FIFTH DIVISION

MARCH 8, 2002

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff General Auto Service Station (GASS) appeals an order of the circuit court ofCook County granting summary judgment to defendant City of Chicago (City) on count I ofplaintiff's complaint, which sought a declaration that a dead-end alley near the intersection ofState and Elm Streets in Chicago is privately owned by the owners of the properties surroundingthe alley.⁽¹⁾ This appeal is a continuation of the litigation previously before this court in Heerey v.Maniatis, 192 Ill. App. 3d 868, 549 N.E.2d 691 (1989).

Although the facts of the case are largely detailed in the Heerey opinion, it is useful toreview them and the prior proceedings briefly here. The first division of the property at issueappearing in the record on appeal, referred to as the "Assessor's Division," was recorded onJuly 28, 1860. The plat of the Assessor's Division depicts lots bounded by Elm and Cedar Streetson the north and south, by Lake Michigan on the east, and Green Bay Street (later referred to asRush Street and State Street) on the west.

On November 25, 1882, George Healy filed a plat of subdivision (Healy's Subdivision),extending to Lake Shore Drive on the east, which subdivided Lot 1 of the Assessor's Divisioninto 34 lots. Healy's Subdivision contains a strip of land abutting Lots 1-3 on the west and Lot 4on the east. The strip runs to what was Lot 2 of the Assessor's Division on the south and has anopen boundary with Elm Street on the north. The plat shows that the strip is 12' wide. Healy'sSubdivision names the streets bounding the property, but does not name or otherwise refer to thestrip as an alley. The northernmost part of this strip, measuring 12' X 49.36', is the "alley" atissue here.

In 1891, Healy conveyed Lot 4 of Healy's Subdivision to William Seymour "inconsideration of Seven Thousand and Five Hundred Dollars ($7500) in hand paid." Theconveyance from Healy to Seymour made no mention of the alley. Healy died in 1894; his realestate holdings were bequeathed to his wife Louisa. On April 13, 1899, William and KatherineSeymour conveyed Lot 4 to Suel and Florence Joss. A restrictive covenant contained in the April1899 deed, stated as follows:

"A part of the consideration herein is that the grantee hereinand all persons holding under and through him [of Lot 4] shallnever join in any petition to vacate the public alley next west ofthose premises, but such alley shall forever remain a public alleysituated in the City of Chicago."

On September 5, 1899, the Josses conveyed Lot 4 to Thomas Skinner; the deed did not mentionthe restrictive covenant, but referred to Lot 4 as "being the property on the south side of ElmStreet next east of the public alley ***." A deed apparently recorded in January 1900 (insofar asthe photocopy thereof is legible), conveying Lot 4 from Thomas and Emily Skinner to ShermanT. Kimbell also referred to Lot 4 as "on the south side of Elm Street next east of the public alleyabout 120 feet east of State Street ***."

It is undisputed that the deeds of the Josses, Skinner and Kimbell were subject to a$7,500 debt owed to Louisa Healy, which apparently was not paid. In 1901, Healy's widow suedSeymour, Joss and Skinner, Kimbell and others, reacquiring Lot 4 through a judicial sale. Therestrictive covenant in the April 1899 deed does not appear in the deed obtained by Louisa Healyin the judicial sale. The deeds for Lot 4 recorded thereafter do not mention the restrictivecovenant or the alley.

In 1928, another plat was filed by a successor owner of Lot 4, which described the alleyas a private alley. This plat, referred to as the "Owner's Division," expressly excludes the areataken by Lots 1-3 of Healy's Subdivision, but does include Lot 4 and the lot south of the alley.

On February 6, 1985, Bernard A. Heerey, GASS's predecessor-in-interest to propertyincluding Lot 4, filed a three-count complaint against Sam Maniatis, the beneficial owner ofother property abutting the disputed alley, the City, and the Western National Bank of Cicero asthe title owner of Maniatis' property. Count I of Heerey's complaint sought a declaration that thealley is privately owned. The record shows that in January 1985, when Heerey's attorney went tothe Department of Maps to find out who was the private owner of the alley, the Superintendent ofMaps took a pen and crossed out the word "private" and wrote in the word "public" on the 1928plat. An affidavit by the Superintendent of Maps states that he corrected the City's official mapsto reflect this change.

