McKey v. Village of Hyde Park

• Decision Date: 03 March 1890
• Citation: 10 S.Ct. 512,134 U.S. 84,33 L.Ed. 860
• Parties: MCKEY v. VILLAGE OF HYDE PARK. 1
• Court: U.S. Supreme Court

10 S.Ct. 512

134 U.S. 84

33 L.Ed. 860

MCKEY v. VILLAGE OF HYDE PARK.¹

March 3, 1890.

J. R. Doolittle, for plaintiff in error.

[Argument of Counsel from pages 85-86 intentionally omitted] Jas. H. Roberts, for defendant in error.

LAMAR, J.

This is an action of ejectment, brought in the circuit court of the United States for the northern district of Illinois by William D. McKey against the village of Hyde Park, to recover possession of a strip of land 23 feet wide and 150 long, used and occupied by the village as a part of a street known as 'Forty-First Street.' The ground of McKey's complaint is that the village, in locating and opening that street, entered upon, and unlawfully took possession of, his land, to the extent of the above-mentioned strip, ejected him therefrom, and withholds from him the possession thereof. The defendant filed a plea of not guilty, and at the trial contended that the street, including that strip, was properly located, and was rightfully used as a public highway, by virtue of a common-law dedication, and also under a deed from plaintiff's co-tenant, with the acquiescence of plaintiff, through a long period of years. The controversy in the case is as to the location of a boundary line; there being, according to the bill of exceptions, no contention as to the title of the premises in dispute. The land in dispute is in the south 10 acres of the N. W. 1/4 of the N. E. 1/4 of section 3, township 38 N., range 14 E. of the third principal meridian, in Cook county, Ill. Upon the trial it was shown that the trustees of the Illinois & Michigan Canal had owned the N. E. 1/4 of section 3, deriving their title by grant from the state of Illinois; and that they conveyed the N. W. 1/4 of this N. E. 1/4 to P. F. W. Peck, describing it in the deed as the N. W. 1/4 of the N. E. 1/4 of the section, containing 40 acres, more or less. By mesne convey- ances the title to the south 10 acres of this N. W. 1/4 of the N. E. 1/4 of section 3, in June, 1866, became vested in two brothers, Edward and Michael McKey, living in Wisconsin, as tenants in common, and was held by them until the death of Michael McKey, intestate, September 29, 1868, upon whose death his interest therein descended to his four minor children, one of whom, William D. McKey, the plaintiff, became of age on September 18, 1874. Edward McKey kied, intestate, August 14, 1875.

In order to show his title to the premises in dispute, the plaintiff put in evidence the proceedings of the circuit court of o ok county in chancery in a suit for the partition of the McKey tract among the heirs and owners thereof. As shown by this evidence, that court in that case appointed commissioners to partition the land, and authorized them to subdivide it into blocks, lots, streets, and alleys, which they did, and attached to the record a plat entitled 'McKey's Addition to Hyde Park.' The plaintiff also put in evidence the final decree in that cause entered October 6, 1882; the said plat being a part of it. The decree reads as follows: 'It appearing to the court that the plat in said report attached, marked 'E,' which said commissioners have entitled 'McKey's Addition to Hyde Park,' being a subdivision made by circuit court commissioners in partition of that part of the south ten acres of the north-west quarter, etc., represents their subdivision of the land above described under description No. 5, and was by them duly submitted to the president and board of trustees of said village of Hyde Park, and was approved by them on the eighth of September, A. D. 1882, as appears by the certificate of the clerk of said village thereon,—the pieces or parcels of land designated on this plat 'E' as streets and alleys being laid out for public streets and alleys as on said plat 'E' shown,—it is further ordered, adjudged, and decreed that the several maps or plats by said commissioners prepared, and the subdivision by them made and shown thereon, and the respective titles given thereto, be, and the same are hereby, in all respects approved, ratified, and confirmed;* and it is ordered that the originals now here in court be recorded in the recorder's office of said Cook county, as required by law. And it is further ordered that the clerk of this court certify, under his hand and seal of this court, on each of said original maps or plats, a minute of the order of this court approving the same, in words and figures as follows, to wit: 'State of Illinois, county of Cook—ss.: This plat approved in all particulars by the court, and it is ordered that the same be recorded in the recorder's office of the county of Cook aforesaid. This certificate is made in pursuance of a decree of the circuit court of Cook county, in the state of Illinois, entered on the 6th day of October, 1882, in case number 39,801, in which William D. McKey and others are complainants, and Richard M. McKey and others are defendants."

