Davenport & R.I. Bridge Ry. & Terminal Co. v. Johnson

• Decision Date: 20 December 1900
• Citation: 188 Ill. 472,59 N.E. 497
• Parties: DAVENPORT & R. I. BRIDGE RY. & TERMINAL CO. et al. v. JOHNSON; DAVENPORT & R. I. BRIDGE RY. & TERMINAL CO. v. HASS.
• Court: Illinois Supreme Court

188 Ill. 472

59 N.E. 497

DAVENPORT & R. I. BRIDGE RY. & TERMINAL CO. et al.

v.JOHNSON;¹

DAVENPORT & R. I. BRIDGE RY. & TERMINAL CO.

v.HASS.

Supreme Court of Illinois.

Dec. 20, 1900.

Error to circuit court, Rock Island county; William H. Gest, Judge.

Suits by Walter Johnson and by Frederick Hass against the Davenport & Rock Island Bridge Railway & Terminal Company and another. Decrees for complainants, and defendants bring error. Affirmed.

Joseph L. Haas and Sweeney & Walker, for plaintiffs in error.

J. T. Kenworthy, for defendants in error.

CARTWRIGHT, J.

The defendants in error, Walter Johnson and Frederick Hass, filed separate bills in equity in the circuit court of Rock Island county against plaintiffs in error, alleging that complainants were owners of lots fronting on Mississippi street (now called ‘First Avenue’), in the city of Rock Island, lying between their lots and the Mississippi river on the north; that they were the owners in fee of so much of said street as was situated immediately north of their respective lots to the center thereof, subject only to an easement in the public for the purposes of a street; that the defendants were about to build and maintain a railroad embankment, with railroad tracks, in said street in front of their premises, where they were so vested with the fee, without having obtained, by condemnation or otherwise, any right to appropriate said lands for railroad purposes. The bills were answered with denials of the rights claimed, and the issues were referred to the master in chancery. In each case a stipulation as to the facts was made, and testimony was also taken, and the reports of the master were in favor of complainants. Exceptions were taken by the defendants, which were overruled by the court, and there were decrees for perpetual injunctions against constructing, maintaining, or using any railroad track or tracks on the street in front of complainants' property, unless defendants should obtain the right to do so by grant or condemnation. The cases have been consolidated.

The question to be decided is whether the complainants, as owners of lots fronting on Mississippi street (now First avenue), are the owners of the fee where it is proposed to locate and build the railroad tracks, subject to a public easement in the city of Rock Island for the purposes of a street, or whether the fee in the street is in the city of Rock Island, which has granted the right to so locate and build said railroad tracks. If the complainants are the owners of the fee, they are entitled to enjoin the defendants from appropriating the street and imposing an additional servitude upon their lands until a grant has been obtained from them or their interest has been condemned and paid for. Bond v. Pennsylvania Co., 171 Ill. 508, 49 N. E. 545. The facts upon which that question turns are as follows:

