FIFTH DI VISI ON June 22, 2007

No. 1-06-1230 JOAN L. MIL

LER a nd RIC HARD A. MI

LL ER, ) Appeal from the

) Circuit Court of Plaintiff s-Appell ants, ) Co ok Co un ty. ) v. ) No. 03 CH 06001 ) METROPOLI TAN WATER RECLAMATI ON ) DISTRI CT OF GREATER CHICAGO ) and THE CITY OF EV

ANSTON, ) ) Defendants-Appellees ) ) and ) ) (Evanston Wilmette Golf Course Association, ) Descendants and Assigns of L aura N. Kline, ) Unknown Owners a

nd Non-Re cord Clai

mants, ) Honorab le

) Julia M. Nowicki, Defendants). ) Judge Presi ding.

PRESID ING

JUSTICE

O'BRI EN delive

red the o pinion of t

he court : Plaintiffs, Richard and Joan Miller, appeal the order of the circuit court g ranting summary judgm ent in favor o f defen dants , Metr opol itan W ater R eclam ation Dist rict o f Great er Chi cago (the Distr ict)and t he Cit y o f Eva nston , on pl ainti ff' s comp laint for a dverse po ssess ion. W e affirm. In 1971, plaintiffs, Richard and Joan Miller, purchased a house adjacent to land (the subject property)

belonging to the District. The District leases the subject prope rty to the City

of Evanston with the r

ight of r eentry . The City

of Evanston in turn

sublease s the subje ct prope rty to the Evanston Wilmette Golf Course Association, a private corporation that operates the PeterNo. 1-06-1230

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Jans Community

Golf Course. Plaint

iffs disc overed t

hat portions of thei

r gara ge and other pa rts of their r esidentia l proper ty were buil

t or sited on the subje ct prope rty . For pur

poses of t his ap pe al , p la in ti ff

s d o n ot di sp ut e t ha t t he Di st ri ct ho ld s l eg al ti tl e t o t he su bj ec t p ro pe rt y. In 1996, the District notified plaintiffs of the encr oachment and requested the City of Evanston to take corrective action to eliminate the encroa chments. In 2001, plaintiffs indicated that they wanted a

permit for the encroachments that would require pe rmission from the City of Evanston , the go lf cours e, and the District. Plaintiff

s later a bandone d that re quest. Plaintiffs then filed a complaint alleging adverse possession against the District and the City of Evanston (colle ctively refer red to as defenda nts), as well as the

Evanston Wilmette Go lf Course Association. The Evanston Wilmette Golf Course Association was served but never appear ed. The p arties f

iled cro ss-motions

for summa

ry judgmen t. The District ar

gued in releva nt part tha

t advers e possess ion will not lie wher e, as her e, a munic ipal cor

poration is holding the subject property for the use of the public of the state at large . Plaintiffs responded that the District did not hold the subject property f or public use by the pe ople of the state. The trial cou rt gra nted summa

ry judgmen t in favor of defe ndants. Pla

intiffs a ppeal pur suant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a))

. Summary judgment is appropr iate where the pleadings, depositions and admissions on file, together with any

affidavits, show that there is no genuine issue of materia l fact and that the moving party is e

ntitled to judgment as a matter of law. Adams v. Northern Illinois Gas Co. , 211 Ill. 2 d 32, 43 (2 004). Rev iew is de novo

. Adams , 211 Ill. 2d at 43. To establish title by adverse posse ssion as provided by section 13-101 of the LimitationsNo. 1-06-1230

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Act, the party must possess the disputed land f or 20 year

s. 735 IL CS 5/13-101 (West 2000). The party must prove

that the 20 years of possession was: "(1) continuous; (2) hostile or adverse; (3) actual; (4) open, notorious and exclusive; and (5) under a c laim of title inconsistent with that of the true ow ner." General Iron I ndustries, Inc. v. A. Finkl & Sons Co. , 292 Ill. App. 3d 439, 441 (1997). This case involves a claim of adverse possession ag ainst land held by a municipal corporation. The 20-y

ear statute of limitations runs against a municipal corporation with respec t to property held in a pr

ivate capacity , but not with respect to property held in trust for the public. The supreme court case Brown v . Trustee s of Schoo ls , 22 4 Ill . 18 4 (1 906 ), i s i nfo rma ti ve. In Brown , the trustees sued to recover possession of part of a sc hoolhouse lot to which the trustees held legal title for the use of the school district. A private citizen, Fra nk Brown, claimed title by adverse possession on the basis that he and his predecessors in title had bee n in the open, exclusive and adverse possession of that part of the schoolhouse lot for more than 20 y ears. The Illinois Supreme Court stated: "The rule that statutes of limitations do not run against the state also extends to minor municipalities created by it as local governmental agenc ies, in respect to governmental affairs affecting the general public. The exemption extends to counties, cities, towns, and minor municipalities in all matters respecting strictly public rights as distinguished from private and loca l rights, but as to ma

tters invo lving pr

ivate rig hts they are subj ect to statutes of limitation to the same extent as individuals. [Citations.] The question *** is whether there is an implied exemption from the statutes ofNo. 1-06-1230

