author: PRESIDING JUSTICE MILLS

text:
    JOHN L. EVANIK et al., Plaintiffs-Appellants, v. DONALD JANUS et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0130
    Opinion filed December 22, 1983.

      J. William Lucco, of Mudge, Riley & Lucco, of Edwardsville, for appellants.
    J. Richard Meno, of Denby, Dobbs, Meno & Bloomer, of Carlinville, for appellees.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

An easement?

The trial court said, “No.”

We affirm.

The Evaniks brought an action seeking a mandatory injunction, declaratory judgment and damages resulting from the alleged obstruction of an easement across the Janus’ property.

The trial court entered judgment for defendants across the board-denied injunction, denied existence of an easement, refused damages.

The circuit court was right.

I. The Facts

This case concerns two parcels of land in Macoupin County which share a common boundary. (To aid the reader, a map of the land in question in included and made a portion of this opinion.) The north boundary line of the Evanik property is the south boundary line of the Janus land. At issue is access to Evanik property. Prior to April 1980, Evanik’s predecessors used a road which crossed Janus’ property. The branch of the road leading to Evanik property was plowed under by the Januses at about the same time that the Evaniks purchased their land. This suit was filed shortly afterwards.

A hearing was first held, seeking a temporary injunction. It was denied. There followed a bench trial seeking a permanent injunction and damages.

The evidence is both prolix and tedious, but clearly necessary for a full understanding of the case. The two parcels were at one time owned by Elias Dorsey. Dorsey had received the property by United States patent on August 10, 1835. He divided the property equally between his two sons by a will which was probated in 1872. William Evanik, plaintiff herein, bought the southernmost parcel on August 9, 1980, for the sum of $25,000. On May 10, 1980, John and William Evanik had petitioned the court for a preliminary injunction. Members of the Evanik family had lived on the southern parcel of land since the late 1920’s. At least since 1952, the only road leading to the property was one which exited from Illinois Route 138 to the north of the property and across the Janus property. The road was composed of a slag base topped with large rocks. The road bed is flat from where it comes off Route 138 and stays flat to the Evanik property. It sits on high ground with a ravine on either side. John Evanik had visited the land at least 100 times and had never heard of, or knew of, any other road or access to his property. Thiere is a field road which runs south from a garage on their property That road has a slag base but is grown over with grass and mostly washed away. The southern part of the property has an eight-foot-deep creek running through it. There is no bridge across the creek and a car could not be driven across it. The White City/Mt. Olive Road is south of the southern boundary of the Evanik land but no road connects the property to the road.

Evanik admitted that he was not 100% sure that the road from the north ever crossed anyone’s property but the Januses. He acknowledged that prior to purchasing the property, he had gotten an opinion letter concerning the property which indicated that there was nothing in writing about easements. When he purchased the property in August 1980, he was aware of problems with access and had heard from his mother that his aunt had always been afraid that the road would be plowed up.

Florence Lopinski was the daughter of John Evanik’s aunt and uncle. She was familiar with the property and lived there with her parents for a period of years beginning in 1928. She recalled a roadway leading from the farm to the northwest but since Illinois 138 was not yet built, the main road at that time was the Mt. Olive Township Road. There was no improved road leading south to the Mt. Olive Road. Her parents were using the private road to the north when the Januses bought the adjacent property. The large creek on the south part of the property had a bridge across it at one time. The bridge had not been in existence since the 1930’s. None of the field roads were ever graveled.

Mrs. Lopinski had been named administrator of her mother’s estate and had overseen the sale of the farm. The property was appraised at $25,000 and was sold for that sum to John Evanik, the highest bidder. Donald Janus bid $22,500 for the property.

Mrs. Lopinski’s parents owned a second road which came from the crossroads at Sawyerville to the west. While most of the access to the farm was from the north, there was southerly access available through the field. During cross-examination, the following colloquy occurred between the witness and the bench:

“THE COURT: *** When you say that the main access was out of the north you’re talking about the road that we’re concerned with here?
A. Yes.
THE COURT: Is that right?
A. Yes.
THE COURT: Well, also while we’re talking about this field road can you in dry weather, could you go from the farmhouse, well, and get out of the farm over the field road in dry weather?
A. Do you mean the extra piece of property that my father owned, is that what you’re talking of?
THE COURT: I have been hearing that the only way that you could leave your father’s farm was over the road that we’re
talking about?
A. Yes.
THE COURT: The road that’s been plowed up?
A. Uh-huh.
THE COURT: Was there any other way ever that you knew of where you could leave your father’s farm by way other than this road that’s been plowed up?
A. Well, just a field road.
THE COURT: Okay now-.
A. In the earlier years.
THE COURT: Okay. The field road when it was dry would take you where?
A. To the Mount Olive Township Road.
THE COURT: Okay. And in using the field road would you have to cross this bridge that you said used to be a bridge over one of the creeks, alright is that still there?
A. No it’s been gone for years.
THE COURT: When you say years, how long has it been gone?
A. About 40.
THE COURT: For the last 40 years could you exit your father’s farm by any other road than the one that was plowed up?
A. No.
THE COURT: Okay, you may proceed.”

Under further cross-examination, Mrs. Lopinski stated that she had refused to tell the Januses of the Evaniks’ higher bid because she knew that the heirs would not sell the property to them. Prior to the final sale, she had inquired about acquiring an easement from the Januses.

Donald Janus testified that after Florence Evanik died, he went to Florence Lopinski and told her that he wanted to purchase the property and would act to block the access to the property if he were denied. In a conversation with Mrs. Lopinski’s husband, Janus said that he wanted to avoid plowing the road at all cost, whereupon he was told that the Lopinskis understood the problem and that he had a right to plow it up. He personally plowed it under a couple of days after he heard that the Evaniks were going to get the property through the estate. Janus stated that he had made a second offer of $25,000 to Mrs. Lopinski, but on rebuttal she stated that the only offer she had received from the Januses was $22,500. Janus indicated that he knew of a field road leading south to the White City/Mt. Olive blacktop and this testimony was corroborated by the defendants’ final witness, Edward Janus, who also stated that he had seen farm machinery using the southern road. This concluded the testimony at the hearing for the temporary injunction. It was denied on May 28,1982.

The bench trial seeking the same relief and damages took place September 13 and 14, 1982. Milda Dingerson was the first witness. She testified that she was born in 1903 on land that was now owned by the Januses. She stated that the Evanik property was previously owned by the Purdy family. She knew of a dirt, field road which went south from the Purdy's to intersect the White City road on Madison Cox’ land. In her opinion, the south road was passable by car even though it crossed a creek and there was no bridge. The northern access was used much more than the southern access and the road was there for everybody to use. On cross-examination, Mrs. Dingerson stated that up until Route 138 was constructed, the only way to get across Cahokia Creek (shown on the map to the east of the property) was to go south to the White City/Sawyerville road. She answered affirmatively when asked if the entrance to the White City/Sawyerville Road was on the Purdy’s property but then indicated that she didn’t know too much about their property and wasn’t sure how they got to the road. She also knew that there was a path going off to the west from the farm to Sawyerville. She knew that the property was eventually sold to the Marasti family.

On redirect examination, Mrs. Dingerson said that the southern access was used by farmers for their farming machinery. In her opinion, it would have been difficult to drive a car over the southern road since it was full of chuckholes and never cindered because they feared the' cinders would wash into the field.

The next witness called was Victor Marasti. He testified that his parents bought the Dingerson property in 1942. He had first seen it in 1945. To get to the Evanik property in 1945 it was necessary to pass through a pasture which was fenced but had gates. He knew of the southern road but it didn’t provide a way off the Evanik’s property and was little used, generally by horsedrawn wagons. He and his sister had sold their land to Ed Janus in 1947. There was never any talk about use of the northern road by either the Januses or the Evaniks.

On cross-examination, Marasti stated that he had no knowledge of the property, its use or ownership prior to 1945. He had never seen the Evaniks use the south road but had seen a neighbor use it. The Maras-tis owned the entire tract that the north road crossed.

The next witness was Anthony Lopinski. He said that he was the husband of Florence Lopinski, whose maiden name was Evanik. He had known of the northern access road to the farm since 1937 but had never known of any southern access to the White City Road. He stated that if you go south from the farm, you end up walking across country. He was on the property when Don Janus plowed the road under and was also on the property on an occasion when Janus came over with a chainsaw to drop a tree across the road he had plowed.

Ray Dees testified that he was 69 years old and the nephew of Carl and Florence Evanik. He stated that he had stayed with the Evaniks when he was going to the eighth grade in Sawyerville and knew of one or two other roads off the property. Dees stated that there was no roadway to the south but there was something built across the creek so his uncle could farm the bottomland.

The last witness to testify in Evaniks’ case in chief was John Evanik who testified to the contents of an abstract of title to the property which he now owned. He indicated that he had been unable to use the land after its acquisition since the only method of access is by walking one-quarter mile to the property across other people’s land. At the time of the purchase, he thought he was buying property with roadway access and would not have bought it if he had known that there was none. He had taken one load of repair materials onto the property but had been unable to make any further repairs because the road leading to the property was plowed under and the gates on the remaining road were locked. The first time he saw the abstract of title was August 10, 1980, when he paid for the land. Mrs. Lopinski had never indicated any problems with the roadway.

On cross-examination, Evanik stated that he had tried to find out if there was a road to the south connecting with the White City/Sawyer-ville Road but had not driven it up to their fenceline. Don Janus had let him use the northern road once before he plowed it under. At this point the Evaniks rested their case in chief.

