McCue v. Berge

• Decision Date: 18 January 1944
• Docket Number: No. 27564.,27564.
• Citation: 385 Ill. 292,52 N.E.2d 789
• Parties: McCUE, Commissioner of Highways, v. BERGE.
• Court: Illinois Supreme Court

385 Ill. 292

52 N.E.2d 789

McCUE, Commissioner of Highways,

v.BERGE.

No. 27564.

Supreme Court of Illinois.

Jan. 18, 1944.

Action by Thomas McCue, Commissioner of Highways of the Town of Sterling, Whiteside County, against Kathryn E. Berge to enjoin defendant from asserting title to an alleged public road and from placing any obstructions thereon, and for other relief. From a decree dismissing the case for want of equity, plaintiff appeals. The case was transferred from the Appellate Court, 320 Ill.App. 229, 50 N.E.2d 438.

Reversed and remanded, with directions.Appeal from Circuit Court, Whiteside County; August J. Scheineman, judge.

Sheldon & Brown, of Sterling, for appellant.

Robert W. Besse and Kennard J. Besse, both of Sterling, for appellee.

WILSON, Justice.

September 25, 1942, the plaintiff, Thomas McCue, commissioner of highways of the town of Sterling, filed his complaint in the circuit court of Whiteside county against the defendants, Kathryn E. Berge and her father, William F. Berge. Plaintiff alleged that in 1940, he succeeded his father as commissioner of highways; that for more than forty years the east forty feet of lot 1 in the southwest quarter of section 20, township 21 north, range 7, in Whiteside county, from the south line north 5.97 chains, and the east twenty feet north thereof had been reserved for, improved and used extensively as a public road; that although having no right or title, defendants had assumed to exercise and assert a claim of ownership or control over the strip, constituting one of the public roads of the town of Sterling, and had placed obstructions in the road which interfered with public travel and with the maintenance and improvement of the road and were a menace to the safety of those who lawfully used this public road, and that he had been required to remove some of the obstructions. A decree was sought enjoining defendants from asserting any title to the public road, from obstructing it, from in any manner impairing or damaging the road and from interfering with plaintiff in its repair, maintenance or widening. Defendants answered, denying the material allegations of the complaint. As special defenses, defendants averred that there had been no acceptance by the public or any other qualified authority of the entire proposed dedication; that only a narrow strip of land, approximately sixteen feet in width, had ever been used for a public street; that all the other land had been used by Kathryn E. Berge and her predecessors in title as a part of their property; that the deed of 1936 from the Martins' estates by which she acquired title to all of lot 1, except the north 894 feet, contained no reservations; that by their quitclaim deed, in 1942, William H. Stanley and his wife conveyed to Kathryn E. Berge all right, title and interest in lot 1 which they had by virtue of a prior reservation in their deed to Margaret C. Hoover; that Kathryn E. Berge owns in fee simple the land described in the complaint, and that plaintiff has no right or interest in the title which he seeks to quiet in himself, as commissioner of highways. William F. Berge died during the progress of the trial. After hearing considerable evidence, the chancellor found the equities to be with Kathryn E. Berge, denied the injunction sought by plaintiff and dismissed his complaint. Plaintiff prosecuted an appeal to the Appellate Court for the Second District. A freehold being necessarily involved (Lang v. Dupuis, 382 Ill. 101, 46 N.E.2d 21), the cause was transferred to this court. McCue v. Berge, 320 Ill.App. 229, 50 N.E.2d 438.

November 7, 1908, David L. and John W. Martin, by warranty deed, conveyed lot 1 to William H. Stanley, reserving therefrom a strip of land twenty feet in width along and adjacent to the east line of the lot, ‘for the purposes of a public street.’ March 1, 1910, Stanley conveyed the same property, by warranty deed, to Margaret C. Hoover, excepting from the conveyance a strip forty feet in width along the east line extending north from the south line 5.97 chains, ‘the west 30 feet of said east 40 feet being reserved for a public street,’ and also reserving a twenty-foot strip along the east line of lot 1 north of the forty-foot strip ‘for a public street.’ March 1, 1921, Margaret C. Hoover, conveyed to David L. and John W. Martin, by warranty deed containing the same exceptions and reservations as were contained in the deed from Stanley to her. April 26, 1936, Carl E. Sheldon, as executor of the will and trustee of the estate of John W. Martin, deceased, and Jacob Cantlin, as executor of the will and trustee of the estate of David L. Martin, deceased, by trustees' deed, conveyed to Kathryn E. Berge all of lot 1 except the north 894 feet. The total length of lot 1 from north to south is 1328 feet. By a quitclaim deed, dated June 27, 1942, William H. Stanley and Hannah M. Stanley, his wife, conveyed to Kathryn E. Berge all their interest in the strip forty feet wide, 5.97 chains long, excepted from their deed of March 1, 1910, to Margaret C. Hoover.

