2020 IL App (4th) 190887-U 

NO. 4-19-0887 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

DESHERLIA MARINA MANAGEMENT, INC., 

Plaintiff-Appellee,

v. 

CITY OF GRAFTON, an Illinois Municipal Corporation,

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Jersey County 

No. 19MR42 

Honorable 

Joshua Aaron Meyer, 

Judge Presiding.

 

 JUSTICE DeARMOND delivered the judgment of the court. 

 Presiding Justice Steigmann and Justice Holder White concurred in the judgment. 

ORDER

¶ 1 Held: The appellate court reversed, finding the trial court erred in granting a preliminary 

injunction where the plaintiff failed to demonstrate it had a protectable interest in 

land owned by the defendant municipal corporation. 

¶ 2 Plaintiff, DeSherlia Marina Management, Inc. (DeSherlia), has operated a marina 

business (Grafton Harbor) pursuant to a lease agreement with defendant, City of Grafton (the City), 

since 2002. Grafton Harbor, which is located on the Mississippi River, was developed as part of a 

plan for urban development (PUD) approved by the City. Between 2007 and 2008, DeSherlia

installed a portable shed building and a fence on certain other City property (individually, Lots 11 

and 12, and Elm Street; collectively, other City property) that was not included in the lease. In 

2015, the City filed a lawsuit seeking to evict DeSherlia and demanding it remove the shed and 

fence from the other City property. The City later voluntarily dismissed the lawsuit to resolve its 

issues with DeSherlia outside of court. 

FILED

June 26, 2020 

Carla Bender

4th District Appellate

Court, IL

NOTICE

This order was filed under Supreme 

Court Rule 23 and may not be cited 

as precedent by any party except in 

the limited circumstances allowed 

under Rule 23(e)(1). 
- 2 - 

¶ 3 In May 2019, DeSherlia filed a two-count complaint seeking a declaratory 

judgment to determine, inter alia, whether it was authorized to continue using the other City 

property. In count II, DeSherlia sought provisional relief—specifically, a preliminary injunction—

allowing it to continue using the other City property during the pendency of the litigation. 

¶ 4 Following hearings in September and October 2019, the trial court issued a 

preliminary injunction granting DeSherlia the right to continue using the other City property, 

including the right to reinstall the fence and a shed that DeSherlia had previously placed on the 

other City property. 

¶ 5 On December 17, 2019, the City filed a notice of interlocutory appeal pursuant to 

Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017), arguing the trial court erred in granting 

the preliminary injunction. For the following reasons, we reverse the trial court’s judgment. 

¶ 6 I. BACKGROUND

¶ 7 A. The Complaint 

¶ 8 On May 3, 2019, DeSherlia filed a complaint for a declaratory judgment and other 

relief. The complaint alleged within the past few years, “the parties have entered into certain other 

agreements in which [DeSherlia] was authorized to place a portable building/shed on site for use 

by [DeSherlia’s] business in addition to a fence.” DeSherlia further alleged the City has “refused 

to recognize that [DeSherlia] has a) legal possession of certain lots at Grafton Harbor, b) authorized 

installation of a fence, and c) authorization to have a portable building on site.” DeSherlia also 

alleged the mayor of the City, Eric (Rick) T. Eberlin, “has engaged in an ongoing effort to harass 

and obstruct [DeSherlia’s] business activities, including conducting unannounced and unnecessary 

inspections, contacting governmental agencies to make misrepresentations about [DeSherlia’s] 

business, encouraging litigation against [DeSherlia] by governmental agencies for alleged grant 
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violations, and making statements to local media accusing [DeSherlia] and its owners of various 

acts of misconduct.” 