The first witness called by the defense was Thomas Gazda, a civil engineer who was the Macoupin County Superintendent of Highways. Testifying from a plat map dated 1938, Gazda pointed out what appeared to be a road running east and west along the southwest border of the southwest quarter of section 5, then a short distance west to the northeast corner of section 7, then to an intersection at the southeast corner of the northeast quarter of the northeast quarter of section 7. The road ran through the corner of property labeled “J. Smith 23.5 acres.” Gazda then identified a U.S. Geological Survey Map which had been updated in 1949. The map showed a low-grade road in the same vicinity as the road he had previously indicated.

On cross-examination, Gazda testified that the maps he had used did not show private roads and that he wouldn’t guarantee that all the roads depicted on the map would be there today. He further testified that a branch of Cahokia Creek appears to intersect the unimproved dirt road he had previously identified.

The next witness was Rosalie Lowe, the niece of Florence Evanik and an heir of her estate. She testified to a conversation she had had with Florence Lopinski on February 19, 1980. The gist of the conversation was that Rosalie was disappointed with the low amounts being bid for the land. Florence Lopinski responded that there were lots of problems including no right-of-way to it.

Ann Janus testified that she was 67 years old and familiar with all the property in question. She knew of a north-south road running from the Evanik property to an east-west roadway which connected White City and Sawyerville. The south roadway was used until Route 138 was opened to the north of the property. The road was maintained until 1945 or 1950 by road commissioner Maxtell through the use of a road grader.

On cross-examination, Ann Janus said she knew of two roads, “one came from right behind the coal mine and you went through the coal mine and the other road had a bridge over it, it was the White City cinder road or something and it went from White City to Route 4 and it turned in going south about, I guess two or three city blocks west of the bridge, went straight to Evanik’s farm.” She stated that everyone used the road to the south before Route 138 was opened. She further stated that there is a creek on the southern part of the Evanik’s farm which at one time had a bridge across it. The culverts which were under the bridge are still there and sturdy, but the bridge platform is now missing. She testified that today she would “be able to go along the timbers very nicely all the way to the Evanik’s property because the Evanik’s property touches the state road.” She said that while the road is a farm road, it drains well and there would be no need to cross anyone else’s property to get to the paved road. She stated that the Horns own the property on the other side of the paved road. The north-south road was entirely on the Evanik’s and the Janus’ land. The Januses then rested their case in chief.

The Evaniks put on two witnesses in rebuttal. Florence Lopinski testified that the road going south from the Evanik property has no bridges and might have no culverts. John Evanik identified an aerial street map of Sawyerville, Illinois, which showed no roads in the southeast corner where his property is located. This concluded the evidence.

The trial court issued an opinion letter on October 21, 1982, finding that the Evaniks had failed to prove either an easement by prescription or an easement by implication. Rather, the Evaniks had shown only a permissive use of the road, which was fatal to the theory of a prescriptive easement. And they had not proved the existence of an easement by implication since there was proof of an alternate means of access and no proof of the existence of an easement at the time the parcels were originally severed.

After the presentation and hearing of the Januses’ post-trial motion which raised the issue of “an easement of necessity by implication,” the trial court issued a second opinion letter again finding for the Januses. In this letter the court found that the Evaniks had not proved the derivation of title to the parcels from a common grantor, nor had they proved the existence of an easement at the time of severance.

II. The Issues

Plaintiffs (Evaniks) here raise three issues which they feel require a reversal of the trial court’s decision denying an injunction and finding no easement across defendants’ property. Plaintiffs first urge that the trial court erred in its application of the law of easements to the facts of the case. Their position is that the court applied only the law of easements by implication while paying lip service to the law of easements by way of necessity. The argument relies primarily on the case of Finn v. Williams (1941), 376 Ill. 95, 33 N.E.2d 226, and its progeny. Defendants (Januses) respond that the proofs as set out fail to support either a finding of an easement by implication or an easement by way of necessity. They rely primarily on an interpretation of the Finn case, plus the cases of Miller v. Schmitz (1980), 80 Ill. App. 3d 911, 400 N.E.2d 488, and Deem v. Cheeseman (1983), 113 Ill. App. 3d 876, 446 N.E.2d 904. The second issue raised by plaintiffs is that the trial court implicitly found the element of necessity lacking by citing the Finn and Miller cases in its memorandum opinion but finding them inapplicable to the case at bar. The defendants respond that the record supports the trial court’s finding of lack of necessity. Thirdly, plaintiffs urge that the trial court’s finding that the land at issue did not devolve from a common grantor was against the manifest weight of the evidence and requires reversal. Defendants agree that the finding was against the manifest weight of the evidence but urge that this error does not require reversal.

III. The Law Of Easements

Easements are interests in land and can be created only by grant, by implication, or by prescription. (Chicago Title & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78, 51 N.E.2d 132.) Since there was no grant in the instant case, the easement sought had to have orig-mated by prescription or by implication.

The facts alleged in plaintiffs’ complaint went to the creation of an easement by prescription. That claim has been abandoned in this appeal. The position was not well taken at trial, as much of the evidence at trial showed that plaintiffs’ use, as well as that of their predecessors in title, was with the permission of the adjoining landowners and was never based upon any claim of right. The general rule is that a mere permissive use can never ripen into a prescriptive easement. (Waller v. Hildebrecht (1920), 295 Ill. 116, 128 N.E. 807.) A permissive use does not establish the necessary element of adversity required for a court to deprive an owner of property of his interest therein. Rita Sales Corp. v. Bartlett (1970), 129 Ill. App. 2d 45, 263 N.E.2d 356.

Since the easement could not have arisen by prescription, the only way it could have arisen is by implication. The law recognizes two distinct types of easements which are raised by implication. Easements may be raised by implication of law, wherein a common grantor grants a parcel of land over which an easement already exists (see Cosmopolitan National Bank v. Chicago Title & Trust Co. (1955), 7 Ill. 2d 471, 131 N.E.2d 4), or by way of necessity wherein a grantor grants a parcel of land which has no access except over the remaining lands of the grantor or the land of strangers. (Gilfoy v. Randall (1916), 274 Ill. 128, 113 N.E. 88.) Both of these theories were argued to the trial court and in the following explication we shall focus on the distinctions between the two, while emphasizing the elements which must be proved to allow a court to divest a property owner of an interest in his land under either theory.

A. Easements by Implication

The plaintiffs put on proof that two parcels of land were at one time owned by Elias Dorsey and were subsequently devised to his two sons in 1874. The earliest date after which any witness could recall the parcels was 1903. Testifying for the plaintiffs, Hilda Dingerson testified that upon her earliest recollection the owner of the plaintiffs’ (southern) property were using a road across the northern property— as well as a dirt road to the south — as means of access to public highways.

It is well established in Illinois that to prove an easement by implication of law, the parties so asserting must prove: (1) that there was a separation of title from common ownership; (2) that before the separation occurred the use which gave rise to the easement was so long continued, obvious, and manifest that it must have been intended to be permanent; (3) that the use of the claimed easement was highly convenient and beneficial to the land conveyed. (Partee v. Pietrobon (1957), 10 Ill. 2d 248, 139 N.E.2d 750.) The date the unity of ownership ceases is the point of reference in ascertaining whether an easement has been imposed upon adjoining property by a joint owner. {Cosmopolitan Bank) It is equally well established that plaintiffs seeking easements by implication must meet their burden of proof by clear and convincing evidence that at the time of severance the easement was in existence and was intended to be permanent. Sheehan v. Sagona (1958), 13 Ill. 2d 341, 148 N.E.2d 795.

In the instant case, plaintiffs offered no proof whatsoever concerning any use of either parcel of land at the time of severance. Without this showing, plaintiffs cannot prevail in seeking an easement by implication of law. Since this is the case, the trial court was correct in its finding that no easement by implication was proved.

As noted by the Partee case, a second prerequisite to finding an easement by implication of law is that the parcels devolved from a common grantor. Responding to plaintiffs' post-trial motion, the trial court stated that the parcels did not so devolve. Plaintiffs urge this finding as reversible error, citing Edwards v. Haeger (1899), 180 Ill. 99, 54 N.E. 176, for the proposition that the benefits and burdens of an easement pass through subsequent grantees. They cite no cases holding that an incorrect finding of material fact requires reversal in a case such as this. Defendants urge that the trial court’s finding that the two parcels of land did not devolve from a common grantor really means that there was no easement in existence at the time of severance. They claim that in this context many courts and lawyers disclaim the existence of a common grantor. They offer no cases in support of this proposition. If in fact there had been no common owner of the two parcels of land, there could under no circumstances be an implied easement.

The record in the case is clear that the two parcels of land were at one time owned by Elias Dorsey and subsequently devised to his two sons. In this light, the trial court’s finding of the lack of a common grantor was clearly incorrect. Nonetheless, the rule in Illinois is that while an erroneous finding of a material fact is ordinarily ground for reversal, it is not ground for reversal where regardless of the error there are other findings not inconsistent therewith which are unaffected by the error and are sufficient to sustain the judgment. (See 5B C.J.S. Appeal & Error sec. 1786 (1958), citing Bundy v. West (1921), 297 Ill. 238, 130 N.E. 709.) In the instant case, the finding that there was no proof of the existence of an easement at the time of severance is not inconsistent with the finding of no common grantor and is sufficient to sustain the judgment. Hence, the error complained of does not require reversal.

