author: JUSTICE CAMPBELL JUSTICE McGLOON,

text:
    CHICAGO TITLE AND TRUST COMPANY, Successor-Trustee under the Will of Ernestine C. O’Brien, Plaintiff-Appellee, v. JEAN SCHWARTZ, Defendant-Appellant—(Walter Serabian et al., Defendants).
    First District (1st Division)
    No. 82—2282
    Opinion filed December 19, 1983.

      McGLOON, J., dissenting.
    David N. McBride, David F. Sterling, and Bruce C. Davidson, all of Ross & Hardies, of Chicago, for appellant.
    Jack Osswald and Daniel V. Kinsella, both of Howington, Elworth, Osswald & Hough, and Edward P. Freud, of Ruff, Weidenaar & Reidy, Ltd., both of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Chicago Title and Trust Company as successor-trustee under the will of Ernestine C. O’Brien, filed an action in the circuit court of Cook County against defendants, Jean Schwartz Cochrane (formerly Jean Schwartz), Walter M. Serabian and various charities seeking construction of the testamentary trust provisions of Mrs. O’Brien’s will. Cross-motions for summary judgment, seeking different constructions of the will, were filed by the various defendants.

On August 20, 1982, the court entered an order denying Jean Cochrane’s motion and granted Walter Serabian’s motion for summary judgment. The trial court found that there is an ambiguity in the will of Ernestine C. O’Brien and that Walter Serabian is entitled to be paid during his life the entire net income of the trust estate including income accrued since his mother’s death. Upon his death, Jean Cochrane shall receive the net income of the trust. Upon her death, or Walter Serabian’s death if she predeceases him, the trust shall be distributed according to its terms to three designated charities.

On appeal, Jean Schwartz Cochrane (appellant) contends that the trial court’s construction of the testamentary trust provisions is erroneous in that the entire net trust income accumulated after Virginia Serabian’s death should be paid to appellant during her lifetime. None of the charities appeal from the order of August 20, 1982. Chicago Title and Trust Company joins Walter Serabian (appellee) in urging this court to affirm the order.

We affirm.

Ernestine O’Brien died on January 26, 1935, survived by her two daughters, Virginia Serabian (formerly Virginia Pauline McShane) and Marjorie Ruth Lumley (formerly Marjorie Ruth Petersen). The daughters received the income from a trust established under the testator’s will. In 1973, Marjorie died childless and the trustee paid the entire income to the other daughter. These payments are not disputed. Six years later, Virginia died. She was survived by her son, Walter.

Thereafter, Chicago Title and Trust Company filed an action seeking construction of the following distributive provisions of Mrs. O’Brien’s will:

“SECTION 9: I give, devise and bequeath unto my friend, HARRY O’CONNELL, as Trustee, and to his successors in trust, all the remaining estate and property of all kinds, real, personal and mixed, and of every kind and nature wherever situated, belonging to me at the time of my death, or over which I may have power of disposition, in trust, for and upon the following trusts, purposes and conditions, to-wit:
(a) The entire net income from the Trust Estate commencing at the time of my death shall be paid to my daughters, VIRGINIA PAULINE McSHANE and MARJORIE RUTH PETERSEN, share and share alike in convenient installments during their life-time.
(b) Upon the death of either of my said children, the share of my estate being held under the provision aforesaid for such child so dying shall be distributed to such child’s issue, if any, and if there be no issue, then the entire net income from this estate shall be paid to my surviving daughter.
(c) Upon the death of the survivor, the entire net income from this Trust Estate shall be paid to my nieces hereinabove named, MURIEL SCHWARTZ and JEAN SCHWARTZ, share and share alike.
(d) Upon the death of either of my said nieces named in the preceding paragraph, the entire income from this estate shall be paid to the survivor.
' (e) Upon the death of the surviving niece, the entire principal of this trust estate shall be paid and distributed to the following named charitable institutions, share and share alike:
St. Joseph’s Home for the Friendless,
Chicago, Illinois
Crippled Children’s Home of Chicago,
Chicago, Illinois Children’s Memorial Hospital,
Chicago, Illinois.
In case any of the said institutions hereinabove named should not be in existence at the time this bequest is to take effect, then the Trustee shall pay the bequest, due to that institution or institutions not existing, to such other Catholic charitable orphanage selected by the said Trustee.”

Following a hearing on the cross-motions for summary judgment filed by defendants, the court entered an order directing Chicago Title and Trust Company, as trustee, to pay the entire net income from the trust estate created under section 9 of the will, including undistributed income which accrued since the death of Virginia Serabian, to Walter Serabian during his lifetime. Upon the death of Walter Sera-bian, the trustee was directed to pay the trust income to appellant during her lifetime. It was further ordered that upon the death of appellant (or upon the death of Walter Serabian if appellant predeceases him) the entire principal of the trust estate shall be distributed to the charities named in the will.

Appellant contends that there is no ambiguity in the will as to who should receive the trust income after the death of the survivor of the testator’s daughters. She argues that subsection 9(c) specifically directs the trustee to pay the entire net income to Muriel Schwartz and Jean Schwartz Cochrane during their lifetimes, all to the survivor. Muriel predeceased Virginia Serabian, therefore, appellant contends the entire net income should be paid to appellant.

Appellant also argues that assuming there is an ambiguity in the will the circuit court’s order violates the rule of construction that unattested words shall not be added to a will when another reasonable construction is possible without such words. (Peck v. Drennan (1951), 411 Ill. 31, 103 N.E.2d 63.) Appellant argues that the court added the words “if there be no issue” to section 9(c) of the will so that section would read “upon the death of the survivor, if there be no issue, the entire net income ***” shall be paid to the nieces. Appellant contends that these additions alter rather than effectuate the testator’s plan. Additionally, appellant contends that such a construction negates the effect of the phrase “upon the death of the survivor” in violation of the rule of construction that a will should be construed to give effect to all its provisions. Dillman v. Dillman (1951), 409 Ill. 494, 100 N.E.2d 567.

Appellee argues that when the will is considered in its entirety the circuit court’s construction of section 9(c) is proper. Sections 2 through 7 of the will provide specific bequests for the testator’s brothers, her nieces including appellant, her cousin and a friend. Appellee asserts that the court’s construction recognizes that the testator intended to benefit the normal bounty of a family-oriented person whereas the construction proposed by appellant would disinherit the testator’s only grandchild in favor of a niece who is benefited elsewhere in the will. Appellee argues that the subsection 9(b), the operative subsection at issue here, provides that upon the death of “either” of the testator’s children, the share held for that child shall go to that child’s issue and if there is no issue then to the surviving daughter. Appellee contends that the circuit court correctly interpreted the word “either” to mean “each,” “both” or “one or the other” rather than accepting the construction sought by appellant which would have defined “either” as “first.” Appellee also points out that the construction sought by appellant would mean that the testator intended to benefit merely the children of the first of her daughters to die and not to benefit in any way the children of the second of her daughters to die.

A court’s primary goal in construing a will is to determine the testator’s intent. (In re Estate of Rettig (1981), 100 Ill. App. 3d 653, 427 N.E.2d 235.) This determination is made by ascertaining the testator’s actual meaning from the words used. Furthermore, if the intention may be gathered from the language of the will, there is no occasion to employ the rules of construction. Crockett v. Baker (1969), 106 Ill. App. 2d 44, 245 N.E.2d 257, citing Wiener v. Severson (1957), 11 Ill. 2d 347, 143 N.E.2d 225.

Where the language is ambiguous or uncertain, the testator’s presumed intention may be found by application of the rules of construction. (Griffin v. Gould (1982), 104 Ill. App. 3d 397, 432 N.E.2d 1031.) A court must consider the entire document. Every word, phrase and clause in a will should be given effect if possible. (Feder v. Luster (1973), 54 Ill. 2d 6, 294 N.E.2d 293.) A court, in construing a will, does not hesitate to insert, transpose or disregard words in order to arrive at the true intention of the testator. (Jackman v. Kasper (1946), 393 Ill. 496, 66 N.E.2d 678.) A court, however, is not at liberty under the guise of construing a will to create a wholly new gift where no provision was made for a contingency which has occurred or where in view of subsequent events it appears that a particular provision would probably have been made if the testator had thought of it. (In re Estate of Hayden (1974), 23 Ill. App. 3d 242, 318 N.E.2d 668.) This is so even if the scheme of distribution is illogical or peculiar where it is not contrary to the clear intention of the testator as shown by the language of the will. Continental Illinois National Bank & Trust Co. v. Bailey (1982), 104 Ill. App. 3d 1131, 433 N.E.2d 1098.

Courts have construed the word “either” to mean “each” (Chidester v. Springfield & Illinois South Eastern Ry. Co. (1871), 59 Ill. 87, 89) and to mean “both,” “each of two,” and “the one and the other” (Chicago & Northern Pacific R.R. Co. v. City of Chicago (1898), 172 Ill. 66, 68, 49 N.E. 1006, 1007). The trial court was correct in adopting a construction of the word “either” in paragraph 9(b) in accord with this precedent. The testator provided that her daughters would receive the net income of the trust. Upon either of her children’s death such child’s share shall be distributed to such child’s issue, if any. It was not erroneous to determine that the testator intended to give her grandchild, Walter Serabian, a life interest in the trust income.

Furthermore, we find that the trial court did not err in adding unattested words to effectuate the testator’s intent. Although there is an ambiguity in the will when sections 9(b) and 9(c) are read together, it is clear that the testator wanted her grandchildren to receive an interest following the death of their parent. (See Hunt v. Mitchell (1951), 409 Ill. 321, 99 N.E.2d 347.) Appellant argues, however, that because of the phrase “upon the death of the survivor,” any interest created in the grandchildren ends at the death of the second daughter.

We note that there is a legal presumption that the testator did not intend to disinherit direct descendents. (Pontius v. Conrad (1925), 317 Ill. 241, 246, 148 N.E. 17, 19.) Further, a construction which most closely conforms to the general laws of descent and distribution will be favored. (Dollander v. Dhaemers (1921), 297 Ill. 274, 281-82, 130 N.E. 705, 709.) Also, equal treatment of descendents of equal degree is preferred. Continental Illinois National Bank & Trust Co. v. Llewellyn (1966), 67 Ill. App. 2d 171, 214 N.E.2d 471.