¶ 9 In support of its request for a declaratory judgment, DeSherlia alleged the parties 

had an “ongoing controversy regarding: 

a) Whether [DeSherlia] has legal possession of all lots within its lease and 

PUD; 

b) Whether [DeSherlia] has authorization for the installation of a fence and 

portable building; 

c) Whether [DeSherlia] must consent to endless inspections by [the City] and 

which, if any, inspections [DeSherlia] must permit;

d) Whether [DeSherlia] must leave its bathrooms open to the general public at 

all times;

e) Whether [DeSherlia] must provide [the City] with any writing regarding the 

fuel docks and surrounding area; 

f) Whether [DeSherlia] is paying the correct amount of rent; 

g) Any other interpretations of the agreements of the parties and rights and 

obligations of [DeSherlia] to the [City] relating to the operation and use of 

Grafton Harbor.”

¶ 10 In its request for a preliminary injunction, DeSherlia alleged the City “has posted 

no trespassing signs and tow notices on the lots [DeSherlia] is using in an attempt to harass and 

intimidate [DeSherlia] by indirectly threatening arrest or loss of property if [DeSherlia] continues 

to use the very property [DeSherlia] has been using with [the City’s] knowledge and consent for 

years.” DeSherlia further alleged: (1) it has a clearly protectable right in that it has been using the 
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other City property for many years, and the use of that property is important to its business; (2) it 

has no adequate remedy at law other than to seek a declaration from the court; (3) it has 

demonstrated a likelihood of success on the merits “given [the City’s] longtime consent to 

[DeSherlia’s] use of [the other City property], [the City’s] approval for the fence, [the City’s] 

approval of the portable building, and the inclusion of [the other City property]” in the City’s PUD; 

and (4) an injunction allowing DeSherlia to continue using the other City property is in the public 

interest.

¶ 11 B. Motion for Temporary Restraining Order or Preliminary Injunction

¶ 12 On August 23, 2019, DeSherlia filed a motion for temporary restraining order or 

preliminary injunction, alleging substantially the same claims for relief. DeSherlia attached to the 

petition the affidavit of its owner, Joseph (“Joe”) DeSherlia. In the affidavit, Joe averred that 

several weeks after filing the complaint for declaratory judgment and other provisional relief, the 

City issued DeSherlia an ordinance violation “for the alleged presence of the fence and the shed.” 

He further averred that one week prior to filing the motion for temporary restraining order or 

preliminary injunction, the City sent a letter to DeSherlia “attempting to terminate the lease 

agreement citing several issues, most of which are pending before the court in [the] complaint” 

and refused to allow DeSherlia to repair the fence or reinstall the shed, which caused disruption to 

the business. 

¶ 13 C. Preliminary Injunction and Temporary Restraining Order Hearing 

¶ 14 On September 24, 2019, the trial court conducted a hearing on DeSherlia’s request 

for provisional relief. 

¶ 15 1. DeSherlia’s Case

¶ 16 a. Joseph DeSherlia
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¶ 17 Joe DeSherlia testified he is the owner and primary shareholder of DeSherlia. 

DeSherlia is currently a tenant of certain real estate owned by the City where it operates the marina 

business known as Grafton Harbor. Joe testified Grafton Harbor consists of a transient harbor, 

covered docks for boat owners to rent, a fuel dock, winery, gift shop, restaurant, and boat rentals. 

DeSherlia entered into a 98-year lease agreement with the City to develop the marina in 2001. At 

that time, the mayor of the City was Richard Mosby. 

¶ 18 Joe testified that when he began construction on the marina, the business struggled 

with space issues for storage and office purposes, so he purchased a portable shed building. Joe 

originally placed the shed in a parking lot owned by the City, but he was later directed by the City 

council to keep the shed on Elm Street, which Joe described as an unpaved road. According to Joe, 

Elm Street is where his “utilities run so the [shed] sits right on top of [his] utility easement.” 

