illinois, To Sell


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       Certain Public Property No Longer Feasible or Practicable for Public Purposes and To Apply
       the Proceeds Thereof to Related Public Use Pursuant to the Doctrine of Cy Pres, 167 Ill. App.
       3d 1031, 1036 (1988); see Township of Jubilee, 405 Ill. App. 3d at 496.
¶ 20       “Acceptance may be shown by any act with respect to the property claimed to be
       dedicated that clearly indicates an assumption of jurisdiction and dominion over it by the
       public authorities.” Id. at 498. Acceptance of a statutory dedication may be express or
       implied. Id. at 497. An express acceptance may be shown by direct municipal action,
       including passing and recording an order, resolution or action accepting the dedication.
       La Salle National Bank v. City of Chicago, 19 Ill. App. 3d 883, 886 (1974). An ordinance or
       resolution accepting a dedication may be passed after suit has been filed to establish
       ownership of the property. See Village of Maxwell v. Booth, 73 N.W.2d 177, 183 (Neb. 1955)
       (finding resolution passed by village board of trustees to “open street” five months after
       village filed suit to establish ownership of street was one of several “clear and unequivocal
       acts of acceptance of the dedication by the village”); Township of Middletown v. Simon, 937
       A.2d 949, 953-58 (N.J. 2008) (ordinance accepting dedication was timely where it was
       passed five months after township filed suit to establish dedication of property).
¶ 21       An implied acceptance may be deduced from acts of public authorities recognizing the
       existence of streets and treating them as public streets. La Salle National Bank, 19 Ill. App.
       3d at 886. The acceptance of some platted streets raises the presumption of acceptance of all
       of the streets platted. Id. It is not necessary, in order to indicate acceptance of a dedication,
       for a city or village to make immediate use of the property. Id.; Trustees of Schools v.
       Dassow, 321 Ill. 346, 352 (1926). A village or municipality is permitted to wait a reasonable
       time for opening and improving its public streets, as its own resources and the public need
       may allow and require. Id.; La Salle National Bank, 19 Ill. App. 3d at 886. If there is no
       necessity, due to the general unoccupied character of the area, to improve the streets and
       common areas in question, it is not incumbent on a municipality to improve streets and
       public ways merely to establish acceptance of a dedication. Id. at 887. The unimproved
       condition of streets and common areas does not rebut the presumption of an implied
       acceptance by a public body. Id.
¶ 22       It is well settled that acceptance is timely if made before the offer to dedicate has been
       formally withdrawn or revoked by the dedicator. See Dewey v. City of Chicago, 274 Ill. 268,
       275 (1916); Village of Joppa v. Chicago & Eastern Illinois R.R. Co., 51 Ill. App. 3d 674, 680
       (1977); Pasco County v. Johnson, 67 So. 2d 639, 642 (Fla. 1953); Hays v. Vanek, 217 Cal.
       App. 3d 271, 283 (Cal. Ct. App. 1989); see also Di Cioccio v. Town of Wethersfield, 152 A.2d
       308 (Conn. 1959) (town’s acceptance 18 years after offer to dedicate was timely); Booth, 73
       N.W.2d at 183-84 (finding “clear and unequivocal acts of acceptance of the dedication by the
       village over a period of years” 23 to 44 years after offer of dedication); West Center
       Congregational Church v. Efstathiou, 627 N.Y.S.2d 727 (N.Y. App. Div. 1995) (city
       accepted dedication of road by ordinance 42 years after offer to dedicate); Quacchia v.
       County of Santa Cruz, 331 P.2d 216 (Cal. Ct. App. 1958) (county board of supervisors could
       accept offer to dedicate 15 years later after it initially rejected offer). In Illinois, a formal
       acceptance made over 30 years after an offer to dedicate was timely where no affirmative
       action was taken by the dedicator to withdraw the offer. See Village of Joppa, 51 Ill. App. 3d
       at 680.