On March 29, 1988, the trial court granted summary judgment in favor of defendantManiatis and against Heerey on cross-motions for summary judgment, dismissing Heerey'scomplaint on the ground that Heerey was prohibited from litigating to have the alley declaredprivate by the April 1899 restrictive covenant. The trial court expressly declined to reach theissue of the public or private status of the alley.

On appeal, this court held that the trial court had misapplied the restrictive covenant inholding that it barred Heerey from seeking his declaratory action, because his complaint couldnot be construed as an action to vacate a public alley. Heerey, 192 Ill. App. 3d at 871-72, 549N.E.2d at 693. This court also held that genuine issues of material fact existed and therefore thecourt erred in granting summary judgment to Maniatis. Heerey, 192 Ill. App. 3d at 871-72, 549N.E.2d at 693. In particular, this court ruled "that 'if' the alley is public and 'if' the restrictivecovenant is binding on Heerey" were both material questions of fact, which precluded entry ofsummary judgment. Heerey, 192 Ill. App. 3d at 872, 549 N.E.2d at 694. After reviewing thehistory of the property at issue, this court concluded that "the foregoing facts do not support afinding beyond question that the alley is public, apparently the conclusion the trial courtindirectly reached in its interpretation of the restrictive covenant as a bar to Heerey's action." Heerey, 192 Ill. App. 3d at 873, 549 N.E.2d at 694 (emphasis in original). This court went on to"observe that even assuming arguendo that the language of the restrictive covenant 'intended' thatthe alley be public rather than private, it is unclear whether defendants' position can be supportedupon a common law or statutory dedication of the alley, especially since the trial court did notreach this issue." Heerey, 192 Ill. App. 3d at 873, 549 N.E.2d at 694. Accordingly, this courtremanded the case to the trial court with directions that it declare the ownership status of thealley, and, thereafter, conduct hearings on counts II and III of Heerey's complaint. Heerey, 192Ill. App. 3d at 873, 549 N.E.2d at 695.

It is undisputed that at some unspecified time following remand, Heerey apparentlyvoluntarily dismissed his suit, refiling the action on or about December 26, 1995. The partieshere have raised no issue arising out of the voluntary dismissal and subsequent refiling.

On November 16, 1998, Heerey moved for summary judgment on count I of the refiledcomplaint, which sought the same declaratory relief he had sought in the initial suit. The Cityfiled its response on January 20, 1999, arguing that summary judgment should be entered in itsfavor. Both parties submitted evidence regarding the history of the property at issue.

Both parties also relied in part on deposition testimony by Maniatis take in August 1985regarding the alley. Maniatis testified that in winter, the alley was cleared of accumulated snowand ice by restaurant employees. Maniatis also testified that he had seen the City plow the alleyto clean up snow. Maniatis testified that he had never paid real estate taxes on the alley property. Maniatis testified that members of the public would walk into the alley at lunchtime to eat fastfood procured elsewhere, which would require the area to be cleaned.

Maniatis further testified that the alley is semi-paved, and that the City paved its alley. Heerey stated in an October 26, 1998, affidavit that from the late 1940s through 1997, he hadwalked by and viewed the alley on an almost daily basis, but never saw the City remove trashfrom the alley or perform resurfacing or repair work there. Heerey attached four photographs asexhibits to his affidavit depicting the alley and surrounding properties as they appeared onOctober 7, 1998. These photographs appear to show that the alley has a cracked concrete surfacefrom its dead end at the south to the public sidewalk, whereas the portion of the strip of landinterrupting the sidewalk appears to be surfaced with blacktop.

