author: JUSTICE GOLDENHERSH

text:
    BOATMEN’S BANK OF MT. VERNON, Plaintiff-Appellee, v. BETTY J. DOWELL, Defendant-Appellant.
    Fifth District
    No. 5—90—0005
    Opinion filed February 25, 1991.

      Darrell Dunham and William F. Meehan, both of Carbondale, for appellant.
    Howard & Howard, of Mt. Vernon (G.W. Howard III, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Betty J. Dowell, appeals from a judgment of the circuit court of Jefferson County in favor of plaintiff, Boatmen’s Bank of Mt. Vernon, in the amount of $115,403.90, of which $5,980.70 constituted an award for attorney fees. Judgment was entered after the trial court granted plaintiff’s motion for directed verdict and denied defendant’s motion for directed verdict. Defendant raises a number of issues concerning whether the trial court erred in directing a verdict for plaintiff. After careful consideration, we have determined the issues in this case to be: (1) whether the second guaranty signed by defendant on December 10, 1986, is a “new promise” within the meaning of section 13 — 206 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 206), thereby making the affirmative defense of the statute of limitations inapplicable; (2) if the second guaranty is a “new promise” under section 13 — 206, whether the second guaranty was supported by consideration; and (3) whether the trial court erred in awarding attorney fees. We affirm.

The facts in this case are relatively straightforward. Defendant’s husband, Nobel Y. Dowell, borrowed money from plaintiff on several occasions beginning in April 1976. Prior to loaning Mr. Dowell any money, plaintiff required defendant to guarantee the obligations of her husband. On April 12, 1976, defendant signed the following guaranty:

“GUARANTY
The undersigned hereby requests SECURITY BANK & TRUST CO., MT. VERNON, ILLINOIS (herein called the ‘Bank’) to give and continue to give Noble [sic] Y, Dowell (herein called the ‘Borrower’) credit, as the Borrower may desire and the Bank may grant, from time to time, whether to the Borrower alone or to the Borrower and others, and in consideration of any credit given, the undersigned hereby absolutely and unconditionally guarantees prompt payment when due and at all time thereafter of any and all existing and future indebtedness and liability of every kind, nature and character (including all renewals, extensions and modifications thereof) from the Borrower to the Bank, howsoever and whensoever created, or arising, or evidenced, or acquired; and the undersigned waives notice of the acceptance of this guaranty and of any and all such indebtedness and liability. The undersigned hereby waives presentment, protest, notice, demand or action on delinquency in respect of any such indebtedness or liability, including any right to require the Bank to sue or otherwise enforce payment thereof.
This guaranty is made and shall continue as to any and all such indebtedness and liability of the Borrower to the Bank, incurred or arising prior to receipt by the Bank of written notice of the termination hereof from the undersigned, without regard to collateral, or security, or guaranties, or other obligors, if any, or to the validity or effectiveness of any and all thereof; and any and all such collateral and security and guaranties and other obligors, if any, may, from time to time, without notice to or consent of the undersigned, be sold, released, surrendered, exchanged, settled, compromised, waived, subordinated or modified, with or without consideration, on such terms or conditions as may be acceptable to the Bank, without in any manner affecting or impairing the liability of the undersigned. It is agreed that the undersigned’s liability hereunder is several and is independent of any other guaranties at any time in effect with respect to all or any part of the Borrower’s indebtedness to the Bank, and that the undersigned’s liability hereunder may be enforced regardless of the existence of any such other guaranties.
This guaranty shall also bind the heirs, personal representatives, successors and assigns of the undersigned and shall inure to the Bank, its successors and assigns. Mt. Vernon, Illinois April 12 1976.
Is I Betty J. Dowell (Seal)
Betty J. Dowell”

Thereafter, on April 16, 1976, plaintiff loaned defendant the sum of $4,000. On August 2, 1985, plaintiff loaned Mr. Dowell $60,000 (hereinafter referred to as the $60,000 note). On June 9, 1986, plaintiff loaned Mr. Dowell an additional $45,432.43 (hereinafter referred to as the $45,000 note). The $45,000 note was due on December 9, 1986. A letter dated December 9, 1986, was sent to Mr. Dowell by plaintiff’s chairman and chief executive officer, which read:

“Dear Nobel:
Attached is the renewal on Note No. 58048 in the amount of $45,432.43 for six months.
We also need a new guaranty agreement signed by Betty. The one we have is over 10 years old.”

Another blanket guaranty, similar to the one originally signed by defendant on April 12, 1976, was signed by defendant and is dated December 10, 1986. It reads:

“GUARANTEE
In consideration of Boatmen’s Bank of Mt. Vernon (hereinafter ‘Bank’) making advances of money or otherwise giving credit to N. Y. Dowell, Sr. (hereinafter ‘Borrower’), the undersigned does hereby guarantee the full and prompt payment to said Bank of all indebtedness, obligations and liabilities of said Borrower to said Bank now existing or hereafter created or arising.
This is a continuing, absolute and unconditional guarantee and shall continue in force with respect to all indebtedness of the Borrower until terminated as to the undersigned upon receipt of written notice by the Bank from such undersigned to that effect or from the legal representative of the undersigned of the death of the undersigned, in which events it will not apply as to any advances made thereafter, but will remain in full force as to the indebtedness then existing.
This guarantee is absolute and is not affected by any failure of the Bank to give notice of default on the part of the Borrower, nor by extensions granted to said Borrower, nor by any acts or omissions whatsoever by the Bank relative to the indebtedness of the Borrower or any of the undersigned or any collateral that may be secured therefor. Notice of the acceptance of this guarantee by the Bank is hereby waived by the undersigned.
Upon any default in the payment of the indebtedness covered by this guarantee, or any part thereof when due, the Bank may, if it so desires, proceed directly against the undersigned without first taking any steps against the Borrower or any collateral that it may hold, and without any prior demand or notice. This guarantee continues in full force and effect until the full amount of the limit of liability hereunder has been paid by the undersigned.
This guarantee is to cover not only the principal and interest of the indebtedness of the Borrower, but all costs reasonably incurred in and about the same, including attorneys’ fees involved in making collection against the Borrower and against the undersigned under this agreement.
It is understood that the amount of credit that may be extended to Borrower, and the amount of indebtedness or liability that may be incurred by Borrower is not limited. The liability of the undersigned to the Bank hereunder shall be unlimited unless otherwise indicated herein.
If more than one, the undersigned are liable jointly and severally for the full amount of indebtedness- unpaid by the Borrower. Suits for the enforcement of this guarantee may be brought successively against one or more of the undersigned, and the Bank may compound or settle with any one of the undersigned without releasing or impairing its rights against the others of the undersigned. This guarantee shall continue in full force and effect and bind the undersigned notwithstanding the death or release of any co-guarantor or other party hereto.
This guarantee shall bind the heirs, personal representatives, and successors of the undersigned, and shall inure to the benefit of the Bank and its successors.

This guarantee is (check one):

Unsecured.
Secured by a Security interest in certain collateral described in a security agreement to be executed concurrently herewith by the undersigned. The undersigned agrees promptly upon the execution of this guarantee to execute and deliver such papers and forms as shall be deemed by the Bank to be necessary or advisable to create a perfected security interest in such collateral.
The continuing guarantee granted by the undersigned is secured by the pledge of any property and/or securities delivered to the Bank and by any substitutions therefor or additions thereto which may be hereafter made, and by any and all monies, securities or property of the undersigned that may have been or may be hereafter pledged to or come into possession of the Bank, including money on deposit with the Bank, and the checking or savings account of the undersigned, and monies, securities or property of the undersigned in transit to said Bank. Upon the non-payment of any debt, the repayment of which is hereby guaranteed, the Bank is hereby irrevocably authorized to sell such property and/or securities, or any part thereof, at public or private sale, without recourse to judicial proceedings, and in accordance with the Uniform Commercial Code of Illinois, and Bank is hereby irrevocably authorized to make any transfers or deliveries to the purchaser or purchasers at such sale of any such property and/or securities and to apply the proceeds thereof (1) to the payment of all costs and commissions for selling and (2) to the payment of any indebtedness of Borrower, including principal, interest and attorneys’ fees, up to the amount guaranteed hereunder.
Dated at Mt. Vernon, Illinois this 10th day of December 1986.
Isl Betty J. Dowell
Betty J. Dowell”

The trial court record also includes a copy of plaintiff’s commercial loan activity journal dated January 7, 1987, which states that the $45,000 note was renewed on December 12, 1986. Witnesses for plaintiff testified that interest on the December 1986 renewal note would begin to accrue on December 9, 1986. No representatives of plaintiff discussed with defendant the implications of her signing the December 10, 1986, guaranty. Defendant signed the December 1986 guaranty at her husband’s request. A later renewal was made on the $45,000 note, but all issues pertained to the December 1986 renewal and guaranty.