B. Ways of Necessity

The plaintiffs claim that despite the fact the trial court acknowledged cases dealing with ways of necessity, the court erred in not applying the law of these cases to the proofs as adduced at trial. The trial court’s memorandum notes that the evidence showed the existence of more than one road leading from the defendants’ property at various times after severance and that under these circumstances there could be no finding of an easement by implication across defendant’s land. The court apparently cited Miller v Schmitz (1980), 80 Ill. App. 3d 911, 400 N.E.2d 488. Plaintiffs here contend that the finding that there was no easement at the time of severance is immaterial to finding an easement by way of necessity.

A way of necessity is a particular kind of implied easement. The concept was apparently first noted in Illinois in the case of Gilfoy v. Randall (1916), 274 Ill. 128, 113 N.E. 88, and later expanded in Finn v. Williams (1941), 376 Ill. 95, 33 N.E.2d 226. Plaintiffs rely heavily on the Finn case in support of their position. The facts of Finn are similar to those of the instant case.

The property at issue in Finn was at one time owned entirely by Williams who sold Finn the northwest corner of it. The property purchased by Finn abutted no public roads. At trial, he claimed that the only means of ingress and egress to his property was a road which crossed the remaining property of Williams. Williams denied this. The court found that other private roads had been in existence since the time of the original severance but that those means of access had been closed or were no longer in existence. At the time of trial, the only access to a highway (as indicated by testimony of defendant’s witnesses) was a road across defendant’s land which was now denied to plaintiff. Based on these circumstances, the trial court found that an easement existed across the defendant’s lands. On appeal, the defendant urged that private roads had supplied the plaintiff access to the property for a long period of time and so no necessity was proved either at the time of severance or the time of trial. The plaintiff replied that changed circumstances had created a necessity for a way to a public road and the supreme court agreed.

The court delineated the elements which must be proved before a way of necessity would be found. Whenever a conveyance by severance creates a situation where one parcel of land has no access to a public highway except over the remaining lands of the grantor or the lands of strangers, an easement over the remaining lands of the grantor is implied in the grant. Further, where such a situation exists, the easement need not be put to continuous use but may lie dormant through successive grantees to be used at any time by a subsequent titleholder. (Finn v. Williams (1941), 376 Ill. 95, 99, 33 N.E.2d 226, citing 17 Am. Jur. Easements sec. 49, at 127; Logan v. Stogdale (1890), 123 Ind. 372, 24 N.E. 135.) The court found that at the time of trial the plaintiff’s land was entirely surrounded by the property of strangers and the defendant’s land. The land which defendant now owned formed the remaining portion of the tract from which the plaintiff’s land had been severed but the present owner was not the original severer. Under these circumstances, the court found that an easement was necessarily implied in the original conveyance severing the two tracts. The easement had passed through all the subsequent conveyances to the current year. The fact that the easement had never been used was deemed immaterial. The court went on to state “[t]he fact that the original grantee and his successors in interest have been permitted ingress to and egress from the forty acres over the land owned by surrounding strangers is immaterial.” (Finn v. Williams (1941), 376 Ill. 95, 99, 33 N.E.2d 226, 228.) if the other means of access ended, subsequent grantees could avail themselves of the dormant easement implied in the deed severing the original estates. Finn marks the starting point for real analysis in this case.

Defendants attempt to distinguish Finn on factual grounds. We find the attempt unpersuasive. Defendants urge that in Finn the plaintiff proved that at the time of severance, due to the topography and location of the only public roadway, the only access available to the plaintiff had to be over the plaintiff’s land. They urge that the alternate access routes must have become available only after severance. However, in Finn, there is really no way to tell what time the alternate means of access became available. The defendant had pleaded that “since [the land’s] severance from her land it is and has been located on a private road leading to the south to a public highway.” (Finn v. Williams (1941), 376 Ill. 95, 97, 33 N.E.2d 226, 227.) The appellate court found that alternate private ways of ingress and egress had been available to the plaintiff “since” the original severance. The court did not find that the available means of access had been available only after the original severance. The language used does not make clear what relevance the chronology of access has to the decision. We feel that the time at which alternate available access routes became available — and subsequently unavailable — does not serve to distinguish Finn, but that the nature of the alternate routes does so.

We find the real point which distinguishes Finn is the private nature of the alternate routes available in the case. There is no question about Finn’s property being accessed by a public road. However, in the case at bench, one of defendants’ witnesses testified that a field road ran south on the Evanik’s property and at some previous time connected at their property line, with a township road, which was maintained by the road commissioner. (See map.) The logical inference is that this was a public road. There was also evidence that this public road is currently no longer there, or at least now is so overgrown as to be virtually impassable. We find that a situation wherein a public road which had previously accessed a public highway is no longer accessible is distinct from a situation wherein a private road which had previously accessed a public highway no longer does so.

We recognize that the resolution of this issue in this manner calls for resolving close matters of proof at trial. The evidence was very closely balanced with no clear edge to either side as to either the public or private nature of the southern route. This is important because the plaintiff bears the burden of proof in these cases and the proof must be by clear and convincing evidence. (Sheehan v. Sagona (1958), 13 Ill. 2d 341, 148 N.E.2d 795.) This court may only overturn the verdict of a trial court if it is against the manifest weight of the evidence. (Allendorf v. Daily (1955), 6 Ill. 2d 577, 129 N.E.2d 673.) Since the proofs at trial were close, the decision of the trial court refusing to enjoin the defendants from obstructing access to the plaintiffs’ property must stand, the plaintiffs having failed to meet their burden of proof.

This posture of judicial noninterference is supported by the policy that courts should be reluctant to step in and reorder bargained-for exchanges. (See Posner, Economic Analysis of Law sec. 1.2, at 10-12 (2d ed. 1977).) Plaintiffs in the instant case bought property which they valued at $25,000 knowing in advance that there were problems with access. While their business judgment may be suspect, their valuation of the premises is unequivocal as reflected by the purchase price which maximized the property’s worth since they were the high bidders. If the court were to imply an easement across the defendants’ property, an inefficiency would result since it would effectively reduce its value while artificially enhancing the value of the plaintiffs’ land. Faced with such an inefficient result, the court should be loathe to find an easement. In accordance with this policy, we recognize that the burden of proof faced by a party seeking a judicial divestiture of a property interest held by another is extraordinarily high and in this case simply was not met.

Other courts have alluded to the difficulties faced by parties similarly situated. In Deem v. Cheeseman (1983), 113 Ill. App. 3d 876, 446 N.E.2d 904, the plaintiffs bought a small tract of land in the northeast corner of property owned by defendants. Access to the property had historically been over a quarry road which passed over the property of strangers. Plaintiffs sought a declaratory judgment recognizing an easement by implication over the property of the defendants. Plaintiffs were faced with problems of proof very similar to that encountered by the plaintiffs here. There was simply no way to tell what use was being made of the property at the time of the original severance in the nineteenth century since there were no available maps or witnesses. The court in Deem indicates its view that proof of prior use is not required when land presently cannot be used absent an easement. The court goes on to find that if current conditions are such that available alternatives exist which afford reasonable means of ingress and egress, easements by implication should not be sanctioned. Since the quarry road was still in existence, the court refused to imply an easement. However, the court went on to analyze the case in an analysis based upon the principles of Finn. Two aspects of this discussion bear on the instant case.

The court in Deem notes that the plaintiffs have failed to show either the location of the nearest right-of-way at the time of original severance of title or evidence pertaining to the chain of title to the surrounding land which was now owned by strangers. Both of these seem very relevant facts in proving an easement by way of necessity but are very difficult matters of proof. Neither are tainted with the principles applicable to finding an easement by implication of law. The location of the nearest public right-of-way at the time of severance allows the court to make a more positive inference concerning the necessity of the easement. It shows whether the alleged dominant tenant was landlocked at the time of severance. This proof also allows an inference concerning the intent to create the easement at the time of severance which other courts have held to be an essential element of proof. See, e.g., Luthy v. Keehner (1980), 90 Ill. App. 3d 127, 412 N.E.2d 1091; accord, Lawson v. Hill (1979), 77 Ill. App. 3d 835, 396 N.E.2d 617.

Similarly, by proving the chain of title to surrounding property, a party seeking an easement could show that the alleged dominant parcel had never been unlocked by virtue of the purchase of adjoining property which accessed a public highway. In this case, neither of these points were proved by the plaintiff. We do not intimate that this failure alone in this case was adequate to sustain the trial court. However, plaintiffs in the future — seeking to have the court divest an owner of a property right — should bear these two matters of proof in mind.

Finally, we cannot leave this case without touching and discussing the case of Miller v. Schmitz (1980), 80 Ill. App. 3d 911, 400 N.E.2d 488. The case generated confusion in the court below and was cited by both parties in support of their dichotomous positions before this court. In Miller, plaintiff sought an easement over land owned by defendant which shared a common boundary with his. Plaintiff’s property was bisected by a creek which was impassable, making the defendant’s property the only convenient access to the eastern one-half of plaintiff’s. Both parcels had previously been owned by a common grantor. There was no testimony concerning the common grantor’s use of the property. Plaintiff sought an easement by implication over the defendant’s land. Defendant argued that plaintiff could not prove actual necessity since plaintiff could construct a bridge across the creek which would give him access to the other half of his property. After reviewing these facts, the court properly set out as a test the requisite elements to prove an easement by implication:

“Three conditions are essential for an easement by implication: first, ownership of the dominant and servient estates by a common grantor followed by separation of title; second, use of the easement prior to separation in an apparent, obvious, continuous and manifestly permanent manner; and third, that the easement be necessary to the beneficial enjoyment of the dominant estate.” (80 Ill. App. 3d 911, 913, 400 N.E.2d 488, 490.)