Heerey also submitted affidavits by Kai Joy, a licensed private investigator hired toobserve activity in the alley, and Mirzet Biser, who provided janitorial services and handledtenant complaints for two of Heerey's buildings. Joy stated that the vast majority of theoccupants of vehicles parking in the alley entered the rear door of the restaurant abutting the westside of the alley. Biser stated that, having worked and lived on the block where the alley islocated, he had observed since January 1990 that certain cars had been parking in the alleyregularly and that the drivers of these cars appeared to be employees of businesses on theproperty then owned by Maniatis,⁽²⁾ because Biser observed them coming and going into thebuilding.

The City submitted a certified copy of a public record of the Office of the Cook CountyAssessor, dated September 29, 1993. The City's memorandum in support of the cross-motion forsummary judgment relied on this record to state that the alley has no permanent index number;the public record does not appear to show such a number. Nor does the public record refer to anyparticular dates, other than the date of certification. The City's memorandum in support of thecross-motion for summary judgment also relied on this record to state that the alley has not beenassessed; the public record contains entries entitled "assessed valuation" for both the land andimprovements thereto.

The City also stated in its memorandum that there was no showing that any of the adjoining property owners had applied for a driveway permit typically required by the Municipal Codeof Chicago.

On April 9, 1999, the trial court entered an order denying GASS's motion for summaryjudgment. GASS moved for reconsideration. On November 20, 2000, the trial court entered anorder denying the motion for reconsideration and granting summary judgment in favor of theCity. GASS again moved for reconsideration or clarification. On December 29, 2000, the trialcourt entered an order denying the motion for reconsideration, finding that the alley was publicby way of common law dedication, and finding that there was no just reason to delayenforcement or appeal of the order. On January 17, 2001, the trial court entered an order findingthat there was no just reason to delay enforcement or appeal of the April 9, 1999, and November20, 2000, orders. GASS filed a Notice of Appeal to this court on January 23, 2001.

GASS argues that the trial court erred in granting summary judgment in favor of the Cityand in denying its motion for summary judgment. The denial of a motion for summary judgmentis ordinarily not a final order and is not appealable standing alone, but this court may properlyreview an order denying a motion for summary judgment if, as here, the appeal from that order isbrought in conjunction with the appeal from an order granting a cross-motion for summaryjudgment on the same claim. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 358, 718 N.E.2d 191,201 (1999). In ruling upon a summary judgment motion, the evidence is reviewed de novo andconstrued in the light most favorable to the non-movant. E.g., Walker v. Rogers, 272 Ill. App. 3d86, 89, 650 N.E.2d 272, 274 (1995). Summary judgment is properly entered when the pleadings,depositions, admissions, and affidavits fail to establish a genuine issue of material fact, therebyentitling the movant to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998). Thetrial court may grant summary judgment: (1) when the movant disproves the nonmovant's case byintroducing evidence that, if uncontroverted, would entitle the movant to judgment as a matter oflaw (see Purtill v. Hess, 111 Ill. 2d 229, 240-41, 489 N.E.2d 867, 871 (1986)); or (2) when themovant can establish the nonmovant lacks sufficient evidence to prove an essential element ofthe cause of action (see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 273, 106S. Ct. 2548, 2552 (1986); Rice v. AAA Aerostar, Inc., 294 Ill. App. 3d 801, 805, 690 N.E.2d1067, 1070 (1998); Kimbrough v. Jewel Cos., 92 Ill. App.3d 813, 817, 416 N.E.2d 328, 331(1981)).

The parties do not dispute the standard of review, but they dispute the scope of review inthis case. As noted above, the trial court granted summary judgment in favor of the City,specifically finding that there had been a common-law dedication. Nevertheless, in this appeal,the City primarily argues that this court should affirm on the alternative ground that there was astatutory dedication of the alley. The City also argues that GASS is estopped to deny the alley ispublic, though the City made only a passing reference to this argument in the trial court.

