City of Chicago v. Sawyer

• Decision Date: 03 April 1897
• Citation: 46 N.E. 759,166 Ill. 290
• Parties: CITY OF CHICAGO v. SAWYER.
• Court: Illinois Supreme Court

166 Ill. 290

46 N.E. 759

CITY OF CHICAGO

v.SAWYER.

Supreme Court of Illinois.

April 3, 1897.

Appeal from circuit court, Cook county; M. F. Tuley, Judge.

Bill by Elizabeth Sawyer against the city of Chicago and another for an injunction. From a decree in favor of complainant, the city of Chicago appeals. Reversed.

W. G. Beale and G. A. Dupuy, for appellant.

A. B. Wells, for appellee.

CARTWRIGHT, J.

On May 10, 1890, appellant, the city of Chicago, by one of its contractors, entered upon an alley in that city and began plowing, preparatory to filling, grading, and paving it as a public alley. Appellee notified the contractor and city officers that she claimed the east half of the north 200 feet of the alley as her private property. Work was stopped, and the sidewalk, which had been taken up, was replaced. Appellee then put a fence across the north end of the alley, which was removed, and when she attempted to replace it she was prevented by the police. Thereupon, on May 13, 1890, she filed the bill in this case, praying that she should be decreed to be the owner of the strip, and that the city and the contractor should be enjoined from interfering with her possession. A temporary injunction was ordered and issued. The answer of appellant admitted complainant's ownership to the center of the alley, and set up an uninterrupted user of the strip as an alley for more than 20 years by the public for foot passengers and vehicles. It also alleged that complainant had built three buildings abutting on the alley with reference to it as an alley, and had dedicated it as such, and claimed that the strip so opened and used as an alley was subject to the public easement for an alley. Testimony was taken before a master, who reported in favor of complainant,and there was a final hearing on exceptions to the report. They were overruled, and a decree was entered in accordance with the prayer of the bill.

The alley ran north and south through a block which was bounded on the north by Twenty-Second street, east by Indiana avenue, south by Twenty-Third street, and west by Michigan avenue. The alley was about 18 feet wide and about 600 feet long. Its character as a public alley has not been questioned, except as to the strip claimed by complainant, and the north 100 feet of the west half which is claimed by the adjoining proprietor on the west side of the alley. This other proprietor also had a suit against the city concerning that part of the north end of the alley on his side, which he claimed, and all testimony relating to either suit, about either strip of land, was taken together before the master, and is brought up here in the record. The cases were not consolidated, and the facts are not alike. The master reported the facts in the two cases together, giving the history of what was done by complainant's neighbor affecting the other suit and on his premises. He mentions in his report the testimony of several witnesses tending to show acts of obstruction affecting the running of the statute of limitations, which were wholly upon the adjoining premises, to which complainant never had or claimed any title. Complainant had nothing to do with these alleged obstructions, and the greater part of the evidence is entirely foreign to this suit. By this means we have been compelled to examine at length the whole evidence, for the purpose of extracting those portions which relate to complainant's rights, and separating them from the evidence for another party in another suit. That work shows the following results as to this case: On February 23, 1853, complainant obtained title to the premises fronting on Twenty-Second street and Indiana avenue, extending to the center of the block and embracing this strip. At that time the block was all prairie, but it was afterwards gradually occupied and built up. The alley was left open, and was in public use as early as 1861. About May 29, 1865, a written instrument was executed by owners of property in the block, dedicating the alley to the public, and this dedication was recorded; but complainant did not sign it, so that it was not operative as to her property. About that time the lines of the alley became distinct and well defined through its length, and they so remained afterwards. A building was erected on complainant's property in that year fronting north on Twenty-Second street, and extending south along the line of the alley 90 feet, and was called the ‘Metz Building.’ There were two carpenter shops on complainant's property facing on the alley, occupied by tenants, and there was a sidewalk two feet wide along the side of the Metz building, running back towards the carpenter shops. The strip claimed by complainant remained open as a part of the alley in the condition described, and in constant, general public use, from the time it first began to be used, as early as 1861, until the filing of this bill, in 1890, unless there was some obstruction of it in 1871. It is claimed that there was at that time an interruption of the public use. The evidence of it rests only upon the testimony of Charles Reinheimer. He testified that he built an addition to a building for the adjoining proprietor on the west side of the alley in the year 1871; that, while he was building this addition, he piled the lumber which he used on this part of the alley claimed by complainant; that there was a gate at that time across the north end of the alley at Twenty-Second street on this strip, with a padlock and chain on the gate; that the lumber was there five or six months, while he was building the addition, and that after he finished it the gate was still maintained. There was no other evidence of any obstruction, and complainant was not examined to show that she had any gate there or had interfered with the public use. The alleged lumber pile, if there at all, was not put there by complainant. It was not an obstruction created or authorized by her. It did not stop travel through the alley, and such places are frequently used for such purposes for the convenience of adjoining proprietors. Such uses are not intended or regarded as inconsistent or an...