2022 IL App (2d) 210515-U
No. 2-21-0515
Order filed July 5, 2022
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JOE REICH, KIMBERLY REICH, and ) Appeal from the Circuit Court
AMY KEATON, ) of Lake County.
)
Plaintiffs-Appellants, )
) No. 19-MR-346
v. )
)
CITY OF LAKE FOREST, ) Honorable
) Mitchell L. Hoffman,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Jorgensen and Brennan concurred in the judgment.
ORDER
¶1 Held: Trial court properly granted the defendant summary judgment on the plaintiffs’
action seeking a declaration that the defendant was responsible for maintaining a
pond that was on the plaintiffs’ property.
¶2 The plaintiffs, Joe Reich, Kimberly Reich, and Amy Keaton, brought an action against the
defendant, the City of Lake Forest (City), seeking a declaration that the City was responsible for
maintaining a pond that was on their properties. The circuit court of Lake County granted the
City’s motion for summary judgment and denied the plaintiffs’ motion for summary judgment.
The plaintiffs appeal from that order. We affirm.
2022 IL App (2d) 210515-U
¶3 I. BACKGROUND
¶4 The plaintiffs live in the Gavin Woods subdivision in Lake Forest. Plaintiffs Joe Reich
and Kimberly Reich live at 1275 Gavin Court and plaintiff Amy Keaton lives at 1305 Gavin Court.
The rear portions of the plaintiffs’ properties are covered by a pond.
¶5 Bruce Campbell (Developer) was the owner and developer of the land at the time that it
was subdivided into the Gavin Woods subdivision. The Developer submitted his proposed
subdivision to the City and the City’s Plan Commission. On April 11, 1988, the Plan Commission
identified two key issues with the proposed subdivision: sanitary sewer service and drainage. The
Developer worked with the City’s engineer to provide adequate stormwater drainage to the
subdivision and provided a storm water management plan to ensure proper drainage. The
Developer stated that he provided two detention ponds within the proposed subdivision to “capture
the majority of all storm water run-off that is generated from this site.” The Plan Commission
recommended approval of the subdivision, and the City Council approved the Gavin Woods plat
on May 14, 1988. The Gavin Woods subdivision plat was recorded with the Lake County Recorder
of Deeds on September 7, 1988.
¶6 The Gavin Woods plat shows a “Storm Drainage & Detention Easement” that runs along
the southern property line of the Reich Property, directly north through the Keaton property, and
then runs along the northern property line of the Keaton Property. This easement is now covered
by the pond. The Gavin Woods plat does not contain any notation or marks stating that the pond
or the pond easement were dedicated to the City or dedicated to public use. This is different from
other parts of the plat, such as a road, Gavin Court, which runs through the Gavin Woods
subdivision. The Developer included language that Gavin Court is “hereby dedicated for road
purposes.”
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¶7 As part of the Gavin Woods subdivision process, the City and the Developer also entered
into a subdivision agreement that required the Developer to construct certain public improvements,
including curbs, sidewalks, water mains, and storm sewers within the subdivision that would
ultimately be accepted by the City. This subdivision agreement does not list the pond as a public
improvement to be dedicated to the City.
¶8 Pursuant to the subdivision agreement, the Developer constructed a 24-inch concrete storm
sewer than ran from the Gavin Court right of way, westerly under the storm drainage and detention
easement located on the southern edge of the Reich Property, and terminating with a concrete inlet
structure at the pond. The City accepted the storm sewer as a public improvement as part of its
stormwater management system and consistent with the subdivision agreement. The City has
performed maintenance on the concrete inlet portion of the storm sewer.
¶9 The pond, and the other detention pond in the Gavin Woods subdivision were designed to
capture most of the storm water run-off generated by the Gavin Woods subdivision. The ponds
drain the entire area of the Gavin Woods Subdivision, including the plaintiffs’ properties, and not
just the Gavin Court right of way.
¶ 10 The City has never performed any maintenance on the ponds. The City does not perform
regular maintenance on detention ponds located on any private property.