Defendant’s husband died on March 2, 1988, with outstanding debts to plaintiff. On September 2, 1988, plaintiff filed a four-count complaint seeking recovery from defendant. Plaintiff was granted summary judgment as to count I after defendant admitted liability in her answer. Count IV was subsequently dismissed. Count II sought recovery on the $60,000 note, while count III sought recovery on the $45,000 note. Counts II and III were allowed to go to trial on October 10 and 11, 1989. At the close of all the evidence, the trial court denied defendant’s motion for directed verdict and granted plaintiff’s motion for directed verdict. The trial court found that the second guaranty signed by defendant in December 1986 revived the first guaranty signed on April 12, 1976, that the second guaranty was a “new promise” as provided for in section 13 — 206 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 206), that there was adequate consideration for the first guaranty so that the signing of the second guaranty revived the first guaranty, and that, as a matter of law, judgment should be entered on behalf of plaintiff and against defendant as to both counts II and III. Subsequently, on December 19, 1989, a hearing was held on the issue of attorney fees after which the trial court entered judgment in the amount of $115,403.90 for plaintiff against defendant with $109,423.20 attributable to principal and interest, and $5,980.70 attributable to attorney fees.

Defendant initially contends that because a directed verdict was entered in this case, a de novo review is required by us with no presumption of validity being given to the trial court’s ruling. However, the law is clear that “verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) It is this standard we will use to review the case at bar.

The first issue we must consider is whether the second guaranty signed by defendant on December 10, 1986, is a “new promise” within the meaning of section 13 — 206 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 206). Defendant contends that the guaranty which she signed on December 10, 1986, was not a “new promise” within the meaning of the statute because it did not specifically mention the April 12, 1976, guaranty. Defendant argues that the first guaranty must have been specifically referred to in the second guaranty in order to show a clear intent to revive the original promise. Plaintiff responds that the second guaranty was a “new promise” within the meaning of the statute and that the trial court correctly found that the new promise revived and renewed the original obligation which was supported by consideration. We agree.

Section 13 — 206 provides:

“§13 — 206. Ten year limitation. Except as provided in Section 2 — 725 of the ‘Uniform Commercial Code’ [Ill. Rev. Stat. 1985, ch. 26, par. 2 — 725], actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay has been made, in writing, on any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay.” Ill. Rev. Stat. 1985, ch. 110, par. 13 — 206.

The purpose of the statute of limitations is to discourage the presentation of stale claims and to encourage diligence in bringing actions. (Nicolai v. Mason (1983), 118 Ill. App. 3d 300, 302, 454 N.E.2d 1049, 1050.) When a statute of limitations is established, it bars any remedy for recovery of a debt. However, a moral obligation to pay the debt remains, even though the remedy for enforcement has been extinguished. As stated over 130 years ago:

“ ‘The debt constituting an unquestioned moral obligation, is, however, a good consideration to support a promise to perform that obligation, and a new promise, based upon this moral obligation, is binding upon the debtor in avoidance of the bar of the statute.’ ” (Kallenbach v. Dickinson (1881), 100 Ill. 427, 434, quoting Keener v. Crull (1857), 19 Ill. 189, 190.)

Such logic is the basis for the present statute of limitations found in section 13 — 206 of the Code. By its language, a new promise to pay the debt, even after the 10-year period has expired, will remove the bar of the statute of limitations.

It has been said that “ ‘[i]f the debt be identified with such certainty as will clearly determine its character and show a present unqualified willingness and intention to pay, that is sufficient to constitute the new promise.’ ” (Hurtt v. Steven (1948), 333 Ill. App. 181, 185, 77 N.E.2d 204, 206, quoting Walker v. Freeman (1904), 209 Ill. 17, 22-23, 70 N.E. 595, 597.) The language used in the second guaranty stated that defendant promised to pay all debts and liabilities of N.Y. Dowell, Sr., existing prior to December 10, 1986, or created by the December 10, 1986, document. While the second guaranty does not specifically refer to the first, we believe that the general language adequately apprised defendant that she was renewing her obligation to guarantee, without exception, the debts of her husband as she first promised on April 12, 1976.

Defendant cites a myriad of cases in her brief in an attempt to support her contention that because the April 12, 1976, guaranty is not specifically referred to in the second guaranty, it does not revive the first promise. We have examined the authorities relied upon by defendant, but have found none which convince us that the first guaranty had to be mentioned specifically in the second guaranty in order for it to constitute a bar to the statute of limitations. For example, Swanson v. Willrett (1929), 254 Ill. App. 92, which was relied upon by defendant, does not stand for the proposition that in order to revive an old promise, the first promise must be specifically referred to by date. Rather, the Swanson court found that the oral statement by the debtor, “I will be down to see you this evening and take care of it this evening” was insufficient to establish a promise removing the bar of the statute of limitations. Such a statement can hardly be said to constitute a clear and absolute promise to pay, whereas, the instant language does contain an unequivocal and sufficiently clear promise. Defendant signed a written guaranty with sweeping language that she was guaranteeing all indebtedness, obligations, and liabilities of her husband. We believe the second guaranty was sufficiently clear and defendant’s signature on it showed a continued willingness and intention to pay as first agreed to on April 12, 1976.

Defendant also places great reliance on Farmers State Bank v. Doering (1980), 80 Ill. App. 3d 959, 400 N.E.2d 705; however, Doering did not concern the interpretation of a second guaranty as it relates to the statute of limitations. Instead, Doering stands for the general proposition that guaranty contracts are to be strictly construed in favor of the guarantor, a proposition with which we have no quarrel. Applying the Doering standard, we find that the second guaranty was sufficiently clear so as to raise a bar to the statute of limitations as provided for in section 13 — 206 of the Code.

It is undisputed that a “new promise” does not require new consideration in order to effectively bar the statute of limitations defense. It is the new promise, supported by the original consideration, that effectively takes the case out of the statute of limitations. (Robinson v. Briscoe (1894), 55 Ill. App. 131.) There is no contention that the first guaranty was not supported by adequate consideration, as the $4,000 note was not received by defendant’s husband until four days after defendant signed the original guaranty. The second guaranty revived the first guaranty, making defendant liable for both the $60,000 note and the $45,000 note. Therefore, the trial court did not err in directing a verdict for plaintiff on both counts II and III.

Because we find the statute of limitations defense inapplicable to the first guaranty, we need not address the issue whether the second guaranty was supported by its own consideration. As pointed out by the trial court, the consideration issue is but a red herring. The remaining issue we are obliged to address is whether the trial court erred in awarding plaintiff attorney fees.

Defendant argues that the issue of attorney fees is a question of fact which must be decided by a jury, given the defendant’s request for a jury. Defendant makes a general statement that she has a constitutional right to have a jury decide the issue of attorney fees. We are unconvinced by defendant’s argument.

Defendant cited no cases which have held that it is a jury’s duty, not a trial court’s duty, to determine the amount of reasonable attorney fees. After our own search, we can find no such cases. Instead, we note that there are situations in which the General Assembly has made statutory provisions for the awarding of attorney fees by the trial court rather than a jury. For example, section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 767) provides that the determination of reasonable attorney fees in a case in which there has been unreasonable and vexatious delay or refusal to pay a claim may be made by the court rather than a jury. (See Stewart v. Guarantee Trust Life Insurance Co. (1944), 321 Ill. App. 588, 593, 53 N.E.2d 476, 478.) Section 17 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2517) also provides for the determination of an award of attorney fees by a trial court rather than a jury. Moreover, a court may properly award attorney fees according to the specific language of a contract. (Exchange National Bank v. Sampson (1989), 186 Ill. App. 3d 969, 974, 542 N.E.2d 1303, 1307; Ferrara v. Collins (1983), 119 Ill. App. 3d 819, 825, 457 N.E.2d 109, 113.) Absent a manifest abuse of discretion, the trial court’s award of attorney fees will not be disturbed. 186 Ill. App. 3d at 974, 542 N.E.2d at 1307.