On March 1, 1833, an act of the general assembly was passed appointing John Dixon and Elijah Charles, of Jo Daviess county, and John B. Gum, of Knox county, commissioners to locate a permanent seat of justice for Rock Island county, to be called Stephenson, in commemoration of Col. Benjamin Stephenson. Laws 1833, p. 17. It appears that these commissioners did not make the location, and another act was passed, in force February 12, 1835, by which William Bennett, of Jo Daviess county, Peter Butler, of Warren county, and John G. Sanburn, of Knox county, were appointed commissioners to locate such permanent seat of justice for Rock Island county, and the county seat, when selected and located, was to be called Stephenson. By section 3 it was providedthat when said commissioners, or a majority of them, should have agreed upon the place, they should make a report to the county commissioners, and the commissioners, at their next term, should cause the same to be entered upon the records of said court, and the place so selected should be the permanent seat of justice. If the location was on public land, the county commissioners were authorized to proceed to purchase it for the use of the county. Laws 1835, p. 159. The commissioners so appointed located the seat of justice for said county on public land on the N. W. fractional 1/4 of section 35, in township 18 N., range 2 W., of the fourth principal meridian, and on July 8, 1835, made report thereof to the county commissioners, who entered and purchased said tract of land from the United States. A patent was afterwards issued, dated May 20, 1841, reciting payment by George Davenport, John W. Spencer, and John Vanata, county commissioners of Rock Island county, and conveying said tract to said county. The tract contained 61.95 acres according to government survey, and its northern boundary was the Mississippi river. The land conveyed to the county of Rock Island therefore extended to the center thread of said river. The county commissioners, under authority of ‘An act providing for the recording of town plats,’ in force February 27, 1833, laid out said town of Stephenson on said tract of land, and on July 10, 1835, the county surveyor presented a map or plat of said town to the county commissioners' court, properly certified, as required by the fourth section of said act, and the map was also certified by the county commissioners. On the same day the surveyor and county commissioners also acknowledged the plat before Joseph Conway, clerk of the circuit court for Rock Island county. The acknowledgment was not before a justice of the supreme court, a justice of the circuit court, or a justice of the peace of said county (the officers named in the act, and authorized to take the acknowledgment),and therefore such acknowledgment was insufficient. Village of Vermont v. Miller, 161 Ill. 210, 43 N. E. 975. If it was necessary to acknowledge the plat, it could not operate as a statutory dedication, but would only grant an easement instead of a fee in any of the streets marked upon it. The plat showed a street marked ‘Mississippi Street,’ on the north of the town, extending along the north tier of blocks and next to the Mississippi river, with four wavy, parallel lines on the north indicating the river, and with the name ‘Mississippi River’ written there. The certificate stated with reference to streets as follows: ‘Each street 80 feet, except Water or Front street, at the northeast end of town, is 110 feet wide, at or near the middle of the town or widest part of street 260 feet, at the southwest end of the town 90 feet wide.’ This street, called Water or Front street, is the one also called Mississippi street, and is now First avenue. Complainants' lots front on the south side of that street, and on the opposite side is the Mississippi river. In the stipulated facts it was agreed that if, in law, the center of the Mississippi river is the north line of Mississippi street or First avenue, the proposed construction of defendants' railroad is on the south half of said street.

The question of law whether the fee in the street has passed from the county of Rock Island to the city of Rock Island, of which the town of Stephenson is a part, depends upon whether the plat of the town was made in accordance with the act of 1833. Under that act the plat would operate as a conveyance if made in compliance with its terms, but it would so operate only in case all the conditions of the act were complied with. Section 5 of the act provided as follows: ‘The plat or map, when made out and certified, acknowledged and recorded, as required by this act, every donation or grant to the public, or any individual or individuals, religious society or societies, or to any corporation or bodies politic, marked or noted as such on said plat or map, shall be deemed in law and in equity a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, and shall be considered to all intents and purposes as a general warranty against such donor or donors, their heirs and representatives to the said donee or donees, grantee or grantees, for his, her, or their use, for the uses and purposes therein named, expressed or intended, and no other use or purpose whatever. And the land intended to be for streets, alleys, ways, commons, or other public uses, in any town or city, or addition thereto, shall be held in the corporate name thereof, in trust to, and for the uses and purposes set forth, and expressed or intended.’ If there was a failure to observe the requirements of the statute, and the plat operated as a common-law dedication, a conveyance of complainants' lots bounded by the street would operate as a conveyance of the fee to the center of such boundary. In such case, they would own to the center of the street, burdened with the easement. Whether it was a statutory or common-law dedication, the dedication was accepted, and the city council passed an ordinance granting to the defendants the right to construct, maintain, and use their tracks which complainants asked to have enjoined.

It will be noted that section 5, which provides that the plat shall operate as a conveyance of the fee in the street to the public, includes the acknowledgment of the plat as required by the act as one of the conditions to such operation. The first three sections require county commissioners who wish to lay out a town to cause the same to be surveyed, and a plat or map thereof made, with lots numbered, corner stones planted, and in other respects as required by those sections, and then section 4 provides as follows: ‘The plat or map, after having been completed, shall be certified by the surveyor and the county commissioners, and every person or persons whose duty it may be to comply with the foregoing requisitions, shall, at or before the time of offering such plat or map for record, acknowledge the same before a justice of ...