The City relies on the rule that this court may affirm a summary judgment for any reasonthat properly appears in the record, regardless of whether that reason is the reason relied upon bythe trial court. Leavitt v. Farwell Tower Ltd. Partnership, 252 Ill. App. 3d 260, 265, 625 N.E.2d48, 52 (1993). GASS responds that where the trial court expressly or implicitly makes a findingagainst a defense, in the absence of a cross-appeal, an appellee will not be permitted to challengeor to ask the reviewing court to modify a portion of the trial court's order, thereby confining theappeal to a consideration of the errors raised by the appellant. See People ex rel. Wray v.Brassard, 226 Ill. App. 3d 1007, 1011, 589 N.E.2d 1012, 1015 (1992).

Our supreme court has held that a party cannot complain of error which does notprejudicially affect it; one who has obtained by judgment all that has been asked for in the trialcourt cannot appeal from the judgment. Material Service Corp. v. Department of Revenue, 98Ill. 2d 382, 386, 457 N.E.2d 9, 12 (1983). Findings of the trial court adverse to the appellee donot require the appellee's cross-appeal if the judgment of the trial court was not at least in partagainst the appellee. Material Service Corp., 98 Ill. 2d at 387, 457 N.E.2d at 12. It follows thatfindings adverse to the appellee require a cross-appeal if the judgment was in part against theappellee.

In this case, Heerey filed a motion for summary judgment on count I of his amendedcomplaint, which sought a declaration that he was the owner in fee simple of 50% of the alley,free and clear of any claims, easements or encumbrances arising from, by or through defendants,"specifically including the City. Indeed, count I separately sought a declaration the City had norights of any kind in the alley. The City's response to plaintiff's motion for partial summaryjudgment, which also served as a cross-motion for summary judgment, primarily argued thatthere had been a statutory dedication, or, in the alternative, a common-law dedication of the alley.

The trial court entered summary judgment for the City, including the specific finding"that the alley is public by way of common law dedication." A statutory dedication vests the feeto the premises in the public, subject to acceptance, whereas a common law dedication keeps thefee vested in the donor, burdened with an easement over the way in question and subject to theacceptance of the easement by the public. Clokey v. Wabash Ry. Co., 353 Ill. 349, 360-61, 187N.E. 475, 480 (1933). The City primarily urged the trial court to rule that there had been astatutory dedication that would vest the fee to the premises in the City. The trial court found thatthere had been a common-law dedication, which leaves the fee vested in the donor.

In sum, while the trial court ruled in favor of the City, it did not award the City all that itsought.⁽³⁾ As the City did not file a cross-appeal, this court's review is limited to a considerationof the errors raised by GASS as the appellant.⁽⁴⁾

GASS contends that the trial court erred in entering summary judgment on the groundthat there had been a common law dedication of the alley to the City.⁽⁵⁾ The dedication of an alleycan be either a statutory dedication, which is created by the recording of a plat, or a common lawdedication, which is shown by the grantor's actions. Kirnbauer v. Cook County Forest PreserveDistrict, 215 Ill. App. 3d 1013, 1020, 576 N.E.2d 168, 173 (1991); see Kimball v. City ofChicago, 253 Ill. 105, 110, 97 N.E. 257, 258 (1911) ("[T]here is no difference between the ruleapplicable to the dedication of an alley and that applicable to the dedication of a street ***."). Astatutory dedication is created by a particular form of the instrument recorded, whereas acommon-law dedication may be made by a written instrument or may be evidenced by acts anddeclarations without a writing. Hooper v. Haas, 332 Ill. 561, 567, 164 N.E. 23, 25 (1928); FirstIllinois Bank v. Valentine, 250 Ill. App. 3d 1080, 1091, 619 N.E.2d 834, 841 (1993).

As this court noted in the first appeal in this litigation, a common-law dedication must beestablished by clear and unequivocal evidence of: (1) an intent to donate the property for thepublic use; and (2) acceptance by the public. Heerey, 192 Ill. App. 3d at 873, 549 N.E.2d at 694.

