Gebhardt v. Reeves

• Decision Date: 30 September 1874
• Citation: 1874 WL 9242,75 Ill. 301
• Parties: CHARLES GEBHARDTv.ABNER REEVES.
• Court: Illinois Supreme Court

75 Ill. 301

1874 WL 9242 (Ill.)

CHARLES GEBHARDT

v.ABNER REEVES.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.

This was an action of ejectment, brought by Abner Reeves against Charles Gebhardt, for certain real estate in Bronson's addition to the city of Chicago.

It appeared that Reeves, being the owner of four lots in Bronson's addition, subdivided them into twenty-seven lots, with streets and alleys, and that the defendant afterward acquired title to certain lots of this subdivision, and that, several years after this, the city council of Chicago, on petition of the property holders, vacated the streets and alleys. Subsequently, and before the commencement of this suit, the defendant took possession of those portions of the vacated alley adjacent to two of his lots, and also entered and built a house upon the thirty feet, or one-half of the vacated street adjoining one of his lots on the west. This suit was brought to recover possession of said parcels so occupied, which formerly were in the alley and street. A trial was had before the court, without a jury, who found for the plaintiff, and gave judgment for the land. The defendant brings the case here by appeal.

Messrs. NISSEN & BARNUM, for the appellant.

Messrs. GOUDY & CHANDLER, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Whatever may be the decision in other States, under statutes similar or identical with ours, it is settled definitely in this State, that where a plat is executed, certified, acknowledged and recorded in conformity with the provisions of the statute of 1845, in relation to laying out towns, additions and subdivisions of lots, the fee of all that portion of the land designated as streets and alleys becomes absolutely vested in the corporation of the town or city, in trust for the use and benefit of the public. If the plat is recorded before the town has a corporate existence, the fee remains in abeyance, subject to vest in the corporation as soon as created. Making and recording the plat operates as a grant of the fee of the land comprised in the streets and alleys, to the corporation of the municipality, as effectually as would a deed. Trustees v. Haven, 11 Ill. 554; Hunter v. Middleton, 13 ib. 50; Manly v. Gibson, ib. 308; Leech v. Waugh, 24 ib. 228; Stephani v. Brown, 40 ib. 428; I. B. & W. R. R. Co. v. Hartley, 67 ib. 439; St. John v. Quitzow, 72 ib. ___.

But in cases of an ordinary highway, or where the town or city obtains a street or alley by dedication, or by condemnation under the right of eminent domain, or where urban property has been laid off and platted by the owner into lots, with streets and alleys intersecting each other, under circumstances from which a dedication might be inferred, or, indeed, in any mode except by what would be equivalent to a conveyance, only an easement is acquired, the fee remaining in the original owner or proprietor. I. B. & W. R. R. Co. v. Hartley, supra.

The defense in this case is placed principally upon the latter proposition. Assuming the plat of the subdivision made by plaintiff, of lots owned by him, did not conform to the statute, it is contended, it created an easement in favor of the public in the street and alley in question, but did not convey the fee to the city; and hence it is said the fee remained in the proprietor, and passed to the defendant, by the conveyance to him of the abutting lots, burdened with an easement, which was wholly removed by the subsequent vacation and abandonment.

Whether the plat of the subdivision of plaintiff's lots was made in conformity with the statute of 1845, is a mixed question of law and fact. The record and plat having been destroyed by fire, resort to secondary evidence was necessary to establish the contents. Although the evidence does not show affirmatively a literal compliance, it does show a substantial compliance with the provisions of the statute, and that is all the law requires. In all essential matters, an exact compliance is shown. Enough was proven to warrant the finding of the court.

Objection is made that Clayton, who made the survey, plat and certificate, was not a county surveyor. After the destruction of all written evidence of his official capacity, the presumption in favor of the validity of the acts of a de facto officer should be indulged, in the absence of proof to the contrary, it was made by an officer authorized by law to act, either by a county surveyor, or by one licensed by the city under its charter, with the same power as county surveyors. But, waiving all presumptions in favor of the legality of the acts of the officer acting, the plat and certificate are not necessarily invalid because not executed by a county surveyor. Although made by another surveyor, it may still have all the force of a statutory conveyance of the streets and alleys to the city, in trust for the public. Repeated decisions of this court hold it is the acknowledging and recording of the plat that vests the fee in the corporation. Trustees v. Haven; Manly v. Gibson; Hunter v. Middleton, supra.

It cannot be deemed essential who did the manual labor of making the survey and plat, so they are accurately done. The conveyance derives its validity from the acknowledging and recording of the plat by the owner of the lands. Of this same class is the objection no corner stone was designated on the plat. There were other monuments from which the location of the lots, streets and alleys could be ascertained with equal certainty. This is all the purpose to be accomplished by designating a stone as a corner, and it cannot be the absence of the particular monument described in the statute,...