¶ 11 On April 9, 2019, plaintiffs Joe and Kimberly Reich filed a complaint against the City. The
complaint sought a declaratory judgment that the pond partially located on their property had been
dedicated to the City through a common-law dedication, and therefore the City was responsible
for maintaining the pond. The Reichs subsequently amended their complaint and added Keaton
as a co-plaintiff. Thereafter, the plaintiffs and the City filed cross-motions for summary judgment.
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¶ 12 On April 13, 2021, following a hearing, the trial court granted the City’s motion for
summary judgment. The trial court held that there was no unequivocal evidence of donative intent
by the Developer to dedicate the pond or the pond easement to the City. The trial court further
held that there was no unequivocal evidence that the City had accepted the pond or the pond
easement. Following the denial of the plaintiffs’ motion to reconsider, the plaintiffs filed a timely
notice of appeal.
¶ 13 II. ANALYSIS
¶ 14 On appeal, the plaintiffs argue that the trial court erred in granting the City summary
judgment because the unequivocal evidence shows that the Developer intended to dedicate the
pond to the City and the City accepted it.
¶ 15 Summary judgment is appropriate where, when viewed in the light most favorable to the
nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is
no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of
law. Hall v. Henn, 208 Ill. 2d 325, 328 (2003). When reviewing a trial court’s award or denial of
summary judgment, we must construe the pleadings, depositions, admissions, exhibits, and
affidavits strictly against the moving party and liberally in favor of the non-moving party. Pyne v.
Witmer, 129 Ill. 2d 351, 358 (1989). The standard of review for the entry of summary judgment
is de novo. Clausen v. Carroll, 291 Ill. App. 3d 530, 536 (1997).
¶ 16 The dedication of property can be either a statutory dedication, which is created by the
recording of a plat, or a common-law dedication, which is shown by the grantor’s actions.
Kirnbauer v. Cook County Forest Preserve District, 215 Ill. App. 3d 1013, 1020 (1991). A
statutory dedication is created by a particular form of the instrument recorded, whereas a common-
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law dedication may be made by a written instrument or may be evidenced by acts and declarations
without a writing. General Auto Service Station v. Maniatis, 328 Ill. App. 3d 537, 546-47 (2002).
¶ 17 On appeal, the plaintiffs assert only that the pond was transferred to the City via a common-
law dedication. 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. Bigelow v. City of Rolling Meadows, 372 Ill. App. 3d 60, 67 (2007).
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 (1996).
“Proof of any act by the dedicator that evidences an intention to dedicate must be clear,
unequivocal, and unambiguous.” Id.
¶ 18 The evidence in this case neither unequivocally nor unambiguously indicates that the
Developer intended to dedicate for public use the pond behind the plaintiffs’ houses. Indeed, the
strongest evidence in this case—the subdivision plat and the subdivision agreement—suggests that
the Developer did not intend to dedicate the pond for public use. The subdivision plat makes no
reference to dedicating the pond for public use. This is in contrast to other parts of the development
that the Developer indicated were being dedicated for public use. Specifically, the plat shows a
public right of way known as Gavin Court which runs through Gavin Woods subdivision and abuts
each of the lots. There, the Developer included language on the plat that Gavin Court was “hereby
dedicated for road purposes.” The fact that the Developer included language indicating that it was
dedicating Gavin Court but included no similar language for the pond suggests that he did not
intend to dedicate the pond for public use.
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¶ 19 Similarly, the subdivision agreement sets forth certain improvements the Developer had to
make as a condition of the City approving and recording the plat of subdivision. These mandated
improvements listed 12 items, including sewers, water mains, sidewalks, street lights and parkway
trees. The agreement further provided that once the City surveyor and engineer certified the
completion of the improvements, the City would accept them. The agreement makes no reference
to the pond. Based on the doctrine of espressio unius est exclusion alterius (the mention of one
thing excludes another), the agreement’s omission of any reference to the pond indicates that it
was not contemplated as an improvement that the Developer would make and then dedicate to the
City. See West Bend Mutual Insurance Co. v. DJW-Ridgeway Building Consultants, Inc., 2015 IL
App (2d) 140441, ¶ 39. Accordingly, we agree with the trial court’s determination that the
plaintiffs did not present unequivocal evidence that the Developer intended to donate the pond to
the City. We therefore hold that the trial court properly granted the City’s motion for summary
judgment.