¶ 19 DeSherlia then introduced Plaintiff’s Exhibit A, which consisted of a building 

permit dated March 8, 2008. Joe testified he was instructed by the City to apply for a building 

permit for his shed and the permit was granted. The permit was signed by Dennis Day, who was 

the building and zoning officer of the City at the time. Joe testified that on two occasions he had 

to move the shed to a different location due to flooding. On the most recent occasion, he was not 

able to reinstall the shed at the Elm Street location because DeSherlia was “threatened by the City 

that [it] would be trespassing if [it] put the shed back *** where it came from.” Joe testified that 

prior to this, he had kept the shed at the Elm Street location for 10 or 12 years and “nobody said 

anything about it.” Joe testified that he used the shed to store welding equipment, pesticides, 

various “chemicals” for the docks, paint, hand tools, and electrical equipment. Joe said these items 

were “necessary” for the business. 
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¶ 20 Since he was unable to reinstall the shed, some items were sitting outside in the 

elements and other items were being stored inside the marina’s limited office space. Joe testified 

that not having access to the shed was very disruptive to the day-to-day operation of his business 

and because of having “everything in disrepair, sitting out all over the place,” the marina risked 

losing its prestigious status as a “five-star, five-anchor” marina, of which there are only 23 in the 

country. 

¶ 21 DeSherlia then introduced Plaintiff’s Exhibit B, which was another building permit 

dated February 23, 2007. Joe testified the building permit was granted by the City for DeSherlia

to install a fence. Joe testified that in December 2013, then-mayor Tom Thompson asked him to 

enlarge the fence and “keep all [his] stuff” within it, including the shed. DeSherlia then introduced 

Plaintiff’s Exhibit C, which was a handwritten note from Thompson to Joe, stating, “Joe, I 

appreciate your efforts to cover your building materials at the marina from public view. Please 

proceed with the fence. Tom Thompson.” The exhibit was admitted over the City’s objection. Joe 

testified that due to recent flooding, some fence panels were knocked down and “just *** sitting 

there,” “basically in a state of disrepair.” The City had placed no trespassing signs around the area 

and issued him a stop work order when he attempted to repair the fence. Joe testified he was 

worried he would receive an ordinance violation from the City if he attempted to repair the fence 

again. Joe testified Lots 11 and 12 and Elm street were not included in his lease agreement with 

the City but he believed they were intended for use by Grafton Harbor based on the PUD. 

¶ 22 On cross-examination, Joe testified Elm Street and Lots 11 and 12 are public 

property owned by the City. Joe testified that if he is unable to keep the shed building at its current 

location, the biggest issues would be “damage to equipment being left out in weather, not having 

electricity, not having water.” 
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¶ 23 b. Richard Mosby 

¶ 24 Richard Mosby testified he was the mayor of Grafton between 2001 and 2009 and 

was familiar with the lease agreement DeSherlia had with the City. He was the mayor of Grafton 

when DeSherlia requested building permit applications for the fence and the shed. According to 

Mosby, “after some discussion the [City] council agreed to allow [DeSherlia] to put the shed on 

Elm Street.” Mosby testified it was his “understanding and still is that *** [the City council] voted 

to vacate that section of Elm Street” and that is why DeSherlia put the shed there. Mosby did not 

know whether any “follow-up steps were taken” to “put it on public record” the City’s decision to 

vacate Elm Street as a public right-of-way. When asked whether the City council had taken any 

action regarding the fence, Mosby testified, “I would say we approved it.” During his time as 

mayor, it was Mosby’s understanding that “the City had granted [DeSherlia] permission to have 

the shed and fence” on the other City property. Mosby further testified that the other City property 

was “part of the original PUD” and the City council intended the “entire PUD area be available” 

to DeSherlia. To Mosby’s knowledge, DeSherlia was the only entity that had occupied the PUD 

area since it was approved. At the conclusion of Mosby’s testimony, the hearing was continued. 

