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

• Decision Date: 21 September 1885
• Citation: Mattheisen & Hegeler Zinc Co. v. City of La Salle, 117 Ill. 411, 2 N.E. 406 (Ill. 1885)
• Court: Illinois Supreme Court
• Parties: MATTHEISEN & HEGELER ZINC CO. v. CITY OF LA SALLE.

117 Ill. 411

2 N.E. 406

MATTHEISEN & HEGELER ZINC CO.

v.CITY OF LA SALLE.

Supreme Court of Illinois.

Filed September 21, 1885.

Appeal from appellate court, Second district.

1.TOWN PLAT-TITLE TO SOIL OF STREETS-REVERTER.

The case of Canal Trustees v. Haven, 11 Ill. 554, decided that where towns are platted under the provisions of the statute relating to the making and recording of town plats, the effect of making and recording the plat is to vest in the municipal corporation the fee-simple of all streets shown on the plat.This construction of the statute has been followed in numerous cases, and is too firmly established to admit of question.Where the street is abandoned by the public, the face of the street will revert to the original dedicator.Abutting lotowners have no estate or title, either legal or equitable, in the street.

2.TOWN PLATS MADE BY THE STATE-GRANT OF LOT DOES NOT PASS TITLE TO CENTER OF STREET.

Where the state plats a town, the title to the streets shown in the plat is in the municipal corporation, though the plat was not recorded.In such a case the title to the streets is not conveyed, but is simply retained by the state through its agent or representative, the municipal corporation.Where the state conveys lots in a town platted by itself, the policy of the legislature to vest the title of streets shown in town plats in the municipal corporation, as manifested in the case of town plats made by individuals, will rebut the ordinary presumption that, where the fee of the street was in the grantor of an abutting lot, the grant of the lot passed title to the center of the street.

3. APPEAL-FREEHOLD.

Where a freehold is merely incidentally involved, the appeal is in the first instance to the appellate court.

SCHOLFIELD, C. 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;Chicago, B. & Q. R. Co v. People, 77 Ill. 443;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 last cited, ( 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 contended on behalf of appellant that the cases recognize the existence of an equitable estate in the street-In the dedication, 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 grantees.

We do not so understand the cases, and, in our opinion, the contention cannot be maintained.The Stetson Case, as has been seen, is diainetrically opposed to this position.The cases have held that the only trust in favor of a private party, where there there has been a statutory dedication of streets, is that the street shall be kept open for the benefit of abutting lot-owners who have bought or sold on the faith of its existence and continuance as a means of access to their lots.City of Chicago v. Union Building Ass'n, 102 Ill. 379.And although a court of equity will enjoin the deprivation of this right, ( Carter v. City of Chicago, supra,) yet the right in its nature is legal, and damages for its invasion may be recovered in an action at law.City of Pekin v. Brereton, 67 Ill. 477;Rigney v. Chicago, 102 Ill. 81, and cases there cited.Whether this right has its origin in the doctrine of estoppels in pais, as held in Cincinnati v. White, 6 Pet. 431, or in that of implied covenants, as held in Re Lewis Street, 2 Wend. 472;Livingston v. Mayor, etc., 8 Wend. 85;Haynes v. Thomas, 7 Ind. 38,-it was necessarily relative only to the use and enjoyment of streets as such, without reference to the ownership of the soil in the street.The fee vested in the municipal corporation by the statutory dedication is ‘a qualified, base, or determinable fee,’ as defined by 4 Kent, Comm.(8th Ed.) 8, *9.‘The interest may continue forever, but the estate is liable to be determined without the aid of a conveyance, by some act or event circumscribing its continuance or extent.’As, for instance, here, the vacation of the plat, or the entire and permanent abandonment and disuse of the street by the public and the abutting lot-owners.The author adds, ubi supra:‘Though the object on which it rests for perpetuity may be transitory or perishable, yet such estates are deemed fees, because, it is said, they have a possibility of enduring forever.’Upon the entire and permanent abandonment and disuse of the streets, or the vacation of the plat, we have decided the property in the streets will revert to the dedicator; not to the abutting lot-owner, as such.St. John v. QuitzowandGebhardt v. Reeves, supra, were cases where this precise question was involved.Both were actions of ejectment for strips of ground that had been dedicated to the public under the statute for streets; and it was held the title reverted to the dedicator.

It is there shown, moreover, that a conveyance of lots, where the plats have been acknowledged and recorded pursuant to the requirements of the statute, do not carry title to the center of the streets, but to the line between the lots and the street only.In such cases, to speak accurately, the dedicator does not have a reversion, but a possibility of reverter only.Says Kent, vol. 4, p. 372, supra: ‘If A. has only a possibility of reverter, as in the case of a qualified or conditional fee at common law, he has no reversion. * * *’

The objection is urged, however, that inasmuch as the title was in the state when the street here under consideration was dedicated, the statute has no application to it.This is answered by City of Chicago v. Rumsey, supra, where a like objection was interposed.We there, among other things, said: ‘The legal title was not held in the name of a trustee, but by the state, and the lots were conveyed by patent issuing from the chief executive officer of the state, in all material respects similar to patents conveying lands from the general government.’And again: ‘As...