We agree with appellant’s argument that since it is clear that the testator, who died before any grandchildren were born, intended to benefit her unknown direct descendents, her intent is effectuated by an interpretation which does not make the life estate of her grandchild dependent on the order of death of the testator’s daughter in the absence of any language or indication in the will that such restriction was the intention of the testator. (See Hunt v. Mitchell (1951), 409 Ill. 321, 99 N.E.2d 347.) The court’s construction of clause 9(c) to read that upon the death of the survivor if there is no issue then the income shall go to the testator’s nieces is in conformity with the testator’s intent as determined from the four comers of the will.

Appellant next contends that if the construction adopted by the trial court is accepted, the trust must fail because it violates the rule against perpetuities. Appellant argues that the word “issue” has been interpreted to be coextensive with the word “descendents.” (Bates v. Gillett (1890), 132 Ill. 287, 24 N.E. 611.) When the will is so read it violates the rale against perpetuities (see Wechter v. Chicago Title & Trust Co. (1943), 385 Ill. Ill, 126, 52 N.E.2d 157, 164), because the future contingent interests will not vest if at all within the life or lives in being at the testator’s death plus 21 years. Appellant argues that the trial court sought to avoid a perpetuities problem by interpreting “issue” to mean only children and erred in so finding.

Appellee has presented Illinois authority supporting the trial court’s decision. Generally, the word issue means lineal descendents indefinitely. It has been held, however, that whether “issue” means descendents or merely children will depend upon the intention of the testator as indicated by the context in which it occurs or by the language of the entire will. (Arnold v. Alden (1898), 173 Ill. 229, 238-39, 50 N.E. 704; Continental Illinois National Bank & Trust Co. v. Lie

Accordingly, for the reasons stated above, the judgment of the circuit court is affirmed.

BUCKLEY, P.J., concurs.

JUSTICE McGLOON,

dissenting:

I respectfully dissent from that part of my colleagues’ opinion regarding the interpretation and construction of the will.

The primary goal of construing a will is determining the intent of the testator. (In re Estate of Rettig (1981), 100 Ill. App. 3d 653, 427 N.E.2d 235.) Intent is generally ascertained from the language of the will (Rettig) and every word, phrase and clause should be given effect. Continental Illinois National Bank & Trust Co. v. Bailey (1982), 104 Ill. App. 3d 1131, 433 N.E.2d 1098. wellyn (1966), 67 Ill. App. 2d 171, 214 N.E.2d 471.) “[W]hen the word ‘issue’ is used in reference to the parent of that issue, as where the issue are to take the share of the deceased parent, it must mean his children, that is, the word ‘parent’ confines the word ‘issue’ to children of the taker.” (Arnold, v. Alden (1898), 173 Ill. 229, 239, 50 N.E. 704, 708; Trustees of Schools v. Steele (1965), 54 Ill. App. 2d 337, 203 N.E.2d 605, rev’d on other grounds (1965), 33 Ill. 2d 575, 216 N.E.2d 786.) In the present case the testator provided that the issue will take the share of their parent when the parent dies. The trial court did not err in determining that within the context of this will the testator intended the word “issue” to refer only to her grandchildren. Therefore, the will does not violate the rule against perpetuities as argued by appellant.

Only if section 9(b) were considered alone would it be appropriate to allow the children’s issue (here, Walter) to receive the trust income. However, section 9(c) expressly provides that at the death of the surviving daughter, the entire net income from the trust is to be paid to the testator’s nieces. The trial court’s construction of section 9 does not give effect to the intent of the testator as expressed in section 9(c) of the will.

Also, as evidenced by the following remarks, the trial court added words of contingency to section 9(c):

“[Ernestine O’Brien] wanted to give [the net income] to her daughters, share and share alike. If one dies, she didn’t know anything about children, the whole net income, she says to us, goes to the other daughter. In the event that daughter dies, I’m reading in, and has no survivors, it goes, *** to the two nieces. ***
What I’m doing then is saying that a reasonable, you know, addition, by way of construction, ‘C’ should have read upon the death of the survivor, — now that’s talking about the one that survives, that’s only talking about the daughters, — if there be no issue, the entire net income, — and now we are moving the net income from the last survivor who is gone, the two daughters are gone and there is no issue, it goes to the two nieces. But I’m aware there is an issue.” (Emphasis added.)

In construing this section, the trial court concluded the testator would have provided for the surviving grandchild of the last surviving daughter had she known of his existence. Having made this determination, the trial court proceeded to supply the omitted language.

I would find that the trial court improperly added the condition that the surviving daughter die without issue before the nieces could receive any interest in the trust. A court may neither read words of condition into unconditional provisions (Rosenthal v. First National Bank (1968), 40 Ill. 2d 266, 239 N.E.2d 826) nor supply omissions under the guise that a particular provision would probably have been made if the testator had anticipated the occurrence of subsequent events. (In re Estate of Hayden (1974), 23 Ill. App. 3d 242, 318 N.E.2d 668.) This is so even if the scheme of distribution is illogical. Continental Illinois National Bank & Trust Co. v. Bailey (1982), 104 Ill. App. 3d 1131, 433 N.E.2d 1098.

I find that Walter Serabian’s interest under the will was a contingent life estate per autre vie. The duration of his interest would have been measured by the life of the surviving daughter Marjorie. The interest was contingent in that it would not vest unless his mother Virginia predeceased Maijorie, which event did not happen here. As noted above, upon the death of the surviving daughter, the net income of the trust is to be paid to the surviving nieces. If the testator intended that her daughters’ issue enjoy a life interest in the trust income upon the death of the surviving daughter, appropriate language could have easily been used. The testator did not do so. Admittedly, the conclusions of the trial court and the majority are emotionally appealing. However, the law is that the language of the will is controlling. Here, the will provides that the nieces’ interests vested at the death of the last surviving daughter.

For all the foregoing reasons, I would reverse the judgment of the circuit court and remand the case for further proceedings.


source: Caselaw Access Project

author: JUSTICE EARNS

license: Public Domain

text:
    JOE BEGGS et al., Plaintiffs-Appellees, v. LARRY RAGSDALE, Defendant-Appellant.
    Fifth District
    No. 5—83—0332
    Opinion filed December 23, 1983.
    Paul F. Henry, of Kruger and Henry, of Metropolis, for appellant.

      Jack Williamson, of Vienna, for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

Larry Ragsdale appeals from subparagraphs (e) and (f) of the judgment of the Johnson County circuit court which permit holders of an easement bisecting Ragsdale’s land to construct fences the length of the easement and to limit movement across the easement to a single pair of gates. He seeks reversal of these subparagraphs or modification as permitted by Supreme Court Rule 366(a) (87 Ill. 2d R. 366(a)).

The seeds of this dispute were sown in 1904 when the heirs of M. J. Ragsdale made two concurrent conveyances of agricultural land. One group of heirs conveyed by quitclaim deed in fee simple to E. L. Ragsdale:

“The West (V2) half of the North West fourth of the North West Quarter of Section No. (33) Thirty-three; 20 acres, more or less, and a part of the North East Quarter of Section No. (32) Thirty-two; bounded as follows: Beginning at the North East corner of said tract; running thence South 85° West 15.62 chains, thence South 3° 40’ East 36.21 chains to road; thence Easterly along road 15.62 chains to section line; thence North with section line 34.85 chains to place of beginning, except 16 feet on west side for road. Containing 55.49 acres, more or less: and being 75.49 acres, more or less in all in Township No. 12 Twelve South in Range No. (2) two East.
It is hereby agreed that the road above excepted is to remain open for the use of the public for a road.” (Emphasis added.)

This is the property now owned by Larry Ragsdale. Although the “16 feet on west side for road” was not conveyed in 1904, Larry Ragsdale gained title to it by inheritance in 1981. This strip of land runs northward from a public highway through Ragsdale’s land for approximately 2,400 feet to the Beggs property which lies along the Cache River. It divides Ragsdale’s 215 acres into two sizeable parcels, only one of which contains water for his cattle.

In a concurrent conveyance by quitclaim deed, another group of Ragsdale heirs transferred to Samuel C. Ragsdale in fee simple an adjoining property:

“The South East fourth of the South East quarter and the east (V2) Half of the North East fourth of the South east quarter of Section No. (29) twenty-nine, in Township No. (12) twelve South in Range No. (2) two, east of the 3rd P.M., containing 60 acres, more or less.”

This is the property now held by Joe and Sheryl Beggs (hereinafter Beggs). The only access to this river bottom property is across Rags-dale’s land, but it has not always been by means of the 16-foot strip. Other field roads have been used over the years.

Both properties have long been used for agricultural purposes. A fence around the Ragsdale farm has marked off the two properties since the time of the original conveyances. There are no improvements on the river bottom land which Beggs uses only for row crops. There are buildings and farm-related improvements on Ragsdale’s land which he uses for both cattle and crops.

Joe Beggs farmed the river land for more than 20 years, while it was still owned by members of the Ragsdale family. In April 1982, Beggs purchased the land. Shortly thereafter this conflict over the use of the 16-foot strip grew up between Ragsdale and Beggs. Beggs successfully sought a temporary restraining order which compelled Rags-dale to remove a vehicle blocking the strip. In considering Beggs’ subsequent petition to show cause why Ragsdale should not be held in contempt for blocking the roadway with wire and a “No Trespassing” sign, the court accepted the parties’ stipulation to the appointment of a surveyor to determine the location of the strip. The court ordered Ragsdale to put plastic handles on electric wires across the strip so Beggs could easily move them as he used the path. Beggs was ordered to refrain from using another path around Ragsdale’s barn.

The survey marking off the 16-foot roadway was filed on October 6, 1982. On January 3, 1983, Beggs filed a “Motion for Order Establishing Roadway and For Injunctive Relief.” He asked the court to declare the strip, as surveyed, to be a permanent public roadway which the Beggses and their successors in interest were entitled to use as an access road to the bottom land. Beggs prayed that neither he nor Ragsdale be permitted to obstruct the roadway, to install gates or fences at either end, or to use electrical wires to enclose it, but that either party be allowed to fence along the sides of the roadway with barbed wire.