¶ 25 c. John Taylor 

¶ 26 The proceedings resumed on October 30, 2019. John Taylor testified he has been a 

registered professional engineer for 40 years. At some point in 2018, Taylor was asked by the 

parties in this case to act as a mediator, but the mediation was unsuccessful. According to Taylor, 

Elm Street was a platted street but had never been used as a public roadway. Taylor testified 

DeSherlia had an easement to access the utilities, which were located along Elm Street, but the 

area was not included in the legal description of DeSherlia’s lease. However, Taylor agreed Lots 

11 and 12 were “included in part of [the] overall PUD” for Grafton Harbor. 
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¶ 27 d. Jim Spencer

¶ 28 Jim Spencer testified he is an alderman for the City representing the third ward and 

has been a member of the City council for three and a half years. When Spencer was elected 

alderman, there was already a lawsuit between the parties pending, but it was voluntarily dismissed 

by the City sometime in 2018. Spencer testified he and Mayor Eberlin decided to pursue mediation 

with DeSherlia in order to resolve the parties’ ongoing issues. Spencer spent “approximately three 

months” working with the State’s Attorney, Ben Goetten, and the City Attorney, Jim Schrempf, 

“to mediate or attempt to mediate and resolve these outstanding issues.” Spencer testified they 

came up with a resolution which was presented to the City council. The resolution failed by a 5-2 

vote; despite a majority of votes in favor, this particular resolution required a supermajority to 

pass. Mayor Eberlin and one other alderman were in the minority. 

¶ 29 Spencer testified he was familiar with DeSherlia’s use of its fence and shed and 

“[a]bsolutely” “believe[d] these items are necessary to [the] business.” Spencer testified DeSherlia

attempted to repair the fence but was issued a stop work order from the City. With respect to the 

issue of restoring the shed to its prior location, Spencer testified “that’s basically the only logical 

place to have the fence and the shed due to the fact that that’s where all the utilities are located, 

the pump out, water, electricity ***.” Furthermore, “there’s equipment in [the shed] that requires 

*** that with being this cold right now that could freeze without electricity to provide heat *** in 

the shed.” DeSherlia currently stored the equipment elsewhere on site but did not have access to 

utilities in that location.

¶ 30 Spencer testified that since becoming alderman, he encountered issues when 

submitting Freedom of Information Act (FOIA) requests from the City. In particular, Spencer 
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found “gaps in the record” such as lack of permits for certain construction projects and 

improvements. 

¶ 31 On cross-examination, Spencer testified DeSherlia had a place on its own property 

to keep the shed, but there were “no utilities” and “[i]t would just be more convenient for 

[DeSherlia] to have it where *** it used to be located on Elm Street.”

¶ 32 2. The City

¶ 33 a. Charlie Juno 

¶ 34 Charlie Juno testified for the City. Juno testified he is a civil engineer and land 

surveyor and had worked in that capacity for 48 years. Juno was involved in the development and 

consideration of the PUD for Grafton Harbor and was familiar with the boundaries of the lease 

agreement between the City and DeSherlia. The lease agreement was then admitted into evidence 

as Defendant’s Exhibit B. Juno testified the lots where the fence and shed were located were 

“outside the boundary of the lease.” Furthermore, Juno stated that to his knowledge, Elm Street 

had never been vacated by the City. In order to vacate a public street, “[i]t would take an ordinance 

by the village or city ***.” Juno was not aware of any such ordinance with respect to Elm Street. 

The City then introduced Defendant’s Exhibit D, which was a copy of Grafton Ordinance No. 523, 

“approving a special use permit for a planned unit development of Grafton Harbor ***.” In 

comparing the ordinance with the lease agreement, Juno testified the legal descriptions of the real 

estate comprising the PUD were the same in both. According to Juno, the shed that was on Elm 

street and the fence on Lots 11 and 12 were not included in the legal description of either the 

ordinance or the lease agreement. Juno testified he was not aware of any amendments to the 

ordinance and nothing in the ordinance granted DeSherlia the use of any City property outside of 

the leased area.
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¶ 35 On cross-examination, DeSherlia introduced Plaintiff’s Exhibit No. 6, which 

contained a copy of Grafton Ordinance No. 535, approving “a vacation of Elm Street from 

Columbia Street to the north line of Clinton Street.” DeSherlia then introduced Plaintiff’s Exhibit 

No. 7, which contained a copy of the Code of Ordinances of the City of Grafton. Juno admitted 

that the ordinance book did not contain Ordinance No. 535, but rather skipped from Ordinance No. 