The plat shows that the lots embraced 23 feet of the street, and that the stakes of the lots were set 23 feet south of the north line of the street, leaving a strip 33 feet wide south of the lots to be thereby dedicated for use as a public street. The plaintiff, for the purpose of showing that the line thus indicated by the plat as the southern boundary of the McKey tract was intended by the canal trustees to be the southern line of the N. W 1/4 of the N. E. 1/4 of section 3, offered in evidence, in addition to their conveyance to Peck, the purchaser from them of that tract, all the other conveyances made by them of the said N. E. 1/4 of said section 3, as follows: (1) A deed to Robert S. Wilson, dated April 1, 1857, for the N. 1/2 of the S. W. 1/4 of that quarter-section, which was stated in the deed to contain 19 31-100 acres, more or less, in consideration of $965; (2) a deed to John C. Dodge, dated October 6, 1855, for the S. 1/2 of the S. W. 1/4 of that quarter section, stated in the deed to contain 20 acres, at the rate of $50 per acre, amounting to the sum of $1,000; (3) a deed to Isaac Cook, dated August 16, 1852, conveying the N. E. 1/4 of that quarter section, containing 40 acres, more or less, at the rate of $15 per acre, amounting to the sum of $600; (4) a deed to William B. Egan, dated January 28, 1856, conveying the N. 1/2 of the S. E. 1/4 of that quarter section, containing 19 31-100 acres; and (5) a deed to Margaret Johnson, dated July 1, 1859, conveying the S. 1/2 of the S. E. 1/4 of that quarter section, containing 19 31-100 acres. It was admitted, as stated above, tht the canal trustees had held title to the whole of the said N. E. 1/4, and that the above deeds placed all the titles to said quarter section in the grantees aforesaid.

The plaintiff then introduced one Henry J. Goodrich, who testified 'to his signature upon the plat, and that he was one of the commissioners appointed by the court to make the partition, and was at the same time president of the board of trustees of the village of Hyde Park; that he knew where the stakes were driven by the surveyors who made the plat, and he knew that the land as staked took 23 feet off the street; that, at the time the board approved the plat, they knew it was taking more land than what 'was intended to be given;' that they wanted to change the street; they wanted to leave that question in court, and approve of the plat as it then stood; that the board was then in favor of changing the location of that street. The witness further testified that he had known that land ever since 1865 or 1866, and that it was then inclosed with a fence; that the fence was an old fence; that the fence was south of the center line of the street as opened by the authorities of Hyde Park; and that he remembered the circumstance of a street being run through here. * * * It was admitted by stipulation of counsel that Forty-First street was opened through the property in question in 1873.' Alexander Taylor, a witness for the plaintiff, testified that he resided very near this property for 18 years, and had known it ever since 1869, and at one time lived on part of it, that 'it was always fenced in until the time it was opened as a street, in 1873. There was a fence on the south line of it in 1869, which was quite an old fence then, and which the gardener made into a reed fence, to give shelter to his garden from the north winds; and on the south side of it was the Bowen lot, cultivated as a vegetable garden. On the north side, it was also inclosed. There was no fence on the north side of the ten-acre lot deeded to the McKeys, but the whole piece up to the railroad, including Mr. Hill's and Mrs. Smith's land, was all fenced in together. One-half of it belonged to the McKey estate, and one-half belonged to Mrs. Smith and Mr. Hill; but it was inclosed on all sides, and was used for a pasture by the witness. The fence on the south line between the MeKey land and the Bowen land was an old fence, which used to blow down. The pressure of the wind would dreak it down, and he had to patch it up. It was an old fence in 1869, made on cedar posts,—a straight fence running through from Vincennes avenue to Grand boulevard. The wind would blow it down sometimes three or four lengths at a time. When the street was put through, and the fence was moved south, they turned the tops of the fence into the ground. They were so rotten they could not use them again. When the street was put through, the fence was moved south into Mr. De Lat's garden.' Frank McLeane testified to the same effect as to the sxistence of the old fence which ran straight through from Vincennes avenue to Grand boulevard, immediately south of which was Bowen's land, used as a garden. The plaintiff then called S. S. Greeley, who testified that he was the surveyor who made the plat pursuant to the order of the court; that he staked the south line of the lots, and the north line of the street; and that the stakes were all driven in the grade of the street. He stated that when he made...