After receiving extensive evidence both by exhibit and testimony regarding the continuous agricultural use of both parcels of land, the various routes taken across the Ragsdale land to the river bottom, property, and the condition of the 16-foot strip at various points in its history, the trial court ruled that Beggs had “a permanent easement appurtenant from the dominant estate across and over the defendant’s servient estate for the use and purpose of ingress and egress to plaintiffs [sic] dominant estate” which “had not been abandoned or lost by adverse possession.” The court ruled orally that Beggs did not have the right to fence along the right of way. Ragsdale was given leave to submit a brief on his use of the servient estate. His memorandum, submitted on March 21, 1983, argued that he was entitled to maintain electrical wires running across the easement because they were necessary to his cattle operation and did not unreasonably interfere with Beggs’ use of the roadway.

On April 4, 1983, the court filed its letter to counsel in which it set forth further findings in the matter:

<<* * *

(3) Defendant shall not obstruct the easement in any manner except as follows: [Ragsdale] may place an unlocked, easy to open and close, non-electrical gate across the entrance to the easement on Route 146 and at the end of the easement on the fence line between the Beggs Farm and the Ragsdale Farm.
(4) Neither party may build a fence along the east or west side of the easement without giving 21 days notice in writing to the other party.”

In letters to the court, counsel on both sides set out their opposing views of the proposal for fencing the easement. Making these letters part of the record, the court responded on April 15, 1983, in a memorandum which allowed either party to build a nonelectrical fence capable of restraining cattle but furnished with a set of gates sufficient to allow cattle across the easement. Ragsdale was restricted to using only so much of the easement as was necessary to herd his cattle through the gates.

In its final judgment order of April 15, 1983, the court incorporated its earlier rulings that the 16-foot strip was an easement appurtenant to the dominant estate owned by Beggs which Ragsdale was not allowed to obstruct with anything except easily worked nonelectrical gates at either end of the easement. Subparagraph (e) allowed either party to build a nonelectrical fence on both sides of the easement as long as there was a pair of gates opposite each other through which cattle could be driven. In the event such fences and gates were built, subparagraph (f) limited Ragsdale to using only the portion of the easement between the gates and held him liable for damages to the easement caused by his cattle. Subparagraph (g) ordered Ragsdale to remove immediately “any wires, gates, fences, and/or feed residue, and any other obstruction from the easement.” Subparagraph (h) gave Beggs the right to use and maintain the easement as a road. It is only from subparagraphs (e) and (f) which Ragsdale now appeals. There is no cross-appeal from any provision of the judgment.

The only issue is whether Beggs, the holder of an easement appurtenant used only to reach agricultural land may fence the length of the easement so as to create a single point of passage across the easement for cattle and farm machinery belonging to Ragsdale, owner of the servient estate. We do not think such a fencing arrangement is justified and therefore exercise the discretion granted to us by Supreme Court Rule 366(a) to modify the judgment by deleting subpara-graphs (e) and (f). 87 Ill. 2d R. 366(a).

A principle of concurrent rather than exclusive use underlies the law concerning easements. The owner of the servient estate must not interfere with the use of the easement for purposes of access by the owner of the dominant estate. (Zacny v. Sasyk (1975), 30 Ill. App. 3d 93, 332 N.E.2d 568.) For his part, the owner of the dominant estate has the right to maintain the easement, although he cannot, for the sake of his convenience, materially alter the easement so as to place a greater burden on the servient estate or interfere with the use and enjoyment of the servient estate by its owner. (Sell v. Finke (1920), 295 Ill. 470, 129 N.E. 90; Triplett v. Beuckman (1976), 40 Ill. App. 3d 379, 352 N.E.2d 458.) Clearly, use of an easement by both landowners “must be permitted in accordance with their individual interests.” Keessen v. Zarattini (1969), 119 Ill. App. 2d 284, 292, 256 N.E .2d 377, 382.

Under certain circumstances the separate interests of the two parties in the easements cannot be easily reconciled. In such a case the owner of the easement may take such measures in preparing or maintaining the easement as are necessary to his reasonable use of it. (Sell v. Finke (1920), 295 Ill. 470, 129 N.E. 90.) This is as true for proposals to erect fences the length of the easement as it is for ditching, grading, or other methods of preserving the easement. (Doan v. Allgood (1923), 310 Ill. 381, 141 N.E. 779.) We find Doan squarely applicable to the case at hand. In Doan an easement holder fenced in the roadway to make it easier to drive his cattle along it. As a result, the owner of the servient estate could no longer turn his tractor on the easement and lost the ability to farm the full extent of his land. The reviewing court found that the convenience of the fences did not justify the exclusion of the owner of the servient land from the easement. In arriving at its decision, the court observed that an owner of a servient estate who ran cattle on his land had a duty to use reasonable care so his cattle did not obstruct the easement. Doan v. Allgood (1923), 310 Ill. 381, 386,141 N.E. 779, 781-82.

Although Beggs argues that Doan is inapposite to the present case because in Doan the fences were intended to keep cattle within the easement and here they are designed to keep them out, we do not read Doan so narrowly. We believe it articulates the test by which to judge the efforts of an easement holder to insure his use of the easement. “[T]he necessity and reasonableness of the means made use of to adapt the road to the [easement holder’s] use are questions of fact to be determined by the trial court.” The trial court’s determination must be sustained by the evidence. Doan v. Allgood (1923), 310 Ill. 381, 387-88, 141 N.E. 779.

While the trial court’s judgment allowing either party to build fences along the easement upon proper notice to the other party appears even-handed, it, in fact, seriously disadvantages Ragsdale’s free use of the servient property as a cattle range because it permits a barrier to be raised between the only water source and portions of grazing lands. Although he could drive his cattle from one pasture to another through the gates, their passage would be limited to a single crossing, in effect giving Ragsdale an easement on his own property and increasing the difficulty of managing his cattle. A judgment so restricting the use of the servient estate must be based on a clear showing that it is necessary to protect reasonable use of the easement.

At the February 25, 1983, hearing on Beggs’ motion to establish the roadway and to give Beggs the right to string barbed wire on both sides of the easement, Beggs testified that prior to April of 1982 he never had any trouble getting across Ragsdale’s land to his own acreage. After April of 1982, Beggs complained of obstructions in the 16-foot easement caused by a parked vehicle, debris, electrified wires and the footings of concrete pillars erected as entrance posts by Rags-dale. He also alleged that the right of way had been damaged by Ragsdale’s cattle milling around on it as they ate hay left there for them, a contention denied by Ragsdale. Although Ragsdale admitted he drove cattle across the easement and that they could sometimes walk in the road, Beggs did not allege a single incident where his use of the easement was obstructed by cattle on the unfenced easement or by ruts left by them. He told of once having to maneuver his vehicles through cattle in a fenced enclosure because he was following the path marked out by the survey which showed the easement running through a pre-existing corral established by Ragsdale. In view of the fact that Ragsdale does not appeal from subparagraphs (d) and (g) of the judgment which require him to remove all wires, fences, and obstructions from the easement, we believe there is no need for Beggs to repeat such maneuvers.

Both testimony and photographs indicated that the easement was marred by deep ruts. It appeared that these were the natural result of moving heavy equipment over wet ground as well as the passage of cattle. Such a condition does not require cattle-proof fences. Beggs has the right to grade, gravel, or otherwise improve the surface of the easement to allow his reasonable use of it. Just after the survey established the path of the easement, Beggs exercised this right for the first time by spreading gravel on the easement.

Considering the record as a whole, we find that Beggs has failed to show that fencing in the easement and its attendant burdens on the servient estate are necessary to his reasonable use of the easement. In the absence of such a showing, subparagraphs (e) and (f) of the judgment are contrary to the manifest weight of the evidence. Exercising the discretion granted to us by Supreme Court Rule 366(a) (87 HI. 2d R. 366(a)), we delete subparagraphs (e) and (f) from the trial court’s order and, as so modified, we affirm the judgment of the circuit court of Johnson County.

Affirmed as modified.

HARRISON, P.J., and WELCH, J., concur.


author: JUSTICE HARTMAN

text:
      In re MARRIAGE OF MYRNA IDA SCHUHAM, Petitioner-Appellee, and ANTHONY IRVING SCHUHAM, Respondent-Appellant.
    First District (2nd Division)
    Nos. 82—1800, 83—244 cons.
    Opinion filed December 20, 1983.

      David J. Letvin, of Rosenthal and Schanfield, of Chicago, and Schramm & Pines, of St. Louis, Missouri, for appellant.
    Laurence J. Bolon, of Frank, Melamed & Bolon, Ltd., of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Respondent Anthony Schuham (Anthony) appeals from an order of the circuit court modifying a divorce judgment rendered in Missouri and registered in Illinois. The order increased his monthly child-support payments prospectively. Petitioner Myrna Schuham (Myrna) cross-appeals the order’s prospective effect. This appeal and cross-appeal are consolidated with Anthony’s subsequent appeal from an order awarding Myrna attorney fees for the preceding action.

The issues raised on appeal and cross-appeal are whether the circuit court: (1) had in personam jurisdiction over Anthony; (2) had jurisdiction over the subject matter of the action; (3) erred in excluding evidence of Anthony’s current wife’s business expenses; (4) erred in applying Missouri law to determine the age of emancipation of the parties’ children; (5) erred because the increase in Anthony’s support obligation was against the manifest weight of the evidence; (6) incorrectly failed to apply the support increase retroactively to the date of the initial petition; and (7) erred in ordering Anthony to pay all of Myrna’s attorney fees.

Anthony and Myrna were divorced on July 26, 1976, pursuant to a decree entered by the circuit court of St. Louis County, Missouri. Myrna was granted custody of their four minor children; Anthony was ordered to pay $208.33 monthly per child for support; and Anthony was given certain visitation rights. In 1977 Myrna’s petition for increased child support was denied by the Missouri court after a hearing. On May 2, 1979, the Missouri court on Myrna’s petition allowed the three youngest children to live with- her in Chicago and gave custody of the oldest child to Anthony, who remained in Missouri. In a supplemental order of the same date, the Missouri court expressly retained exclusive jurisdiction over the parties’ minor children and any subsequent modification of the dissolution decree.