534 to Ordinance No. 536. On redirect, Juno testified that Ordinance No. 535 did not vacate the 

portion of Elm Street involved in the instant dispute. 

¶ 36 b. Rick Eberlin 

¶ 37 Rick Eberlin testified he is currently the mayor of Grafton and, since being elected, 

had reviewed City council meeting minutes dating back to 2001. Eberlin testified the City council 

had never approved an ordinance allowing DeSherlia to use Lots 11 and 12 or vacating Elm Street. 

Eberlin further testified he had received complaints from members of the community regarding

the condition of DeSherlia’s fence and shed building. 

¶ 38 On cross-examination, Eberlin testified that during his time as mayor, he had on 

one occasion discovered City council minutes to be missing; however, in that instance, the minutes 

were returned by the City council member who had taken them.

¶ 39 At the conclusion of evidence, the trial court directed the parties to submit closing 

arguments in writing and took the matter under advisement. 

¶ 40 D. Trial Court’s Order 

¶ 41 On December 2, 2019, the trial court entered a written order granting DeSherlia’s 

request for preliminary injunction, which stated: 

 “DeSherlia is granted the use of the lots 11 and 12 in Block 1 in the City of 

Grafton, in addition to the area to the immediate east of Lot 12 where DeSherlia
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has kept a portable building for the past several years. DeSherlia may reinstall the 

portable building, repair the fence, and otherwise use and maintain the area until 

further order of this Court. DeSherlia remains liable for the maintenance of this area 

and shall be responsible for the removal of the portable shed and DeSherlia’s other 

personal properties should this injunction be dissolved.” 

¶ 42 In granting the preliminary injunction, the trial court found DeSherlia raised a fair 

question that it had a clearly ascertainable right to its continued use of the other City property

based on the doctrine of equitable estoppel, as “established by the [C]ity’s express authorization 

during Mayor Mosby’s term and continued allowance for a number of years following the initial 

authorization.” The court further found DeSherlia raised a fair question that (1) it would suffer 

irreparable injury without the injunction, (2) it had no adequate remedy at law, (3) it had a 

likelihood of success on the merits, and (4) the balance of equities favored granting the injunction.

The court denied DeSherlia’s request for provisional relief on the harassment claim.

¶ 43 This appeal followed. 

¶ 44 II. ANALYSIS

¶ 45 On appeal, the City argues the trial court erred in granting the preliminary 

injunction because DeSherlia failed to present sufficient evidence to raise a fair question as to any 

of the four factors necessary for injunctive relief. DeSherlia maintains it raised a fair question as 

to all of the aforementioned issues and the trial court did not abuse its discretion in granting the 

preliminary injunction. We agree with the City.

¶ 46 A. Preliminary Injunction Standard 

¶ 47 To establish entitlement to preliminary injunctive relief, a plaintiff must show (1) a 

clearly ascertainable right in need of protection, (2) irreparable harm without protection of that 
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right, (3) no adequate remedy at law, and (4) a substantial likelihood of success on the merits of 

the underlying action. Caro v. Blagojevich, 385 Ill. App. 3d 704, 708, 895 N.E.2d 1091, 1096

(2008). The failure to establish any one of these elements requires the denial of the preliminary 

injunction. Yellow Cab Co. v. Production Workers Union of Chicago & Vicinity, Local 707, 92 Ill. 

App. 3d 355, 356, 416 N.E.2d 48, 50 (1980). 