A survey and plat, alone, are sufficient to establish a dedication, if it is evident from the face ofthe plat it was the intention of the proprietor to set apart certain grounds for public use. Kimball,253 Ill. at 109-11, 97 N.E. at 259. There is no rule of law which forbids the subdivision of landso as to establish over it only private ways for the sole benefit of those who may become ownersof lots in the subdivision, and in which the public, as such, will have no interest. City of Chicagov. Drexel, 141 Ill. 89, 106, 30 N.E. 774, 779-80 (1892).

In this case, as in Kimball, the plat shows a strip of land that has an open end intersectingwith a marked street. The dimensions of the stip are also marked on the plat. Moreover, the stripof land is unnumbered, as was the case in Kimball and Kennedy v. Town of Normal, 359 Ill.306, 309-10, 194 N.E. 576, 578 (1934). The strip of land is not marked as an alley, but this factdoes not preclude a showing of donative intent. See 359 Ill. at 309-10, 194 N.E. at 578. The factthat the alley here is a dead-end, rather than one connecting streets, may distinguish this casefrom cases like Kimball, as it arguably suggests that it was intended to serve the numbered lots,rather than the public generally. However, the nature of the alley will be considered below.

The City points to the deeds referring to the "public alley" as evidence of donative intent. However, GASS notes that the validity of title must be determined by the law, and not by anyview that may have been entertained by those through whom it passed. Chicago & NorthwesternRailway Co., 239 Ill. at 66, 87 N.E. at 954. Moreover, there is no evidence that the subsequentdeeds actually reflect Healy's intent. Healy's 1891 conveyance of Lot 4 to the Seymours made nomention of the alley. Lot 4 was next conveyed in 1899, after Healy's death.

In sum, the record contains some evidence, primarily the plat of Healy's Subdivision, thatsuggests Healy intended to dedicate the strip of land. However, the evidence on this point is notunequivocal. Rather, the evidence on this point raises a factual question that precludes summaryjudgment in favor of the City. The remaining question is whether GASS can establish that theCity lacks sufficient evidence to prove acceptance, an essential element of the City's claim of acommon law dedication.

Acceptance may be proved by evidence of: (1) direct municipal action, such as themunicipality's filing of a suit to establish a dedication; (2) the municipality's possession ormaintenance of the property; or (3) public use of the road for a substantial time. Valentine, 250Ill. App. 3d at 1092, 619 N.E.2d at 842. However, whether any of these factors actually provesacceptance depends on the facts of each case. Valentine, 250 Ill. App. 3d at 1092, 619 N.E.2d at842. Where a dedication is very beneficial or greatly convenient or necessary to the public, anacceptance of such dedication may be implied from slight circumstances. Needham v. Village ofWinthrop Harbor, 331 Ill. 523, 539, 163 N.E. 468, 475 (1928). In the case of a blind alley orcul-de-sac, our supreme court has considered it of little public benefit, in which case muchstronger evidence of acceptance is usually required. H.A. Hillmer Co. v. Behr, 264 Ill. 568, 577,106 N.E. 481, 484-85 (1914).

Moreover, an offer to dedicate land must usually be accepted within a reasonable time. H.A. Hillmer Co., 264 Ill. at 576, 106 N.E. at 484. The donor may, at any time prior toacceptance, revoke his offer. Clokey, 353 Ill. at 361, 187 N.E. at 480. An offer to dedicate isimpliedly revoked by his or her death prior to acceptance. Chicago, Milwaukee & St. Paul Ry.Co. v. City of Chicago, 264 Ill. 24, 30, 105 N.E. 702, 704 (1914). Cf. Pocius v. Fleck, 13 Ill. 2d420, 428, 150 N.E.2d 106, 111 (1958) (gift must be completed prior to death of donor, or isconsidered revoked).

In this case, the City does not claim that it accepted Healy's offer to dedicate by directmunicipal action prior to Healy's death in 1894. The City claims that it accepted by includingHealy's Subdivision in its official maps at its Bureau of Maps and Plats. The making and filingof such a map by a City employee does not bind the City; thus, it is not sufficient proof, in itself,of an acceptance of an offer of dedication on the part of the City. Chicago, Milwaukee & St.Paul Ry. Co., 264 Ill. at 29-30, 105 N.E. at 704. Indeed, in this case, where the City contendsthat its official maps were in error as a result of the recording of the 1928 Owner's Division, theCity's reliance on map evidence is ironic. Furthermore, the City has not identified any officialmap from the period prior to 1928 in the record, let alone discuss how those maps identified thealley here.