In the instant case, plaintiff’s claim for attorney fees at trial was grounded upon language provided for on both notes. The August 2, 1985, principal note for $60,000 contains the following language relating to attorney fees:

“If suit shall be brought to collect this note or foreclose the mortgage hereinafter mentioned, then and in either such case all costs and expenses which may be incurred in such suit or suits, including a reasonable attorney’s fee to be fixed by the court, shall be added to and made a part of such judgment or decree as may be obtained and shall be collectible therewith.”

The $45,000 note originally signed on June 9, 1986, contains the following language relating to attorney fees:

“If this note be not paid at maturity, the parties hereto agree to pay interest on the principal amount due at the rate above provided for and all costs of collection including fifteen per cent (15%) of the amount due hereon for attorney’s fees.”

The $45,000 renewal note states:

“If this note be not paid upon demand and if it should be placed in the hands of an attorney for collection, the parties hereto agree to pay additional costs for collection and fifteen percent of the amount due as an attorney’s fee.”

Clearly, the notes on which plaintiff was suing provided for the award of attorney fees. The $60,000 note allows for the award of “a reasonable attorney’s fee” while the $45,000 note provides for “fifteen per cent (15%) of the amount due hereon for attorney’s fees.” Plaintiff’s application for fees included affidavits which describe the work performed, the total hours of time spent in preparation, the hourly rates for such time, and the out-of-pocket expenses incurred. Moreover, plaintiff’s attorney introduced the testimony of another local attorney who has performed similar work for commercial clients and who found the amount of work performed and the hourly rate charged to be reasonable. The award of attorney fees in the amount of $5,980.70 was without a doubt a reasonable award. Because we find that the award was reasonable, and because we are unconvinced by defendant’s argument that it is the jury’s province to determine the amount of attorney fees to be awarded, we conclude that the trial court did not err in awarding plaintiff attorney fees.

For the foregoing reasons, the judgment of the circuit court of Jefferson County is affirmed.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELODY TRIPP, Defendant-Appellant.
    Fifth District
    No. 5—90—0175
    Opinion filed February 26, 1991.

      Richard E. White, of Murphysboro, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

On May 20, 1988, defendant, Melody A. Tripp, was charged by a three-count indictment with armed violence predicated on theft of a motor vehicle, theft of a motor vehicle, and theft over $300. The case was tried to a court sitting without a jury on October 26 and 27, 1988. At the conclusion of all the evidence, and during his closing argument, defendant’s counsel argued that section 4 — 103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 4 — 103(a)(1)), which establishes the offense of theft of a motor vehicle, had been declared unconstitutional and therefore could not serve as the predicate offense for the charge of armed violence. This argument had not been raised previously by defendant. Defendant’s counsel also argued the sufficiency of the evidence to convict defendant on any of the counts and asked the court to enter a verdict of not guilty on all counts. The court took the matter under advisement.

On November 2, 1988, the court announced its decision in open court and entered a written memorandum of decision and judgment. The court agreed with defendant that the statute establishing the offense of theft of a motor vehicle was unconstitutional and accordingly dismissed counts I and II of the indictment for failure to state an offense. The court found the defendant guilty of count III, theft over $300. The court also held:

“To make the record abundantly clear with regard to Count I and Count II, the court will also find that the State has sustained its burden of proof as to each of those counts, but, in view of the constitutional infirmities contained in this statute, no judgment of guilty will be entered as these charges do not state an offense. This finding is made in the unlikely event that this judgment is set aside on review by either the Appellate or Supreme Court and the question arises as to the trial court’s assessment of the evidence before it on Count I and Count II.”

The State filed a motion to reconsider, which was denied on November 21, 1989. On that same date, defendant was sentenced to serve five years in the Department of Corrections on her conviction for theft over $300.

The State appealed from the trial court’s judgment and, on June 28, 1989, the Illinois Supreme Court entered an order vacating the judgment of the trial court and remanding the cause for further proceedings, based upon its holding that the statute was constitutional.

On August 1, 1989, the State filed a motion to enter judgments of conviction on counts I and II of the indictment based upon the trial court’s finding that the State had sustained its burden of proof as to those counts. The defendant filed a motion to dismiss, arguing that any further proceedings were barred by statutory and constitutional double jeopardy principles. After receiving briefs and hearing argument, the court entered its memorandum of decision and order on March 9, 1990. The court found that counts I and II had been dismissed on motion of defendant before the trial court had reached the factual issues in the case. Such a dismissal did not constitute an acquittal of the charges. The court held that the instant case is indistinguishable from United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187, Lee v. United States (1977), 432 U.S. 23, 53 L. Ed. 2d 80, 97 S. Ct. 2141, and People v. Luallen (1989), 188 Ill. App. 3d 862, 544 N.E.2d 1206. Accordingly, the court denied defendant’s motion to dismiss the State’s motion to enter judgments of conviction on counts I and II. It is from this order which the defendant now appeals.

On appeal, defendant argues that the dismissal of counts I and II constituted an implied acquittal of defendant on those charges, and that double jeopardy principles prohibit any further prosecution of those charges. Defendant argues that the dismissal was a resolution of the case in defendant’s favor and was not an attempt by defendant to avoid submitting the question of guilt or innocence to the jury. Defendant argues that the question of her guilt or innocence was submitted to the trier of fact and that this distinguishes her case from Scott and Luallen. Defendant cites numerous cases in support of her argument, all of which are clearly distinguishable from the case at bar. We will not discuss those cases because we think, as did the trial court, that the instant case falls squarely within the holding of United States v. Scott. Furthermore, Scott squarely addresses each of the arguments which defendant now raises on appeal and resolves them in favor of the prosecution.

In United States v. Scott, defendant was charged in Federal court in a three-count indictment with various drug offenses. Before his trial and twice during trial, defendant moved to dismiss two of the charges on the ground that preindictment delay had prejudiced his defense. At the close of all the evidence, the court granted defendant’s motion. The third count was submitted to the jury, which returned a verdict of not guilty. The government appealed the dismissals of the two counts to the court of appeals, which dismissed the appeal, ruling that any further prosecution would violate the double jeopardy clause of the fifth amendment to the United States Constitution. The government then appealed the dismissal of only one count to the United States Supreme Court. The Supreme Court held that further prosecution was not barred by the double jeopardy clause.

The court held that dismissal of charges, upon a defendant’s motion which is unrelated to factual guilt or innocence, is not the equivalent of an acquittal, for an acquittal occurs only when the trial court has actually resolved in favor of defendant some or all of the factual elements of the offense charged. (Scott, 437 U.S. at 97, 57 L. Ed. 2d at 78, 98 S. Ct. at 2197.) Where a charge has been dismissed without a resolution of any of the factual elements relating to guilt or innocence, the double jeopardy clause will not protect a defendant from his voluntary choice to forego his right to have his guilt or innocence determined before the first trier of fact.

In Scott, as in the instant case, the prosecution was quite willing to submit the question of defendant’s guilt or innocence to the trier of fact, but the defendant elected to seek termination of the trial on grounds unrelated to guilt or innocence. The instant case, like Scott, involves a defendant who chose to avoid conviction and imprisonment, not because of her assertion that the prosecution had failed to sustain its burden of proof, but because of a legal claim that the case against her must fail even though it might satisfy the trier of fact that defendant was guilty beyond a reasonable doubt. In the instant case, as in Scott, defendant successfully avoided submitting the question of her guilt or innocence to the trier of fact by persuading the trial court to dismiss the charges on a basis which did not depend on guilt or innocence. Defendant was thus neither convicted nor acquitted. In such a case, the double jeopardy clause does not bar further prosecution of the defendant.