The court found that two issues required resolution. Only the first issue bears on this portion of the discussion of this case. The court decided that the prior existence of the easement had to be proved. The court found that it could infer that the eastern property had always been used for access to the western property since the creek had always bisected the western property. Under these circumstances, the court reasoned that at the time of the original severance the easement must have been implied across the defendant’s property. The court then relied on Finn for the proposition that implied easements may lie dormant for extended periods of time while owners of dominant estates have permissive access to their lands across the lands of others. The court went on to cite Restatement of Property sec. 476, comment g, at 2012-13 (1944), for the proposition that while “prior use” by the grantor is a relevant factor indicating necessity for the easement, proof of prior use is not required when the land could not be used currently, absent the easement. Moreover, if that land as presently held cannot be used without disproportionate effort and expense, an easement may still be implied on the basis of necessity alone — without reference to prior use.

We feel that Miller represents an unusually liberal interpretation of the rules concerning easements. It mixes the principles of easements by way of necessity (dealt with in Finn) and the principles of easements by implication of law (dealt with, e.g., in People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267, 171 N.E.2d 599). As we have previously noted, our considered opinion is that the two types of easements are created in different ways and result in different liabilities on the owners of the servient tenements. Finn indicates that where, upon severance, a parcel of land is left without access to a public road and is surrounded by the properties of strangers or the remaining lands of the grantor, a way of necessity across the remaining lands of the grantor is implied. Where all these elements are proved, Finn holds that the easement may be revived after long periods of nonuse upon the finding that alternate (private) means of access are no longer available. Implied easements, on the other hand, arise where two grantees take parcels of land, one of which is burdened by an existing easement. Under these circumstances, there need be no proof of proximity to public roads or proof of chain of title to surrounding lands. There must be proof of the easement at the time of the severance, however. The Miller court mixes these two concepts.

In support of its result, the Miller court relied on the above-mentioned language from the Restatement of Property which would on its face seem to sanction the mixture of the two concepts. The pertinent portion of the comment quoted refers to the absence of the proof of prior use as not being fatal to proving a present easement. When read out of context, this passage does seem to support the court’s position that a plaintiff need not show that an easement was in use prior to the severance in order to sustain its position that present necessity will revive an implied easement. Reading this section fully demonstrates that “prior use” refers to the use which was being made of the dominant parcel of land prior to the severance, not prior use of an easement:

“If no use can be made of land conveyed or retained without the benefit of an easement, it is assumed that the parties intended the easement to be created. ***
Not only may the implication arise in favor of the conveyor when a prior use has been made, but it may arise even though no use of the land corresponding to the use claimed had ever been made prior to the conveyance. *** Yet, where no use can be made of land conveyed or retained without an easement it will be implied even in the absence of a prior use. If land can be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied in favor of either the conveyor or the conveyee on the basis of necessity alone without reference to prior use.” (Emphasis added.) (Restatement of Property sec. 476, comment g, at 2012 (1944).)

The examples following comment g go on to make clear that the “prior use” terminology refers to the use being made of the land at the time of the conveyance. The examples are limited to the conveyance or retention of land or mineral rights at the time of the conveyance. In these circumstances, the person who made the conveyance or accepted the conveyance retains an easement through the land or to the minerals even though no excavations were being carried on at the time of the severance. In this light, it is clear that the mining activities are the prior use which is referred to in the comment, not the easement.

Application of these examples to the instant case show that the concept of “prior use” seems immaterial to its resolution. There is no question about changed use of the land which creates a new necessity for an easement. There is no proof whatsoever as to any use which was being made of either parcel of land at the time of severance. There is no indication of any use of any easement or any roadway across either parcel of land at the time of severance.

This court is unwilling to accept plaintiffs’ invitation to adopt the mixture of concepts of easements by implication and ways of necessity advocated in Miller. We find that plaintiffs have failed to prove at least one requisite element in each instance: They failed to prove the existence of an easement at the time of severance, which is required in order to prove an easement by implication of law; and they failed to prove the landlocked naturé of their parcel of land at the time of severance, which is required to prove the easement by way of necessity.

While the trial court’s memorandum order did not specifically set forth these reasons for its decision, we feel that the record supports the judgment. Since the judgment below is supported by the record, we may affirm the trial court irrespective of the court’s assigned reasons. Farmers State Bank v. Webel (1983), 113 Ill. App. 3d 87, 446 N.E.2d 525.

Affirmed.

GREEN and MILLER, JJ., concur.

Appendix

DIAGRAM OF ROADWAYS


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM LEE MILLER, Defendant-Appellant.
    Second District
    No. 79—47
    Opinion filed December 27, 1983.

      G. Joseph Weller and Joel Teibloom, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Charles W. Smith and Ray McKoski, Assistant State’s Attorneys, and Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, William Lee Miller, was found guilty in a jury trial of the unlawful delivery of a controlled substance (Ill. Rev. Stat. 1977, ch. 56x/2, par. 1401(b)), and was sentenced to a six-year term of imprisonment and fined $6,000.

Defendant raises the following issues on appeal: (1) that he was denied a fair trial by a remark made in the prosecutor’s opening statement and by an answer of a State witness which was objected to and sustained; (2) that he was denied a fair trial as a result of a prejudicial article in a newspaper found in the possession of a juror; (3) that the prosecutor’s closing argument contained certain prejudicial comments; and (4) that this court should remand for a hearing on defendant’s ability to pay the $6,000 fine.

Since the sufficiency of the evidence is not raised on appeal, we summarize only the evidence and proceedings below which are necessary for an understanding of the case and the issues presented for our review.

Defendant was charged in an indictment with unlawful delivery of less than 30 grams of a controlled substance, heroin, alleged to have occurred on March 6, 1978. Immediately prior to the jury trial commencing, defendant made an oral motion in limine to prohibit the State from mentioning anything in opening statement or trial relative to any other offenses committed by the defendant. After some discussion, the motion was granted although the court indicated the State could show that the alleged sale on March 6, 1978, was agreed upon on a previous occasion and what the terms of that agreement were. In his opening statement, the prosecutor, in detailing the sale on March 6, began relating a conversation an undercover agent had with the defendant at the end of the sale about “future availability of heroin.” An objection by defendant was sustained by the trial court, and the jury was admonished that what the State’s attorney said was not evidence. A motion for mistrial was denied.

At trial, the State’s witnesses testified that James Warren, an undercover agent, went to the Rib Pit, a restaurant owned by defendant, on March 6, 1978; that Warren talked with LeRoy Williams, the cook at the restaurant, who made a telephone call and defendant arrived in the area shortly thereafter; that defendant first went into a pool hall, purportedly also owned by defendant, just down the street, for about 30 seconds; that defendant then came to the Rib Pit and Warren and defendant went into the back room; that defendant asked where the TV set was and Warren went to his car, picked up the TV set and placed it on the floor in the back room; that defendant examined the TV set and then told Warren to go to the pool hall and pick up the package; that Warren went to the pool hall and observed one individual there; that the individual gave Warren six tinfoil packets, later determined to be 1.92 grams of a substance containing heroin, and six $5 bills; and that Warren left the pool hall, talked with defendant briefly, and then left the area. Other law enforcement officers had Warren under surveillance and observed portions of defendant’s and Warren’s actions.

During the prosecutor’s direct examination of the witness, Warren responded that the decision to use the TV set as a “prop” item was because that was “the modus operandi of the defendant.” Defendant’s objection to this answer was sustained and the jury was instructed to disregard the answer. When the State later, outside the presence of the jury, sought to allow Warren to testify to a prior conversation with defendant in which the sale of heroin was set up in exchange for the TV set, the court disallowed the evidence on the basis it should have been introduced earlier in Warren’s testimony.

At the close of the State’s evidence, defendant’s attorney told the court he had seen an article in the Waukegan News-Sun very derogatory to defendant. After a discussion on other matters and after the defendant in open court rested without presenting any witnesses, the matter of the News-Sun article was again raised by defendant. The record indicates that defendant’s attorney requested that the court have its bailiff find out whether a copy of the News-Sun was in the jury room. The bailiff found one copy of the News-Sun in the possession of one of the jurors. A discussion ensued between the court and the State’s attorney and defense attorney. It was not determined whether the juror, or any other juror, had read the article. The prosecutor recommended that they voir dire the jurors at that time. The court stated it did not know who the juror was who had the newspaper, but they could ascertain this. Defendant’s counsel stated he did not want to do it then and draw undue attention to it. The court agreed with that reasoning. The defendant’s motion for a mistrial on the basis of the article was denied, and the court stated the defendant could renew the motion later in the form of a motion for new trial, should he wish, and a hearing would be held on any prejudicial effect of the article on the jurors. No further mention is made in the record of this issue nor was it raised in defendant’s written motion for a new trial.

The News-Sun, dated September 15, 1978, the same date as the last day of trial, contained an article on page two, which recounted portions of the trial and further stated, in substance, that defendant was arrested following a three-month investigation by police who believed he was one of the area’s chief suppliers of hard drugs; that defendant was awaiting trial on charges stemming from three other alleged “buys” which were not then being presented to the jurors; and that defendant was acquitted the previous December of delivering heroin to a police informant.

Following closing arguments, during which defendant objected to the prosecutor’s references to the uncontradicted nature of the evidence and the defendant’s power to subpoena LeRoy Williams, a cook at defendant’s restaurant, the defendant was found guilty by the jury. He was sentenced to a six-year term of imprisonment and fined $6,000.

Defendant contends that he should be granted a new trial due to two instances of improper suggestions by the State that he committed uncharged offenses. One of these, he maintains, occurred during the prosecutor’s opening statement when, in detailing the alleged sale, the prosecutor stated the defendant and Warren, the undercover agent, discussed future availability of heroin. The trial court had previously granted defendant’s motion in limine prohibiting the State from mentioning anything relative to other offenses committed by defendant.

Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238.) However, evidence of the commission of other crimes is admissible when such evidence is relevant to prove modus operandi, intent, identity, motive, or absence of mistake; and it has been held that evidence of other offenses is admissible if it is relevant for any other purpose than to show the propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821.) In People v. Hill (1978), 56 Ill. App. 3d 510, 512, 371 N.E.2d 1257, the appellate court held that a statement about a future sale made in the context of the transaction upon which he was being tried was relevant to his present state of mind and his intent and knowledge at the time of that transaction.

Thus, we conclude, the statement purportedly made by defendant about future availability of heroin should have been admissible in evidence. Further, since the trial court sustained defendant’s objection to this comment in the prosecutor’s opening statement and informed the jury opening statements were not evidence, even if the prosecutor’s comment was improper, we find no reversible error under these circumstances. (See People v. Lampion (1982), 108 Ill. App. 3d 41, 45-46, 438 N.E.2d 915.) Moreover, an improper remark in opening statement does not constitute reversible error unless it results in substantial prejudice to defendant. People v. Pittman (1982), 93 Ill. 2d 169, 175-76, 442 N.E.2d 836.

The other instance which defendant claims suggests he committed an uncharged offense is an answer by undercover agent Warren that the decision to use a TV set as a “prop” item for purchase of heroin was the modus operandi of the defendant. Defendant’s objection to that answer was sustained by the trial judge who then instructed the jury to disregard the answer. Normally, sustaining an immediate objection by the defense and giving an appropriate instruction to the jury cures any error. (People v. Bartall (1983), 98 Ill. 2d 294, 317; People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233.) Under the circumstances here, where the trial court upon the urging of the defendant, rejected the prosecutor’s attempt to show a prior conversation with the defendant in which the terms of the sale of heroin were agreed upon, any error in this response was harmless in light of the overwhelming evidence of defendant’s guilt. People v. Tranowski (1960), 20 Ill. 2d 11, 16-17,169 N.E.2d 347.

The next contention of error asserted on appeal is that defendant was denied a fair trial as the result of a highly prejudicial article about him appearing in a local newspaper found in the possession of one of the jurors on the last day of trial. Defendant maintains that even though it is impossible to conclude with certainty that the juror read the article, the trial court, on its own, should have conducted whatever investigation was necessary into the unfair newspaper article.

We believe the news article was highly prejudicial as it referred to defendant as “one of the area’s chief suppliers of hard drugs” and disclosed other arrests not yet tried and his acquittal of a previous drug charge. It is also evident from this record that the court bailiff, at defendant’s request after he learned of the article, went to the jury room to find out if there was a copy of the pertinent newspaper in the jury room and found one copy in the possession of a juror. Because of the procedures which then followed, which we shall discuss below, it cannot be determined on this record whether this juror, or any other juror, read the article in the newspaper. Nor can it be determined whether the juror who possessed the newspaper was one of the 12 jurors, or one of the two alternate jurors.

When this information came to the attention of defendant’s counsel, he moved for a mistrial. In the discussion between the court and both counsel which followed, the prosecutor recommended that the court voir dire the jury to determine if they had read or heard anything in reference to the case. The court expressed concern that a delay would be caused by this procedure, and then remarked it did not know who the juror was but could ascertain this. Defendant’s counsel then responded that “I don’t want to do it now and draw undue attention to it.” The court agreed with defendant’s counsel, cut off the prosecutor’s further response which appeared to again suggest any assignment of error in this regard should be dealt with then, commented that defense counsel could bring this up at a later date in a motion for new trial, and denied the motion for mistrial.

This matter was never again referred to in the proceedings below, nor was this point raised in defendant’s two written post-trial motions or commented on in the hearing on the post-trial motions.

The State initially contends that the defendant’s failure to specifically raise this issue in a post-trial motion waives this issue for review. (See People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.) Generally, this is true, but the waiver rule is not absolute. Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)) provides an exception to this rule of waiver where there has been “plain error.” The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091.) While the evidence here is not closely balanced, the complained-of newspaper article was highly prejudicial, and we shall therefore examine that issue as it was presented and ruled upon below.

The examination of this issue with our acknowledgement of the highly prejudicial nature of the article, however, must be undertaken within the framework of another well-established principle of law. An accused may not ask the court to proceed in a given manner and then assign as error in a court of review the ruling or action which he procured. (People v. Heard (1947), 396 Ill. 215, 219-20, 71 N.E.2d 321; People v. Ficarrotta (1943), 385 Ill. 108, 110-11, 52 N.E.2d 165; see also People v. Spates (1979), 77 Ill. 2d 193, 198, 395 N.E.2d 563; People v. Clark (1972), 52 Ill. 2d 374, 391-92, 288 N.E.2d 363; People v. Mills (1968), 40 Ill. 2d 4, 14, 237 N.E.2d 697.) Sometimes this rule is expressed in terms of waiver by a defendant acquiescing in a procedure not objected to at trial. (See People v. McTush (1980), 81 Ill. 2d 513, 520-21, 410 N.E.2d 861.) Also, in People v. Flowers (1977), 52 Ill. App. 3d 430, 437-38, 367 N.E.2d 389, the appellate court stated that the failure of defendant’s attorney to question a juror who said during trial that he had a problem is an estoppel on appeal from arguing as error that the court precluded exposure of the juror’s problem.

Here, defendant could have requested that the trial court voir dire the jury at the time the newspaper was discovered in the possession of one of the jurors. This is the practice most frequently utilized. (See, e.g., People v. Hryciuk (1954), 5 Ill. 2d 176, 125 N.E.2d 61; People v. Malmenato (1958), 14 Ill. 2d 52, 150 N.E.2d 806; see People v. Crowder (1981), 99 Ill. App. 3d 500, 425 N.E.2d 994.) Had this been done, and had a juror been discovered who had read the prejudicial article, the prejudice may have been cured by removal of that juror and replacement by an alternate juror. (See, e.g., People v. Patterson (1980), 90 Ill. App. 3d 775, 413 N.E.2d 1371.) Instead, defense counsel made a conscious decision to forego this procedure and never again raised the issue. On this record it is left to speculation whether the article had been read by one of the jurors and whether that juror was one of the 12 of the panel or an alternate juror. The fact that defense counsel did not further pursue this point in the court below may also be susceptible to an interpretation that he later became satisfied that no juror had read the article. We also note that on numerous occasions the trial court admonished the jurors not to discuss this case with anyone or among themselves although no specific reference was made to refrain from reading news articles about the case. Under these circumstances, the defendant is precluded on appeal from arguing that the trial court erred in not initiating a voir dire of the jurors.

Appellate counsel alternatively argues that defendant was denied the effective assistance of counsel by his trial counsel’s failure to insist on a voir dire of the jurors and to raise the issue in the post-trial motions. With respect to the question of the alleged ineffective assistance of counsel, the defendant must establish that his privately retained attorney was actually incompetent and that this incompetency produced substantial prejudice to the defendant without which the jury’s verdict would probably have been different. (People v. Pugh (1982), 106 Ill. App. 3d 901, 908, 436 N.E.2d 737.) Competency is determined from the totality of counsel’s conduct at trial, and a defendant is entitled to competent, not perfect, representation. (People v. Martin (1983), 112 Ill. App. 3d 486, 493-94, 445 N.E.2d 795; People v. Pugh (1982), 106 Ill. App. 3d 901, 908, 436 N.E.2d 737.) On this appeal, the only instances of alleged incompetency of trial counsel are his failure to ask the court to voir dire the jury and to raise any issue in this regard in the post-trial motions.

Our review of the record reveals that trial counsel’s performance reflected preparation, thorough familiarity with the case, aggressive cross-examination, and knowledge of the law. His decision to forego a voir dire of the jury was with the knowledge that the trial judge had expressly indicated he could bring this up again later if he so desired. This was a matter of strategy as to which hindsight frequently indicates a different course might have been preferable. (See People v. Lewis (1981), 88 Ill. 2d 129, 154-55, 430 N.E.2d 1346.) Incompetence is not established by erroneous or unsuccessful strategic judgments. (People v. Kubat (1983), 94 Ill. 2d 437, 486, 447 N.E.2d 247.) In retrospect, it would have been a better practice for trial counsel to have requested the trial judge to voir dire the juror at the time of discovery of the prejudicial newspaper article although it was counsel’s own opinion then that this might draw undue attention to it. Nonetheless, inasmuch as trial counsel was acutely aware of the prejudicial nature of the article and the court’s willingness to allow him to bring this up later and have a hearing on a post-trial motion if a juror was later determined to have read the article, it is entirely speculative on this record that a juror, in fact, read the article. Considering the overall high caliber of the representation afforded defendant at trial and the absence of any prejudice to the defendant which can be affirmatively shown on this record that any juror in fact read the article, we cannot say defendant was denied effective assistance of counsel.

Defendant next contends that he was denied a fair trial by the prosecutor’s remarks in his final argument, which twice referred to the uncontradicted nature of the State’s case and also pointed out that defendant could have subpoenaed a particular witness. Defendant maintains that such remarks violate the presumption of innocence and his privilege against self-incrimination.