“An applicant for a preliminary injunction need not make out a case which will 

entitle him to the ultimate relief he seeks, but need only raise a fair question as to 

the existence of the right claimed, making it appear advisable that the positions of 

the parties should remain the same until the court has an opportunity to consider 

the case on its merits.” Cameron v. Bartels, 214 Ill. App. 3d 69, 73, 573 N.E.2d 

273, 275 (1991). 

¶ 48 On review of a trial court’s grant or denial of a preliminary injunction, the appellate 

court may not decide controverted questions of fact or the merits of the case. American National 

Bank & Trust Co. of Chicago v. Chicago Title & Trust Co., 134 Ill. App. 3d 772, 777, 481 N.E.2d 

71, 74 (1985). Generally, we review a trial court’s grant or denial of a preliminary injunction for 

an abuse of discretion. Clinton Landfill, Inc. v. Mahomet Valley Water Authority, 406 Ill. App. 3d 

374, 378, 943 N.E.2d 725, 729 (2010). However, “where the trial court does not make any factual 

findings and rules on a question of law, the appellate court’s review is de novo.” Makindu v. Illinois 

High School Ass’n, 2015 IL App (2d) 141201, ¶ 32, 40 N.E.3d 182. Accordingly, this court will 

defer to the trial court’s findings of fact but review any legal issues de novo. 

¶ 49 B. Clearly Ascertainable Right in Need of Protection

¶ 50 The City first contends the trial court erred in granting the preliminary injunction 

because DeSherlia failed to establish it has a clearly ascertainable right to reinstall a shed and fence 
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on the other City property. DeSherlia responds it raised a fair question as to this right because the 

evidence presented at the hearing showed (1) the City previously issued DeSherlia building 

permits for both the shed and the fence and (2) former Mayor Mosby testified he expressly 

authorized DeSherlia to use the other City property and that the City council, at some point, voted 

to vacate Elm Street for DeSherlia’s use. DeSherlia further argues that, even if it did not have a 

contractual or real property interest in the other City property, the evidence was sufficient to raise

a fair question as to this right based on the theories of (1) an irrevocable license or (2) equitable 

estoppel. We discuss each possible theory in turn. 

¶ 51 To show a clear and ascertainable right, the party seeking the injunction must raise 

a fair question that it has a substantive interest recognized by statute or common law. Delta 

Medical Systems v. Mid-America Medical Systems, Inc., 331 Ill. App. 3d 777, 788-89, 772 N.E.2d 

768, 779 (2002). 

¶ 52 1. Contractual or Real Property Interest

¶ 53 Here, the parties do not dispute the lease agreement did not include any provision 

granting DeSherlia the right to use or occupy the other City property. Accordingly, we agree with 

the City that DeSherlia cannot claim any interest in the other City property based solely on its lease 

agreement or the original City ordinance (City of Grafton Ordinance No. 523) approving the lease 

agreement.

¶ 54 The City further argues the City never passed any other ordinance that would grant 

DeSherlia the right to install the shed or fence. DeSherlia counters former Mayor Mosby’s 

testimony showed the City Council, at some point, “expressly authorized [DeSherlia’s] use of the 

[other City] property” and “vote[d] to vacate the portion of Elm Street used by [DeSherlia].” 
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¶ 55 Section 11-76-1 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/11-

76-1 (West 2018)) provides the mechanism by which a municipal corporation, such as the City, 

may lease or convey an interest in its real property. Specifically, the statute provides, “This power 

shall be exercised by an ordinance passed by three-fourths of the corporate authorities of the city 

or village then holding office, at any regular meeting or at any special meeting called for that 

purpose.” Id. The appellate court has held these requirements are mandatory: “[T]he power must

be exercised by ordinance and it must be approved by a three-fourths vote.” (Emphases added.) 

