Harris v. the Bd. of Supervisors of Whiteside County

• Decision Date: 31 March 1883
• Citation: 44 Am.Rep. 808,105 Ill. 445,1882 WL 10492
• Parties: DANIEL S. HARRIS et al.v.THE BOARD OF SUPERVISORS OF WHITESIDE COUNTY et al.
• Court: Illinois Supreme Court

105 Ill. 445

1882 WL 10492 (Ill.)

44 Am.Rep. 808

DANIEL S. HARRIS et al.

v.THE BOARD OF SUPERVISORS OF WHITESIDE COUNTY et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.Rehearing denied March Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Whiteside county; the Hon. JOHN V. EUSTACE, Judge, presiding.

Messrs. KILGOUR & MANAHAN, for the appellants:

This preëmption right of the donors of the town site was a right well known and defined, and regarded by the laws of both the United States and of this State, ( Bruner et al. v. Manlove, 3 Scam. 339,) and right to preëmpt may pass by deed or other transfer. ( Delaney v. Burnett, 4 Gilm. 454.) The purchaser of this right is regarded as a legal representative. ( Delaney v. Burnett, supra; Phelps v. Smith, 15 Ill. 572.) Parties entitled to preëmptions are protected by law. Baty et al. v. Sale, 43 Ill. 351; Lester v. White's Heirs, 44 Id. 464.

Under the act of 1857, the county, on a removal of the seat of justice, was bound to return the donations. The case of Warnecke v. Lembca, 71 Ill. 94, settles who the legal representatives are.

Messrs. J. & J. DINSMOOR, for the appellees:

The bill alleges a reversionary interest in Ezekiel Kilgour in the lands donated. A reversion is an estate left in the grantor or donor to commence in possession after the determination of some particular estate granted out of him. (2 Blackstone's Com. 175; 1 Cruise's Digest, “Reversion,” sec. 2; 2 Washburn on Real Prop. 390.) Kilgour never had any such estate to descend to his legal representatives.

If the title or fee of this block 57 was in the county, it seems hardly necessary to argue or cite authorities to show that an act of the legislature would have no effect upon the title. The legislature, by divesting the county of its property, would clearly be usurping the judicial functions of the government. Lane et at. v. Dorman et ux. 3 Scam. 242; Rozier v. Fagan, 46 Ill. 404.

The donor of an estate, and his heirs, stand in no better situation, so far as receiving the property given away, than one who has made a fraudulent conveyance. Choteau v. Jones, 11 Ill. 300.

As showing the donor of land or property for the location of a county seat can not recover the same back on a change of the county seat, see Adams et al. v. County of Logan, 11 Ill. 336; Harris v. Shaw, 13 Id. 456.

Mr. JUSTICE WALKER delivered the opinion of the Court:

In this case, appellants filed a bill in chancery, against the board of supervisors of Whiteside county, and others, to have certain real estate, standing in the name of Nelson Mason, transferred and conveyed to them. The date of the filing of the original bill, or the bill itself, nowhere appears from anything contained in the transcript of the record filed herein, nor does it appear from anything filed with the record. The amended bill, a copy of which is brought before us, appears to have been filed in the circuit court on the 6th day of January, 1881. To it a demurrer was filed, and on a hearing on the demurrer it was sustained to the amended bill, and it was dismissed. Complainants prayed and perfected an appeal to this court, and the record of the proceedings on the amended bill are brought to this court, and errors are assigned.

The bill alleges that a part of the complainants were the first settlers on and occupants of certain lands, describing them, and that they became entitled to preëmptions, and the exclusive right to enter them at the United States land office; that there then was a tract of land platted as a town site, owned and occupied by the State Bank, and other persons, naming them, known as Chatham; that contiguous to and on the east side of complainants' lands was another tract, which was platted and owned by Harris and Brink, two of the complainants, and three other persons, known as Harrisburg; that in the year 1839 the question arose as to the location of the county seat of Whiteside county; that to induce its location at that place, the proprietors of these towns, and Kilgour, agreed with the county authorities, on condition the county seat should be located and kept there, and the court house should be built on the lands they lived upon, and to unite the two towns under the name of Sterling, to give the county the right and the money necessary to enter the land they thus occupied, and also to make other donations, being a sixty-acre tract of land, owned by the proprietors of Harrisburg, and $1000 in money, and on the part of Chatham, twenty acres of land adjoining the sixty-acre tract, and $1000 in money; that in 1842 these donations were accepted by the county authorities, and the preëmption held by Kilgour transferred to the county, and the money necessary for its entry was furnished by the proprietors and other persons, and the county entered the same in its own name, and located the county seat thereon, and with the donations thus given built a court house on block 57, on the plat of the land thus entered by the county, and the county seat remained at that place, and the building on block 57 was occupied and used as a court house, until in 1857, when the county seat was removed to another place; that since 1857 the county has not used or occupied the court house on block 57, but in January, 1866, the county conveyed that block to Nelson Mason; that on the removal of the county seat, by virtue of the agreement donating the land, and the act of the legislature, block 57 reverted to the donors in the proportion of their several donations, and the deed to Mason was made without authority of law; that a number of the donors had died before the suit was commenced, but their devisees, heirs or assigns are parties complainant. The bill states their interests, and the manner in which they were acquired. The several interest of each complainant is particularly set forth in the bill. The bill prays that complainants be decreed to be the owners of the block as...