The appropriate test for determining whether a defendant’s right to remain silent has been violated is whether the reference was intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify. (People v. Dixon (1982), 91 Ill. 2d 346, 350, 438 N.E.2d 180; People v. Hopkins (1972), 52 Ill. 2d 1, 6, 284 N.E.2d 283.) The prosecutor may comment on the uncontradicted nature of the State’s case. (People v. Skorusa (1973), 55 Ill. 2d 577, 584, 304 N.E.2d 630; People v. Norman (1963), 28 Ill. 2d 77, 81, 190 N.E.2d 819.) The two objected-to statements of the prosecutor, one in his opening argument, and one in his rebuttal argument, are:

“And to that, the entire evidence is uncontradicted.”
“If you want to believe that it didn’t happen that way, we have no other evidence to go on. There is no other sworn testimony other than what Jim Warren gave you.”

We note that an objection was sustained to the second reference. Two other references to the uncontradicted evidence were made by the prosecutor which were not objected to or raised on appeal, and are waived. (People v. Harrison (1982), 106 Ill. App. 3d 341, 349, 435 N.E.2d 1211.) We find under the appropriate test and cases cited above that on this record these remarks were permissible and not intended to direct the attention of the jury to defendant’s neglect to avail himself of his legal right to testify. (People v. Dixon (1982), 91 Ill. 2d 346, 350, 438 N.E.2d 180; People v. Harrison (1982), 106 Ill. App. 3d 341, 349, 435 N.E.2d 1211.) We also observe that the jury was instructed that “the fact that the defendant did not testify should pot be considered by you in any way in arriving at your verdict.” The prosecutor’s remarks did not deprive defendant of a fair trial.

Defendant also maintains that it was error to comment on the defendant’s failure to call a witness who was also accessible to the State when the prosecutor argued:

“He says why don’t we have LeRoy Williams here. The defense has the power to subpoena him. The evidence is that LeRoy Williams was the defendant’s employee.”

This comment by the prosecutor was made in his rebuttal argument.

The defendant’s counsel had previously argued that:

“Why wouldn’t they at least bring in the cook, Mr. Williams, to say yes, there was a phone call, I saw this, saw that.”

The evidence at trial was that LeRoy Williams was a cook at defendant’s restaurant on the day of the sale of heroin and made a telephone call when asked by Warren if defendant was in the area.

Generally, it is improper for the prosecution to comment on a defendant’s failure to present witnesses which are as accessible to the State as they are to the defendant. (People v. Scaggs (1982), 111 Ill. App. 3d 633, 636, 444 N.E.2d 674; see also People v. Beller (1979), 74 Ill. 2d 514, 526, 386 N.E.2d 857.) However, a defendant cannot ordinarily claim error where the prosecutor’s remarks are in reply to and may be said to have been invited by defense counsel’s argument. (People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180.) Here, in the context in which the prosecutor’s argument was made, the comment was proper rebuttal invited by the defense counsel. (People v. Wheeler (1955), 5 Ill. 2d 474, 485-86, 126 N.E.2d 228; People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229; People v. McElroy (1980), 81 Ill. App. 3d 1067, 1073-74, 401 N.E.2d 1069.) We find no error under these circumstances.

Defendant’s final contention is that if we affirm his conviction, we should remand for further proceedings on his future ability to pay the $6,000 fine imposed on him. He maintains that the trial court, contrary to statute which requires the court in determining the amount and method of payment of a fine to consider “the financial resources and future ability of the offender to pay the fine” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 9—1(c)(1)), failed to make inquiry into defendant’s ability to pay this large fine. Defendant cites People v. Morrison (1983), 111 Ill. App. 3d 997, 444 N.E.2d 1144, as authority.

A trial judge need not specifically state that the defendant was determined to have the financial resources and ability to pay the fine; that finding is implicit in the imposition of a fine where the judge is aware of the facts which support such a determination. (People v. Ruff (1983), 115 Ill. App. 3d 691, 695, 450 N.E.2d 1369; People v. Bishop (1980), 81 Ill. App. 3d 521, 524, 401 N.E.2d 648.) Here, the trial court heard evidence during the trial and sentencing hearing that defendant operated two businesses, a restaurant and a pool hall. During the proceedings below the court was aware that the defendant had posted $7,500 as 10% of his $75,000 bail. The presentence report states, inter alia, that defendant related he had a small personal savings account and a reasonably good salary from his barbecue business. Thus, in contrast to People v. Morrison (1983), 111 Ill. App. 3d 997, 444 N.E.2d 1144, the record is sufficient to support a determination that the defendant had the financial resources and future ability to pay a $6,000 fine. There is no need to remand for a hearing, and we find no abuse of discretion in the sentence imposed.

For the foregoing reasons, the judgment of conviction is affirmed.

Affirmed.

UNVERZAGT and HOPF, JJ., concur.


author: JUSTICE LINDBERG

text:
    THOMAS DALEANES, Plaintiff-Appellant, v. BOARD OF EDUCATION OF BENJAMIN ELEMENTARY SCHOOL DISTRICT 25, DU PAGE COUNTY, et al., Defendants-Appellees.
    Second District
    No. 82—1019
    Opinion filed December 27, 1983.

      Gerald J. Brooks, of Fawell, James & Brooks, of Naperville, for appellant.
    David P. Kula, of Scariano, Kula & Associates, of Chicago Heights, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Thomas Daleanes, a school superintendent for defendant Board of Education of Benjamin Elementary School District 25 (hereinafter the board), appeals the summary judgment of the circuit court of Du Page County against his action in which he claimed that he was improperly dismissed from his employment by the board. Because we view the board’s conduct to constitute a valid nonrenewal of Da-leanes’ contract, we affirm.

In February 1981, Daleanes was employed under contract as the superintendent of schools by the board. At its regularly scheduled meeting on February 16, 1981, the board unanimously passed a resolution that contained the following declarations:

“Section 1: That this Board of Education hereby determines that Thomas Daleanes shall not be reemployed as superintendent of this School District for the next ensuing school term, and accordingly that the present contract of employment of Thomas Daleanes shall terminate at the close of the present school term.
Section 2: That the President and Secretary of the Board of Education are hereby authorized and directed to give Thomas Daleanes notice of this Board’s decision not to re-employ said superintendent for the next ensuing school term which shall be substantially in the form of Exhibit 1 attached hereto and made a part hereof.
Section 3: That the President and Secretary of this Board of Education are hereby authorized and directed to give Thomas Daleanes a specific Bill of Particulars in connection with the non-renewal of his contract and Mr. Daleanes may request a closed-session hearing within 10 days after receipt of such notice.
Section 4: This resolution shall be in full force and effect from and after its adoption.”

The Board, by its president and secretary, subsequently served Daleanes with a letter dated February 16, 1981, stating the following:

“You are hereby notified that the Board of Education of Benjamin School District No. 25, DuPage County, Illinois, have decided it will not re-employ you as superintendent of this School District for the ensuing school term, and your contract of employment will therefore terminate at the close of the present school term.
The specific reasons for the non-renewal of your contract are set out in the attached Exhibit A. Within 10 days you may request a closed-session hearing on this dismissal at which time you have the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal.”

Simultaneously with the letter, Daleanes received a four-page document entitled “Bill of Particulars,” also dated February 16, 1981, and setting forth 30 reasons for Daleanes’ dismissal. At its next regular meeting on March 16, 1981, the board approved its official minutes of the February 16 meeting. Those minutes contained the quoted resolution and letter, but did not include the bill of particulars.

Daleanes formally requested a closed-session hearing on the subject of his nonrenewal on February 24, 1981. The board subsequently announced that it would hold a special closed meeting on March 6, 1981, with “Consideration of Employment of a Superintendent” as the sole agendum. The closed-session hearing on Daleanes’ nonrene-wal was held on April 7 and 15 and May 1, 1981. On May 11, 1981, the board by resolution affirmed its determination not to renew Da-leanes’ contract. Although it did strike 13 of the causes enumerated in the bill of particulars, the board’s affirmation was based upon the proof of the remaining 17 enumerated causes.

This action was initiated by Daleanes on May 8, 1981, with a complaint which sought declaratory and injunctive relief and which was amended to seek contract damages, all in redress for the board’s allegedly invalid decision not to renew his contract. The procedural history of this action in the trial court has been long and complex and need not be detailed here. Daleanes notes, however, that the dispute over his employment has also given rise to a separate action in the United States District Court for the Northern District of Illinois (No. 82 C 214) and an interlocutory appeal from the present action (No. 81 — 757), which this court dismissed for lack of jurisdiction. Neither the Federal court action nor the previous appeal to this court is relevant to the issues raised in this appeal. On November 22, 1982, the trial court granted summary judgment in the board’s favor, from which Daleanes brings this timely appeal.

We first address a contention by Daleanes that the trial court erred in permitting the board to file a response to his notice to admit facts after the deadline for such response provided in Supreme Court Rule 216 (73 Ill. 2d R. 216). Although the notice had been filed on January 29, 1982, the board did not seek leave to respond until after Daleanes’ April 13, 1982, motion for judgment on the pleadings, which relied upon the requested admissions. The trial court first denied the board leave to respond, but, upon the board’s motion to reconsider, leave was granted. Rule 216(c) provides that requested admissions are admitted unless response is given within 28 days. 73 Ill. 2d R. 216(c).

Although some courts have declined to relieve a tardy litigant from being bound by his failure to respond within the 28-day period (see City of Champaign v. Roseman (1958), 15 Ill. 2d 363; Banks v. United Insurance Co. of America (1975), 28 Ill. App. 3d 60, 328 N.E.2d 167; Crum v. Golf Oil Corp. (1973), 12 Ill. App. 3d 988, 299 N.E.2d 820), a court may in its discretion permit a tardy response to a request to admit. (Bluestein v. Upjohn Co. (1981), 102 Ill. App. 3d 672, 430 N.E.2d 580; Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95.) The Redmond court suggested that permitting the filing of a late response is permissible where the failure to respond in time is the result of circumstances beyond the control of the litigant. (65 Ill. App. 3d 669, 678, 382 N.E.2d 95, 102.) More generally, the Supreme Court Rules empower a trial court to extend any time limit created by the rules “for good cause shown.” 73 Ill. 2d R. 183.