People v. Luallen (1989), 188 Ill. App. 3d 862, 544 N.E.2d 1206, is also similar to the case at bar. In Luallen, after the jury was impaneled it was revealed that the State could not locate a certain piece of evidence. Defendant, arguing that this evidence was vital to her case, moved for dismissal of the charge. The court declared a mistrial and dismissed the charge. Eight days later, the United States Supreme Court decided Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333, in which it held that, unless a defendant can show bad faith, failure to preserve evidence does not constitute a denial of due process. The State then moved for reconsideration, the motion was granted and the charge reinstated.

On appeal, defendant argued that dismissal of the charges terminated the case and amounted to an acquittal. The Fourth District of the Appellate Court held that defendant had sought dismissal of the case based not on a resolution of her guilt or innocence, but on a perceived due process problem concerning preservation of evidence. Thus, the court held, the case fell squarely under the ambit of Scott and the double jeopardy clause did not apply. We think the instant case also falls squarely under the ambit of Scott, and the double jeopardy clause does not apply.

Defendant argues, however, that her case differs from Scott because, although she argued the unconstitutionality of the statute, she allowed the question of her guilt or innocence to be submitted to the court. The court, she argues, decided to dismiss the charges rather than resolve the question of her guilt or innocence. We are not persuaded by defendant’s argument. By raising the constitutionality of the statute under which defendant was charged, defendant forced the court to resolve that issue prior to addressing the question of defendant’s guilt or innocence. Once the court found the statute unconstitutional, it had no choice but to dismiss the charges. There is no material difference between the situation presented in the case at bar and a situation where a defendant moves outright for dismissal of the charges. The dismissal of counts I and II did not in any way constitute a resolution of the factual elements of those charges, but was based on a legal conclusion. Defendant deliberately chose to seek termination of the proceedings against her on a basis unrelated to factual issues of guilt or innocence. Thus, the double jeopardy clause does not bar further prosecution. Furthermore, to the extent the court did resolve the question of defendant’s guilt or innocence, it resolved it adversely to defendant. We see no double jeopardy bar to entering judgment on the court’s findings as to counts I and II.

Finally, defendant argues that, pursuant to People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, she cannot be convicted of theft of a motor vehicle because such a conviction would be based on the same physical act as her conviction for theft over $300. Defendant is correct that more than one offense cannot be carved from the same physical act (King, 66 Ill. 2d at 566, 363 N.E.2d at 844), and that, where two separate judgments and sentences are entered for two convictions based upon a single physical act, one of the judgments and sentences must be vacated. (People v. Depner (1980), 89 Ill. App. 3d 689, 694, 411 N.E.2d 1368, 1373.) Defendant is also correct that the offenses of theft of a motor vehicle and theft over $300 are, in this case, carved from the same physical act. Defendant also argues that the double jeopardy clause prohibits multiple prosecutions for different offenses based upon a single physical act.

However, neither King nor the double jeopardy clause prohibits simultaneous prosecutions for more than one crime carved from a single physical act. A defendant properly may be charged simultaneously with more than one crime based upon a single physical act. King only stands for the proposition that, if multiple convictions are entered for those crimes, judgment and sentence may only be entered on the most serious offense. In the instant case, a single prosecution was brought against defendant. She was charged with two offenses based upon a single physical act. Had the defendant not caused one of the charges to be dismissed, she would have been convicted of both, but judgment and sentence would have been entered only on one. Judgment on the charge of armed violence would have been proper based upon her conviction for theft of a motor vehicle. Neither King nor the double jeopardy clause prohibits entry of judgment on the charge of armed violence.

For the foregoing reasons, the judgment of the circuit court of Franklin County denying defendant’s motion to dismiss the State’s motion to enter judgment on counts I and II of the indictment is affirmed.

Affirmed.

HOWERTON and LEWIS, JJ., concur.


text:
    AUGUST J. FELDKER et al., Plaintiffs and Counterdefendants-Appellees, v. RON CROOK, Defendant and Counterplaintiff-Appellant (The County of St. Clair, Defendant).
    Fifth District
    No. 5—88—0311
    Opinion filed February 26, 1991.

      Sam S. Pessin, of Pessin, Baird, Belsheim & Wells, of Belleville, for appellant.
    No brief filed for appellees.
   JUSTICE WELCH

delivered the opinion of the court;

The dispute in this case, filed August 21, 1985, involves the existence of a public road alleged by plaintiffs and counterdefendants, August J. Feldker and MidAmerica Trust Co., trustee under trust No. 1417 — 51—3 (hereinafter Feldker), to be located on real property immediately adjacent to the west of Feldker’s property and owned by defendant and counterplaintiff, Ron Crook. This roadway was alleged by Feldker to have been the sole access to his and his predecessors in title’s property for 20 years or more. On August 20, 1985, Crook is alleged to have commenced digging up this 300-foot strip of roadway with a backhoe in order to obstruct the orderly flow of traffic to Feldker’s premises. Feldker sought a temporary restraining order, preliminary injunction and permanent injunction against Crook from disrupting the orderly flow of traffic along this roadway and from tearing up, damaging, or otherwise doing any work or construction upon the roadway. The circuit court of St. Clair County entered a temporary restraining order without notice on August 21, 1985, against Crook for the relief sought by Feldker.

Feldker’s property, which is held in the above-named land trust, is described as lot 24, excepting the east five feet thereof, of Ogle Assessment Plat No. 3, located in the northwest corner of section 12, in Stookey Township. Crook’s property is located in the northeast comer of section 11, in Stookey Township, and is immediately adjacent to Feldker’s property to the west. County Highway 84, also known as South 74th Street in Belleville, Illinois, is located to the south of lot 24, and is east-west in course in this area, but bends sharply to the south at the dividing line between sections 11 and 12 until 74th Street meets Illinois Route 15. Feldker contends that the north-south portion of South 74th Street, if extended to the north where the bend in the road occurs, would be the approximate location of the roadway in question.

In his counterclaim, filed September 13, 1985, Crook sought a declaratory judgment as to: the existence of a public road, as a matter of law, along or near the dividing line between sections 11 and 12; whether, if a public road existed, it was located as originally platted, straddling the section 11/12 dividing line such that 20 feet lay to the west of the line and 20 feet lay to the east of the line; and whether a permissive easement for road purposes for the benefit of both parties and at the license and permission of Crook and his predecessors in title existed with regard to the alleged roadway. Crook also sought in his counterclaim an injunction against Feldker: from interfering with Crook’s right of free use of the public road as originally platted, lying along the section 11/12 dividing line; restricting Feldker from using Crook’s land which lies outside the originally platted road, without Crook’s consent; and restricting Feldker from changing the elevation, direction or location of the public road as originally platted.

St. Clair County was joined as a defendant in Feldker’s amended complaint, filed March 30, 1987. In the amended complaint Feldker asked the court to find and set the exact position and width of the alleged public roadway. A bench trial was held in the instant case to consider the counterclaim and amended complaint on June 24, 1987. After consideration of the parties’ written memoranda of law and the trial evidence, the court entered judgment on July 31, 1987, finding that a public road by prescription was established as early as the 1800’s, the centerline of which was located on the section line between sections 11 and 12, township 1 north, range 9 west of the 3rd principal meridian, St. Clair County, Illinois. The court further found that in about 1950 the centerline of the roadway was established along a line parallel to the common section line of sections 11 and 12, but 20 feet west thereof, and that all of the evidence since 1950 was consistent with that conclusion. The court held that a 40-foot-wide roadway exists extending from the northwest corner of lot 24 to the southwest corner of lot 24, the east line of which is the west line of lot 24 and the center line of which is a line parallel to the west line of lot 24 and 20 feet west thereof. Crook filed a post-trial motion which was denied September 10, 1987. Crook filed a notice of appeal with this court, but said appeal was dismissed on March 14, 1988, for lack of jurisdiction because the order of the court below was not final and appealable.

The court below entered an amended order on May 6, 1988, which disposed of all" remaining issues. This order reiterated the court’s findings of fact and holding in its order of July 31, 1987, regarding the existence and location of the public road, but also held that because there was no present danger that the orderly flow of traffic along the roadway in question was presently being obstructed or damaged or would be damaged or obstructed in the immediate future, Feldker’s request for an injunction was denied. The court also found that the public roadway was not presently a permissive easement at the license or permission of Mr. Crook and/or his predecessor in title and denied the relief sought in Crook’s counterclaim. Defendant, Ron Crook, now appeals from the amended order of the circuit court of St. Clair County, entered May 6, 1988. Crook contends on appeal that the judgment was contrary to law with regard to the finding of a public highway by prescription and that the judgment was against the manifest weight of the evidence.

