Mattheisen & Hegeler Zinc Co. v. City of La Salle

• Decision Date: 13 August 1886
• Citation: 8 N.E. 81,117 Ill. 411
• Court: Illinois Supreme Court
• Parties: MATTHEISEN & HEGELER ZINC CO. v. CITY OF LA SALLE.

117 Ill. 411

8 N.E. 81

MATTHEISEN & HEGELER ZINC CO.

v.CITY OF LA SALLE.

Supreme Court of Illinois.

August 13, 1886.

Appeal from Second district.

On petition for rehearing. For former opinion, see 2 N. E. Rep. 406. Rehearing denied March 19, 1886, and order for modification of opinion entered.

Bull, Strawn & Ruger, for appellant.

G. S. Eldredge, for appellees.

SCHOLFIELD, J.

We do not deem it expedient to now reconsider the construction given the statute in relation to the platting of towns, in Canal Trustees v. Haven, 11 Ill. 554. That decision was rendered, after full argument and mature consideration, in June, 1850, 35 years ago. The next year after it was rendered, in November, 1851, in Hunter v. Middleton, 13 Ill. 50, the rule it declares was attacked in argument by able counsel, and the court was asked to reconsider and overrule it, and hold as now contended by counsel for appellant; but the court were not convinced by the argument that the rule was wrong, and expressly then declared that it was adhered to. The court said: ‘The statute in substance declares that these acts of the proprietor shall operate to vest the fee in the corporation in trust for the uses and purposes of the public. By making and recording the plat he voluntarily parts with the title to the streets and alleys, and transfers it to the corporation. The legal effect is precisely the same as if he had made a conveyance directly to the corporation. The latter holds the legal estate for the benefit of the public. The title may, perhaps, revert to the former owners on the destruction of the corporation, or on the abandonment of the ground for the purposes of streets or alleys. But until the estate is thus defeated the fee is as completely out of him as if he had made an absolute and unconditional conveyance. While the fee continues in the corporation, he has no greater interest in the streets and alleys than any other person,-the right of passage over them. Having neither the legal title nor the exclusive right of possession, he cannot bring trespass for any injury to the soil or freehold. He has no title to be assailed; no possession to be invaded.’ This doctrine has been either directly repeated, or assumed to be the law, in the following cases: Manly v. Gibson, 13 Ill. 312;Moses v. Pittsburgh, Ft. W. & C. R. Co., 21 Ill. 516;Waugh v. Leech, 28 Ill. 488;Stephani v. Brown, 40 Ill. 428;City of Chicago v. McGinn, 51 Ill. 266;Carter v. City of Chicago, 57 Ill. 283;Indianapolis, B. & W. R. Co. v. Hartley, 67 Ill. 439;St. John v. Quitzow, 72 Ill. 336;Gebhardt v. Reeves, 75 Ill. 301;Stetson v. Chicago & E. R. Co., Id. 74; Stack v. City of East St. Louis, 85 Ill. 377;Chicago v. Rumsey, 87 Ill. 348;Cairo & V. R. Co. v. People, 92 Ill. 170;Village of Brooklyn v. Smith, 104 Ill. 429; and in still later cases not yet reported.

In the Stetson Case, it was sought to enjoin the construction of a railroad in the street. The court said, in denying the right of the abutting lot-owner: ‘The principle is, the adjoining proprietor has no interest in the fee of the street, and therefore cannot recover for an injury to it. Where the fee of the street, however, remains in the abutting land-owner, a recovery has been permitted.’

In the case of Brooklyn v. Smith, which was decided in 1882, the court repeated that one who had made and acknowledged a plat, with streets marked thereon, retained in the streets no interest to descend to heirs, or to be conveyed. ‘The acknowledgment,’ says the court, ‘by him and recording of the original plat, had all the force of an express grant to convey from him the land embraced by Water street, and vest it in the corporation of the village;’ referring to Canal Trustees v. Haven, supra. ‘The corporation was the owner in fee of the streets.’ This language was not only pertinent, but necessary, to a decision of the question before the court.

The public welfare forbids that a rule so long established, and so firmly adhered to, should be regarded as open to discussion or question. If it is to be changed it must be by the legislature.