The City also claims that it accepted because "[t]he alley has not been given a permanentindex number and no real estate taxes have been assessed or paid on the alley." Like theinclusion of the plat on an official map, the failure to assess taxes, by itself, does not proveacceptance of an offer to dedicate, but it may be considered in connection with other acts. H.A.Hillmer Co., 264 Ill. at 577, 106 N.E. at 485. However, the documentary evidence submitted bythe City in this case, on its face, does not demonstrate that taxes were neither assessed nor paidduring the period between the recording of Healy's Subdivision and Healy's death.⁽⁶⁾ Indeed, thepublic record submitted by the City contains entries entitled "assessed valuation" for both theland and improvements thereto. The City cites no authority for the proposition that a failure topay taxes evidences a common-law dedication, which is not surprising, given that the failure topay is not an act or omission by the City.

The City claims its acceptance is shown by the lack of evidence that the adjacent ownerswere required to obtain a driveway permit. The City cites the current version of its MunicipalCode, but cites no authority stating that a driveway permit was legally required in this caseduring the period prior to Healy's death.

The City claims its acceptance is shown by its maintenance of the property. Thetestimony on this point appears to be in some degree of conflict. However, none of the evidencepurports to relate to the period of time relevant to acceptance of a common law dedication. Thesame flaw is present in the City's evidence, in the form of Maniatis's deposition, a member of thepublic recently parked there, and that other members of the public would eat fast food purchasedelsewhere in the alley at lunch time.

In sum, the evidence of acceptance submitted by the City does not address the period oftime between the filing of Healy's Subdivision and Healy's death. Such evidence may have beenrelevant to acceptance of a statutory dedication, as an offer under the statute could only bewithdrawn by a vacation of the plat under the statute. See Kimball, 253 Ill. at 112, 97 N.E. at259. However, the City's evidence is simply irrelevant to show it accepted a common lawdedication prior to the implied revocation occasioned by Healy's death. Given the facts andcircumstances in this case, including the complete lack of evidence necessary to sustain a keyelement of the City's claimed dedication, the trial court erred in denying GASS's motion forpartial summary judgment on count I of its complaint.⁽⁷⁾

For all of the aforementioned reasons, the judgment of the circuit court of Cook County isreversed. This case is remanded to the trial court for further proceedings consistent with thisopinion.

Reversed and remanded.

QUINN and REID, JJ., concur.

1. Defendant State-Elm, Inc., a necessary party to the action, filed a brief adopting thebrief of plaintiff GASS. The remaining defendants are not parties to this appeal.

2. It is undisputed that defendant State-Elm, Inc. is now the beneficial owner of theproperty previously owned by Maniatis and that, after 2 assignments, GASS is the successor-in-interest to Heerey's interest in the lawsuit. GASS was substituted as the plaintiff in this case onMarch 24, 1999.

3. The City's Emergency Motion to Cite Additional Authority discusses In re Applicationof County Collector (Musikantow) v. Korzen, 44 Ill. App. 2d 327, 357 N.E.2d 1302 (1976), inwhich this court stated that "[f]or practical purposes, the possession and control the Village hasover the land as a result of the perpetual easement is not unlike that an owner of fee simple titlewould have." 44 Ill. App. 2d at 332, 357 N.E.2d at 1307. Thus, the court concluded that avillage with an easement from a common law dedication was an "owner" within the meaning ofthe Revenue Act, thereby exempting the burdened lot from real estate taxation. In this case,however, the City has cited no authority for the proposition that a broad interpretation of the term"owner" in the Revenue Act by this court can overturn well-established precedent from oursupreme court regarding the actual disposition of title following different types of dedication.

