Lambach v. Town of Mason

• Decision Date: 22 March 1944
• Docket Number: No. 27455.,27455.
• Citation: 53 N.E.2d 601,386 Ill. 41
• Parties: LAMBACH v. TOWN OF MASON et al.
• Court: Illinois Supreme Court

386 Ill. 41

53 N.E.2d 601

LAMBACH

v.TOWN OF MASON et al.

No. 27455.

Supreme Court of Illinois.

Jan. 20, 1944.

As Modified on Denial of Rehearing March 22, 1944.

Suit by Carl H. Lambach, trustee, against the Town of Mason and others involving the ownership of the fee of a portion of a public street in the town of Mason, wherein the town and other defendants filed a counterclaim. From a decree dismissing the complaint, plaintiff appeals.

Reversed and remanded, with directions.Appeal from Circuit Court, Effingham County; J. T. Bullington, judge.

Carl H. Lambach, of Davenport, Iowa, and Parker, Bauer & Bauer, of Effingham, for appellant.

Dowell & Dowell, George W. Dowell, and N. Y. Dowell, all of Salem, for appellees.

SMITH, Chief Justice.

This is an appeal from a decree of the circuit court of Effingham county. The case involves the ownership of the fee of a portion of a public street in the town of Mason. Appellant, Lambach, filed the suit as trustee. He claims the oil and gas in and under the portion of the street involved. His claim is based on certain oil and gas leases executed by the owners of the adjoining lots, which he holds by assignment. The particular street involved is Douglas street in Hardin's addition to the town of Mason.

It was alleged in the complaint that Hardin's addition was laid out and platted by the owner in 1859; that the town of Mason was thereafter incorporated by a special act of the General Assembly in February, 1865. It was further alleged that the plat of Hardin's addition was a common-law plat and constituted a common-law dedication of the use of the streets and alleys, the fee-simple title thereto being vested in the adjoining lot owners; that the municipality had only an easement and right to the use of the streets; that by reason of said common-law dedication, appellant's lessors, as owners of lot 5 in block 1, and lot 8 in block 2, in Hardin's addition, were the owners of the fee to the center of Douglas street.

Blocks 1 and 5 are of equal size. Block 1 lies directly south of and across Douglas street from block 5. Lot 8 is the southeast corner lot of block 5. Lot 5 is the northeast corner lot of block 1. Douglas street is 60 feet in width. It extends east and west between blocks 1 and 5. This street is the south boundary line of lot 8 and the north boundary line of lot 5. The land here involved is that portion of Douglas street lying between lots 5 and 8. Appellant claims that his lease on lot 8 includes not only the lot itself, but extends south to the center of Douglas street and east to the center of the street on which said lot abuts on the east, and to the center of the 16-foot alley abutting the lot on the west. He makes the same claim as to lot 5; that it extends north to the center of Douglas street, east to the center of the street on which it abuts on the east, and west to the center of the 16-foot alley on the west.

It was alleged in the complaint that after the execution of the leases which are owned by appellant, the town of Mason, without right or authority, executed a lease to one John R. Benson on that portion of Douglas street lying between said lots 5 and 8; that the owners of lots 5 and 8 joined in said lease; that Benson had wrongfully caused to be drilled an oil well on that portion of Douglas street and had produced large quantities of oil therefrom. The prayer of the complaint was that Benson and the town of Mason be enjoined from the further operation of said well; that they be compelled to account for the oil and gas produced from said well and for general relief. The ppayer was later amended to include a prayer for the appointment of a receiver to operate the well and to impound the proceeds from such operation pendente and subject to the further order of the court.

The town of Mason, Benson and various other defendants filed answers to the complaint. Frontier Fuel Oil Corporation filed an answer admitting it had purchased a large amount of oil produced from the well. It tendered into court the approximate sum of $15,000. With the consent of the parties, a receiver was appointed to operate the well and to preserve the funds arising from such operation during the pendency of the suit. The town of Mason and certain individual defendants also filed a counterclaim. By their answer and counterclaim they alleged that the plat of Hardin's addition was a statutory plat; that the title to the streets in said addition was in abeyance until the organization of the town of Mason; that upon such organization the fee-simple title to the streets vested in the municipality, which they alleged was now the owner in fee of the portion of the street in question. They further alleged that a certain opdinance had been adopted regulating the drilling of oil wells and the production of oil and gas which, among other things, required a permit to drill within the corporate limits. They alleged that after the leases, under which appellant claimed, were executed, the owners of said lots 5 and 4 joined with the municipality in the execution of the lease to Benson covering that part of Douglas street here involved; that thereafter the municipality granted a permit to Benson to drill the well in question; that the well was drilled on the north half of that portion of Douglas street lying between said lots 8 and 5; that appellant's assignor knew of the issuance of the permit to Benson and took no steps and made no effort to comply with the provisions of the ordinance relative to the payment of the cost and expenses of drilling the well; that by reason of such failure on his part to qualify and obtain a permit, he was estopped from claiming any interest in the oil and gas produced from that portion of the street involved.