¶ 20 In so ruling, we reject the plaintiffs’ argument that the totality of the evidence clearly
indicates that the Developer intended to donate the pond to the City. In making this argument, the
plaintiffs assert that the pond is an integral part of the stormwater management system for Gavin
Woods. They note that the minutes from the April 11, 1988, Plan Commission meeting indicate
the Developer was required to have a stormwater management system (which included the pond)
before the building of any residences in Gavin Woods would be approved. The mandatory
stormwater management system is reflected in both the plat (which refers to a storm drainage and
detention easement) and the subdivision agreement. Because of the stormwater management
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system’s reference in all the relevant documents 1 and because the “Pond and its appurtenances
work as one contiguous storm water management system,” the plaintiffs insist that “the Developer
and the City must have intended the entire system be for a public benefit—to prevent flooding in
Gavin Woods.” (Emphasis added).
¶ 21 The plaintiff’s use of the phrase “must have intended” is telling. Their argument
acknowledges that the evidence does not clearly indicate that the pond was intended to be
1
The plaintiffs also argue that a relevant document is the City’s Land Use and Development
Ordinance, which requires the final plat of a subdivision to include “[i]dentification of all lands
and road rights-of-way to be dedicated to the city for public use and all lands to be authorized for
city use or public use through easements.” Lake Forest Code of Ordinances, Title XV, Chapter
156.028(A)(5)(a). The plaintiffs contend that the Developer’s designation of a “Storm Drainage
& Detention Easement” on the plat complies with the ordinance and demonstrates that he intended
to donate the detention easement (the pond) to the City. This argument is waived because the
plaintiffs did not raise it in the trial court. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536
(1996). Further, even absent waiver, the Developer’s use of the term “Detention Easement” is not
dispositive because an easement does not necessarily benefit just a municipality. See Nationwide
Financial, L.P. v. Pobuda, 2014 IL 116717, ¶ 29 (an easement is a right or privilege in the real
estate of another). As the easement was plausibly intended to just benefit the plaintiffs’ neighbors
in the Gavin Woods subdivision, the Developer’s compliance with the ordinance does not
unequivocally and unambiguously demonstrate that he intended to donate the pond to the City.
See Limestone, 284 Ill. App. 3d at 858-59.
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dedicated to the public, rather that fact must be implied. Such an inference does not rise to the
level of being unambiguous, especially in light of the other evidence set forth above that indicates
that the Developer did not intend to donate the pond to the City.
¶ 22 We are also unpersuaded by the plaintiff’s reliance on Application of Cook County
Collector and Ex Officio County Treasurer of Cook County (Musikantow v. Village of South
Holland), 44 Ill. App. 3d 327, 330 (1976) and McDermott v. Metropolitan Sanitary District, 240
Ill. App. 3d 1, 21-22 (1992). The plaintiffs assert that Musikantow stands for the proposition that
donative intent can exist regardless of the lack of specific markings on a plat. Musikantov, 44 Ill.
App. 3d at 330. Although we do not disagree with that proposition, Musikantow does not help the
plaintiffs because there the Village was able to overcome the lack of special markings on the plat
by presenting the testimony of both a representative from the Village and the developer that the
developer did intend to donate the land at issue to the Village. Id. at 329-330. Here, the plaintiffs
presented no similar testimony to overcome the lack of unequivocal donative intent reflected in
any of the relevant documents.
¶ 23 McDermott is not relevant as that case does not discuss a common-law dedication.
¶ 24 As we have concluded that the plaintiffs have failed to establish donative intent on the part
of the Developer, we need not consider whether the City accepted that donation because there can
be no common-law dedication of the pond to the City in absence of donative intent. Bigelow, 372
Ill. App. 3d at 67.
¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
¶ 27 Affirmed.
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2022 IL App (2d) 210515-U
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