Myrna filed, on October 6, 1980, a petition in the circuit court of Cook County to register the Missouri divorce decree and supplemental order as foreign judgments in Illinois and for an order granting an increase in child support, a modification of Anthony’s visitation rights, directing payment of certain arrearages for child support, and for a rule to show cause. Under notice provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), Anthony was served by mail with a copy of the petition and a notice to appear at a hearing in Chicago on October 21, 1980. (Ill. Rev. Stat. 1979, ch. 40, par. 2106 (b)(3).) On October 21, 1980, an agreed order was entered wherein Anthony’s attorney was given leave to file an appearance on Anthony’s behalf, Anthony was directed to “file his response within 28 days,” and the case was continued until December 10, 1980. Anthony filed a special and limited appearance on November 19, 1980, which prayed the court to find that it did not have in personam jurisdiction over him because he is not an Illinois resident, and that it further lacked subject matter jurisdiction in that the Missouri court had reserved exclusive jurisdiction over child support and visitation in the supplemental order. An order entered on December 10, 1980, by the circuit court of Cook County, among other things, allowed Myrna to register the foreign decree and expressly found jurisdiction over the parties and the subject matter, and gave Anthony leave to file his general appearance and his response, or otherwise plead, to the modification petition.

On January 9, 1981, Anthony filed a motion to dismiss, again alleging lack of personal and subject matter jurisdiction as well as a bar to Myrna’s petition based on section 610 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) in that the petition was brought within two years of the previous custody order. (Ill. Rev. Stat. 1979, ch. 40, par. 610(a).) This motion was orally denied at a January 22, 1981, hearing and a written order entered on January 23, 1981, provided that the special and limited appearance of Anthony’s attorney would stand as a general appearance, gave Anthony time to file a reply to Myrna’s modification petition, transferred the matter to the presiding judge for setting of a hearing on the merits of the petition, and denominated the order a “final appealable judgment.” Anthony’s interlocutory appeal to this court was dismissed, as fully discussed at 99 Ill. App. 3d 48, 425 N.E.2d 29.

The couple’s oldest child came to Illinois in October 1981, to live with Myrna. The Cook County circuit court granted Myrna temporary custody of this child on January 11, 1982.

Anthony’s amended motion filed on October 14, 1981, with the Missouri court, seeking to hold Myrna in contempt of court and for a modification of the custody decree, among other things, was dismissed on Myrna’s motion by the Missouri court on March 9,1982.

Meanwhile, on October 21, 1981, Anthony was served personally by the sheriff of St. Louis County with copies of all initial pleadings in the instant action as well as a notice to appear in the circuit court of Cook County on November 5, 1981. Anthony’s motion to quash this service of summons was denied on April 6, 1982, and a hearing on the merits began on that date, at which Anthony, Myrna, and Anthony’s present wife, Rebecca, testified.

The circuit court of Cook County announced its findings orally on June 10, 1982, and in a written order entered on July 2, 1982, in which it awarded permanent custody of the oldest child to Myrna; modified the visitation provisions; increased Anthony’s support payments effective June 10, 1982, to $1,600 per month, payable until emancipation as defined by Missouri law; denied Anthony’s motion for attorney fees; and set for hearing the matter of Myrna’s petition for attorney fees.

A hearing was conducted on October 8, 1982, and testimony was taken from Myrna, Myrna’s trial attorney, the attorney who prosecuted her interlocutory appeal, and the latter attorney’s law clerk. On December 7, 1982, the circuit court rendered its decision, which was incorporated into an order dated December 30, 1982, awarding Myrna fees of $15,975, of which $9,000 was for the prosecution of the case in chief, $5,575 for the interlocutory appeal and $1,400 for Anthony’s noncompliance with discovery.

The appeals and cross-appeal followed.

Anthony contends that the circuit court of Cook County lacked in personam jurisdiction over him and was thereby precluded from ordering him to pay increased child support. Before a court can impose upon a defendant an affirmative obligation, such as a duty to pay money, it must first possess and assert jurisdiction over his person. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 101-02, 66 S. Ct. 154, 158; Pennoyer v. Neff (1878), 95 U.S. 714, 732-33, 24 L. Ed. 565, 572.) Judgments ordering support of children upon dissolution of marriage, as well as modifications of existing support judgments, constitute such personal obligations necessitating in personam jurisdiction. (Kulko v. Superior Court (1978), 436 U.S. 84, 91-92, 56 L. Ed. 2d 132, 141, 98 S. Ct. 1690, 1696-97.) In Kulko the United States Supreme Court held that personal jurisdiction for purposes of child support requires of the obligor more substantial connections with the forum State than the mere presence in the forum of the obligor’s children. (Accord, Boyer v. Boyer (1978), 73 Ill. 2d 331, 383 N.E.2d 223.) In Boyer, our supreme court held that the “long arm” statute did not extend to impose personal jurisdiction over a noncustodial parent not domiciled in Illinois, where that parent’s only contact with Illinois was the presence in this State of his children and ex-wife. See also Duncan v. Duncan (1981), 94 Ill. App. 3d 868, 419 N.E.2d 700.

Under this precedent, the circuit court did not have in personam jurisdiction over Anthony, a domiciliary of Missouri with no assets in Illinois and whose only contact with this State is the presence here of his children and ex-wife. Neither was the method of service, by certified mail, in accordance with statutory requirements for the acquisition of personal jurisdiction over non-domiciliaries. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 203.) Apparently recognizing these problems, Myrna’s argument on this issue focuses on Anthony’s actions subsequent to the filing of her petition which she claims subjected him to jurisdiction. Resolution of the jurisdictional issue requires further consideration of the factual and procedural dilemma presented by the case subjudice.

Section 2 — 301(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 301(a)) provides that a defendant may make a special appearance to object to the court’s assertion of personal jurisdiction over him, so long as such appearance is made prior to filing any other pleading or motion. An appearance not in compliance with this provision constitutes a general appearance and subjects defendant to the court’s jurisdiction. The primary concern of this rule is to prevent a party from simultaneously invoking and denying jurisdiction, the inquiry being whether a party has set forth a defense or has taken other steps in the cause which invoked the jurisdiction of the challenged court. (Supreme Hive Ladies of the Maccabees of the World v. Harrington (1907), 227 Ill. 511, 525, 81 N.E. 533.) In Lord v. Hubert (1957), 12 Ill. 2d 83, 145 N.E.2d 77, that inquiry was explicated to mean “any action taken by the litigant which recognizes the case as in court will amount to a general appearance unless such action was for the sole purpose of objecting to the jurisdiction.” (Emphasis added.) (12 Ill. 2d 83, 87.) The Lord test has been followed in subsequent decisions. E.g., Hutchinson v. Brotman-Sherman Theatres, .Inc. (1981), 94 Ill. App. 3d 1066, 1075, 419 N.E.2d 530; Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 294, 408 N.E.2d 1014; Slade v. Bowman (1977), 49 Ill. App. 3d 242, 246, 364 N.E.2d 922.

Myrna contends that the initial order entered in the case on October 21, 1980, agreed to by Anthony’s counsel, was a general appearance by Anthony which rendered ineffective his subsequent special appearance filed on November 19, 1980, relying upon Welter v. Bowman Dairy Co. (1943), 318 Ill. App. 305, 47 N.E.2d 739. In Welter, the appellate court found that where defendant had obtained an agreed order giving him additional time to file an appearance and an “affidavit of merits,” this action constituted a general appearance. Anthony, however, cites Diaber v. Con/Chem, Inc. (1978), 57 Ill. App. 3d 918, 373 N.E.2d 805, to support the contrary conclusion, that the instant agreed order did not waive his jurisdictional objection. In Diaber, the appellate court found that an order obtained by defendants specially appearing there so as to afford them additional time “to take some appropriate action,” was not a general appearance since it was obtained for the purpose of objecting to jurisdiction.

The language of the instant agreed order was consistent with Anthony’s sole purpose to object to jurisdiction. Although, as in the order in Welter v. Bowman Dairy Co., the subject order granted Anthony’s lawyer leave to file his appearance and set the matter for hearing, the Welter order went further and directed that defendant there file a pleading analogous to a defense on the merits to a statement of claim. By agreeing to do so, the Welter court held, defendant there was precluded from maintaining its intent to object solely to jurisdiction. The instant order required Anthony to “file his response,” which more nearly parallels the wording in Daiber v. Con/ Chem, Inc., permitting defendant specially appearing there “to take some appropriate action.” The foregoing analysis is buttressed by the fact that the next order entered in the instant case, on December 10, 1980, denied Anthony’s special and limited appearance objecting to the court’s jurisdiction, filed on November 19, 1980, and then gave Anthony leave “*** to file his general appearance” and leave “*** to file his response to or otherwise plead [to] the modification of child custody, child support, and the Rule to Show Cause within 28 days.” Clearly, had court or counsel on December 10, 1980, deemed the first appearance of Anthony’s counsel on October 21, 1980, to have been other than a challenge to the court’s jurisdiction over Anthony, there would have been no occasion to grant him leave anew to file a general appearance and response on the merits to Myrna’s pending petition.

Fulfillment of the purposes and policies of the UCCJA invoked in this case does not require personal jurisdiction for the application of its provisions (Pratt v. Pratt (R.I. 1981), 431 A.2d 405, 409; In re Marriage of Hudson (Ind. App. 1982), 434 N.E.2d 107, 119, cert, denied (1983), 459 U.S. 1202, 75 L. Ed. 2d 433, 103 S. Ct. 1187; In re Marriage of Leonard (1981), 122 Cal. App. 3d 443, 459, 175 Cal. Rptr. 903, 912; Commissioners’ Note, UCCJA sec. 12, 9 Uniform Laws Annotated 150 (1979)), because its subject matter, the “custody determination,” expressly “does not include a decision relating to child support or any other monetary obligation of any person.” (Ill. Rev. Stat. 1981, ch. 40, par. 2103.02.) The UCCJA thus has been found applicable for modifying custody and visitation orders (e.g., In re Custody of Bechard (1978), 40 Colo. App. 516, 577 P.2d 778; Bahr v. Galonski (1977), 80 Wis. 2d 72, 257 N.W.2d 869), but, as in the instant case, not applicable to modify support orders pursuant to its provisions (e.g., Kioukis v. Kioukis (Conn. 1981), 440 A.2d 894, 896; Rodgers v. Rodgers (Wyo. 1981), 627 P.2d 1381).

The custody status of a child or children may be decided quasi in rem (In re Marriage of Hudson (Ind. App. 1982), 434 N.E.2d 107, 118; Friedman and Marcus, The Continuing Jurisdiction Dilemma in Interstate Child Custody Disputes, 70 Ill. B.J. 304, 305 (1982)), and once that jurisdiction is assumed pursuant to the UCCJA, custody and visitation orders can be made and modified without regard to whether either parent has submitted to the court’s jurisdiction.