Samios v. City of Joliet, 101 Ill. App. 2d 210, 212, 242 N.E.2d 322, 324 (1968). Moreover, the 

Municipal Code provides the following method to prove the contents of a valid ordinance: 

“The municipal clerk shall record, in a book used exclusively for that purpose, all 

ordinances passed by the corporate authorities. Immediately following each 

ordinance the municipal clerk shall make a memorandum of the date of the passage 

and of the publication or posting, where required, of the ordinance. This record and 

memorandum, or a certified copy thereof, shall be prima facie evidence of the 

contents, passage, and of the publication or posting of ordinances.” 65 ILCS 5/1-2-

5 (West 2018). 

¶ 56 Here, there is nothing in the record to support DeSherlia’s right to use the other 

City property based on a valid ordinance. At the hearing, DeSherlia presented evidence from 

former Mayor Mosby who testified the City council authorized DeSherlia’s use of the other City 

property and voted to vacate a portion of Elm Street for DeSherlia’s use. While we generally defer 

to the trial court’s determinations of witness credibility, we find that even assuming former Mayor 

Mosby’s testimony is credible, the parties do not dispute DeSherlia did not produce a valid City 

ordinance showing that such a vote was held and that the ordinance was passed. This is further 
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buttressed by conflicting testimony from the current mayor who indicated a review of all city 

council meeting minutes recorded during the relevant time period revealed no mention of such 

discussion or vote. In reaching this conclusion, we do not claim to resolve the ultimate factual 

issue as to whether such an ordinance was passed or not passed; rather, we merely find DeSherlia’s 

failure to produce the ordinance precludes a finding that DeSherlia raised a fair question as to its 

right to use the other City property based on the passage of a valid ordinance. None of the evidence 

presented by DeSherlia rises to the level required to claim a lawful interest in city property. The 

belief of a former mayor, which is refuted by the actual municipal record, coupled with some nonspecific building permits is not likely, under any set of circumstances, to suffice under Section 11-

76-1 of the Municipal Code. 

¶ 57 We next turn to whether DeSherlia raised a fair question as to a clearly ascertainable 

right on the theory of an irrevocable license. 

¶ 58 2. Irrevocable License

¶ 59 The City next argues DeSherlia similarly failed to raise a fair question as to its right 

to occupy the other City property based on an irrevocable license theory. 

¶ 60 “A license in respect of real property *** is permission to do an act or a series of 

acts upon the land of another without possessing any estate or interest in such land.” Mueller v. 

Keller, 18 Ill. 2d 334, 340, 164 N.E.2d 28, 32 (1960). A license agreement is not a vested property 

interest but rather a “revocable privilege.” LMP Services, Inc. v. City of Chicago, 2017 IL App 

(1st) 163390, ¶ 39, 95 N.E.3d 1259. “A license protects against an action for trespass for acts done

under it before termination. [Citation.] However, upon termination of a license, the licensee’s 

failure to remove its property from the licensor’s land constitutes a trespass.” JCRE Holdings, LLC 

v. GLK Land Trust, 2019 IL App (3d) 180677, ¶ 15, 136 N.E.3d 202. “Courts of equity will restrain 
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the exercise of the legal right to revoke a license when the conduct of the licensor has been such 

that the assertion of the legal title would operate as a fraud upon the licensee.” Mueller, 18 Ill. 2d 

at 343. 

¶ 61 Here, assuming former Mayor Mosby’s authorization of DeSherlia’s installation of 

the fence and shed and the City’s issuance of the two building permits constituted a license, there 

is no evidence in the record to support a claim that the City’s revocation of such a license would 

“operate as a fraud” on DeSherlia. While Joe testified that his inability to access the shed in its 

previous location was “disruptive” to the day-to-day operations of his business and Alderman 

Spencer testified it would “just be more convenient” for DeSherlia to restore the shed and fence to 

the location on the other City property, the record shows DeSherlia (1) continued operating its 

business after the stop work order and (2) found an alternative location on its property to keep the 

shed. Under these circumstances, DeSherlia did not raise a fair question as to its right to use the 

other City property under an irrevocable license theory. 

