[March41939]

27 years ago, my husband and I purchased an acreage with a small house on. We want to build a storage shed on a portion to store our boats and an antique car. The current road commissioner states that there is a road on that property and I can find that in 1853 there was a road there. It runs up in our tree lines and very close to a house who definitely does not want it open. It is no longer on the Peoria County GIS system as they could find no paperwork which definitely makes it a dedicated we have openly and notoriously marinated it and will again this year. It is just mowable grass.
I would like to know if the adverse possession law in Illinois makes it ours or try to vacate it which the road commissioner does not want to do. Please give me your thoughts.

[LisaB4657]

Adverse possession would not apply here since governmental entities are usually exempt from it. In your case you would want to have the roadway declared as abandoned. I did some looking around and found this:

"4-13 ABANDONMENT BY NON-USE
For situations in which a township road has been unused for a number of years, is overgrown
with vegetation and, in some cases, has even been gated by one of the adjoining property
owners, the road could be considered abandoned by non-use; however, IDOT still considers
this a public highway unless it has been officially vacated.
If a private citizen or other interested party contends that a township road that is not open to
public travel has been abandoned by non-use, this issue has to be resolved either through the
local highway authorities or in the courts. The court is the entity that determines whether a
roadway has been abandoned. IDOT has no policy or guidance in this area. Issues of this
nature are referred to the county engineer and the county state’s attorney. IDOT would not be
involved in any legal proceedings regarding this matter, since this is handled between the
highway commissioner, the public, and the courts.
The courts consider three factors in determining if a road has been abandoned by non-use.
1. Non-use of the road for a period of time (the length of time is not defined; it is up to
the court to decide that based on each case);
2. Whether or not the public acquired the legal right to use another route, either new or
existing, for access;
3. Whether the necessity for the road has ceased to exist.
When a court finds that a highway has indeed been abandoned, the highway reverts to the
original property owners."

This came from www.dot.state.il.us/blr/JTGuide.pdf‎

If the township or county is not willing to formally abandon the road then you would have to apply to the local court of equity to have it declared as abandoned.

[ebaines]

I don't believe your argument works, for several reasons:

1. In Illinois (as with most states) adverse possession cannot be brought to bear on property owned by the state or federal government.

2. Adverse possession of abandoned land (which seems to be your argument here) involves operating for 7 years under the "color of title" including pament of property taxes on the property. That doesn't appear to have happened here.

[AK lawyer]

This may concern a ROW which may have been dedicated by the U.S. government in the 19th Century pursuant to since-repealed R.S 2477. OP needs an attorney who is well-versed in public land law in Illinois, or who is a good learner; it's a fairly obscure area. OP's attorney will want to talk to the road commissioner and get a better idea of what the commissioner's theory might be.

As has been noted, adverse possession does not work against the government. Lisa's research on abandonment of a public ROW in Illinois is a good starting point.

[ballengerb1]

I agree with AK but we do not know for sure if this is a state road commissioner, doubtful, or local county comissioner . I always had the idea that ALL governmental agencies in Illinois were immune fron adverse possession like Lisa stated. Ebaines appears to be limiting it to state of federal. Follow AK's advice and consult a good local attorney

[AK lawyer]

I don't believe your argument works, for several reasons:
...
2. Adverse possession of abandoned land (which seems to be your argument here) involves operating for 7 years under the "color of title" including pament of property taxes on the property. That doesn't appear to have happened here.

OP and her husband purchased the property 27 years ago. Presumably they received a deed, which would constitute "color of title", and, presumably they paid property taxes ever since. So what do you mean "That doesn't appear to have happened here."?

But your first point would be valid. And, as Ballengerb1 points out, AP doesn't generally work against federal, state or local government.

[ebaines]

OP and her husband purchased the property 27 years ago. Presumably they received a deed, which would constitute "color of title", and, presumably they paid property taxes ever since. So what do you mean "That doesn't appear to have happened here."?

I missed the fact that the road is on their existing property. I assumed - apparently incorrectly - that the road was adjacent and that they wanted to take over the land that was allocated for it. When I saw the term "adverse possession" I assumed that they were trying to add acreage to their property.

One thing I don't quite understand - wouldn't tere be a lien on their property title regarding this road?