Part of the confusion which developed in the present case can be explained from the fact that although it operates quasi in rem UC-CJA contains a number of provisions intended to encourage and assure the presence in court of nonresident parties. (See Commissioners’ Prefatory Note, UCCJA, 9 Uniform Laws Annotated 114 (1979).) Section 5 provides the parties with notice and the opportunity to be heard. (Ill. Rev. Stat. 1981, ch. 40, par. 2105.) Section 6 provides for notice to out-of-State parties, including return-receipt mail notice (Ill. Rev. Stat. 1981, ch. 40, par. 2106), which was given in the case before us. Section 12 empowers the court to order the appearance of a nonresident party and to order the resident party to pay for the nonresident’s travel expenses. (Ill. Rev. Stat. 1981, ch. 40, par. 2112.) Under section 20, an Illinois court can request the court of another State to conduct evidentiary hearings and to order the appearance in Illinois of a party residing in that State. Ill. Rev. Stat. 1981, ch. 40, par. 2120.

The late Professor Brigitte M. Bodenheimer, reporter for the special committee which drafted the UCCJA, found the above-cited provisions to be “superior to technical personal jurisdiction” in promoting the purposes of the UCCJA (Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand. L. Rev. 1207, 1234 (1969)) and, by encouraging the appearance of all involved parties in the child’s best interests, they concomitantly discourage ex parte custody determinations. An action, as here, brought pursuant to the UCCJA alone should not subject a nonresident to personal jurisdiction and a resulting imposition of a money obligation contrary to the intended purposes of the UCCJA.

Myrna’s initial petition alleged jurisdiction pursuant to section 4(aXl) of the UCCJA, while also pleading sections 512(a) and 601 of the IMDMA for purposes of the support modification (Ill. Rev. Stat. 1981, ch. 40, pars. 512(a), 601, 2104(a)(1)), and prayed for modification of both support and visitation orders. Although she cited the IMDMA in her petition, she initially served Anthony only by mail, thereby failing to subject Anthony to personal jurisdiction, while underscoring her own acknowledgement of the UCCJA as the jurisdictional basis of her petition. The appropriate statute upon which to base an action for support is the Revised Uniform Reciprocal Enforcement of Support Act (URESA), which provides for registration and enforcement of foreign support orders, as well as for hearings in the home States of both obligor and obligee. (Ill. Rev. Stat. 1981, ch. 40, pars. 1201, 1214.) Without leaving Illinois, URESA would have permitted Myrna to file a modification petition in the circuit court of Cook County, thus triggering a hearing in Missouri which could have increased Anthony’s child-support obligations. (See Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 424 N.E.2d 957.) The purposes and concerns of URESA are both compatible with and distinct from those of the UC-CJA, and simultaneous actions could have been initiated under both. See County of Clearwater, Minnesota v. Petrash (1978), 41 Colo. App. 143, 145, 589 P.2d 1370, 1371-72.

Because the court responded to Anthony’s special appearance by entering an order on December 10, 1980, expressly finding that it had both personal and subject matter jurisdiction, his subsequent participation in the proceedings did not waive his jurisdictional objection, since such objection is based on his not being amendable to service of process issued by an Illinois court. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 301(c).) Special appearances are normally filed with accompanying motions to quash (Farley v. Blackwood (1978), 56 Ill. App. 3d 1040, 1044, 372 N.E.2d 921); however, no case has been cited or found which holds that failure to do so, as in the present instance, defeats a jurisdictional objection. Myrna’s belated attempt to serve Anthony personally on October 21, 1981, was without legal effect. Kulko v. Superior Court; Boyer v. Boyer.

The principal jurisdictional provision of the UCCJA is section 4, which authorizes the circuit court to make a child custody determination if this State is the “home state” at the time of initiation of the proceedings. (HI. Rev. Stat. 1981, ch. 40, par. 2104(aXlXi)-) “Home state” is defined as “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months ***.” (HI. Rev. Stat. 1981, ch. 40, par. 2103.04.) Section 15(aX2) permits modification of a foreign decree provided that section 4 jurisdiction is found, as in the instant case. (HI. Rev. Stat. 1981, ch. 40, par. 2115(aX2).) The Schuham children had been residing with Myrna in Illinois for over a year prior to her petition. The circuit court correctly assumed subject matter jurisdiction to modify the custody and visitation provisions of the Missouri decree.

Because the circuit court was without in personam jurisdiction over Anthony to enter orders relating to child support and attorney fees awarded to Myrna, the merits of those orders are not reached in this appeal.

For the foregoing reasons, the judgment of the circuit court allowing registration of the Missouri decree and the modification of its visitation and custody provisions is affirmed; the judgment respecting the increase in child support and the award of attorney fees must be reversed and vacated.

Affirmed in part; reversed and vacated in part.

DOWNING, P.J., and PERLIN, J., concur.

       After the instant proceedings had commenced, effective July 1, 1982, Supreme Court Rule 306(a)(l)(iii) authorized a permissive interlocutory appeal to determine such an issue. 87 Ill. 2d R. 306(a)(l)(iii).


author: PRESIDING JUSTICE McNAMARA

text:
    GARY H. BUDKA, Plaintiff-Appellee and Cross-Appellant, v. THE BOARD OF PUBLIC SAFETY COMMISSIONERS et al., Defendants-Appellants and Cross-Appellees.
    First District (3rd Division)
    No. 82—2854
    Opinion filed December 14, 1983.

      Hoffman, Burke and Bozick, of Chicago (Edmund J. Burke and Gary W. Bozick, of counsel), for appellants.
    Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago (Peter M. Ro-senthal and Susan L. Kurland, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

On December 5, 1977, plaintiff Gary H. Budka was discharged as a village of Rosemont police officer by the defendant Board of Public Safety Commissioners because he failed to maintain his residence in Rosemont. On January 9, 1978, plaintiff filed an administrative review action challenging his discharge, and on March 9, 1981, that action was dismissed for want of prosecution. On March 4, 1982, plaintiff filed the present action which was identical to the previously dismissed suit. On November 9, 1982, the trial court set aside the board’s decision and found that Rosemont’s residency requirements did not apply to plaintiff. The court directed that plaintiff be reinstated as a police officer and awarded him back pay and allowances subject to setoffs with the exception that no back pay and allowances were awarded for the period during which the action was dismissed for want of prosecution. Defendants appeal. Plaintiff has filed a cross-appeal challenging that portion of the order which did not allow him back pay for the period during which the matter was dismissed for want of prosecution.

On August 1, 1972, plaintiff, who at the time resided in Chicago, was appointed an officer of the Rosemont police department. Approximately seven months later, while in his probationary period, plaintiff established a residence in Rosemont. On September 22, 1977, plaintiff established residence in Schaumburg.

Defendant Richard Drehobl, director of public safety, filed written charges with the board in October 1977, seeking plaintiff’s discharge for his failure to maintain a residence in Rosemont. The charges alleged violations of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 3 — 14—1), Rosemont Ordinance 74 — 3—9, and Rosemont Police Department and Board of Police and Pire Commissioners Rules.

At the hearing before the board, plaintiff testified that he had not been advised, when he was hired, of any statute, rule or ordinance requiring him to live in Rosemont. Although he had heard “by word of mouth” of the supposed requirement, his taking up of residency in Rosemont was not motivated by a desire to comply with a requirement. Plaintiff also testified that one month before he moved to Schaumburg, he was ordered to sign a form acknowledging his understanding that actual residence within Rosemont was a condition of his employment. Plaintiff signed the form under protest and, at the time of signing, plaintiff’s attorney wrote to the Police and Fire Commission expressing the belief that the residency requirements were unconstitutional as applied to plaintiff.

Plaintiff testified that on October 10, 1977, he told Drehobl he had purchased a home in Florida and was considering moving there. He also testified that, in moving to Schaumburg, he relied on the fact that the Rosemont chief of patrol resided in Schaumburg. Prior to plaintiff’s change of residence, however, discharge proceedings were brought against the chief.

Plaintiff argued before the board and in the trial court that the Illinois Municipal Code was not applicable to him. He maintained that the adoption of Rosemont Ordinance 75 — 9—17A conflicted with the State statute and that under Rosemont’s home rule powers, the statute was superseded. The statute provides in relevant part:

“No person shall be eligible to any municipal office unless he is a qualified elector of the municipality and has resided therein at least one year next preceding his election or appointment. However, these requirements shall not apply to the municipal engineer, health officers, or other officers who require technical training or knowledge. Nor shall these requirements apply to city attorneys or to village attorneys. But no person shall be eligible to any municipal office who is a defaulter to the municipality.
Except for incorporated towns which have superseded a civil township, municipalities having a population of not more than 500,000 are hereby authorized and empowered to adopt ordinances which allow firemen and policemen to reside outside of the corporate limits of the municipality by which they are employed both at the time of appointment and while serving as such firemen or policemen.” Ill. Rev. Stat. 1975, ch. 24, par. 3-14-1.

The Rosemont ordinance adopted on September 17, 1975, provides in relevant part:

“SECTION 3: That section 2 — 103.1 of the Code of Ordinances of the Village of Rosemont be amended to read as follows: Sec. 2 — 103.1. Requirements for appointment.
All applicants for a position in the Department of Public Safety shall be citizens of the United States, electors within the State of Illinois and County of Cook, and shall have been residents of the Village of Rosemont for at least six months preceding the time of their application. ***
Section 8. ***
It is the intent of the corporate authorities that to the extent that the terms of this Ordinance shall be inconsistent with a non-preemptive State law, that this Ordinance shall supersede State law in that regard within its jurisdiction.”

Rosemont’s home rule powers are derived from article VII, section 6 of the 1970 Illinois Constitution. An ordinance of a home rule unit shall supersede any conflicting State statute enacted prior to the 1970 Illinois Constitution. (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553.) The grant of power to the home rule units is broad and imprecise to allow for greater flexibility. City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 421 N.E.2d 196.

Rosemont is a home rule unit, and the regulation of its police officers is within its home rule power. (See Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 343 N.E.2d 919.) And residency requirements may be imposed as a condition of employment. (McCarthy v. Philadelphia Civil Service Com. (1976), 424 U.S. 645, 47 L. Ed. 2d 366, 96 S. Ct. 1154; Andre v. Board of Trustees (7th Cir. 1977), 561 F.2d 48.) At issue here is the extent of the exercise of Rosemont’s power and the effect of its ordinances on section 3 — 14—1 of the Illinois Municipal Code.

