Vill. of Lee v. Harris

Decision Date16 December 1903
Citation69 N.E. 230,206 Ill. 428
PartiesVILLAGE OF LEE v. HARRIS.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, De Kalb County; Chas. A. Bishop, Judge.

Action by the village of Lee against Michael P. Harris. Judgment for plaintiff, granting insufficient relief, and it brings error. Modified.Jones & Rogers, for plaintiff in error.

Carnes, Dunton & Faissler, for defendant in error.

BOGGS, J.

The plaintiff in error village brought an action of ejectment against defendant in error to recover premises as follows: That part of East street lying between blocks 3 and 4, and the south 15 feet of East street and the alley lying adjacent to and south of blocks 3 and 4, all in Hinckley & Boyles' First Addition to the village of Lee; also that part of First street lying between blocks 12 and 14, and between block 13 and lot A, in the original town of Lee; also that portion of D street lying between lot A and outlot F, in the original town of Lee, being the south end of D street; also that part of B street lying adjacent to and west of blocks 12 and 14, in the original town of Lee; also was possessed of the part of Third street lying between C street and the railroad across block 5, in the original village of Lee, and also of the alley between lots 1 and 2, in block 13, in the original village of Lee. A jury was waived, and the cause was heard by the court. The defendant in error was found guilty of unlawfully withholding the premises last and next last above described, and found not guilty as to all other parcels. The village sued out this writ of error, and both parties have assigned errors.

The grounds of defense were, first, that neither the plat of the original town nor the plat of the addition thereto was acknowledged in compliance with the statute in force at the times of their execution, respectively, and for that reason the village did not become invested with the fee to the streets and alleys; second, that, even if the plats were sufficient to show a common-law dedication, the village did not accept the dedication of the particular parts of the streets and alleys here involved, and consequently possessed no interest or right whatever in them; third, that it does not appear from the plat that Third street, as platted by the proprietors, extended from C street across block 5 to the railroad, and that the only right or interest claimed or proven (if any) in that area is a mere easement in the public arising from the alleged use of the same as a passageway or road for 30 years, and that the action of ejectment will not lie to recover a mere easement.

The right of a city or village which possesses the fee to the streets and alleys to maintain an action of ejectment against one who has intruded upon or occupies any portion of a street or alley seems never to have been doubted, but where the fee remained in the proprietor of the abutting property that fact was thought to present a technical objection to the successful prosecution of the action. The right to the possession, use, and control of all highways, including streets and alleys, rests primarily in the state in its sovereign capacity, and the state having, by the express grants set forth in various subdivisions of section 1, art. 5, c. 24, entitled ‘Cities,’ etc. (1 Starr & C. Ann. St. 1896, p. 689, par. 63), vested in the cities and villages of the state the possession, use, and control of their respective streets and alleys, the right of possession, use, and control is regarded by the courts as a legal and not a mere equitable right, and in that view no cause or reason exists why the action of ejectment may not be maintained, though the city or village has not the legal title to the street or alley. City of Chicago v. Wright, 69 Ill. 318; 10 Am. & Eng. Ency. of Law (2d Ed.) 475; Methodist Episcopal Church v. Hoboken, 33 N. J. Law, 13; Klinkener v. McKeesport, 11 Pa. 444. A city or village may therefore resort to the action of ejectment to regain possession of any part of a street or alley which may be unlawfully withheld from it.

The plaintiff in error village claimed that for more than 30 years the public had continuously, and with the knowledge and acquiescence of the owner of the fee, and with the claim of right, traveled over and used, as a part of Third street, the lots or parts of lots in block 5, in the original village, situate between the west line of the intersection of Third and C streets and the railroad, and that by prescription said Third street as a public highway had been extended and continuously used for said period of time by the public as a street, and that the same had been in the possession, use, and control of the said village as a street for said period of time, and that the defendant in error had erected a platform, scales, and other obstructions upon the area of the street so extended. The court held this contention to be sustained by the proof to the extent such area was shown to have been actually used, and awarded judgment accordingly that defendant in error was guilty of unlawfully withholding that portion occupied by his platform, scales, etc. Defendant in error insists that this recovery is for a mere easement-an incorporeal hereditament-and cites authorities to support his further contention that the action of ejectment cannot be maintained for an easement.

An easement, which is but a mere intangible right or license appurtenant to land, and does not include the right to the possession of the land, cannot be the subject-matter of an action of ejectment, for the reason there is nothing tangible on which the writ of restitution could operate-nothing which the sheriff can take under such a writ and deliver to the plaintiff in the action. But the locus in quo here is an extension of Third street. The village, by virtue of the seventh subdivision of section 1 of said article 5, c. 24, entitled ‘Cities,’ possessed the power to extend its streets, and became vested, by virtue of the various grants of power enumerated in said section 1, with the right to the exclusive possession, use, and control of any street so extended. We see no reason why the extension of a street may not be effected by the actual prolongation of the street by travel and use of the same by the public for the requisite period, and the acceptance by the village of the public way thus created as an extension of the street.

But it is contended that the right remains but an easement, and that ejectment cannot be maintained for that reason. It is a public easement, and the possession thereof is exclusive of any interference by the owner of the fee for its improvement, regulation, or enjoyment as one of the streets of the village. Such right of possession is in the village by force of the statute. It is not a mere intangible right or license, but is a legal right to the actual and exclusive possession of the locus in quo, and the action of ejectment furnishes an appropriate remedy, it seems to us, for the recovery of such possession. In Hoboken Land Co. v. Hoboken, 36 N. J. Law, 544, it was said: ‘Where the public easement is such that possession, exclusive of any interference by the owner of the fee, is essential for its improvement, regulation, and enjoyment, the only appropriate action to obtain the possession is ejectment.’

It is contended by the defendant in error that neither the acknowledgment of the plat of the original village of Lee, nor the acknowledgment of the plat of the addition thereto in which the streets and premises here involved are located, was in conformity with the statutes in force at the time of the execution and...

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42 cases
  • Scully v. Squier
    • United States
    • United States State Supreme Court of Idaho
    • 18 Mayo 1907
    ......883; 1 Am. & Eng. Ency. of Law, 2d ed., 880-882, and notes; Bohne v. Blankenship, 25 Ky. Law Rep. 1645, 77 S.W. 919;. Village of Lee v. Harris, 206 Ill. 428, 99 Am. St. Rep. 176, 69 N.E. 230; Atlantic City v. Snee, 68. N.J.L. 39, 52 A. 372; City of Lewiston v. Booth, 3. Idaho 692, 34 ......
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    ......Saunders v. City of Chicago, supra; Village of Lee v. Harris, 206 Ill. 428, 69 N. E. 230,99 Am. St. Rep. 176;Heppes Co. v. City of Chicago, 260 Ill. 506, 103 N. E. 455;Moore v. City of Chicago, 261 Ill. 56, 103 ......
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    ...... are cited: Note 3. Carlinville v. Castle, 177 Ill. 105, 52 N.E. 383, 69 A. S. R. 212; Lee v. Harris,. 206 Ill. 428, 69 N.E. 230, 99 A. S. R. 176; Peoria v. Central Nat. Bank, 224 Ill. 43, 79 N.E. 286, 120 A. S. R. 258; Pella v. Scholte, 24 Ia. ......
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    ...... the vindication of the public rights, hence the city was a. proper party in this action." LaMoure v. Lasell, 26 N.D. 638, 647; Lee v. Harris, 206. Ill. 428; Methodist Episcopal Church v. Hoboken, 33. N.J.L. 13; California v. Howard, 78 Mo. 88. . .          A. building ......
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