The board’s excuse in this case was that it was in the process of changing attorneys. Daleanes sent his request to admit to the board’s then-attorneys, Leonard Seraphin and E. Allan Kovar, on January 29, 1982. According to the board’s present attorneys, Scariano, Kula & Associates, they examined the court file during the first week of February 1982, immediately after they were asked by the board to handle this case, and found no request to admit because of an alleged gap in the time between the official filing of the document and its appear-anee in the court files. Because of a fee dispute between the board and its former attorneys, Scariano, Kula & Associates did not receive the client file from the former attorneys before becoming aware of the request to admit for the first time through Daleanes’ motion for judgment on the pleadings. In a supporting affidavit, attorney David Kula stated that his firm had no knowledge of the request to admit until April 16, 1982, and that he had on several occasions requested the files on the case from the board’s former counsel without success.

In Bluestein v. Upjohn Co. (1981), 102 Ill. App. 3d 672, 430 N.E.2d 580, the trial court’s allowance of a late response was affirmed where the facts in the requested admissions involved the central issue of proximate cause and the court stated that it did not choose to deny a party a jury trial due to his lawyer’s carelessness. Here, the most significant requested admission, that the board did not vote on the bill of particulars later presented to Daleanes, involves a fact question central to the dispute. While the board or its new attorneys might possibly have taken some different action to avoid their ignorance of pending judicial matters, confusion resulting from the changing of attorneys is an understandable phenomenon. Moreover, Daleanes fails to demonstrate significant prejudice resulting from the delay. Under these circumstances, the trial court could properly have found “good cause” to permit a late response to the request to admit.

Daleanes principally challenges the procedure by which the board dismissed him. He first contends that the board failed to comply with the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 1 — 1 et seq.) in its determination not to renew his contract by delegating its nondele-gable duty to consider the specific reasons for the nonrenewal. Da-leanes argues that the School Code requires the board as a whole to consider those reasons and that an examination of the official board records shows an improper delegation of that duty. Daleanes further maintains that, because the board’s official record is the only proper evidence on the question of delegation, the board erred in considering extrinsic evidence.

The relevant sections of the School Code provide in pertinent part as follows:

“Sec. 10 — 21. Additional duties of board. Boards of education in addition to the duties enumerated above shall have the additional duties enumerated in sections 10 — 21.1 through 10— 21.6.”
“Sec. 10 — 21.4. Superintendent — Duties. ***[T]o employ a superintendent who shall have charge of the administration of the schools under the direction of the board of education. ***
* * *
Notice of intent not to renew a contract must be given in writing stating the specific reason therefor by April 1 of the contract year unless the contract specifically provides otherwise. Failure to do so will automatically extend the contract for an additional year. Within 10 days after receipt of notice of intent not to renew a contract, the superintendent may request a closed session hearing on the dismissal. At the hearing the superintendent has the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal.” Ill. Rev. Stat. 1979, ch. 122, pars. 10-21, 10-21.4.

Both parties put forth rules of statutory construction favorable to their respective positions. Daleanes notes that statutes which confer powers on a school board must be strictly construed and should be construed not only as a grant of power but also as a limitation thereof. (Wesclin Education Association v. Board of Education (1975), 30 Ill. App. 3d 67, 331 N.E.2d 335.) The board points out the rule that, since the statutes governing teacher tenure create liabilities where none would otherwise exist, they must be strictly construed in order not to unduly interfere with the responsibility of local boards to efficiently operate educational systems. (Johnson v. Board of Education (1981), 85 Ill. 2d 338.) Both rules are applicable to section 10— 21.4 because it both confers upon the school boards the power to hire and fire superintendents and creates new liabilities for the boards if they do not follow proper procedures in determining not to renew a superintendent’s contract. However, it is the latter which is more directly applicable here because the privilege not to extend an employment contract would be present even without that statute while the liability for an extended contract is a new one.

With this in mind, we turn to the question of what functions a school board may delegate. The rule is that discretionary functions of school boards cannot be delegated but duties which are ministerial may be delegated. (Sitton v. Gibbs (1979), 73 Ill. App. 3d 812, 392 N.E.2d 244; see Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63; Illinois Education Association Local Community High School District 218 v. Board of Education (1975), 62 Ill. 2d 127.) The hiring and firing of teachers pursuant to different sections of the School Code are discretionary and, therefore, nondelegable powers. (Illinois Education Association Local Community High School District 218; Board of Education v. Cahokia District Council No. 58 (1981), 93 Ill. App. 3d 376, 417 N.E.2d 151.) The same must be said for the determination not to renew a superintendent’s contract under section 10 — 21.4.

At issue here is the statutory function of giving a written “notice of intent not to renew *** stating the specific reason therefor.” (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 21.4.) Appellate court cases have held that delivery to a teacher of a legally required notice relating to dismissal is a ministerial function and may be delegated. (Sitton v. Gibbs (1979), 73 Ill. App. 3d 812, 392 N.E.2d 244; Allen v. Thornblad (1976), 42 Ill. App. 3d 554, 356 N.E.2d 361; Morelli v. Board of Education (1976), 42 Ill. App. 3d 722, 356 N.E.2d 438.) In Sitton, it was held that a superintendent was acting within his statutory authority in notifying the lay supervisors of their dismissal by the school district before the district could properly delegate that task to him. In Allen, a notice signed and sent by the secretary of the school board was sufficient to satisfy the notice requirement of section 24 — 11 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 11). The section 24 — 11 notice requirement is stated in language very similar to that of section 10 — 21.4. Finally, in Morelli, preparation and submission to the plaintiffs of a bill of particulars by the school board’s attorney satisfied the requirement in section 24 — 12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 12) that such a document be delivered to a teacher upon request. While noting that the subject bill of particulars only set out facts upon which the school board’s decision to dismiss was actually based, the appellate court found no statutory requirement that the school board pass upon the precise content of the bill or formerly take part in its drafting. 42 Ill. App. 3d 722, 727, 356 N.E.2d 438, 442.

The court in Paprocki v. Board of Education (1975), 31 Ill. App. 3d 112, 115, 334 N.E.2d 841, 844, upon which Daleanes relies, stated that “*** the duty to send notice of remediable cause [pursuant to section 24 — 12 of the School Code] lies solely with the Board, and is a nondelegable responsibility.” The court held, therefore, that such a notice sent to the plaintiff-teacher by the school principal could not satisfy the statutory notice of requirement. A close reading of the Paprocki case, however, reveals that the appellate court found fault with the school board in not timely determining that remediable cause existed and sending the plaintiff notice of that determination. There is no indication in the opinion that the principal’s letter was sent at the school board’s behest. We read Paprocki to prohibit the delegation of the duties to determine the existence of cause to discharge and to determine that a notice is to be sent, without prohibiting the delegation of the drafting and delivery function. Thus, Paprocki is consistent with the other cases discussed. Moreover, our reading is not contrary to Daleanes’ position; rather, he urges that the nondelegable duty improperly delegated here was the board’s responsibility to determine the cause for dismissing him.

There is another appellate court case which more clearly distinguishes the discretionary giving of notice from the ministerial giving of notice. In Bessler v. Board of Education (1973), 11 Ill. App. 3d 210, 296 N.E.2d 89, the plaintiff-teacher was notified that she would not be re-employed by the personnel director of the school district before the deadline for such notification, but the school board did not take official action to discharge her until after that deadline. The court stated that it did “not quarrel with the proposition that some member of the administrative staff may communicate the Board’s action to a teacher under the terms of the statute [Ill. Rev. Stat. 1971, ch. 122, par. 24-11].” (11 Ill. App. 3d 210, 213, 296 N.E.2d 89, 91.) However, because the school board’s action did not take place until after the notice was sent and after the statutory deadline, it could not be reasonably inferred that the personnel director was merely conveying the action of the school board. Rather, the personnel director had himself, in effect, determined the dismissal and notified the plaintiff thereof and that action was held to be without legal effect. (11 Ill. App. 3d 210, 213, 296 N.E.2d 89, 91.) In two similar cases notice sent by a principal or superintendent prior to any action by the school board could not serve as notice from the school board as required by statute. Litin v. Board of Education (1979), 72 Ill. App. 3d 889, 391 N.E.2d 62; Provus v. Board of Education (1973), 11 Ill. App. 3d 1058, 298 N.E.2d 405.

After reviewing these cases, we conclude that a school board may not delegate the responsibilities to determine the existence of cause to discharge a superintendent and to determine that notice of the board’s intent not to renew the superintendent’s contract should be given. However, the functions of drafting the written notice and the reasons for nonrenewal and of delivering that notice are ministerial and, therefore, delegable.

Besides the question of which school board functions are nondele-gable, the delegation issue raises the question of what evidence may be considered in determining the nature of the delegation. Daleanes argues that only the official records of the board are competent evidence on this issue, while the board maintains that extrinsic evidence is proper. At issue are the affidavits of two board members which were submitted by the board in support of their successful motion for summary judgment.

