Owen v. Vill. of Brookport

• Decision Date: 17 February 1904
• Citation: 69 N.E. 952,208 Ill. 35
• Parties: OWEN v. VILLAGE OF BROOKPORT et al.
• Court: Illinois Supreme Court

208 Ill. 35

69 N.E. 952

OWEN

v.VILLAGE OF BROOKPORT et al.

Supreme Court of Illinois.

Feb. 17, 1904.

Appeal from Circuit Court, Massac County; A. K. Vickers, Judge.

Bill for partition by James Owen against the village of Brookport and the Illinois Central Railroad Company. From a decree dismissing the bill, plaintiff appeals. Affirmed.Campbell & Campbell and S. Bartlett Kerr, for appellant.

C. L. V. Mulkey, for appellee village of Brookport.

W. W. Barr and Courtney & Helm (J. M. Dickinson, of counsel), for appellee Illinois Central Railroad Company.

The following is the plat referred to in the opinion:

EXHIBIT ‘B.’ Filed for record September 28, 1850. John B. Hicks, Clerk.

Image 1 (4.74" X 4.53") Available for Offline Print

This is a bill for partition, filed in the circuit court of Massac county on March 11, 1902, by the appellant against the appellees, for the partition of a piece of land described in the bill as follows: ‘One-half of a tract or parcel of land, situated in the county of Massac and State of Illinois, in front of the town of Brooklyn and bounded as follows, viz.: Commencing at lot No. 1 and running to lot No. 30 in length, and commencing at low-water mark and running up to First or Front street of said town in breadth, together with all and singular the buildings and improvements, rights, privileges, immunities and appurtenances, thereunto belonging or in any wise appertaining.’ The bill alleges that complainant below (appellant here) was the owner of an undivided half of this tract, and that the heirs and grantees of one James Campbell, deceased, are the owners of the other undivided half thereof. Among the defendants below were several minors, for whom guardians ad litem were appointed, and filed answers. All the other defendants, except the village of Brookport and the Illinois Central Railroad Company, were defaulted. Answers were filed by the village and the railroad company, and replications were filed to such answers. The cause was referred to a master in chancery to take evidence, who reported back the evidence, oral and documentary. On September 9, 1903, a decree was entered, dismissing appellant's bill of complaint, and taxing the costs of the defendants against the complainant. The present appeal is prosecuted from such decree of dismissal.

The bill alleges that the village of Brookport ‘claims or pretends to claim some right, title, or interest in and to said tract or parcel of ground,’ and that the Illinois Central Railroad Company ‘claims some conditional right of easement or passageway over and through said tract or parcel of land by virtue of some resolution or ordinance of said village of Brookport,’ etc. In its answer the Illinois Central Railroad Company denied that the appellant (complainant below) had any title at all, or any right to bring suit for partition of the land described in the bill. It denied that Valentine Owen, the father of appellant, was ever in possession of the land as stated in the bill, and denied that any person or persons had any title or right to possession of said lands, except the village of Brookport and the Illinois Central Railroad Company. It alleged that the village of Brookport had the right of possession, except so far as it had granted the right of way to the railroad company to lay down its railroad tracks, and further alleged that the village, having the right to the possession and use of the said real estate, by its ordinances duly and regularly passed, gave to the railroad company the right to place its tracks on said land. In its answer the village of Brookport denied that Valentine Owen, the appellant's father, was ever at any time the owner in fee of an undivided half of the land described in the bill, or was in possession of the land at any time, and denied that appellant had any interest in said premises, ‘except such as he holds as a licensee or lessee of the village of Brookport.’ It further alleged that the village is the owner of said premises, and denies that appellant is entitled to partition of the same.