Lot 1 is located immediately north of West Fourth street, commonly known as Lincoln highway. Its eastern edge is also the center or half-section line of section 20. To the east and north of this property, three subdivisions have been developed. West Sterling, shown by a plat recorded October 22, 1892, is located directly east, extending north from West Fourth street to West Eighth street. William F. Pitney's subdivision, shown by a plat recorded June 15, 1937, lies directly north of the Berge property west of West Sterling. West Park subdivision, shown by another plat recorded July 22, 1937, is directly north of West Sterling. The strip of roadway in controversy, lying at the east side of lot 1, extends from West Fourth street on the south and continues north into Dillon avenue.

Plaintiff, Thomas McCue, in May, 1940, succeeded his father as commissioner of highways. He testified that twenty-two to twenty-five years previously, he assisted his father when the latter commenced improving the road with cinders and gravel, from the highway south of defendants' property north to Fifth street; that, as highway commissioner for the past three years, he had caused cinders and gravel to be installed, and the road oiled, and that, during this entire period, the public had traveled the street generally and more extensively as the years passed. He also testified to a gradual increase over the years in the building of homes both on the east side of Dillon avenue in West Sterling subdivision and on its west side in Pitney's subdivision. He further testified to a course of conduct inaugurated by defendant William F. Berge commencing with his entry upon the premises, whereby obstructions were placed so as to gradually encroach farther and farther east upon the improved or traveled portion of this roadway; that, at first, these consisted of small stones and pipes, placed three or four feet east of the west line of the roadway on the cindered portion, the pipes being allowed to extend about six inches from the ground, causing disrepair of two roadgrading machines; that despite the removal of these obstructions by his father on at least two occasions, Berge persisted in his campaign of encroachment; that this same procedure continued when he, plaintiff, took office in 1940, heavy iron stakes and posts being installed about three feet east on the traveled track, obstructing travel, and that removal resulted in their replacement shortly thereafter by Berge with the present iron pipes, located farther east than the original line of stones. According to McCue, the road, at the south, was twenty feet wide. He added that a fence enclosing a garden on the north end of Berge's property was moved by Berge ten or fifteen feet east of its original location; that the space not uised as a road was mowed back to the fence line; that the part not now improved with cinders and oil was driven over, and could have been used as a road, and that, at the present time, the road extends to the lawn, but there are cinders beyond the lawn not sodded over.

Seven witnesses, long resident in the community, corroborated plaintiff's testimony as to the existence of a traveled roadway along the east side of lot 1, its extensive use by the public, and its constant improvement with cinders, gravel and oil by plaintiff and his father, as highway commissioner. Their testimony also tends to show the progressively increased use by the public of the roadway, owing to the growth of the West Sterling and Pitney subdivisions. Grace Koser testified that there are approximately thirty residences on both sides of Dillon avenue. There was also testimony as to the use of the roadway as a part of a bus route, one witness stating the bus company had, for the past year, maintained a half-hourly schedule. The testimony of these witnesses is not entirely in accord as to the actual width of the improved roadway. Two stated that prior to being obstructed by Berge, the road was sufficiently wide to accommodate two vehicles, side by side. Several others testified that the traveled portion was not then wide enough for two vehicles to pass, one being required to go upon the Berge lawn, and that passage was rendered even more difficult after Berge placed the stones and other obstructions. One stated that until obstructed by Berge, there was nothing to prevent a vehicle from ‘going over to the west side of the forty feet,’ if necessary. J. A. Shepard testified that about five years previously, Berge built a barbed-wire fence out into the road toward the north end of his land, which he, as an employee of the former highway commissioner, removed. William L. Martin testified that the roadway was practically a one-way drive, extending probably about sixteen feet from the east side of the property.

Four photographs, introduced in evidence as defendants' exhibits A, B, C and D, show views of the...