Affiant Patrick Baldwin averred that the entire membership of the board, meeting in executive session on February 9, 1981, “did deliberate on, discuss, and compile the reasons for non-renewal which would comprise the bill of particulars,” directed its attorney to have those reasons “typed into a bill of particulars format,” and, at another executive session on February 16, 1981, “again agreed on the bill of particulars.” Walter Meyers’ affidavit contains the same allegations almost verbatim. If admissible, these uncontroverted affidavits would establish without question that the board did not delegate any of its nondelegable functions.

However, the admissibility of evidence of board conduct extrinsic to the official board record is uncertain. Daleanes relies upon the cases that have held that where public officials are required to keep a record of their proceedings (see Ill. Rev. Stat. 1979, ch. 122, par. 10— 7), that record constitutes the only lawful evidence of action taken, and cannot be contradicted, added to or supplemented by parol. (See, e.g., People ex rel. Prindable v. New York Central R.R. Co. (1948), 400 Ill. 507; People ex rel. Toman v. Chicago Heights Terminal Transfer R.R. Co. (1941), 375 Ill. 590; Schroeder v. Community Unit School District No. 2 (1966), 75 Ill. App. 2d 352, 220 N.E.2d 505; Lingle v. Slifer (1956), 8 Ill. App. 2d 489, 131 N.E.2d 822; People ex rel. Anderson v. Community Unit School District No. 201 (1955), 7 Ill. App. 2d 32, 129 N.E.2d 28; all involving school boards.) The board on the other hand, relies upon Hankenson v. Board of Education (1957), 10 Ill. 2d 560, 564-65, for its statement that the official minutes of school boards “are not conclusive and must be considered with other portions of the record in order to determine the true facts and happenings.” Accord, Compton v. School Directors (1955), 8 Ill. App. 2d 243, 131 N.E.2d 544.

We need not determine whether these cases are reconcilable, however, because we are convinced that examination of the official board record alone, even without the affidavits, fails to show improper delegation. Paragraph 3 of the board’s February 16 resolution authorizes the president and secretary of the board to “give Thomas Daleanes a specific Bill of Particulars ***.” We agree with Daleanes’ argument that the use of the indefinite article “a” and the fact that the bill of particulars, unlike the letter of intent, was not attached to the resolution in the official board record, signifies that the bill of particulars was not yet in existence at the time of the board’s formal action and that paragraph 3 was meant to authorize not only the delivery of that document but also its physical drafting. However, neither of these functions is equivalent to the function of determining the grounds of dismissal to be stated in the bill of particulars. As we have already concluded, only the latter is nondelegable.

In Paprocki v. Board of Education (1975), 31 Ill. App. 3d 112, 334 N.E.2d 841, Bessler v. Board of Education (1973), 11 Ill. App. 3d 210, 296 N.E.2d 89, Litin v. Board of Education (1979), 72 Ill. App. 3d 889, 391 N.E.2d 62, and Provus v. Board of Education (1973), 11 Ill. App. 3d 1058, 298 N.E.2d 405, four cases relied upon by Daleanes and discussed earlier, a requirement of notice to be given by a school board could not have been satisfied by notice from a principal, personnel director, or superintendent given before school board action. The fact that the school officer’s action predated the school board’s action compelled the conclusion that the officer’s action did not merely reflect that of the school board.

Here, the bill of particulars was provided after the board’s formal action. Neither the minutes nor the board’s resolution recite whether the board considered the grounds for dismissal. However, the letter of notice sent to Daleanes, a copy of which is part of the official record of the board, states, “The specific reasons for the non-renewal of your contract are set out in the attached Exhibit A.” Exhibit A is the bill of particulars. Since it was the board which decided to dismiss Daleanes and not renew his contract, it is a reasonable inference that the reasons for the nonrenewal were those of the board. The persons authorized to prepare the bill of particulars were board members and were inferentially privy to any reasons considered by the board before voting to dismiss. There appears no language anywhere which would imply that the grounds for dismissal stated in the bill of particulars were not considered by the board, but were wholly conceived of by the preparers of that document. We hold that the board’s record fails to support Daleanes’ allegation of improper delegation by the board of a discretionary function.

Daleanes also contends with regard to the dismissal procedure that the notice relating to the nonrenewal of his contract was statutorily faulty. He points to the language of the letter of notice that the board “has decided” not to re-employ him and to the language of the February 16 resolution both that the board “hereby determines” that he will not be re-employed and that authorization is given for sending him notice of the board’s “decision not to re-employ.” Daleanes argues that this language does not constitute “notice of intent” as required by section 10 — 21.4 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 21.4), but rather indicates that the board has already taken what it considers to be a final action.

School boards are not required to maintain the highest degree of accuracy or formality in the discharge of their duties on the principie that to do so would result in injury to the public. (Lingle v. Slifer (1956), 8 Ill. App. 2d 489, 131 N.E.2d 822; Goldman v. Zimmer (1965), 64 Ill. App. 2d 277, 212 N.E.2d 132, rev’d on other grounds sub nom. Goldman v. Moore (1966), 35 Ill. 2d 450.) Nevertheless, they must exercise power in the manner provided by statute. {Goldman.) The question here is whether the board’s use of the words “decided” and “determines” instead of a form of the word “intent” is merely imprecise usage or so qualitatively different as to fail to satisfy the prescription of the School Code.

We find the board’s argument on this question persuasive: the statutory scheme of section 10 — 21.4 is such that, whatever semantic difference might exist between “intent” and “determination,” no legal difference could have resulted for Daleanes. That is because following the receipt by the superintendent of the notice, no further action is required by a school board in order to cause his dismissal. Without the statute, a school board’s inaction {i.e., failure to renew a superintendent’s contract) would result in nonrenewal. Section 10— 21.4 only adds the requirements of timely notice of intent not to renew and a hearing if one is requested. The statute specifically provides that failure to send notice automatically extends the contract for an additional year. Section 10 — 21.4 does not specifically mandate any further action by a school board. Since the provisions of this section create a liability which would otherwise not exist, we construe it strictly, under the policy of Johnson v. Board of Decatur School District No. 61 (1981), 85 Ill. 2d 338, so as not to imply the creation of a liability upon the school board should it fail to take an action not explicitly mandated.

Davis v. Board of Education (1978), 63 Ill. App. 3d 495, 380 N.E.2d 58, which Daleanes cites for the proposition that notice of intent not to renew is not the final determination necessary to dismiss a superintendent, is distinguishable. The Davis court held that, for the purposes of the Open Meetings Act (Ill. Rev. Stat. 1977, eh. 102, par. 42), which prohibits “final actions” at closed sessions, a school board’s closed-session decision not to rehire its superintendent was not a “final action.” However, the Davis school board by its own terms, not the statute’s, indicated that its decision was “tentative.”

Since we read section 10 — 21.4 not to require any further action by the board in order to terminate Daleanes' employment as superintendent, notice to him by the board of its “determination” not to rehire him causes no different legal result than a notice of “intent” not to rehire him. After giving notice, the board was required to grant Daleanes a hearing if requested. It recognized that requirement in its resolution and did, in fact, grant a hearing. We hold that the board’s notice in this case served the purposes of the notice of intent required by section 10 — 21.4.

Daleanes contends finally that he was denied his due process right to a fair hearing. He argues that his hearing was not fair because the board members had already predetermined its outcome as evidenced by their notice of “decision” instead of “intent.”

However, Daleanes has not demonstrated a constitutional due process right to a fair hearing before the board determined not to renew the contract. The requirements of procedural due process apply only to the deprivation of an interest encompassed by the fourteenth amendment protection of liberty and property. (Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701; Perry v. Sindermann (1972), 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694.) To have a protectable property interest in public employment, a person must have more than an abstract need or desire for it; he must have a legitimate claim of entitlement. (Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167, 430 N.E.2d 636.) Not every public employee has a property right to continued employment, but a public employee can have such a right depending upon the surrounding circumstances including rules and understandings. Powell v. Jones (1973), 56 Ill. 2d 70.

Here, Daleanes provides no argument that he has shown a protectable property interest in his continued employment. The mere fact that section 10 — 21.4 requires the giving of notice of nonrenewal does not create a sufficient property interest to bring the due process clause into play. (See Shirck v. Thomas (7th Cir. 1973), 486 F.2d 691.) Without that showing, the due process clause cannot be said to require a formal hearing before a school district employee may be discharged. See Blackmore v. Jasper County Community Unit School District No. 1 (1974), 21 Ill. App. 3d 122, 314 N.E.2d 677.

Section 10 — 21.4 does, however, grant Daleanes a statutory right to a hearing. The statute provides that “[a]t the hearing the superintendent has the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal.” (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 21.4.) Daleanes does not argue that a hearing was not granted or that he was prevented from presenting evidence, witnesses or defenses. Rather, he maintains that the hearing was not a fair one because its outcome was predetermined.

The hearing provided for under the statutory scheme of section 10 — 21.4 only takes place after a school board has notified a superintendent of its intent not to renew his contract. Therefore, for the school board after the hearing to then renew the superintendent’s contract, the collective intent of the board must be changed. In other words, the statute itself already provides for a hearing before a school board which has made an initial judgment on a superintendent’s status. There appears no legal difference for a superintendent between a hearing before a board which has already expressed an “intent” not to rehire him and a hearing before a board which has already expressed a “determination” not to rehire him. In either case, the superintendent carries a burden of changing the minds of enough board members to alter the board’s purpose. This is the only sort of hearing provided for in the statute and was in fact the sort of hearing Daleanes received. To read section 10 — 21.4 otherwise would be to fail to construe a statute creating new liabilities for a school board strictly, contrary to the policy of Johnson v. Board of Education (1981), 85 Ill. 2d 338.

Accordingly, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

REINHARD and VAN DEUSEN, JJ., concur.