Littler v. the City of Lincoln.

• Decision Date: 29 March 1883
• Citation: 106 Ill. 353,1883 WL 10217
• Parties: DAVID T. LITTLERv.THE CITY OF LINCOLN.
• Court: Illinois Supreme Court

106 Ill. 353

1883 WL 10217 (Ill.)

DAVID T. LITTLER

v.THE CITY OF LINCOLN.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Logan county; the Hon. CYRUS EPLER, Judge, presiding.

Suit was commenced by the city of Lincoln against David T. Littler, before a justice of the peace of Logan county, for obstructing certain streets. The justice rendered judgment for Littler, and the city appealed to the circuit court of that county. Judgment was there rendered in favor of the city, and against Littler, for $200. Littler appealed from this judgment to the Appellate Court for the Third District, and that court affirmed the judgment of the circuit court. This appeal is from the last named judgment.

Upon the trial the city read in evidence a petition addressed by Littler to the city council of Lincoln, in which Littler represented that he was the owner of all lots and blocks (except two lots belonging to the estate of ______ Bell, in block 152,) north of Eleventh street and west of Adams street, in Knapp, Bird & Tinsley's addition to Postville, then part of the city of Lincoln; that such lots and blocks were vacant and unoccupied; that there were no sufficient streets either on the north or west of said addition; and proposing, in case the prayer of his petition was granted, to convey to the city, for street purposes, enough land on the north and west of said addition--(on the west, north from Eleventh street to the north-west corner of said addition,)--to make good and sufficient streets, and to replat the land in accordance with a plat thereto annexed, and concluding by praying the vacation of all the streets, parts of streets, and all the alleys and parts of alleys, lying north of Eleventh street and west of Adams street, in said addition. The city then also read in evidence the following ordinance, passed by the city of Lincoln in response to said petition:

“ Be it enacted by the City Council of the City of Lincoln:

Section 1. All the streets, parts of streets, and all the alleys and parts of alleys, north of Eleventh street and west of Adams street, in Knapp, Bird & Tinsley's addition to Postville, (now a part of the city of Lincoln,) are hereby vacated; and the right of said city is hereby released to David T. Littler, who is the owner of the land embraced within the limits aforesaid.

Sec. 2. So much of the plat of said addition as lies north of Eleventh street and west of Adams street is hereby vacated.

Sec. 3. All the rights, grants and privileges embraced in the first and second sections of this ordinance, upon this express condition, that the said Littler will convey to the city of Lincoln, for street purposes, the following described strips of land, to-wit: sixty-six feet on the north line of said addition on the land owned by said Littler, and sixteen feet on the west side of Adams street, (and adjacent thereto,) running north from Eleventh street over the land owned by him, which said strips of land are required of the said Littler as the consideration for the grants, rights, privileges, to the said Littler contained in the first and second sections of this ordinance, which said land, when so conveyed, is hereby declared to be subject to the absolute control of the city of Lincoln for street purposes.

Sec. 4. The land lying north of Eleventh street and west of Adams street shall be surveyed and platted substantially in the manner as shown by plat thereof filed in the city clerk's office with the petition of said Littler, and this ordinance shall take effect and be in force only from and after the time the said Littler shall cause such survey and plat to be made, acknowledged and recorded, as provided by law in such cases, which platting, etc., shall be made and completed within six months from the date of approval of this ordinance.

Approved February 3, 1879; passed February 3, 1879.

D. L. BRAUCHER, Mayor.

C. M. KNAPP, City Clerk.”

(Certificate of city clerk, under seal, of the passage and publication of said ordinance.)

Also, a record of a plat filed by Littler, and recorded May 22, 1879, in recorder's office of Logan county. This plat is in conformity with the proposition of Littler, submitted in his petition to the city council. It was properly certified by the county surveyor, and duly acknowledged by Littler.

The city then also read in evidence the record of a quitclaim deed from Sarah Keown and others, to Littler, dated April 2, 1879, conveying their interest in lots 9 and 10, in block 151, in Knapp, Bird & Tinsley's addition to the late town of Postville, (now a part of the city of Lincoln.) Also, a quitclaim deed from Clement Carpenter and wife, to Littler, dated March 22, 1881, conveying lots 3, 4 and 5, in block 152, Knapp, Bird & Tinsley's addition to the city of Lincoln.