Mr. William Moerchen, a land surveyor for 15 years with Thouvenot, Wade, and Moerchen of Belleville, Illinois, testified on behalf of plaintiff that he had performed a survey on lot 24 of Ogle Assessment Plat No. 3 prior to the improvement of the property with plaintiff’s Fairway Condominiums. Moerchen identified plaintiff’s exhibit No. 2 as a copy of that survey. On this exhibit Moerchen identified a driveway 40 feet wide lying to the west of plaintiff’s condominiums and on a straight line path if 74th Street were extended instead of curving south of plaintiff’s property. Moerchen identified some trees located near the section 11/12 dividing line and the driveway and based on their stated width, opined that they could have been at least 30 years old when the survey was prepared. He stated that he used the Ogle’s Assessment Plat No. 3, plaintiff’s exhibit No. 3, when he prepared this survey. Moerchen testified that there was no right-of-way on lot 24 shown on the assessment plat but that the plat did show the right-of-way line on 74th Street directly south of lot 24. He opined that if 74th Street were extended north at the bend in the road, the right-of-way line would fall to the west of lot 24. Moerchen next identified plaintiff’s exhibit No. 4 as a copy of the survey for Country Club Heights subdivision, and that this survey was prepared by the surveying company with which he is employed. He opined that if 74th Street as shown on the survey were extended north, it would fall to the west of the section 11/12 dividing line and that the entire driveway would be encompassed within that 40-foot-wide roadway.

Moerchen identified plaintiff’s exhibit No. 5 as the plat located at page 20 of the Chicago Title Company Atlas, dated August 26, 1951, and used in the period prior to the county survey done by the Sidwell Company. He stated that plaintiff’s exhibit No. 5 showed the center line of 74th Street as the section 11/12 dividing line as it traveled north and that the center line jogged at Carr Drive such that the right-of-way is entirely to the west of the section line. He projected the right-of-way north on this exhibit and opined that none of the “extended” 74th Street right-of-way would fall within the confines of lot 24. Moerchen identified plaintiff’s exhibit No. 6 as page 22 of Chicago Title’s atlas, the survey for the Dorchester Village subdivision which is located to the east of 74th Street. He opined that this survey also showed the extension of 74th Street as being located entirely outside of lot 24.

Moerchen next identified the Press Company Atlas, dated 1976, and plaintiff’s exhibit No. 7 as page 23 from that atlas showing the historic plat of Stookey Township and part of the City of Belleville. This plat showed that Country Club Heights was originally part of a 155-acre farm and showed the location of a road along the section 11/ 12 dividing line. He stated that the east line of the roadway was shown as the section line. Page 213 of the Press Company Atlas was identified as plaintiff’s exhibit 8 and showed the Ogle Place Assessment Plat No. 3. Moerchen stated that if 74th Street as shown on this plat were projected to the north, it would lie entirely off lot 24. Plaintiff’s exhibit No. 9 was identified as page 212 of the Press Company Atlas showing Ogle Place Assessment plat No. 2, which according to Moerchen showed the northwest corner of section 12 as the boundary of the plat for Ogle Place but which was not intended to be a survey of the area. Plaintiff’s exhibit No. 10 was identified as the first Ogle Place Assessment Plat. Moerchen stated that it was a survey of the subdivision to the east of Ogle Place as none of the Ogle Place lots had yet been sold but did show the public road extending north along the section 11/12 line as well as curving east as 74th Street is now located. Page 255 of the Press Company Atlas was identified as plaintiff’s exhibit No. 11 showing a map of part of Stookey Township and locating a road west of lot 24 which extended north into the Country Club property as St. Andrews Drive. Plaintiff’s exhibit No. 13 was identified by Moerchen as a plat recorded in St. Clair County in 1954, showing the relocating and widening of South 74th Street. According to Moerchen, if South 74th Street were extended north, it would lie entirely outside of lot 24.

Moerchen identified plaintiff’s exhibit No. 14 as the survey for the improvements to lot 24 which plaintiff incorporated in the property. It showed the distance of the driveway coming in to serve the property. Plaintiff’s exhibits 15 and 16 were aerial photographs of lot 24 taken prior to the widening of South 74th Street and showing the house located on the property prior to the condominiums which plaintiff built. These pictures showed the driveway coming in to serve the property and the location of trees and shrubbery. He opined that the survey performed by his firm, plaintiff’s exhibit No. 2, was accurate when viewed in conjunction with these photographs and that no part of the roadway fell within lot 24.

Moerchen explained the change in location of a road located on the section line on the early plats to its present location if South 74th Street were extended. He testified that early roads were not well paved, bad spots could occur and the location of the road would shift along passable routes. He stated that with the advent of asphalt or concrete surfacing of roads the routes would become fixed. He testified that since 1950 the location of South 74th Street had been fixed. Moerchen testified on cross-examination that, while some plats he reviewed showed the location of a roadway going up the section dividing line, the roadway shown did not show any dimensions. He admitted, however, that the roadway in question appears to be a private road, servicing only one property, and that there is no county sign designation showing the roadway to be part of 74th Street. He also admitted that there was no vacation recorded for the north part of South 74th Street as shown on the early plats. Moerchen explained, however, that these atlases were unofficial records, drawn from official plats, and that the location of some roads which had no record could be in error because they were based on the person’s judgment. On cross-examination, Moerchen also admitted that he had reviewed the plat recorded in 1911 for the E.C. Kramer subdivision (defendant’s exhibit No. 1), which is located to the north of lot 24, and that this plat showed St. Andrews Road going south into a road straddling the section 11/12 dividing line.

Don Parker, an employee of the county highway department, testified on behalf of plaintiff that county highway records indicate a right-of-way coming up 74th Street along the west side of the section 11/12 line extending to the four corners between sections 1, 2, 11, and 12, but he could not say exactly where the road was located with regard to the section line. Plaintiff later testified that he received substantially the same opinion in an April 1986 letter from the St. Clair County superintendent of highways, identified by Feldker as plaintiff’s exhibit No. 21. However, Parker admitted on cross-examination that the county has never spent any money to improve any of that land for public road purposes and has not designated this land as a county public road, nor do any Stookey Township records show this to be a public road. He stated that Joe Seppi, who built the original structure on lot 24, used a roadway that was already there for access to his property and that Earl Jackson used the road for access to his property in Powder Mill Woods, located off of St. Andrews Drive.

August Feldker testified on his own behalf that he had developed what is now known as the Fairway Condominiums on lot 24 after purchasing this property from Mr. & Mrs. Joseph Seiper in December 1985. Feldker testified that he had been a resident of the Belleville area for 20 years and a member of St. Clair Country Club Golf Course, which borders the north edge of lot 24. He recalled that the access roadway to lot 24 was in substantially the same position as it had been when aerial photographs, identified as plaintiff’s exhibits No. 15 and No. 16, were taken in the 1950’s. When the condominiums were constructed, he asphalted this roadway. Feldker testified that he originally submitted an application for building permit for the condominiums showing the building facing south to 74th Street and asking for entrance to his property off 74th Street. This first application was denied, and he was required to turn the building around to face the extension of 74th Street and access the property from this roadway because the county authorities said access from 74th Street would have been too hazardous in the curved area.

Leonard Parrish testified on behalf of plaintiff that he lived in the house located on lot 24 from 1960 to 1969. He rented the house from Mrs. Patterson. He testified that he always got to his house from the drive off 74th Street. He chipped and oiled the roadway while he lived there and remembered the stone, section-corner marker located at the rear of the property and that the roadway was to the west of the stone. The roadway came straight north from 74th Street and angled toward the stone marker past the back of the house where his garage was located. He remembered that the old Schwinn house was located on property in section 11 just east of his property and on the other side of the private drive. No one lived in the house at this time but the three Schwinn sisters would stay at the house at night in order to keep vandals away. He recalled that the road went north behind the golf course to Powder Mill Woods and was called St. Andrews Drive. He once tried to stop Earl Jackson from using the road when he was building a house in Powder Mill Woods but was told by the sheriff to remove the barricade because it was a public road.