¶ 62 3. Equitable Estoppel

¶ 63 Finally, the City argues DeSherlia failed to raise a fair question as to a clearly 

ascertainable right under an equitable estoppel theory. DeSherlia responds it has a “ripe” estoppel 

argument because the City engaged in several affirmative acts authorizing its use of the other City 

property and DeSherlia relied on those affirmative acts to its detriment.

¶ 64 The doctrine of equitable estoppel applies to municipal bodies such as the City. 

Morgan Place of Chicago v. City of Chicago, 2012 IL App (1st) 091240, ¶ 33, 975 N.E.2d 187. 

“However, courts do not favor applying the doctrine of equitable estoppel against a public body,” 

and will only invoke equitable estoppel against it if necessary to prevent fraud and injustice. Id.

The party seeking relief on an equitable estoppel theory must show “(1) the municipality 
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affirmatively acted; (2) the affirmative act induced substantial reliance; and (3) the aggrieved party 

substantially changed its position as a result of its justifiable reliance.” Id.

“The affirmative act that prompts a party’s reliance generally must be an act of the 

public body itself, such as a legislative enactment, rather than the unauthorized acts 

of a ministerial officer or a ministerial misinterpretation. [Citations.] The question 

of whether estoppel should be applied against a municipality in a particular case 

must be made on an individual basis, after considering all of the circumstances of 

the case. [Citation.] If under all of the circumstances, the affirmative acts of the 

public body have created a situation where it would be inequitable and unjust to 

permit it to deny what it has done or permitted to be done, the doctrine of estoppel 

may be applied against it.” (Internal quotation marks omitted.) Id.

¶ 65 Here, we agree with the City that DeSherlia has failed to raise a fair question as to 

its right to occupy the other City property based on an equitable estoppel theory. First, the fact that 

former Mayor Mosby orally permitted DeSherlia to use the other City property cannot constitute 

an affirmative act by the City which would support an equitable estoppel argument. Pursuant to 

the Municipal Code and as stated above, Mayor Mosby had no authority to unilaterally lease, 

convey, or otherwise permit DeSherlia to use the other City property. See 65 ILCS 5/11-76-1 (West 

2018). Accordingly, Mosby’s permission was an act by an agent of the City which was beyond the 

authority conferred to him and cannot support an equitable estoppel argument as a matter of law. 

See Lindahl v. City of Des Plaines, 210 Ill. App. 3d 281, 296, 568 N.E.2d 1306, 1316 (1991) (“[A]

municipality cannot be estopped by an act of its agent beyond the authority specifically conferred 

on the agent.”). Similarly, the building inspector’s issuance of the permits for the shed and the 

fence would not amount to an affirmative act supporting DeSherlia’s argument it had a protectable 
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property interest in its continued use of the other City property. Again, the building inspector had 

no authority to lease, convey, or otherwise allow the private use of City property. Finally, as 

discussed above, it is unclear what “fraud and injustice” would result if the City were not estopped 

from disallowing DeSherlia’s use of the other City property. Joe testified he continued to operate 

his business when he was unable to reinstall the portable shed, storing the items that were normally 

in the shed in the business’s office space. While he described his inability to reinstall the shed in 

its prior location as “disruptive” and “inconvenient,” it is not arguable that mere inconvenience 

can amount to a fraud or injustice which would be required to invoke the doctrine of equitable 

estoppel against a municipal body. Accordingly, we find DeSherlia did not raise a fair question as 

to its right to use the other City property on a theory of equitable estoppel. 

¶ 66 Because DeSherlia failed to raise a fair question as to whether it had a clearly 

ascertainable right to occupy the other City property, we need not address whether DeSherlia

demonstrated the remaining elements to establish injunctive relief.

¶ 67 III. CONCLUSION

¶ 68 For the reasons stated, we reverse the trial court’s judgment. 

¶ 69 Reversed.