Lee v. President

• Decision Date: 06 October 1886
• Citation: 118 Ill. 304,8 N.E. 759
• Parties: LEE and others v. PRESIDENT, ETC., OF TOWN OF MOUND STATION.
• Court: Illinois Supreme Court

118 Ill. 304

8 N.E. 759

LEE and others

v.PRESIDENT, ETC., OF TOWN OF MOUND STATION.

Supreme Court of Illinois.

October 6, 1886.

Error to Brown.

Action of trespass brought by appellees against appellants, alleging that defendants broke and entered the close of plaintiffs known as the ‘Public Square’ in the town of Mound Station, destroyed the fence, and converted the materials thereof. The plaintiff corporation claimed the premises by dedication from one McNitt. The case was tried before a jury, and the plaintiff, to establish its title, offered in evidence the record of a town plat of Mound Station, made by McNitt, which was objected to on grounds appearing in the opinion, but was admitted by the court.

Among the instructions given by the court, the second one was to the effect that, if the jury should find that McNitt made and the authorities accepted a dedication, the fact of the former continuing to hold possession for 20 years would not bar the right of action, if, during any part of the time, he or his representatives held possession, not adversely, but subservient to the title of the authorities. By the fifth instruction the jury were told that corporate authorities have control of streets, alleys, and public squares within their limits, whether dedicated in the statutory manner or some other, and that it does not matter whether or not the corporation is the owner of the fee in such places. Plaintiffs had judgment below, and defendants appealed.Wm. L. Vandeventer

, for appellants.

Irwin & Dobbin, for appellees.

PER CURIAM.

1. It is objected that it cannot be determined from the evidence in this record what is the locality, size, shape, or boundaries of the lots, streets, public square, etc., as claimed to be laid off; and Village of Winnetka v. Prouty, 107 Ill. 223, is cited in support of the objection. In that case the plat of the town was fully set out in the record, so that the court could see everything which appeared upon it. Nothing was left to inference. It affirmatively appeared that no width of streets or size of lots or blocks was designated in the attempt to lay out the ground. That is not the case here. It is here recited in the bill of exceptions that ‘said plat, so read in evidence, covers and occupies two opposite pages of said Book S, numbered 292 and 293; and on the reverse side of the leaf on which No. 293 is found, and on pages 294, 295, and 296 of said Book S, are filed notes of a town plat of Mound Station, made for Martin McNitt, with a certificate of acknowledgment made by a justice of the peace of said county, dated nineteenth November, 1862. * * * The said plat, so read in evidence, consists of twenty-two blocks of the usual size in towns and villages, subdivided into lots, with streets and alleys, and a plat of ground designated ‘Public Square.” This, it is to be noticed, appears not as a copy of anything appearing on the face of the plat, but as a conclusion of the attorney writing the bill of exceptions. If he was authorized to conclude that the blocks were of the usual size in towns, the inference is reasonable that the plat, in some way, showed the size of those blocks. The presumption is that the court below decided correctly until the contrary is made to appear, and this must be, not from the inferences of anybody, but from the actual facts occurring upon the trial. Where it is claimed, as here, that an instrument on record affecting title is improperly admitted in evidence, the instrument itself must be set out accurately and at length in the bill of exceptions. Rodgers v. Hall, 3 Scam. 5;McLaughlin v. Walsh, Id. 185. Thomas v. Leonard, 4 Scam. 556;Glancy v. Elliott, 14 Ill. 456;Ballance v. Leonard, 37 Ill. 43;Hayes v. Lawver, 83 Ill. 182. The plat and field-notes not being copied in the bill of exceptions, we must presume they warranted the ruling of the court.

2. It is next objected that the court erred in admitting in evidence the record of the plat, because the plat first made and acknowledged by McNitt was subsequently erased and destroyed by his order, and he made no new plat. The facts conceded are: McNitt made and acknowledged a plat on the nineteenth of November, 1862. This plat was certified by Parke, surveyor. McNitt afterwards, being under the impression that it was necessary that the plat should be certified by a county or deputy county surveyor, and ascertaining that Parke was neither, employed Black, who was deputy county surveyor, to make a new plat. He adopted the work of Parke in substance, made a new plat, and signed it, and then went to the record of the plat made by Parke, erased Parke's name therefrom, and substituted his own as deputy county surveyor. The statute does not make it indispensable that the plat shall be certified by the county surveyor or deputy county surveyor. It may be certified by either, or by any ‘competent surveyor,’ and the certificate of Parke was sufficient under that requirement. 2 Starr & C. St. p. 1764, § 2; Gebhardt v. Reeves, 75 Ill. 305. It would seem too evident to need argument in its support that, after the record was made, it passed beyond the control of McNitt. He might afterwards make a new and additional record, but he could not nullify or impair that. It would remain, in a legal point of view, just as it was when it was copied upon the records of the county. This principle is recognized and applied in Merrick v. Wallace, 19 Ill. 496;Shannon v. Hall, 72 Ill. 354;Steele v. Boone, 75 Ill. 457. It is true, until acceptance by the public, McNitt might revoke the dedication by deed, but there is no pretense that this attempt at making a new plat was, or that it was intended to be, such a revocation. Its purpose was to perfect, not to destroy, a dedication. There was competent, therefore, in our opinion, and sufficient, evidence for the jury that the plat recorded was that made by McNitt, and that the several pages copied were of consecutive pages of the recorded plat and annexed field-notes, and hence there was no error in admitting the record of the plat in evidence.

3. Evidence was given, over the defendant's objection, that this square was, on one occasion, not assessed by the assessor as private property. We think the evidence was admissible as tending, though it may be very slightly, to show a public acceptance of the dedication, and an acquiescence therein of McNitt; and, inasmuch as it is the fact, and not the mere record, that can be of any significance in that respect, we think it was susceptible of proof by parol. But, in any view, the square ought not to have been assessed as private property, and the ruling would therefore do the defendant no harm.

4. It is objected that the first instruction is erroneous because it submitted questions of law to the jury. Those questions relate to the sufficiency of the plat to convey title to the public, and the evidence of acceptance. Without coming to inquire whether the reasonable construction of the instruction sustains the objection as a matter of fact, we content ourselves by saying the error, if it exists, could do defendants no harm. If we are right in holding that, inasmuch as counsel have not transcribed the record of the plat and field-notes into the bill of exceptions, we must assume they sufficiently proved what they were offered to prove, it must follow, as a matter of law, that the record of a plat was read in evidence, which operated as a conveyance in fee-simple of such portions of the premises platted as were marked or noted on such plat as donated or granted to the public, and as a general warranty against the donor, his heirs and representatives, to such donee or grantee for the uses and purposes therein named, and for no other use or purpose, etc. 2 Starr & C. St. p. 1764, § 3. No one pretends that McNitt ever made any deed revoking that dedication. True, the proof shows that he remained in possession, but it also shows that throughout the time he remained in possession, at various intervals, up to July 8, 1875, he acknowledged, by indirection, if not directly, that he had made the dedication, and he also, during that period, made various conveyances predicated upon the good faith and validity of his dedication; and in one deed conveying land in the same quarter section, but outside of this plat, he used this exception: ‘Except that portion of said...