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¶ 23        All parties agree that the plats for Stonegate Subdivision and Tramore Subdivision were
       recorded and comply with the requirements of the Plat Act. However, Republic Bank (Bank),
       argues that (1) the face of the plat does not show an intent to donate the property for the
       public, (2) the Village’s resolution expressly accepting the dedications was untimely, and (3)
       the Village failed to impliedly accept the dedications because the Village has not improved,
       maintained or used the roads or outlots in question.
¶ 24        Here, the plats for Stonegate Subdivision identify roads with names, followed by
       “(hereby dedicated)” and “(heretofore dedicated).” These designations show Eastern &
       Smith’s intent to donate the property to the public. See Gabel, 120 Ill. App. 3d at 672.
       Furthermore, the plats for both subdivisions identify outlots as “public” and state that they
       are “hereby reserved, granted and dedicated” to “the use and enjoyment of the Village of
       Manhattan.” The terms “public” and “dedicated” show Eastern & Smith’s and Lakeside
       Towns’ intentions to dedicate that property to the public. See id.; Township of Jubilee, 405
       Ill. App. 3d at 496; In re Village of Mount Prospect, 167 Ill. App. 3d at 1036.
¶ 25        There is no question that the Village can accept the dedication through a resolution
       passed by its board of trustees. See Hooper v. Haas, 332 Ill. 561, 567 (1928); La Salle
       National Bank, 19 Ill. App. 3d at 886. Here, Eastern & Smith and Lakeside Towns made
       offers to dedicate various roads and outlots to the Village between 2007 and 2009. The
       Village expressly accepted those offers by resolution in 2013. At no time did Eastern &
       Smith or Lakeside Towns attempt to revoke or withdraw their offers to dedicate. Thus, the
       Village’s acceptance was timely, and the dedications were complete in 2013. See Dewey, 274
       Ill. at 275; Village of Joppa, 51 Ill. App. 3d at 680.
¶ 26        We disagree with the dissent’s contention that the Bank’s filing of the foreclosure
       complaint acted as a revocation of Eastern & Smith’s and Lakeside Towns’ offers to
       dedicate. Courts have held that once foreclosure is complete and the property is sold, an
       attempted dedication that has not been accepted is extinguished. See H.A. Hillmer Co. v.
       Behr, 264 Ill. 568, 577 (1914); Western Fertilizer & Cordage Co. v. City of Alliance, 504
       N.W.2d 808, 814 (Neb. 1993); Highland Beach Realty Co. v. Turner, 139 So. 2d 467, 470
       (Fla. Dist. Ct. App. 1962). However, no court has held that the mere filing of a complaint for
       foreclosure acts as a revocation of an offer to dedicate. Acceptance of a dedication can take
       place any time prior to foreclosure being completed. See Turner, 139 So. 2d at 470. Here,
       where the Village accepted the offers to dedicate after the Bank filed its foreclosure
       complaint but before a judgment for foreclosure was entered, the acceptance was timely and
       effective.
¶ 27        Moreover, the unimproved condition of the dedicated property does not establish a lack
       of implied acceptance since the area surrounding the streets and outlots has remained, for the
       most part, undeveloped land. Because of the general undeveloped character of the area, it
       was not necessary for the Village to improve the streets and common areas to prove
       acceptance. See La Salle National Bank, 19 Ill. App. 3d at 886-87.
¶ 28        The Village satisfied both requirements necessary for a valid statutory dedication. The
       trial court did not err in finding that the roads and outlots depicted on the plats were
       dedicated to the Village, which held them in fee simple.