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limitation in favor of trustees of schools with respect to property held for the use of a particular school district, and that depends upon the meaning of the term 'public rights,' as used in the decisions. *** [T]he public right and public use must be in the people of the state at l arge, and not in t he inhabi tants of a particu lar loca l district. *** [T]here

is a wellfounded distinction betwee

n cases w here the municipa lity is seekin g to enf orce a r ight in which the public in general have an inter est in common with the people of such municipality, and cases w here the public have no such interest ***. There are numerous cases whe re it has been held that municipalities or minor political subdivisions of the state are not subjec

t to limitatio

n laws in r

espect t o streets and public highways [citation], but streets and highways ar e not for the use of the inhabitants of any municipality or locality alone, but for

the free and unobstructed use of all the people in the state. Such rights are clear ly distinguishable from the r ights or interests of the inhabitants of a locality in property ac quired for a mere local use, such as city office s, a library site, or the use of a fire department. Such property is held and used for strictl y local purposes." Brown , 224 Ill. at 186-88. The supr eme cour t held tha t "[t]he pe ople of the State in gener al have n o intere st, in common wit h the inhabi tants of a sch ool dist rict, in th e school hou se site or t he proceeds of i t." Brown , 224 I ll. at 189. Accord ingly, the supr

eme cour t held tha t advers e possess ion could l ie against the property

. Brown , 224 Ill. at 189. Brown remains good law. See Wanless v. Wraight , 202 I ll. App. 3d 750 (1990 ) (holdin

g that pa rking lot did not fa

ll qualify as a "pu blic

us e" as de fi ne d b y Brown .)No. 1-06-1230

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Th us , t he te rm "p ub li c u se ," as de fi ne d b y Brown , means that the people of the state at large must have

a gene ral inter est in the p

roperty at issue. It doe s not mean that the p ublic necessarily

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

nefit of t he people of the sta te. I f the pro

perty is for suc h "public use", then adve

rse po ss es si on ca nn ot li e a ga in st th e p ro pe rt y. As dis cusse d, th e Dist rict h olds legal t itle to th e subj ect pro perty. Th e Dist rict's predec essor, the Sanitar

y D istrict of

Chicag o, was or

ganized on May 29, 1889, u

nder "A n Act to create sanitary

districts, and to remove obstructions in the Des Plaines and Illinois rivers." See People ex rel. Longenec

ker v. Nelson , 133 Ill. 565 (1890). The act cr eated certain districts made up of areas of contiguous territory , and empowered those districts to construct and maintain a common outlet for the drainage and sewa ge of the municipalities within the limits of each district. See Nelson , 133 Ill. at 580. The supreme court noted tha t "[t]he object of the system of drainage proposed by

said act is to prevent the drainage and se wage of the city

[of Chicago] and its environs being

carrie d into L ake Mich

igan, thereby

contaminating the waters of the la ke. This resul t is t o be rea ched b y cuttin g a chann el whi ch wil l give a n out let fo r the d rainage and se wage of the city in t he dir ectio n of th e Des P laine s and Ill inoi s rive rs, an d whic h wil l also cause a large flow of water from the lake through the proposed artificial channel into those rivers for the purpose o f diluting

the sewa ge, an d render ing it innocuous to t

he people living a long the course of those st reams." Nelson , 133 Ill. at 581. Clearly, this was intended to preserve the health of the people of Chicago, those persons living around L ake Michigan and along the De s Plaines and Illinois rivers, and the people of the state.No. 1-06-1230

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

ry District o f Great

er Chica go the p olice power to protect the p ublic hea lth with respect to certain waters. More spec ifically, the District is authorized by statute to prevent the pollu tion of Lake Michi gan and other wat ers within its juris diction. " Village of Glencoe v. Metro poli tan S anita ry Distri ct of G reater Chica go , 23 Ill. App. 3d 868, 872 (1974). The supreme court also has noted: "A sanitary

district of this character is a municipal corporation, cre ated by legislative authority . It is a part of the machiner y of government. Its functions are public. The property

held by such cor

poration is public property in the ha nds of the trustees, as agents for the S tate, for th e purposes de signated in t he act authori zing its cre ation ***. " Chicag o & Easte

rn Il linois Ry . Co. v. San

itary District o f Bloom T ownship , 350 Ill. 542, 548 (1932). Thus, the subject property , to which the District holds title and to which it retains the right under the lease to reenter, is public prope rty for the use

and benefit of the people of the state. As such, it is not subject to adverse possession. Plaintiffs argue, though, that the subject property is currently being

used as a golf course, and that the property

"thus lost whatever public use character it might have had, because it is part of a proprietary

business." In support, plaintiffs cite Brown , which he ld that "i f the State becom es a par tner w ith i ndiv idual s, or e ngages i n busi ness, it di vests itsel f of it s sov ereign character and is subject to [the advers e possessi on statut e]." Brown , 224 Ill. at 186. However, unlike in Brown , which involved a school site to which the people of the state at larg e had noNo. 1-06-1230

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general interest in common with the inhabitants of the school district, the subject proper ty here was suble ased to the Evanston Wilmette Golf Course Associat ion, which operat

es a go lf cours e thereon that is open to all persons in the state. As such, the people of the state at lar ge have a continuing general interest in the subject prope rty during the leasehold and, therefore, the subject property re

tains its public character

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

and property

alienated in that manner cannot be classified as prope rty for public use." In support, plaintiffs cite Chanslor-Western Oil & Development Co. v. Metropolitan Sani tary Dist rict o f Great er Chi cago , 131 Ill. App. 2d 527 (1970). Chanslor-Western O il addressed whether the District unreasonably withheld consent to a sublease. Chanslor-Western Oil did not involve adverse possession and thus is not relevant to the issues presented here. Plaintiffs also cite Sanitary District of Chicago v. Rhodes , 386 Ill. 269 (1944). Rhodes addressed the question whether the main channel prism in Du Pag e and Lockport townships was taxable. Rhodes did not involve adverse possession and is inapplicable to the case at bar. In su m, as the s

ubject pr operty is for pub lic use, p laintiff s' compl aint for a

dverse possession fails. Accordingly , we affirm the order gra nting summary judg

ment in favor of defenda nts. Affirmed. GALL AGHER and O'MARA FROSSARD, JJ's concur.