Doris Seiper testified on behalf of plaintiff that she and her husband purchased the house on lot 24 in October 1969 and sold it to Feldker in 1985. They used the roadway in question for access to their property and it was located to the west of the stone corner marker. The defendant, Ron Crook, purchased the farm property located next door to her property. She testified that they had many arguments with defendant after he purchased the land because he claimed that he owned the roadway. She admitted that there was always a sign along the roadway that read “private road.” Defendant’s exhibit No. 2 is a photograph showing a portion of plaintiff’s condominiums, the roadway, and the “private road” sign.

Richard Weinel, registered by the State of Illinois as a land surveyor for nearly 40 years, testified on behalf of defendant that in 1957 he prepared a survey for the St. Clair Country Club and from his knowledge of county records there was a platted road along the section line between sections 11 and 12. He identified defendant’s exhibit No. 3, a 1910 plat of the Ogle land, which showed a road 30 feet in width, 15 feet on either side of the section 11/12 line with a stone marking the corner between sections 11 and 12. Weinel identified as defendant’s exhibit No. 4 page 123 of county surveyors’ record book H, which was a survey prepared in 1887, as amended in 1895, for Fred Schwinn. He testified that this survey shows a county road running south along the east line of section 11, which is the west line of section 12, and located equidistant on each side of the dividing line. Next Mr. Weinel identified defendant’s exhibit No. 5, page 27 from the 1901 standard atlas of St. Clair County, showing the road running along the line between sections 11 and 12. Weinel also identified as defendant’s exhibit No. 6 page 32 of the Current and Historical Atlas of St. Clair County, compiled and published by John Hollman in 1936, showing the road running south along the section line. He opined that these atlas sheets conform to the county surveyors’ record plat that shows the county road running south on each side of the section line. Mr. Moerchen had earlier identified this same exhibit as plaintiff’s exhibit No. 18 but stated that, while it showed a public road that is now known as 74th Street originally extending up to the corner of sections 11 and 12, he could not tell from the plat whether the road was located as it is today or whether it straddled the section line. Weinel also identified the 1911 Kramer plat as defendant’s exhibit No. 7, an official county record located at page 48 in plat book R, and pointed out the stone dividing sections 11 and 12 and a road running south from the stone, equidistant on both sides.

Weinel testified that he prepared a survey showing the boundaries of the St. Clair Country Club property in 1981 and identified defendant’s exhibit No. 8 as that survey. Defendant’s exhibit No. 8 shows a 30-foot-wide public road as recorded in deed book 571, page 272, which bordered the north of lot 24; however, this road is no longer in use. He testified that sections 11 and 12 are shown on the Country Club survey with a stone marking their common corner with sections I and 2 immediately to the north. He showed a road on this survey running south from the stone marker which also marked the center line of the road, as well as the section 11/12 line. Weinel testified that he found no ordinance or resolution vacating that road running along the section 11/12 line. He also stated that, when he first traveled the road in 1956, it was a cinder roadway that came north from 74th Street past the Schwinn residence to the section comer, then angled off to the left to Earl Jackson’s Powder Mill Woods’ property, but he had no knowledge of whether the county ever maintained this section of road.

George Nold testified on behalf of defendant that he had been employed by Chicago Title for 45 years prior to his retirement seven years earlier. Nold prepared a report for defendant in 1987 with regard to the property between sections 11 and 12 in Stookey Township and that report was admitted into evidence as defendant’s exhibit No. 9. He testified that the first evidence he found of a roadway in this area was in a 1908 survey by George Knobeloch and that the section 11/12 line ran south along the center of the roadway. He stated that the Kramer plat, recorded in 1911, also showed a portion of a roadway running south from the section 11/12 corner.

Nold’s research indicated that the roadway now known as South 74th Street altered its direction at various times throughout the early years until it adopted its present course. The “74th Street” road meandered westerly through section 12 to the common corner of sections II and 12, then traveled southerly along the section line to the Old St. Louis Road highway. In 1911 the road was dedicated, as shown on defendant’s exhibit No. 1, angling northwest across section 12 to the section corner and proceeding northwest as what is now the private St. Andrews Drive. This was the old public roadway shown on the E.C. Kramer subdivision plat and Mr. Weinel’s Country Club plat. Nold stated that in 1922 there was a dedication of a 40-foot roadway, which is the present position of 74th Street, but that the short strip of roadway in question from the common comer of sections 11 and 12 continued to exist and connect with 74th Street. He also referenced Ogle Place Assessment Plat No. 1 recorded in 1943 as showing a public roadway straddling the section 11/12 line. The Ogle Place Assessment Plats No. 2 and No. 3 did not show the roadway in question; however, he stated that the original owner of lot 24, Joseph Seppi, took deed to the property subject to the rights of the public in any and all legally established highways thereover, adjoining and adjacent thereto.

Nold recalled the existence and use of the old roadway and that it was common practice for county or farm roads to follow section lines, taking footage from both sides. He also recalled that when a tract in the southeast quarter of section 2, to be known as the Earl Jackson Assessment Plat, was recorded, the possibility of acquiring a tract to south, which was part of the “Schwinn farm,” was explored in order to use the roadway in question for access to 74th Street. Nold concluded that the roadway along the section 11/12 dividing line had been established by prescription and usage. While Nold admitted that the subdivision plat recorded in 1950 for Country Club Heights showed the east edge of South 74th Street being the section 11/12 dividing line, he found that this was not inconsistent with the 300-foot strip of roadway being located north of South 74th Street on the section 11/12 line in plaintiff’s exhibit No. 11.

Joseph Seppi testified on behalf of defendant that he purchased lot 24 in the early 1950’s from the Ogle estate. He built a home and garage on the lot in 1952 and lived there approximately seven years. He then sold the property to the Pattersons. Seppi remembered the road going alongside his and the Schwinn property. He stated that he had to use the Schwinns’ road, which was there when he bought the lot, to get in and out of his property. He stated that he got the Schwinns’ permission to use the road when he started building the house. He stated that his property was bordered by the sassafras trees next to the roadway and that he wanted to preserve the vegetation. He stated that he occasionally placed a load of chat on the road in order to get to the driveway and that the road itself stayed substantially the same until it was sold to the Pattersons. He also remembered the “private drive” sign posted along the roadway as shown in defendant’s exhibit No. 2 photograph. Seppi testified that the roadway extended straight to the back of his property down a hill and then turned about 30 degrees left in direction past the creek to the farm which Earl Jackson eventually bought.

Plaintiff’s theory behind the roadway in question appears to be that the “extended” 74th Street at one time was a part of 74th Street and that, as it has shifted to the west such that the east edge of the road is the section 11/12 dividing line, so has the 300-foot strip to the west of lot 24. There seems to be no doubt among the expert witnesses that a public roadway was established at one point in time along section 11/12 and that as platted the center line of the road was the section 11/12 dividing line. Plaintiff’s argument and the conclusion reached by the trial court is that, although the early plats show the center of the road to be located on the section line, this road shifted over time 20 feet to the west of the section line and the testimony of all witnesses who had lived on this property is that the roadway was located to the west of the stone section comer marker. However, defendant’s argument before this court is that the public road that did exist was located on the section line and that this road was abandoned. Defendant’s expert, Mr. Nold, concluded that the existence of the road on recorded plats disappeared with Ogle’s Assessment Plat No. 2, which was recorded prior to the conveyance to Joseph Seppi, lot 24’s first resident. Defendant maintains that the roadway in question is a private drive located to the west of the section line on his property and that the evidence supported a finding by the court that this drive was used by plaintiff’s predecessors in title only by the permission of the Schwinns, defendant’s predecessor in title. Moreover, defendant claims that plaintiff admitted in his attorney’s opening statement that the alleged roadway had never actually been used as a roadway except for access to the property, and this is consistent with the private driveway theory.