But it is objected that the statute in regard to laying out and platting towns has no application to the state, and that this was therefore but a common-law dedication. This objection is answered by Chicago v. Rumsey, supra, where a like objection was interposed, and held to be untenable. Without at all conceding that the reasoning there, upon which the ruling on this point was predicated, is unsatisfactory, there is another obvious and satisfactory line of reasoning which reaches the same conclusion.

While the statute in relation to town plats does not name the state, it contains specific and full directions for the laying out and platting towns by ‘county commissioners and other persons wishing to lay out towns, or additions thereto, in this state.’ See St. 1833, p. 599. When the several sections in relation to the laying out towns by the commissioners of the Illinois & Michigan canal were passed, that statute was in force, and there was no other statute in force in relation to the same subject. By section 32 of the act for the construction of the Illinois & Michigan canal, approved January 9, 1836, the commissioners are empowered ‘to examine the whole canal route, and select such places thereon as may be eligible for town-sites, and cause the same to be laid off into town lots. * * *’ And by section 7 of ‘An act to amend the above-named act,’ approved March 2, 1837, it is provided: ‘The said commissioners [ i. e., canal commissioners] shall have power to cause surveys of such town-sites as they may select, to be laid out by such person or persons as they may think proper; the plats of such towns, certified by such person or persons so employed and said commissioners, shall be recorded in the recorder's office in the county where such town is situated, and such plat, so certified and recorded, or an attested copy thereof, shall be evidence in any court of law or equity in this state; and plats of such town-sites, subdivisions of sections, or surveys, which have been made and certified by the former commissioners, shall also be recorded in the same manner, and have the same validity, as aforesaid.’ But what shall constitute a ‘laying out’ and a ‘platting,’ and of what facts the plat shall be evidence, these sections do not undertake to declare. The terms ‘laying out’ and ‘platting,’ as applied to towns, are descriptive of legal steps for the creation of a town, and the perpetuating of evidence of its creation; and their use here plainly implies the existence of law defining or prescribing such steps. Such law cannot be found in the common law; and, since the statute referred to is the only statute in relation to the subject that has ever been in force, it must have been intended by these sections to refer to it to ascertain what shall constitute a ‘laying out’ and ‘platting,’ and of what facts the plat shall be evidence. These sections are therefore in pari materia with that statute.

Thus reading them, it is only necessary that the plat shall be certified, as was here done, by the persons laying out the town and the commissioners; and, when thus certified and recorded, it shall have the force and effect of a town plat; i. e., as made, certified, and acknowledged under the statute in relation to town plats. And this is consistent with other legislation of a kindred character, which provides that ‘all deeds, title papers, and agreements and contracts affecting title to real estate, executed under the seal of the board of canal commissioners, shall be admitted to record without proof or acknowledgment of the execution thereof. 2 Purple, St. 488.

But it is again contended, conceding that we are right in the views heretofore expressed, that, inasmuch as by section 2 of chapter 145, Rev. St. 1874, it is provided that, upon the vacation of any street, the lot or tract of land immediately adjoining on either side shall extend to the central line of such street, etc., the adjacent lot-owners have a reversionary interest in the soil, which gives them a right to enter and take and appropriate the coal in the street. Waiving the question whether this act, though unconstitutional as respects cases where the dedicator was a private owner, is the law in cases, like the present, where the dedication was by the state, it is enough to say the adjacent lot-owner does not have a reversion, but a possibility of reverter only. The title vested in the town by the statutory dedication is absolute, for the purpose of the statutory trust, until the street shall be subsequently vacated, when it will revert to the dedicator, or, it may be, in cases like the present, to the adjacent lot-owner. Possibly, at some time in the future, there may be a reverter; but this is no reversion. 4 Kent, Comm. (8th Ed.) 372. It is too palpable for argument that, until there is a reverter, the lot-owner can have no greater right to enter upon and appropriate the soil and minerals of the street to his personal use than a stranger, because his right can only commence in the event and at the time that the right of the town has ended.

Waiving this, however, counsel further contend that the cases decided by this court recognize the existence of an equitable estate in the street, in the dedicator, distinct and apart from the estate which passes by the dedication, and which equitable estate passes, by a conveyance of the abutting lots, to the grantee....