The parties here have stipulated that Rosemont has not enacted an ordinance allowing officers to live outside the corporate limits. Defendants also maintain that section 3 — 14—1 is not superseded, or is only superseded in part, since the Rosemont ordinance does not conflict with the second paragraph of section 3 — 14—1.

Rosemont has not expressly allowed its officers to reside outside the municipality and the adoption of its ordinance in 1975 does not impliedly supersede all of section 3 — 14—1. We have not found any authority which requires a finding that an ordinance which supersedes part of a statute necessarily supersedes the entire statute. A reading of section 8 of Ordinance 75 — 9—17A clearly demonstrates Rosemont’s intent. Section 3 — 14—1 is superseded only insofar as it conflicts with the preemployment requirements for municipal office. Rosemont has not exercised its full power as a home rule unit, and in the absence of its exercise of its constitutional power the State statute shall govern.

We agree with defendants that the trial court erred in its construction of 3 — 14—1. The court found that the statutory language referring to “eligible” persons established preemployment qualifications but did not establish a residency requirement.

The rules of statutory construction direct the court to determine and give effect to the intent of the legislature. Words are given their plain and ordinary meaning. (Village of Schaumburg of Franberg (1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239.) The construction of the statute should not render any of the provisions superfluous or redundant. (Board of Trustees v. Human Rights Com. (1981), 88 Ill. 2d 22, 429 N.E.2d 1207.) Where more than one construction is apparent, the court will choose that which leads to a logical result and avoid a construction which leads to an absurd result. People v. Sansone (1981), 94 Ill. App. 3d 271, 418 N.E.2d 862; Board of Education v. Community High School District No. 211 (1967), 89 Ill. App. 2d 481, 232 N.E.2d 316.

The trial court’s construction of section 3 — 14—1 violates these rules. Accepting its construction, the statute has the absurd result of requiring potential officers to reside within a municipality until they are hired and then allowing them to move immediately after they are hired. Furthermore, the legislature’s intent to impose a continued residency requirement is evidenced from the second paragraph allowing certain municipalities to exempt their officers from the requirement “both at the time of the appointment and while serving.” The trial court’s construction renders the second paragraph of section 3 — 14—1 meaningless. We hold that section 3 — 14—1 imposes a residency requirement which applied to plaintiff during his service as a Rosemont officer.

Plaintiff maintains, however, that if a residency requirement applies, defendants are estopped from enforcing it because they did not enforce the preemployment residency requirements.

Equitable estoppel may be asserted against a municipality. (Stahelin v. Board of Education (1967), 87 Ill. App. 2d 28, 230 N.E.2d 465.) The municipality must take some affirmative action such that it would be unjust to permit it to deny what it had done. (Eertmoed v. City of Pekin (1980), 83 Ill. App. 3d 362, 404 N.E.2d 942.) The affirmative act on which plaintiff relies here is defendants’ failure to enforce the requirements of section 3 — 14—1 and the village ordinances when plaintiff was hired.

In 1972, prior to plaintiff’s employment, the Rosemont Board of Police and Fire Commissioners adopted a rule pursuant to Ordinance 72 — 2—16. The rule allowed probationary policemen a 60-day grace period after the completion of the probationary period during which time they had to establish a residence in Rosemont. As we have found, by its adoption of preemployment requirements in conflict with those of section 3 — 14—1, Rosemont has partially superseded the statute. For estoppel to apply, defendants must have ignored the Rose-mont ordinances and rules.

Plaintiff resided in Chicago when he sought employment as an officer in Rosemont. Seven months after he was hired, during his probationary period, plaintiff moved to Rosemont. Since plaintiff complied with the rule, Rosemont did not ignore its residency requirement in hiring him. Consequently, plaintiff’s estoppel argument must fail.

Plaintiff also contends that the statute, ordinances and rules are conflicting in nature and void for vagueness. The Rosemont ordinances conflict with section 3 — 14—1 only with respect to the time an officer must become a resident. In addition to 3 — 14—1, each of the ordinances noted that continued residence was required. Section 3 — 14—1 is not so vague or indefinite that persons of common intelligence must guess at its meaning. (Fagiano v. Police Board (1983), 98 Ill. 2d 277.) Plaintiff’s due process rights have not been denied.

Because of our holding that the board’s dismissal of plaintiff was proper, we need not consider plaintiff’s cross-appeal that setoffs charged against his back pay award were improper.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

McGILLICUDDY and WHITE, JJ., concur.


text:
    THE CITY OF HURST, Plaintiff-Appellee, v. THE ILLINOIS COMMERCE COMMISSION, Defendant-Appellant.
    Fifth District
    No. 83—237
    Opinion filed December 23, 1983.

      Neil E Hartigan, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and James E. Weging, Assistant Attorney General, of counsel), for appellant.
    James R. Zimmer, of Carbondale, for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

The Illinois Commerce Commission appeals from the judgment of the circuit court of Williamson County setting aside an order of the Commission which established increased wholesale water rates for Cities Water Company’s service area which includes the city of Hurst. The Commission appeals from the final order of the circuit court entered on March 3, 1983, and the denial of its petition for clarification or reconsideration on March 25, 1983. The circuit court set aside the Commission’s order in Commission Docket No. 78 — 0527.

On October 3, 1978, Cities Water Company (Company) filed a revised rate schedule with the Commission proposing to increase rates for general water service in the Royalton area and to increase the wholesale water rate to the municipalities of Hurst and Bush effective November 4, 1978. The proposed rates were not put into effect but were suspended by the Commission to September 2, 1979, pending hearings. Notice required by law and the rules of the Commission was given.

Several hearings followed. On January 18, 1979, the initial hearing commenced. Before the examiner two persons appeared on behalf of the Commission. Nothing of substance was decided nor any evidence taken. The examiner merely continued the cause, noting that the village of Royalton had intervened.

Subsequent hearings were held on April 25, 1979, and June 18, 1979. The transcripts of those hearings contain testimony of Francis J. Coyle, president and chairman of the board of the Company, Seymour Golden, a certified public accountant appearing on behalf of the Company, George Henton, an accountant in the accounts and finance section of the Commission, and Thomas R. Stack, a registered professional engineer in the water engineering section of the Commission. It is evident from the voluminous record of transcripts and exhibits certified by the Commission that extensive evidence was presented before the Commission. Indeed, the Commission’s initial order reflects the exhaustive nature of the hearings by listing the following subheadings: “Nature of Respondent’s Operations,” “Present Tariff,” “Proposed Tariff,” “General Water Service,” “Wholesale Service,” “Test Year,” “Original Cost Rate Base,” “Operating Revenues, Expenses and Income,” “Rate of Return,” and “Cost of Capital Computation.” Each subsection of the initial order contains meticulously detailed findings and conclusions.

The order was entered on August 22, 1979. The Commission rejected the Company’s proposed revised rate schedule but ordered it to file a revised schedule conforming specifically to the rates and conditions of service attached to the order. The Commission found:

“Little if any direct testimony relating to a fair and reasonable return is contained in the record of this case. Nonetheless, this Commission is charged with the responsibility of establishing rates which are just and reasonable to the customers of Respondent’s water utility and at the same time provide an oppor- • tunity for the investors of the Company to earn a fair and reasonable return on the investment for the risks assumed. *** While it is difficult for the small utility to prevent deterioration of its financial viability under present economic conditions, it is necessary that needed rate relief be anticipated and sought by management before circumstances result in an inability to provide adequate and safe utility service.
This Company, as is true with many smaller utilities, does not have a capital structure which may be subjected to the same rationale applicable to larger utilities in the determination of a fair and reasonable return on debt and equity components.” (Cities Water Co., Ill. Com. Com., No. 78 — 0527, filed Aug. 22, 1979, at 5.)

The existing and proposed rates were both subjected to rigorous analysis, enabling the Commission to conclude:

“Under present rates pro forma operating income of $855 would reasonably be expected to result in a return of less than 4% on original cost rate base approved herein; such amount of operating income and the resultant return is insufficient, and unreasonable. The rates which produced such results should be permanently cancelled and annulled and the existing rate structure revised.
Under proposed rates pro forma operating income of $25,974 would reasonably be expected to result in a return of more than 38%; such amount of operating income and the resulting return is excessive and the rates proposed by Respondent in its tariff filing of October 3, 1978, should also be permanently can-celled and annulled.” (Cities Water Co., Ill. Com. Com., No. 78-0527, filed Aug. 22,1979, at 5.)

The Commission consequently established a rate structure between the extremes:

“After examination of the Company’s present and proposed rate structure and the evidence relating thereof, the Commission is of the opinion that the Staff engineer’s proposed rate structure as shown by Staff Exhibits 9, 10, 11 and 12 should be implemented. The Commission is of the opinion that the existing wholesale rate does not recover the appropriate portion of the expenses properly allocable to cost of providing such service, as shown by Staff Exhibits 9 through and including 12. * * *
The Commission is of the opinion that the Staff engineer’s methodology is acceptable for the purpose of restructuring of the rate schedule of the Company.” Cities Water Co., Ill. Com. Com., No. 78-0527, filed Aug. 22, 1979, at 2-3.

The Commission observed, “The rates set forth in Appendix A, attached hereto, were prepared as proposed by the Water Engineering Staff member, incorporating the proposed rate structure, and computed to produce operating revenue sufficient to obtain the operating results approved hereinabove.” (Cities Water Co., Ill. Com. Com., No. 78 — 0527, filed Aug. 22, 1979, at 6.) Finally, the Commission, having given due consideration to the entire record, was of the opinion and found:

“(11) operating income of $10,010 will enable the Company to meet its existing financial obligations, pay normal operating expenses and result in a fair and reasonable overall [9.08%] return on the Company’s capital structure and a fair and reasonable return to the investors of the Company; ***.’’ Cities Water Co., Ill. Com. Com., No. 78-0527, filed Aug. 29, 1979, at 8.

The revised schedule adopted authorized the Company to increase its wholesale water rate to Hurst from $0.57 to $0.76 per thousand gallons. It was effective August 24, 1979, but was later suspended when on September 17, 1979, Hurst filed a petition for rehearing. Rehearing was granted and the initial hearing on rehearing commenced December 4, 1979. A subsequent hearing was held on January 4, 1980.

