Melin v. Cmty. Consol. Sch. Dist. No. 76

• Decision Date: 10 June 1924
• Docket Number: No. 15578.,15578.
• Parties: MELIN, State's Atty., et al. v. COMMUNITY CONSOL. SCHOOL DIST. NO. 76 et al.
• Court: Illinois Supreme Court

312 Ill. 376

144 N.E. 13

MELIN, State's Atty., et al.

v.COMMUNITY CONSOL. SCHOOL DIST. NO. 76 et al.

No. 15578.

Supreme Court of Illinois.

April 14, 1924.

Rehearing Denied June 10, 1924.

Error to Circuit Court, Henry County; Charles J. Searle, Judge.

Bill by Carl A. Melin, State's Attorney, and others, against the Community Consolidated School District No. 76 and others. Decree of dismissal and complainants bring error.

Reversed and remanded, with directions.

Dunn, J., dissenting.Carl A. Melin, State's Atty., of Cambridge, and Sturtz & Ewan, of Kewanee (John T. Kenworthy, of Rock Island, of counsel), for plaintiffs in error.

T. W. Hoopes, of Springfield, James H. Andrews and Martin E. O'Connor, both of Kewanee, Andrew Olson, of Moline, and Erman King, of Cambridge, for defendants in error.

CARTER, J.

The bill of complaint in this case as it was finally amended was filed in the circuit court of Henry county by the state's attorney on the relation of four residents, taxpayersand electors of the village of Andover, to enjoin the construction of a schoolhouse on the public square of the village. The court dismissed the bill for want of equity, and the complainants have brought this writ of error.

There is no controversy about the material facts. A plat of the village of Andover was filed in the recorder's office of Henry county on March 7, 1842, which was annexed to a certificate of Arba M. Seymour, county surveyor of Henry county, dated May 17, 1838, that the town of Andover was laid off on the north half of section 17 and the south half of section 8, in town 15 north, range 2 east of the fourth principal meridian, for Ithamar Pillsbury, Eben Townsend, and Edward A. Mix, trustees for the New York Association, and that the annexed map and the references contained in the certificate were a copy of the town of Andover, in Henry county, state of Illinois. The document also bore the certificate of two of the county commissioners of Henry county that the plat was a true and correct plat of the town of Andover, together with their acknowledgments and the signatures and acknowledgments of the trustees named in the surveyor's certificate. The land platted was divided into 49 blocks of 10 acres each, each block being subdivided into 4 lots, which were numbered, except the center block of the plat, which was marked ‘Public Square.’ Two lots north of the public square were marked ‘Public Buildings,’ and 4 others lots farther north in the tract were marked, ‘Appropriated to the Literary Institute.’ One lot in the east end of the plat and one in the west end were marked ‘Burying Ground.’ For some years after the recording of the plat the public square was known as ‘The Commons' and was used for pasturing cows, and there was no special exercise of authority over the public square by any official. In 1860 school district No. 3, which then included the land covered by the plat and other territory, erected a two-story frame schoolhouse in the southwest portion of the tract, in which a public common school has been continuously maintained since that time and has been the only school in the community. The school grounds were fenced off from the rest of the tract, the fence was repaired, renewed, and kept up, the schoolhouse was repaired from time to time, and a furnace was put in, trees were planted, and the grounds were cared for by the school directors with funds of the school district. In 1895 the town of Andover was incorporated under the laws of the state as a village. In renumbering the school districts of the county, school district No. 3 became school district No. 76, and in 1919, by consolidation with other school districts, became Community Consolidated School District No. 76, and since its organization has maintained the school in Andover. In 1920 Community High School District No. 195, also including the village of Andover, with other territory, but not coextensive with the boundaries of the existing district, was organized. The ordinary course was pursued in the calling of an election, selection of a schoolhouse site, authorizing the issuance of bonds, and entering into a contract for the erection of a building on grounds 358 by 338 feet in dimensions in the southwest corner of the square. On September 12, 1921, and before the contract was made to erect the school building and before the bill herein was filed, a notice was served by property owners of the village on Community Consolidated School District No. 76 and on Community High School District No. 195 and its officers, and on the contractor whose bid had been accepted, that district No. 195 had no right on the square, and that the proposed attempt to build a school thereon was in violation of the terms of the grant of said land to the inhabitants of the village. This action is to enjoin the construction of the schoolhouse, and there is also a prayer for a mendatory order directing the restoration of the grounds to their condition, as nearly as possible, prior to the beginning of the work mentioned. The portion of the public square fenced and used for school purposesconstitutes about 2 1/2 acres, and the remainder of the tract has continued to be employed for other purposes. A lockup was built outside the school inclosure. Both the inclosed and the uninclosed parts of the public square were used for public gatherings.

The master in chancery, to whom the matter was referred, concluded, as a matter of law, from the facts shown, that the plat having been recorded more than 80 years previous to the hearing, without any evidence to show revocation or opposition by any one, the same was dedicated for the public use prior to 1860; that the erection of the building in that year was for a purpose other than contemplated by the dedicators; that the school district acquired no title, but the right to maintain and use the building erected on the land was permissive, only; and that the proposed construction of the new building was contrary to the purpose of the dedicators. He concluded that the public has the right to prevent the construction of the building and that the equities of the cause are with the plaintiffs in error. The master recommended that a decree be entered enjoining the further construction of the school building. Objections to the report were sustained, and the court decreed a dissolution of the injunction, directing that the bill be dismissed for want of equity.

[1][2][3][4][5] It is first contended that the trustees for the New York Association had no authority to dedicate the tract marked ‘Public Square,’ and that there could be no acceptance by the public such as would constitute the land a public square by dedication. Evidence of title to the land platted is not required to be produced. Waugh v. Leech, 28 Ill. 488. A dedication may be made by a survey and a plat alone. Guttery v. Glenn, 201 Ill. 275, 66 N. E. 305. The words on the plat indicate the intention of the dedicators. City of Jacksonville v. Jacksonville Railway Co., 67 Ill. 540. A dedication of the kind here in question can be established in any way by which the intention to dedicate may be evinced. Godfrey v. City of Alton, 12 Ill. 29, 52 Am. Rep. 476. Since evidence of title was not required to be produced, we think it is immaterial that the three persons for whom the survey was made were designated as trustees for the New York Association without a power of attorney being exhibited defining their powers. Several named individuals designated as members of the New York Association as such members and in their individual capacities, quit-claimed all their interests in and to the land in Henry county recited to have been purchased in that county by three named persons for the association, to Elihu L. Mix, and the latter conveyed the land to the three named trustees, to ‘hold, use and employ the said premises, with the appurtenances, for such time and in such manner as in their judgment, or a majority of them, shall be most advantageous for the said New York Association and shall most conduce to the welfare and prosperity of the said village of Andover, * * * to let or lease or absolutely to sell or dispose of the same or any portion thereof,’ and to execute and deliver good and sufficient deed or deeds for the same. The surrounding lots were sold with reference to the plat. It could very well be considered as conducing to the welfare and prosperity of the village of Andover to set aside a public square of 10 acres out of the 640 acres platted for sale. The plat, as well as the public square, we think has been sufficiently recognized to excuse further proof than that which has been furnished. None of the original owners, nor any succeeding grantees or devisees, are claiming any right here or asserting that the dedication was not effective for the purpose intended. The only interest asserted upon the part of the school district is by reason of the alleged abandonment or estoppel. An acceptance of a dedication may be implied from user by the...