The chancellor entered a decree finding that the plat of Hardin's addition was a statutory plat; that the town (now village) of Mason was the owner of the streets in said addition, in fee; that Benson's lease was a valid lease; that appellant was not entitled to recover. His complaint was dismissed for want of equity. By the decree, appellant and all those claiming under him were barred from any claim, right, title or interest in the oil well, or from the proceeds arising from the operation of same, and from any interest in the funds in the hands of the receiver.

The cause involves the ownership of the fee in the portion of the street on which the well is located. It also involves the rights of appellant under the oil and gas leases owned by him, as well as the rights of Benson under his lease. A freehold is, therefore, involved, and this court has jurisdiction on direct appeal. Jilek v. Chicago, Wilmington & Franklin Coal Co., 382 Ill. 241, 47 N.E.2d 96, 146 A.L.R. 871;Greer v. Carter Oil Co., 373 Ill. 168, 25 N.E.2d 805;Carter Oil Co. v. Liggett, 371 Ill. 482, 21 N.E.2d 569;Stevenson v. Lewis, 244 Ill. 147, 91 N.E. 56.

Under the pleadings and upon the record, two questions are presented for decision. The first question is the ownership of the fee in that portion of the street involved. The second question arises under the applicable provisions of the ordinance referred to in the pleadings as ordinance No. 46. If the issue on the first question be determined against appellant, then the questions arising under the ordinance are wholly immaterial. If, on the other hand, appellant is found to be the owner of the oil and gas in that portion of the street, under his leases, then it will become necessary to determine whether his failure to comply with the applicable provisions of the ordinance operates as an estoppel against his claims in this case. The attorneys in the case, with commendable frankness, have thus limited the issues to these two decisive questions.

The parties are agreed that the ownership of the fee of the street in question is dependent solely upon whether the plat of Hardin's addition is a common-law or statutory plat. If it is a common-law plat, then the municipality only acquired an easement and right to use the streets. The fee is in the adjoining lot owners, and passed to subsequent grantees with the conveyance of the lots. Ryerson v. City of Chicago, 247 Ill. 185, 93 N.E. 162;Ingraham v. Brown, 231 Ill. 256, 83 N.E. 156;Owen v. Village of Brookport, 208 Ill. 35, 69 N.E. 952;Clark v. McCormick, 174 Ill. 164, 51 N.E. 215. Neither the possibility of reverter in the abutting lot owners (Prall v. Burckhartt, 299 Ill. 19, 132 N.E. 280, 18 A.L.R. 992), nor the title to the center of the street is an ownership separate from the ownership of the lots. It may not be detached and conveyed or leased as an interest or estate separate and distinct from the lots. It passes by operation of law to any subsequent owner of the lots. Thompson v. Maloney, 199 Ill. 276, 65 N.E. 236,93 Am.St.Rep. 133;Clark v. McCormick, 174 Ill. 164, 51 N.E. 215. It is also settled that if the village did not own the fee by statutory dedication, it could not convey or lease any portion of the street for the reason that it had nothing to convey or lease. Waterloo Condensed Milk Co. v. Voges, 316 Ill. 477, 147 N.E. 373. It is also true that where the fee to the streets, and not merely an easement, is vested in the municipality, it owns the minerals under the surface of the streets and lessees of the owners of the abutting lots have no right to take such minerals. Union Coal Co. v. City of La Salle, 136 Ill. 119, 26 N.E. 506,12 L.R.A. 326.

It, therefore, becomes necessary to first determine whether or not the municipality acquired the fee in the street in question by virtue of the plat of Hardin's addition to the town of Mason. Appellant contends that in laying out and platting the addition, the proprietor did not comply with the essential requirements of the statute; that there is not designated on the plat any stone or monument from which future surveys could be made, as required by statute. Hardin's addition was platted in 1859. The plat was filed for record ...