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¶ 29                        II. EFFECT OF DEDICATION ON MORTGAGEE
¶ 30       A mortgagor has no authority to dedicate land, as against the mortgagee, without the
       mortgagee’s consent. City of Alton v. Fischback, 181 Ill. 396, 398 (1899); Weills v. City of
       Vero Beach, 119 So. 330, 332 (Fla. 1928). However, if the mortgagee assents to the
       dedication, it is bound by it. Smith v. Heath, 102 Ill. 130 (1882); see also Phillips v. Arkansas
       Valley Interurban Ry. Co., 133 P. 429 (Kan. 1913) (where a plat is made with the consent and
       acknowledgement of the mortgagee, mortgagor’s dedication is accomplished).
¶ 31       The mortgagee’s assent will be implied where it recognizes the plat as having been
       properly made, sells lots pursuant to the plat and executes releases therefor. Boone v. Clark,
       129 Ill. 466 (1889); Smith, 102 Ill. 130; see also Samuel Nardone & Co. v. Bianchi, 524 A.2d
       1114, 1116 (R.I. 1987) (“when a plat is recorded with streets delineated thereon and lots are
       sold by reference to that plat, there is an incipient dedication of such streets inuring to the
       public”); Weills, 119 So. at 332 (“ ‘where the mortgagee is present at sales according to a plat
       and does not object then or afterward, his assent to the dedication of the streets indicated on
       the plat will be presumed’ ” (quoting 18 C.J. Mortgages § 20 (1919))).
¶ 32       When a mortgagee executes and records mortgage releases on lots shown on a plat of
       subidivision, the mortgagee impliedly consents to the entire plat, including the streets shown
       thereon, and can no longer revoke its assent to dedication of the streets and alleys set forth in
       the plat. See Boone, 129 Ill. at 483; Smith, 102 Ill. at 138, 142; see also Weills, 119 So. at 332
       (mortgagee estopped from foreclosing on streets shown on plat where mortgagee stood by
       seeing lots sold according to the plat and releasing mortgage liens on those lots). The release
       of any lots depicted in a plat is sufficient to estop the mortgagee from denying the validity of
       the dedication of all streets and common areas shown on the plat. See Tower Development
       Partners v. Zell, 461 S.E.2d 17, 21 (N.C. Ct. App. 1995); Weills, 119 So. at 332.
¶ 33       In Smith, our supreme court held that “[c]onsenting to a subdivision of the property into
       lots, implies a consenting to laying out the usual streets and alleys.” Smith, 102 Ill. at 138.
       Otherwise, the lots would be “valueless and unsalable” because there would be no means of
       ingress or egress to them. Id. “Releasing the lot, unless it released also the street in front of it,
       would be of no use to the purchaser.” Id. at 138-39. When a mortgagor subdivides the
       mortgaged premises into lots and lays out streets and alleys, a mortgagee’s release of lots in
       the subdivision also releases that portion of the mortgaged premises designated as streets and
       alleys. Id. at 139. A mortgagee’s release of lots from its mortgage would be of little use to
       purchasers if the mortgagee could later “shut up the street by which access to [the lots] could
       be had.” Id. at 146. By recognizing the plat created by the mortgagor and executing releases
       to lots set forth in the plat, the mortgagee is effectually bound by the plat, including the
       streets and common areas depicted therein. Id. at 147.
¶ 34       When lots are sold with clear reference to a plat, the purchasers are entitled to rely on the
       plat, including the streets and other public places indicated thereon. Saunders v. City of
       Chicago, 212 Ill. 206, 215 (1904). Streets and alleys delineated on a plat are presumed to add
       value to all of the lots embraced in the general plan, and purchasers invest their money on the
       assurance that such access ways will belong to the public. Cassell v. Reeves, 265 S.W.2d 801,
       802 (Ky. Ct. App. 1954). The purchasers of lots have the right to have streets indicated in the
       plat remain open forever. Id. Such a right is irrevocable because streets are valuable to lot
       owners. See Saunders, 212 Ill. at 214; Smith, 102 Ill. at 143; Clark v. City of Providence, 10
       R.I. 437, 440 (R.I. 1873) (a street is generally taken into consideration in the sale of lots and

                                                     -7-
       “adds to the value of the lots”). The absence of streets would “utterly destroy” the value of
       subdivided lots and injure property owners who purchased lots relying on the streets depicted
       in a plat. Smith, 102 Ill. at 143-44.
¶ 35       Here, Republic Bank executed and recorded mortgage releases on lots shown on the plats
       for each subdivision. The releases specifically referred to the lots by the lot numbers shown
       on the plats. By executing and recording these releases, Republic Bank impliedly consented
       to the entire plats, including the streets and outlots shown thereon. See Boone, 129 Ill. at 483;
       Smith, 102 Ill. at 138, 142. Once Republic Bank executed the mortgage releases, it could no
       longer revoke its assent to the dedication of the streets and outlots set forth in the plat. See
       Smith, 102 Ill. at 138, 142; see also Weills, 119 So. at 332; Zell, 461 S.E.2d at 21. Republic
       Bank cannot now deny the validity of the dedication of the streets and common areas shown
       on the plats, and the trial court properly dismissed Republic Bank’s complaints seeking
       foreclosure of that property.