This court also granted a Motion to Cite Additional Authority filed by the City after oralargument in this case. In Veazey v. Doherty, No. 1-00-3635 (1st. Dist., 3d Div., Jan. 16, 2002),this court held that the Illinois Department of Employment Security (Department) could argue onappeal, without filing a cross-appeal, that plaintiff failed to comply with the AdministrativeReview Act, despite the fact that the trial court denied a motion to dismiss on that basis. Thiscourt noted that the trial court ultimately ruled in the Department's favor, upholding its decisionthat the plaintiff was not entitled to unemployment benefits. This case is distinguishable fromVeazey, as the Department there achieved a complete victory on the merits. In contrast, thejudgment here did not vest fee simple in the City. Accordingly, the City was not awarded all ofthe relief it sought on the merits.

4. The City's argument that GASS is estopped to deny that the strip of land is a "publicalley" because that term appears in the 1899 restrictive covenant and two subsequent deeds mighthave been considered to the extent that a "public alley" arguably could refer to either type ofdedication. However, the City's brief on this point makes clear that the City's position is thatGASS is estopped to deny any interest or title in the alley, which is consistent with its claim of astatutory dedication, not with a claim of a common law dedication. Accordingly, the City wasrequired to cross-appeal to raise the argument.

Moreover, deeds and conveyances may operate as an estoppel to the parties to such deedsand in favor of those claiming in privity of title with them, but cannot be invoked by a stranger tosuch conveyance who is claiming by an independent and hostile title. Chicago, Burlington &Quincy R. Co. v. Abbott, 215 Ill. 416, 427, 74 N.E. 412, 416 (1905); Stalford v. Goldring, 197Ill. 156, 168-69, 64 N.E. 395, 400 (1902). In this case, the City was a stranger to the deeds atissue. Thus, the City could not assert that GASS is estopped by the recitals in the deeds.

5. We note that where an initial appeal was from a summary judgment for defendant, andthe appellate court reverses because of the existence of factual issues, the trial court is usuallyprecluded from entering another summary judgment for the defendant. See, e.g., Crane PaperStock Co. v. Chicago & N. W. Ry. Co., 63 Ill. 2d 61, 70, 344 N.E.2d 461, 466 (1976). InHeerey, this court reversed a summary judgment, but specifically noted that it was unclearwhether the defendants' position was supported by a common law or statutory dedication of thealley, and directed the trial court to examine the elements of these theories on remand. Heerey,192 Ill. App. 3d at 873, 549 N.E.2d at 694-95. The parties, in moving for summary judgment,submitted not only the evidence regarding the history of the property mentioned in Heerey, butalso deposition testimony, affidavits and other documents bearing on the dedication issues. Accordingly, from a purely procedural perspective, it was not improper for the trial court toconsider disposing of count I by summary judgment again on remand.

6. The City states on p. 31 of its brief that GASS "does not, and cannot, dispute that theplat was included with City's official maps and that no taxes were assessed between the 1882subdivision and Healy's death." However, there is no record citation accompanying this assertion,and the only record citations provided on this subject do not address the relevant time period. The City makes its assertion to argue that GASS, as the plaintiff, has the burden of proofregarding the dedication. GASS notes that our supreme court has held that the burden of proof toestablish a dedication is usually upon the party setting it up. H.A. Hillmer Co., 264 Ill. at 577,106 N.E. at 485. However, this case was decided upon cross-motions for summary judgment. Thus, the burden falls upon each movant as appropriate.

7. At oral argument, the City suggested that a ruling against it would open "the floodgatesof litigation," with people claiming interests in land long thought to be dedicated to the public. However, there is no evidence that any significant number of plats are marked similarly to theplat in this case. Moreover, as this opinion makes clear, the determination of the existence of acommon law offer and acceptance will turn on the facts of each case. The universe of reporteddedication cases is small relative to other types of litigation; the legal principles applicable to thiscase have been rarely invoked in those cases. There was no flood of litigation in the wake of thedecisions upon which the decision in this case relies. Thus, the City's fear seems illusory.