Appellant here (complainant below) introduced in evidence a map of Brooklyn, which is conceded to be now the village of Brookport, showing that said village or town was laid out, upon the order of C. Pell, in August, 1850, which plat was filed for record on September 28, 1850. The plat shows a division of the ground upon which the town or village is located into streets, blocks, and lots, which ground is situated upon the north or Illinois side of the Ohio river. The southernmost street in the town, running east and west, is designated upon the map as ‘Water Street.’ The map or plat does not give any figure or figures, showing the width of Water street; but on the south side of the space marked ‘Water Street’ is a meandering line, intended to designate the north bank of the Ohio river. On the north side of Water street are located certain blocks, numbered 1, 2, 3, 4, and 5; No. 1 being the west block, and No. 5 the east block. Each of these blocks is divided into six lots. All the lots front south upon Water street, which runs from west to east. The westernmost lot to block 1 is numbered lot 1, and the easternmost lot in block 5 is numbered lot 30. On the west side of block 1, Davis street runs from Market street, on the north, to Water street, on the south; between blocks 1 and 2, Metropolis street runs from Market street, on the north, to Water street, on the south; between blocks 2 and 3, Crocket street runs from Market street, on the north, to Water street, on the south; between blocks 3 and 4, Ferry street runs from Market street, on the north, to Water street, on the south; between blocks 4 and 5, Ohio street runs from Market street, on the north, to Water street, on the south. East of block 5 is a street designated as ‘George Street.’ Market street, which runs east and west, and on the north side of blocks 1, 2, 3, 4, and 5, is just south of blocks 8, 7, and 6, and there are no figures on the map to indicate its width. Elizabeth street runs east and west north of blocks 8, 7, and 6, but there are no figures to designate its width.

MAGRUDER, J. (after stating the facts).

The property in controversy in this case is the levee or water front in Brookport, Ill., and comprises the sloping bank of the Ohio river, situated in front of the town. The proof tends to show that at times the Ohio river rises, so that the north line of the river upon the river front of Brooklyn shifts. In time of high water it is further north than in time of low water. The space of ground between the tier of lots, commencing at lot No. 1 and running to lot No. 30, which front to the south upon the north side of Water street, and the low-water mark of the river, has no other designation upon the map than ‘Water Street.’ Water street is first street back from the Ohio river, on the north bank of which the town is located. It is the street that runs up and down the river immediately south of and in front of the first tier of town lots and blocks, as designated on the plat. Whether or not Water street embraces the whole of the space between this tier of lots and the river is one of the disputed points in the case. In other words, the main issue is the location of the south boundary line of Water street; that is to say, whether the boundary line is on top of the bank, as it is called in the arguments of counsel, or at the foot of the bank. The strip of ground in controversy is about 1,600 feet long, and varies in width from 100 feet to 150 feet.

1. The plat which was made in August, 1850, and recorded on September 28, 1850, was not acknowledged as required by the statute, and therefore there was no statutory dedication, by the making and recording of the plat, of the land embraced within the streets designated thereon. But there was here a common-law dedication of such land. If the plat or map had been made in accordance with the statute, and properly acknowledged and recorded, so that it would operate as a statutory dedication, the fee in the streets or land dedicated would have been vested in the corporation in trust for the public. But the plat not having been acknowledged in conformity with the statute, so that it operated as a common-law dedication only, the title to the streets vested in the adjoining owners, subject to the easement of the public, and the title of the adjoining owners would extend to the center of the street. Sanitary District of Chicago v. Adam, 179 Ill. 406, 53 N. E. 743;Matthiessen & Hegeler Zinc Co. v. City of La Salle, 117 Ill. 411, 2 N. E. 406,8 N. E. 81;Village of Vermont v. Miller, 161 Ill. 210, 43 N. E. 975;Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191.

In Thompson v. Maloney, 199 Ill. 276, 65 N. E. 236,93 Am. St. Rep. 133, we said (page 282, 199 Ill., page 238, 65 N. E.,93 Am. St. Rep. 133): ‘In such cases the title to the streets, alleys, etc., is in the owner of the tract platted, and there remains so long as he retains the ownership of all the lots shown on the plat. If, however, he sells a lot, describing it in the deed by reference to the plat, the title to the soil of the street in front of the lot to the center of the street, by operation of law, attaches to the fee of the lot, and the proprietor of the plat ceases to be the owner in fee of such portion of the street.’ The proof shows that, about the time the plat was made, Charles Pell was the owner of the ground platted, either alone, or as tenant in common with one Thomas G. C. Davis. It is stipulated between the parties that Charles Pell, in his lifetime, conveyed lots fronting on Water street with reference to the plat offered in evidence; describing some of them, as fronting on Water street, and others by simply calling the lot and block. It appears from the testimony in the case that the lots fronting south on Water street are owned by different parties, and that houses have been erected upon many of them. It follows that the...