¶ 36                                       CONCLUSION
¶ 37      The judgment of the circuit court of Will County is affirmed.

¶ 38      Affirmed.

¶ 39       JUSTICE CARTER, dissenting.
¶ 40       I respectfully dissent from the majority’s decision in the present case. Unlike the
       majority, I would find that the trial court erred in granting the Village’s motion to dismiss
       Republic Bank’s foreclosure complaints. I would, therefore, reverse the trial court’s ruling
       and remand this case for further proceedings.
¶ 41       I disagree with the majority’s conclusion and analysis in the instant case for two reasons.
       First, I would find that the plats of the two subdivisions failed to establish the requisite
       donative intent necessary for a statutory dedication to arise because the face of the plats did
       not clearly and unequivocally establish that the owners of the subject property intended to
       donate legal title in fee simple to the property to the Village. See Reiman v. Kale, 83 Ill. App.
       3d 773, 776 (1980); Bigelow, 372 Ill. App. 3d at 64-67. To the contrary, the Tramore plats
       granted only easement rights to the Village and clearly and specifically stated that the areas
       in question were to remain private property, which is the exact opposite of the donative intent
       necessary for a statutory dedication. As for the Stonegate plats, they were ambiguous as to
       any rights and interests that were being granted to the Village. The use of the phrases “hereby
       dedicated” or “heretofore dedicated” on the Stonegate plats next to or under the name of each
       road was not enough, in my opinion, to establish that the owner clearly intended to convey
       legal title in fee simple to those areas in Stonegate to the Village. See Reiman, 83 Ill. App. 3d
       at 776 (the mere fact that the subdivision plat indicated the presence of streets, which were
       generally considered public places, was not sufficient to establish donative intent as
       necessary for a statutory dedication, since there was no general prohibition against private
       streets); Bigelow, 372 Ill. App. 3d at 66-67 (same). It is equally possible that the owner
       intended to dedicate the roads only for the private use of the residents of the subdivision and
       did not intend to create any interest in the public. See id.



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¶ 42        The second reason I disagree with the majority’s conclusion and analysis in the present
       case is because I would find that the evidence was insufficient at this stage of the proceedings
       to establish that the Village had accepted the dedication of the subject property. The Village
       presented no credible evidence whatsoever to establish that an acceptance of the dedication
       was made in this case prior to the filing of the foreclosure action. There was no credible
       evidence to suggest that the Village had improved or maintained the subject property, that the
       subject property had been used in any way by the Village or the public, or that the subject
       property had been added to Village maps or removed from the tax rolls. The subdivision
       developments had been abandoned, there was no one living on the properties, and there was
       no credible evidence to suggest that the subject property was of any special benefit or
       necessity to the public so as to require that only slight evidence would be necessary to prove
       acceptance. See H.A. Hillmer Co., 264 Ill. at 577. Although the Village passed a
       postjudgment resolution accepting the dedication, the resolution could not have had that
       effect because the mortgage complaint had already been filed, which effectively revoked the
       offer to dedicate the subject property. See id. at 577-78 (foreclosure of trust deed amounted
       to a practical revocation of the offer to dedicate the property and of the right to accept the
       dedication).
¶ 43        Because the purported dedication in this case was not a statutory dedication, the warranty
       of section 3 of the Plat Act does not apply to vest legal title to the subject property in the
       Village. See 765 ILCS 205/3 (West 2012); Bigelow, 372 Ill. App. 3d at 64. Therefore, the
       Village’s motion to dismiss, which was based solely upon that argument, should have been
       denied. I respectfully dissent from the majority’s decision, which found to the contrary. I
       would reverse the trial court’s order, granting the Village’s motion to dismiss Republic
       Bank’s foreclosure complaints, and would remand this case for further proceedings in the
       trial court.




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