Under section 2 — 202 of the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 2 — 202), a private road becomes a public highway, by prescription, if used by the public as a highway for 15 years. “Highways” include rights of way and may be called roads in a rural area or streets in a municipal area. (Ill. Rev. Stat. 1987, ch. 121, par. 2 — 202.) The requirements necessary to establish a public highway by prescription under the statute are the same as those necessary to establish a private easement by prescription. (People ex rel. Carson v. Mateyka (1978), 57 Ill. App. 3d 991, 997, 373 N.E.2d 471, 475.) The burden of proof is on the party claiming a prescriptive right to an easement. (Castle v. Yenerich (1981), 95 Ill. App. 3d 39, 45, 419 N.E.2d 677, 681.) The use by the public must be adverse, under a claim of right, continuous and uninterrupted, with the knowledge of the owner but without his consent. (People ex rel. Kenney v. City of Goreville (1987), 154 Ill. App. 3d 1091, 1097, 507 N.E.2d 1247, 1251.) A finding that a particular way is a public highway by prescription is a finding of fact that will not be reversed on appeal unless contrary to the manifest weight of the evidence. (Mateyka, 57 Ill. App. 3d at 998, 373 N.E.2d at 476.) The location of the limits of a public road is also a question of fact, to be determined from the evidence bearing upon that question. City of Highland Park v. Driscoll (1962), 24 Ill. 2d 281, 283, 181 N.E.2d 93, 94.

We believe that there was sufficient evidence in the record to support the finding of the court below that a public road by prescription was established and that the location of its centerline was the section 11/12 dividing line. This conclusion is supported by the location of a road along the dividing line on early plats and surveys, and maps contained in the historic atlas drawn from these early plats and surveys. Moreover, this conclusion is supported by evidence concerning the origin of 74th Street, a country road which meandered in a westerly direction through section 12 to the common corner of sections 11 and 12, then proceeded in a southerly direction along the section 11/12 dividing line until it reached the Old St. Louis Road. In 1911 a road in this approximate location was dedicated (defendant’s exhibit No. 1) and continued from the stone marker dividing sections 11 and 12 to the northwest in the location of what is now St. Andrews Drive. This dedication plat shows the existence of the roadway south of the stone section corner marker and its continued use by the public would be logical to connect St. Andrews Drive with Old St. Louis Road. In 1922, 74th Street was dedicated in its present location south of lot 24. From this point forward the use, if any, of the roadway located along the section 11/12 dividing line would have been limited to those users of the farming property in sections 1, 2, 11 and 12, and use by the general public would have been discontinued.

The next step in our analysis involves whether, as plaintiff contends, the public road shifted its position 20 feet to the west such that the western boundary of the road was now located along the section 11/12 dividing line. The last official plat showing the roadway in question, Ogle’s Place Assessment Plat No. 1 (plaintiff’s exhibit No. 10), shows the roadway in question but shows its location straddling the section 11/12 dividing line. This plat was recorded in 1943. Thereafter only the section line is shown in this area.

All testimony, as well as the aerial photographs, indicates that the “drive” was in its present position, located entirely on defendant’s property, after 1950. Moerchen’s opinion that, if South 74th Street were extended north at the bend in the road south of lot 24, the extension would fall at the approximate location of the “roadway” in question is speculation and does not support a conclusion that the 300-foot strip of roadway shifted 20 feet to the west because it was still part of the public road that was once located along the section line. In point of fact, South 74th Street was relocated and widened such that its position was shifted 20 feet to the west of the section 11/12 dividing line in 1954, well after all testimony indicated that the 300-foot strip of roadway was already in its position, 20 feet to the west of the section 11/12 dividing line. In our opinion the evidence does not support a conclusion that the roadway moved from its original position 20 feet to the west but does support a conclusion that the original roadway was abandoned.

Where a public highway has been established by public authority or by prescription or use, it remains such until vacated by public authorities or abandoned. (Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority (1970), 45 Ill. 2d 243, 254, 258 N.E.2d 569, 575.) Mere nonuse is not sufficient to establish abandonment; rather, abandonment will be deemed where the public has ceased to travel a highway for a length of time sufficient to clearly indicate their acceptance of a new highway acquired with consent of the public authorities. (Yaste v. Rust (1988), 169 Ill. App. 3d 800, 803, 523 N.E.2d 1125, 1127.) As noted above, after 1922 with South 74th Street dedicated in its present location, the roadway along the section line would not have been used by the general public for access to Old St. Louis Road.

Plaintiff cites Needham v. Village of Winthrop Harbor (1928), 331 Ill. 523, 163 N.E. 468, in support of his contention that roads may meander from time to time and that over time the road along the section 11/12 dividing line meandered 20 feet to the west to its present location. In Needham the court stated that it was not necessary in order to establish a public highway by user that all vehicles traversing it follow the same route; if the user is over substantially the same strip, changes in the wheel ruts, necessitated by conditions of the road or the meeting of other vehicles, do not constitute a change of location for the road. (Needham, 331 Ill. at 532, 163 N.E. at 471.) However, in the instant case, the evidence indicates only that the user prior to 1922 was established along the section dividing line and that after 1922 that use by the general public was abandoned. In our opinion the evidence does not support a conclusion that the roadway continued to exist after 1950 but does support a conclusion that its centerline was relocated along a line parallel to, but 20 feet to the west of, the section 11/12 dividing line.

The testimony of those familiar with the road in question indicated that a road or drive was located in this area but that it was located to the west of the stone marking the section 11/12 corner. Moreover, the survey prepared by Mr. Moerchen in 1985 shows the existence of trees located along the section 11/12 dividing line at the edge of lot 24, and he opined that the trees were at least 30 years old. Mr. Seppi, the first owner of lot 24, identified the aerial photograph of the house he built on this lot and the location of the trees which lie to the east of the drive. The evidence therefore supports only a conclusion that in 1950 trees were located along the centerline of the original roadway, again supporting the conclusion of abandonment.

The issue we next must determine is whether a public roadway was established by prescription in this 300-foot strip of “roadway,” independently of the abandoned public road originally established along the section 11/12 dividing line. Where a roadway has been shown to have been openly and notoriously used by the public in a free and unrestricted manner for 15 years or more, it will be considered a public highway and the burden will be on the party who denies the existence of a public highway to show that the use was under some license or indulgence inconsistent with a claim of right by the public. (Neely v. Coffey (1980), 81 Ill. 2d 439, 443, 410 N.E.2d 839, 841-42.) The test is not the number of persons actually using it, but the character of the use — that is, whether or not the public, generally, had the free and unrestricted right to use the road. (Van Amburg v. Reynolds (1939), 372 Ill. 317, 322, 23 N.E.2d 694, 696.) However, where the first use of a roadway is over vacant and unoccupied land, the use is presumed to be permissive and not adverse, and mere permissive use can never ripen into a prescriptive right, whatever length of time such permissive use is enjoyed. (See Monroe v. Shrake (1941), 376 Ill. 253, 256, 33 N.E.2d 459, 461.) The question of whether a use is one which is adverse to the owner is one of fact to be determined by the trier of fact. Burrows v. Dintlemann (1976), 41 Ill. App. 3d 83, 86, 353 N.E.2d 708, 710.

Seppi testified that because he wanted to preserve the foliage located on the western edge of his lot, he sought permission of the Schwinn sisters, the owners of the property upon which the roadway was located, to use their “private drive.” Evidence of a neighborly relationship between the parties gives rise to a rebuttable presumption that the land was used by the permission of the owner. (Dintlemann, 41 Ill. App. 3d at 85, 353 N.E.2d at 710.) Seppi, Parrish, and Seiper, plaintiff’s predecessors in title, all testified to private use of the roadway as well as private maintenance of the road. The only use of the “roadway” other than by the residents of lot 24 and the Schwinn sisters, defendant’s predecessor in title, was by Earl Jackson when he used the roadway to get to his property located off St. Andrews, a private drive. Where land is originally laid out and used as a private way for the use of adjoining landowners, its use by the public as well does not necessarily make it a public highway where the owner keeps it up and the public use is not clearly hostile or under a claim of right. (Swinford v. Roper (1945), 389 Ill. 340, 344, 59 N.E.2d 863, 865.) Moreover, there was no record of any public maintenance of the roadway in question by the county highway department. Maintenance of a road by public authorities is a strong indication that the road is a public highway, and the converse of this proposition is no less compelling. Zacny v. Sasyk (1975), 30 Ill. App. 3d 93, 98, 332 N.E.2d 568, 573.