The city then called D. H. Harts as a witness, on its behalf, who, being sworn, testified: “I am mayor of the city of Lincoln. Block 127, in Knapp, Bird & Tinsley's addition to the city of Lincoln, is occupied by a school house, and 128, 107 and 110 are occupied by residences. Blocks 130, 147, 150, are each fenced by themselves, but there are no houses upon them. There are a large number of residences in that addition south of Eleventh street, and all of said premises are within the corporate limits of the city of Lincoln.”

The city then also read in evidence the following stipulation between the parties:

“It is stipulated by and between the parties to this suit that the facts are as follows: "1st. That D. T. Littler, defendant, in May, 1881, through his agents, constructed a board fence so as to inclose the following described real estate: All the lots and blocks in Knapp, Bird & Tinsley's addition to the town of Postville, (now city of Lincoln,) county of Logan, and State of Illinois, that lie north of Eleventh street and west of Adams street, in what is claimed to be streets and alleys inside of the boundaries above mentioned; that none of the streets outside of said inclosure, to-wit, Adams street and Seventeenth street, in said city of Lincoln, are inclosed by said fence.

"2d. That notice in writing was served upon said Littler to remove said fence as an obstruction to the public streets claimed to exist inside of the boundaries of said inclosure, in May, 1881, by the marshal of said city, under authority from said city.

"3d. That the fence never has been removed, but still remains as originally constructed.

"4th. All ordinances of the city of Lincoln referring to or bearing upon the controversy are to be read in evidence, by consent, together with all papers in this case.

"5th. Petition of D. T. Littler to the city council of the city of Lincoln, dated _______, and plat accompanying the same, together with all resolutions and ordinances passed by the city council in connection with said petition, are to be read in evidence, by consent.

"6th. The deed of vacation, of date April 21, 1881, of David T. Littler, together with all other papers, plats and records made and recorded in connection with such vacation; also, all papers showing a replatting of said real estate are to be read in evidence.

"7th. All deeds vacating plats inclosed by fence above mentioned, together with all other papers, records, etc., by which said Littler vacated or attempted to vacate that part of said plat embraced by the fence above mentioned, filed in spring of 1881,--it being agreed as to all papers above mentioned, if the originals are not present the records or certified copies may be read in evidence.

"9th. That no part of said fence is outside the boundary lines of the corners fixed by Thomas G. Gardner in the survey accompanying said plat filed in the recorder's office of Logan county, Illinois, and any map of the city of Lincoln, published by authority of the city of Lincoln, may be presented to the court, by consent, and is to be put in evidence by consent.

"10th. It is agreed that defendant, Littler, owned the fee title to all lots and blocks embraced in that part of above plat vacated or attempted to be vacated by said Littler in the spring of 1881, before vacation, and that since the vacation he has conveyed the land embraced within the limits aforesaid to one Wm. Kurtz, the record of which deed shall also be read in evidence; that all of the streets shown to exist on the plats above referred to never were worked or improved in any way, nor were they ever used or traveled by the public, said entire tract of land being now covered with a blue-grass sod, and from its general appearance it is impossible to locate any of the streets or alleys attempted to be vacated, and it has been in that condition for at least twenty years, last passed; that there are on all sides of tract inclosed, public streets, none less than sixty-six feet wide.

"11th. That all of the lots and blocks embraced and inclosed by the fence were vacant and unoccupied at the time of building fence. It is agreed that either party may call witnesses, or offer proof, upon any issue not covered by this stipulation.”

The city then read in evidence the following ordinance:

“Sec. 2. Whoever shall place, throw or leave, or cause to be placed, thrown or left, any obstructions or incumbrance, not authorized by ordinance, in any street or alley, shall be subject to a penalty of not less than three dollars, and a like penalty for each day he shall not remove the same after being notified so to do by the mayor, street commissioner, or any police officer of said city.”

Also, paragraph 20 of the charter of the city of Lincoln, to prevent incumbering of streets, sidewalks, alleys and public grounds of the city, with any article or substance whatever.

This was all the evidence introduced by or on behalf of the city.

Littler then read in evidence the following deed of vacation, which was filed for record April 21, 1879:

“Know all men by these...