The Commission’s order on rehearing indicates the procedural posture:

“The Examiner adopted the entire record of this case into the record for purposes of Rehearing and all parties were provided with an opportunity to cross-examine all witness [sic] on all matters concerning their previous testimony and exhibits.
The parties were also provided with an opportunity to present additional testimony on all issues.” (Cities Water Co., Ill. Com. Com., No. 78 — 0527, filed Jan. 30, 1980, at 2.)

The Commission’s order on rehearing establishes that careful consideration was given to Hurst’s objections and arguments. Detailed findings and analysis accompanied the Commission’s examination of Hurst’s case. After addressing and disposing of Hurst’s arguments and having examined the entire record the Commission, on January 30, 1980, concluded that the opinions and order of August 22, 1979, were “supported by substantial evidence” and that the record was “adequate to sustain the conclusion reached.” (Cities Water Co., Ill. Com. Com., No. 78 — 0527, filed Jan. 30, 1980, at 4-5.) Hurst’s prayer for relief was denied and the order of the Commission of August 22, 1979, was allowed to remain in full force and effect.

Two weeks later, the city of Hurst appealed to the circuit court pursuant to section 68 of “An Act concerning public utilities” (Ill. Rev. Stat. 1979, ch. lll2/s, par. 72) (hereinafter cited as the Public Utilities Act or the Act), “for the purpose of having the reasonableness and lawfulness of such Orders and Decisions inquired into and determined.” On April 22, 1980, the circuit court ordered that the wholesale metered rates of the Company approved by the Commission effective August 24, 1979, be stayed for the city of Hurst pending the decision on appeal to the circuit court.

The circuit court’s record sheet shows that briefs were submitted by both parties in August and September of 1980. The very next entry was made 21/2 years later and does not indicate any interim proceedings or-dispositions. The handwritten entry reads as follows:

“3-3-83 Order of Commerce Commission for rate increase is hereby stricken. Copy & send. No order necessary. Close file.”

The record sheet also contains the following entry:

“3-25-83 Motion for reconsideration denied. Order amended to read as follows: Order of Commerce Commission is set aside w/a [sic] finding finding [sic] that order of Commerce Commission was based on insufficient evidence and is unreasonable and unjust. Motion for stay pending appeal denied.”

The Commission brings this appeal arguing that its orders of August 22, 1979, and January 30, 1980, are proper and should have been affirmed by the circuit court. The Commission also challenges the circuit court’s exercise of authority as being outside the scope of section 68 of the Act. We granted the Commission’s motion for stay of the orders of the circuit court pending this appeal.

“[The Illinois Commerce Commission] is a legislative agency, created for the purpose of applying numerous details of regulatory police power over public utilities.” (Illinois Commerce Com. v. New York Central R.R. Co. (1947), 398 Ill. 11, 16, 75 N.E.2d 411, 414.) “The legislature has vested in the Commerce Commission the exclusive functions of fixing rates of public utilities which will be just and reasonable and produce a fair return upon the property used and employed in the public service.” (Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 48, 25 N.E.2d 482, 492.) “Orders of the commission are entitled to great weight, for they arise out of the deliberations of its members, who are much better qualified to interpret the testimony and charts of specialists and technicians. We will not set aside a commission order unless it is arbitrary or unreasonable or in clear violation of a rule of law.” (South Chicago Coal & Dock Co. v. Illinois Commerce Com. (1937), 365 Ill. 218, 225, 6 N.E .2d 152, 155.) “The findings and conclusions of the Commission on questions of fact shall be held prima facie to be true and as found by the Commission; ***. *** [0]rders or decisions of the Commission shall be held to be prima facie reasonable, and the burden of proof upon all issues raised by the appeal [to the circuit court] shall be upon the person or corporation appealing from such *** orders or decisions.” (Ill. Rev. Stat. 1979, ch. lll2/3, par. 72.) “When the sufficiency of the evidence to support an order of the commission is questioned the order will not be set aside unless it is clearly against the manifest weight of the evidence.” (365 Ill. 218, 225, 6 N.E.2d 152, 155.) “[I]f from any reasonable view of the evidence the commission’s order rests on a reasonable and substantial basis and does not infringe any of the constitutional rights of the parties it should be sustained.” (Illinois Commerce Com. v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1923), 309 Ill. 165, 170, 140 N.E. 868.) “The court should not usurp legislative or administrative functions by setting aside a legislative or administrative order on its own conception of the wisdom of it. *** To reverse and set aside an order on the ground that it is unreasonable it must be an arbitrary action, not resting on a reasonable basis for the exercise of the discretionary powers of the commission.” (Illinois Commerce Com. v. Chicago & Eastern Illinois Ry. Co. (1928), 332 Ill. 243, 249, 163 N.E. 664.) “Upon an appeal from an order of the Commission the circuit court is restricted in the exercise of its powers, including the orders it may enter, to those expressly delegated by statute. (Thompson v. Illinois Commerce Com. (1953), 1 Ill. 2d 350, 115 N.E.2d 622.) The only issue presented to the circuit court is the reasonableness and lawfulness of the Commission’s order, upon which the court’s inquiry is confined to the jurisdiction of the Commission, the sufficiency of the evidence, and the preservation of constitutional rights. (Thompson.) *** If the order of the Commission is lawful and reasonable it must be confirmed; if it is not, it must be set aside. Thompson.” Illinois Commerce Com. v. Holiday Utilities Corp. (1983), 119 Ill. App. 3d 50, 54.

We must determine whether the circuit court erred in finding that the Commission’s orders were based on insufficient evidence. (Ill. Rev. Stat. 1981, ch. lll2/s, par. 73.) The burden of proof on all issues raised by the appeal was on Hurst. (Ill. Rev. Stat. 1979, ch. lll2/s, par. 72.) We conclude from the record before us that the Commission’s orders are supported by substantial evidence and that the record is adequate to sustain the conclusion reached on its own rehearing. We therefore do not believe the circuit court was justified in finding as it did. For the circuit court to “strike” the Commission’s order, close the file, deny a motion for clarification, and finally conclude without elaboration that the Commission’s order was based on “insufficient evidence,” amounted to an abuse of discretion in the exercise of its statutory appellate jurisdiction. This is especially true when one considers the fact that the Commission annulled the previous rates and the effect of the circuit court’s judgment was to reestablish a rate determined by the Commission to be insufficient, unreasonable, and unjust. Apart from the inquiry into whether the circuit court impermissively judicially performed a legislative function (see Illinois Bell Telephone Co. v. Illinois Commerce Com. (1973), 55 Ill. 2d 461; Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 25 N.E.2d 482), we do not believe the action was proper. The record establishes a long history of the Company’s financial difficulties and discloses that for many years the Company has operated at a loss. The Commission found that the existing rates did not provide the Company with sufficient operating income, did not recover the appropriate portion of expenses allocable to the cost of providing service, and were unjust and unreasonable. Hurst has never taken issue with the inadequacy of the lower rates. Hurst has never challenged the Commission’s findings that the lower rate left the Company with insufficient operating income and rate of return. We cannot permit, nor do we think the circuit court should have permitted, the denial of a rate increase in toto.

Hurst’s principal position on this appeal is that the findings of the Commission are not based upon “legal, acceptable, proper and substantial evidence in the record” and particularly that there is no “legal, acceptable, proper and substantial evidence of the existence of and original cost of the utilities property upon which to determine operational costs for rate making purposes.” Hurst alleges that the books and records of the Company taken as evidence and used by the Commission constitute hearsay evidence that should have been subjected to the strict admissibility requirements of hearsay evidence generally. Further, Hurst alleges that the evidence that was taken fails to show that the Company’s books and records accurately reflect the present existence and condition of Company assets upon which to base a fair and reasonable rate increase since the Commission relied on an inventory and appraisal of Company assets dating back to 1956.

“In the conduct of any investigation, inquiry or hearing neither the Commission nor any commissioner or hearing examiner shall be bound by the technical rules of evidence, and no informality in any proceeding or in the manner of taking testimony before the Commission, any commissioner or hearing examiner of the Commission shall invalidate any order, decision, rule or regulation made, approved, or confirmed by the Commission.” (Ill. Rev. Stat. 1979, ch. lll2/3, par. 64.) In the instant case, the Commission, on rehearing, observed that the Company is required to maintain its records in accordance with the provisions of General Order 183, “Uniform System of Accounts For Water Utilities,” and file annual reports with the Commission. The examiner took administrative notice of such annual reports for the years 1974 through 1978, found that the books and records of the Company were in substantial compliance with General Order 183, and found that the books, records and annual reports disclosed the activity in the plant accounts of the Company. Hurst presented no evidence that the examiner should not have accepted this evidence. We agree with the Commission’s conclusion that it was “justified in placing reliance upon such documentary evidence prepared and maintained during the normal course of the Company’s operations, especially when subjected to examination by a Commission Staff member.” To this extent and without deciding whether the evidence is hearsay, we believe McCormick on Evidence is instructive:

“Many reasons support the open admission of hearsay and other legally incompetent evidence in administrative hearings. Foremost among them is the fact that the exclusionary rules do not determine the probative value of the proffered evidence. Professor Davis, the leading proponent that hearing officers should make no distinction between hearsay and nonhearsay evidence, makes the point this way.
‘[T]he reliability of hearsay ranges from the least to the most reliable. The reliability of non-hearsay also ranges from the least to most reliable. Therefore the guide should be a judgment about the reliability of particular evidence in a particular record in particular circumstances, not the technical hearsay rule with all its complex exceptions.’
To require that a trial examiner refuse to admit hearsay makes no sense where there is no jury to protect and the trier of fact is equally exposed to the evidence whether he admits or excludes it. *** Hearsay, of course, is not subject to current, in-court cross-examination, but that limitation affects the weight the evidence carries, not its admissibility.” (McCormick, Evidence sec. 350, at 841-42 (2d ed. 1972), cited in Nussbaum Trucking Inc. v. Illinois Commerce Com. (1981), 99 Ill. App. 3d 741, 748, 425 N.E.2d 1229, 1233.)

We conclude that Hurst’s objection regarding the hearsay character of the evidence presented is without merit.