Given the above legal parameters and the evidence before this court, we must conclude that plaintiff did not meet his burden of proving that a public roadway was established by prescription along a line parallel to the section 11/12 dividing line but 20 feet to the west thereof. The weight of the evidence instead supports defendant’s position that use of the roadway after 1950 was as a permissive easement at the license of defendant or his predecessors in title. Accordingly, we reverse the judgment of the circuit court of St. Clair County and remand the cause to enter judgment in favor of defendant consistent with the conclusions of this court.

Reversed and remanded.

CHAPMAN and HARRISON, JJ., concur.


author: JUSTICE HOWERTON

text:
      In re MARRIAGE OF GLENNA RADAE, Petitioner-Appellee, and ALEX L. RADAE, Respondent-Appellant.
    Fifth District
    No. 5—90—0093
    Opinion filed February 26, 1991.

      Jay R. Tomerlin, of East Alton, for appellant.
    Lewis E. Mallott, of Godfrey, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

The circuit court of Madison County ordered dissolved the marriage of Glenna Radae, petitioner, and Alex Radae, respondent. Respondent, Alex, appeals from that portion of the judgment which awarded the petitioner, Glenna: (1) custody of their child; (2) $20,915 as her interest in the marital estate’s contributions made to reduce the mortgage on Alex’s nonmarital home; (3) one-half of a tax return check; and (4) one-half of the proceeds from the sale of a horse. Respondent also appeals from that portion of the circuit court’s judgment which ordered him to pay: (1) $350 to petitioner’s parents for hay and groceries received during the marriage; (2) $3,170 of a $5,000 loan provided by petitioner’s parents; and (3) petitioner’s attorney fees. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

CUSTODY

In determining custody, the circuit court must assess what is in the “best interest” of the child, and in doing so, must consider all relevant factors. (In re Marriage of Sorenson (1984), 127 Ill. App. 3d 967, 469 N.E.2d 440; Ill. Rev. Stat. 1989, ch. 40, par. 602.) Having superior opportunity to observe witnesses and evaluate evidence, the circuit court is given broad discretion in making a custody determination. (In re Custody of Krause (1982), 111 Ill. App. 3d 604, 444 N.E.2d 644.) If, however, the circuit court’s determination is against the manifest weight of the evidence, then the appellate court has a duty to overturn the circuit court. In re Marriage of Mangan (1989), 182 Ill. App. 3d 140, 537 N.E.2d 960.

Although the circuit court’s determination of custody in this case was not against the manifest weight of the evidence, we digress to make clear that the appellate court does not approve of the practice of assassinating the other parent’s character as a means of achieving custody, a practice that was arguably used in this case.

Though a court must weigh all relevant factors when determining custody (In re Marriage of Sorenson (1984), 127 Ill. App. 3d 967, 469 N.E.2d 440; Ill. Rev. Stat. 1989, ch. 40, par. 602), it is not to consider conduct of the present or proposed custodian which does not affect the parent-child relationship. (In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 420 N.E.2d 555.) The ability to be a parent and to act as a parent is what is at stake. Casting stones is not.

DISTRIBUTION OF MARITAL PROPERTY

Respondent contends that the trial court’s distribution of marital assets was error. Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503 et seq.) governs the classification and distribution of marital assets. Pursuant to section 503 of the Act, the circuit court must first classify each asset as either marital or nonmarital. (In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 527 N.E.2d 18, citing In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.) The circuit court must then determine whether either party has shown by clear and convincing evidence that the marital estate contributed to a non-marital asset; if that showing has been made, the marital estate is entitled to reimbursement under section 503(c)(2) (Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(2)). (See In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 527 N.E.2d 18.) Once the court assigns each spouse his or her nonmarital property, it must then “divide the marital property *** in just proportions” considering all relevant factors as well as those factors enumerated in section 503(d) of the Act. Ill. Rev. Stat. 1989, ch. 40, par. 503(d); In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 527 N.E.2d 18; In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.

In this case, the circuit court determined that the marital estate’s contributions made to reduce the mortgage on respondent’s nonmarital home was $41,830, and credited the marital estate for this amount. (See Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(2).) The circuit court divided this amount equally, awarding petitioner $20,915. The circuit court reasoned that petitioner was entitled to such an amount, because the marriage lasted for a “substantial period of time” and petitioner contributed “her share of marital funds” on respondent’s home, the benefit of which only respondent received. We disagree with this division.

The record supports the circuit court’s finding that between the date of Alex and Glenna’s marriage (November 17, 1984) and the date of their divorce (January 12, 1989), $41,830 was spent to reduce the mortgage. The record, however, fails to support much else.

Petitioner and respondent were married less than two years when petitioner filed for divorce. They became permanently separated only 21/2 years after their marriage. This marriage cannot be characterized as lasting a “substantial length of time,” especially in light of the fact that a divorce proceeding was pending for more than half the length of the marriage. In addition, the record does not support the circuit court’s distribution because: (1) petitioner’s income was dramatically lower than respondent’s income; (2) there was a six-month period during the marriage when petitioner did not work at all; and (3) petitioner no longer contributed to the mortgage payments after she moved from the marital residence in July of 1987, yet the payments on the house made after she moved out were still credited to the marital estate for division. Awarding petitioner half of the mortgage payments in light of her minimal contribution, monetarily or otherwise, seems to us inherently unjust. Therefore, we remand to the circuit court for division of marital assets consistent with these findings.

A. INCOME TAX RETURN AND HORSE PROCEEDS

The circuit court found that Alex dissipated the proceeds of both an income tax return and proceeds from the sale of a horse and, therefore, awarded half the amount of each to petitioner. Dissipation occurs when a spouse uses marital property for his own benefit for purposes unrelated to the marriage at a time when the marriage is in serious jeopardy or is undergoing irreconcilable breakdown. (In re Marriage of Getautas (1989), 189 Ill. App. 3d 148, 544 N.E.2d 1284.) A party charged with dissipation must show by clear and convincing evidence how the funds were spent. (In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 507 N.E.2d 207.) Vague statements that funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. (In re Marriage of Getautas (1989), 189 Ill. App. 3d 148, 544 N.E.2d 1284; In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 507 N.E.2d 207.) Respondent produced no evidence showing how the funds were spent, so we affirm on this portion of the appeal.

B. HAY, GROCERIES, AND $5,000-GIFT OR LOAN?

The circuit court ordered respondent to pay petitioner’s parents $350 for hay and groceries and $3,170 of a $5,000 loan given to respondent and petitioner during their marriage. We affirm the circuit court with respect to the $5,000 loan, but reverse the circuit court on the issue of hay and groceries.

Donative intent is presumed when property is transferred from a parent to a child. (In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 437 N.E.2d 777.) Petitioner did not overcome this presumption. Petitioner testified that her parents never requested reimbursement for the hay and groceries and never mentioned how much they cost. In fact, she testified that her parents were just “helping [them] out” with groceries and such. This testimony supports no other finding but that the hay and groceries were gifts. With respect to the $5,000 loan, however, petitioner testified that she, respondent, and her parents had an understanding that the money was to be paid back. This is sufficient to overcome the presumption of donative intent, as no evidence was presented to refute it.

C. ATTORNEY FEES

Whether an award of attorney fees is proper depends upon a showing of one’s inability to pay coupled with the other spouse’s ability to pay. (In re Marriage of Wolf (1989), 180 Ill. App. 3d 998, 536 N.E.2d 792.) If one party is unable to pay, then the other party can be ordered to pay. (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).) Respondent argues that petitioner neither showed an inability to pay her attorney fees nor respondent’s ability to pay her fees. We disagree.

Petitioner’s job pays only $14,000 a year with no benefits. She estimates that it will cost $1,700 a month to care for herself and the child. Conversely, respondent earns $47,000 a year and in addition has his own business which had generated as much as $15,000 a year. Therefore, we find that it was not an abuse of discretion to order respondent to pay petitioner’s attorney fees.

In light of the foregoing, the circuit court is reversed in part and affirmed in part.

Affirmed in part; reversed in part and remanded.

LEWIS and CHAPMAN, JJ., concur.