Hurst’s position with regard to the Company’s rate base had been presented to the Commission on its rehearing. The Commission addressed Hurst’s argument that “in arriving at the original cost rate base of the Company, the Commission failed to verify and/or require Respondent to provide documentary evidence and testimony relating to the cost of the Company’s plant in service account.” The Commission responded by observing that it had previously taken administrative notice, on notice of the parties, of the order and order on rehearing entered in Commission Docket Nos. 42873 (1956) and 43001 (1957). Those orders were entered pursuant to the Company’s proposed revised rate schedule submitted to the Commission in 1956. In 1956, the Commission had found the original cost of the Company’s property used and useful in furnishing water service to be $73,000 undepreciated and $50,500 depreciated at December 31, 1955, for rate-making purposes. The city of Hurst was an active party in those hearings and in fact appealed at that time to the circuit court of Williamson County. The appeal was not prosecuted. We agree with the Commission’s order on rehearing that “the City of Hurst is bound by the findings of the Commission’s original cost determinations ***.” (Cities Water Co., Ill. Com. Com., No. 78 — 0527, filed Jan. 30, 1980, at 3.) “ ‘Original cost’ *** means the cost of such property to the person first devoting it to public service.” (General Order 183, “Uniform System of Accounts for Water Utilities,” at 2 (1962).) As such, it is a precise historical figure that once having been established is not subject to change. This is especially true as to Hurst who had an opportunity to contest the 1956 original cost finding but failed to prosecute its appeal relating thereto. See Ill. Rev. Stat. 1955, ch. lll2/s, par. 72.

It is apparent that original cost was but one factor considered by the Commission in arriving at the original cost rate base. Adjustments were made for depreciation and amortization, construction work in progress, working capital allowance, and materials and supplies. The Commission determined that the test year 1978 original cost rate base, which was derived from figures adjusted in a 1976 rate case between the same parties, was the “value” of the Company’s property dedicated in providing service to its customers. In this case, the Commission amassed cumulative calculations from several rate cases in reaching the conclusion that a 9.08% return is fair and reasonable. The Commission may properly take administrative notice of its own findings and orders.

The judgment of the circuit court is reversed, and pursuant to the power vested in us by Rule 366(a) (87 HI. 2d R. 366(a)), we affirm the orders of the Commerce Commission of August 22, 1979, and January 30, 1980.

Reversed; order of commission affirmed.

HARRISON, P.J., and JONES, J., concur.


author: JUSTICE GOLDBERG

text:
    THE CITY OF CHICAGO, Plaintiff-Appellee, v. COSMOPOLITAN NATIONAL BANK et al., Defendants-Appellees—(Arnie Yusim Chevrolet, Inc., Petitioner-Appellee, v. Louis N. Epstein, Intervenor-Appellant).
    First District (1st Division)
    No. 83—0421
    Opinion filed November 28, 1983.
    Rehearing , denied January 9, 1984.

      Mark B. Epstein, of Chicago, for appellant.
    Elizabeth C. McGinnity and Stuart Finkle, both of Chicago, for appellee Arnie Yusim Chevrolet, Inc.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Robert J. Dargis, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
   JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal involves a sheriff’s sale of a vacant piece of real estate. The successful bidder was Louis N. Epstein (plaintiff). The city of Chicago had filed a complaint to foreclose the city’s lien for the cost of demolition of the building upon the property. Plaintiff sought appropriate relief including mandamus to require the sheriff of Cook County to issue a deed.

The pertinent facts are best stated in chronological order:

June 9, 1976 - The city demolished the building and then recorded its lien for $6,219 for expense and cost thereof.

April 8, 1977 - Amie Yusim Chevrolet, Inc. (Yusim) purchased the property by warranty deed from the record owner.

April 20, 1977 - Yusim recorded its deed to the property.

July 2, 1979 - The city filed a complaint to foreclose its lien. This was more than three years after recordation of the city’s lien. Yusim was not a party to the city’s complaint.

July 3, 1979 - The city recorded a lis pendens concerning the action.

April 29, 1981 - Judgment for foreclosure was entered upon the city’s complaint.

June 3, 1981 - The sheriff’s sale was conducted. Plaintiff was the highest bidder. In due course plaintiff paid his bid in cash and received a certificate of sale.

July 8, 1981 - The sheriff’s report of sale and distribution of the proceeds of sale was confirmed.

November 18, 1981 - Yusim filed a petition for relief under the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). Yusim alleged that the judgment was void because the attempted foreclosure by the city was filed too late.

December 4, 1981 - Plaintiff presented his certificate of sale to the sheriff and demanded a deed. The sheriff refused to issue the deed because of the pendency of the proceedings commenced by Yusim.

December 6, 1981 - Plaintiff again demanded issuance of the deed and the sheriff refused.

December 30, 1981 - Plaintiff was given leave to intervene, to file his motion to dismiss the petition previously filed by Yusim and to file a complaint in mandamus against the sheriff.

January 7, 1982 - The sheriff moved the court to dismiss plaintiff’s petition for mandamus.

January 26, 1982 - The city filed a petition for relief under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). The city conceded that Yusim had not been made a party to the proceeding for foreclosure of the demolition lien.

July 6, 1982 - The trial court entered a final order holding that it lacked subject matter jurisdiction to enter the final judgment in the foreclosure proceedings. The order stated that the pertinent statute requires that the city’s suit to foreclose the demolition lien must be commenced within three years after the date of the filing of the notice of lien. (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 31—1.) Consequently, the trial court held that the judgment of foreclosure upon which the sheriff’s sale was based was void. The certificate of sale issued by the sheriff was ordered cancelled and the sheriff was directed to refund the amount of plaintiff’s bid. Plaintiff appeals.

Section 72(5) of the Civil Practice Act, now known as the Code of Civil Procedure, provides in pertinent part (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401(e)):

“Unless lack of jurisdiction affirmatively appears from the record proper, the vacation or modification of an order or judgment pursuant to the provisions of this Section does not affect the right, title or interest in or to any real or personal property of any person, not a party to the original action, acquired for value after the entry of the order or judgment but before the filing of the petition, nor affect any right of any person not a party to the original action under any certificate of sale issued before the filing of the petition, pursuant to a sale based on the order or judgment.”

Plaintiff argues that any jurisdictional defect regarding the judgment for sheriff’s sale did not affirmatively appear from the record. Therefore, plaintiff contends, the judgment was valid, the collateral attack was improper, and plaintiff’s claim to title is superior to that of Yusim.

A similar argument was rejected by this court in In re Application of County Collector (1977), 48 Ill. App. 3d 572, 362 N.E.2d 1335, appeal denied (1977), 66 Ill. 2d 629. There we concluded that the property involved was exempt from taxation. We held that the trial court did not have jurisdiction over the property. We stated a tax deed order “concerning land over which the court [has] no jurisdiction [is] void. It is generally true that an order or judgment rendered without jurisdiction is subject to collateral attack by any party in the context of any proceeding in which the validity of that order or judgment later becomes relevant.” 48 Ill. App. 3d 572, 586.

In the case at bar, the statute which authorizes municipalities to foreclose a lien on property provides that “Suit to foreclose this lien must be commenced within 3 years after the date of filing notice of lien.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 31—1.) The city failed to file its foreclosure suit within the time prescribed by the statute. Because the mandatory requirements of the statute were not complied with, the judgment for sheriff’s sale was void and the collateral attack by Yusim was proper. In re Application of County Collector (1977), 48 Ill. App. 3d 572, 586.

In the instant case, the defect in jurisdiction did in fact appear, on the record. The city’s suit for foreclosure stated the date of the lien. Therefore the fact that the city failed to file its suit for foreclosure in a timely manner, appears affirmatively from the pleadings.

Finally, the protection offered by the Code of Civil Procedure regarding subsequent purchasers of real property, quoted above, applies only to bona fide purchasers for value. (Freisinger v. Interstate Bond Co. (1962), 24 Ill. 2d 37, 44, 179 N.E.2d 608; Ford City Bank & Trust Co. v. Ford City Bank & Trust Co. (1982), 110 Ill. App. 3d 123, 128, 441 N.E.2d 1192, appeal denied (1983), 93 Ill. 2d 542.) A subsequent purchaser cannot be a bona fide purchaser for value if he has actual or constructive notice of the outstanding rights of other parties. Petta v. Host (1953), 1 Ill. 2d 293, 303-04, 115 N.E.2d 881.

In the case at bar, plaintiff had constructive notice of Yusim’s interest in the property. The record before us indicates that Yusim’s deed was properly recorded on April 20, 1977. The sheriffs sale was not held until June 3, 1981. Thus, plaintiff was put on constructive notice of the records of the recorder of deeds and plaintiff was not a bona fide purchaser. Smith v. Grubb (1949), 402 Ill. 451, 464-65, 84 N.E.2d 421.

In addition, the record shows that Yusim was in open, visible, exclusive, and unambiguous possession of the property. Yusim used the property for storage of automobiles continuously for more than four years. Such possession put plaintiff on constructive notice of Yusim’s interest in the property. Plaintiff was bound to inquire into the nature and extent of Yusim’s interest. Beals v. Cryer (1981), 99 Ill. App. 3d 842, 845, 426 N.E.2d 253.

In his reply brief plaintiff urges that Yusim had actual knowledge of the unsatisfied demolition lien filed by the city against the property. Plaintiff refers to this as a fact which should have put Yusim on inquiry. It is correct, as shown by the above chronology, that Yusim purchased the property on April 8, 1977, almost one year after recor-dation of the city’s demolition lien. However, the mere recording of the lien is of no significance. The important fact here from a legal point of view is that the city did not file its complaint to foreclose its lien until July 2, 1979, more than two years after Yusim had purchased the property. Also, the crucial matter is not the knowledge of Yusim but the constructive knowledge charged against plaintiff and the total lack of jurisdiction of the trial court to order sale of the real estate by the sheriff.

It follows necessarily that the sheriff did not have a clear legal duty to issue a deed conveying the property to plaintiff. Therefore, it would have been improper for the trial court to grant mandamus against the sheriff. In re Claudia K. (1982), 91 Ill. 2d 469, 476, 440 N.E.2d 78; Aimone v. Finley (1983), 113 Ill. App. 3d 507, 509, 447 N.E.2d 868.

For these reasons the judgment appealed from is affirmed.

McGLOON and CAMPBELL, JJ., concur.