Phillips v. Leininger

Decision Date23 October 1917
Docket NumberNo. 11531.,11531.
Citation280 Ill. 132,117 N.E. 497
PartiesPHILLIPS et al. v. LEININGER et al.
CourtIllinois Supreme Court


Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Bill in chancery by Walter D. Phillips and others, as commissioners of highways of the town of Norwood Park, to enjoin George Leininger and others, the State Board of Administration, from obstructing a highway. Decree for defendants, and plaintiffs appealed to the Appellate Court for the First District, and it was transferred as involving a freehold. Reversed and remanded, with directions.

Landon & Holt, of Chicago (John B. Fruchtl, of Chicago, of counsel), for appellants.

Edward J. Brundage, Atty. Gen. (Edward H. Taylor, and Franklin A. Denison, both of Chicago, of counsel), for appellees.


Appellants, as commissioners of highways of the town of Norwood Park, filed their bill in chancery in the circuit court of Cook county against appellees, the state board of administration, who are in charge of the Chicago State Hospital, to enjoin them from obstructing an alleged highway across the hospital grounds. The bill charges that in 1886 a highway was laid out across the hospital grounds (then known as the Dunning Institution), and ever since that time has been maintained, graded, improved, managed, and controlled by the highway commissioners of the town of Norwood Park, and the work done and improvements made thereon paid for with the funds of such town; that ever since that time said highway has been in general use as a public highway; that appellees have attempted to close the same by placing gates across the same; and the bill prays for an injunction restraining them from obstructing such public highway. A temporary injunction was granted as prayed. Appellees answered the bill, admitting that they composed the state board of administration and as such have had control of the Dunning Institution for the past 3 years, but denying that a highway was established over the strip of land in controversy in 1886, or that the same had been maintained, graded and improved under the direction and supervision of the highway commissioners of the town of Norwood Park, or that the same had for a period of 25 years been used openly, adversely, exclusively, and uninterruptedly as a public highway. They alleged the ownership of the land in controversy was in the state of Illinois, and that they, as the state board of administration in charge of such land, had the right to close up such alleged highway. A replication was filed to the answer, and the cause was tried before the court, which entered a decree finding the issues joined in favor of appellees, dissolved the temporary injunction, and dismissed the bill for want of equity. The cause was appealed to the Appellate Court for the First District, and that court, being of the opinion that a freehold was involved, has transferred the cause to this court.

The issue as to whether or not there is a highway over the land in controversy involves a freehold, and the cause was properly transferred to this court. Roloson v. Barnett, 243 Ill. 130, 90 N. E. 228.

Appellants rely upon a common-law dedication of the land in question as a public highway and a prescriptive right in the public to use such highway. Appellees insist there is no sufficient evidence of a common law dedication of the highway, and that, as the land in controversy is state property, the public can acquire no right to a highway over the same by prescription, for the reason that the statute of limitations and laches do not run against the state as to property held by it in trust for a public use. Appellees cite the following cases in support of this contention: County of Piatt v. Goodell, 97 Ill. 84;Russell v. City of Lincoln, 200 Ill. 511, 65 N. E. 1088;City of Chicago v. Galt, 224 Ill. 421, 79 N. E. 701;Town of Brushy Mound v. McClintock, 150 Ill. 129,36 N. E. 979;City of Chicago v. Chicago, Rock Island & Pacific Railway Co., 152 Ill. 561, 38 N. E. 768;Township of Madison v. Gallagher, 159 Ill. 105, 42 N. E. 316;Illinois Central Railroad Co. v. City of Bloomington, 167 Ill. 9, 47 N. E. 318;O'Connell v. Chicago Terminal Railroad Co., 184 Ill. 308, 56 N. E. 355;Falter v. Packard, 219 Ill. 356, 76 N. E. 495. In those cases the property involved was held in trust for a particular use for the benefit of the general public, and the rule there announced has no application to cases such as the one at bar, where the property is held by a municipality for the special benefit of the inhabitants of that particular municipality. The exemption of the state, counties, cities, towns, and other minor municipalities from the operation of the statute of limitations extends only to matters affecting their public rights as distinguished from private and local rights, with respect to which such municipalities, the same as individuals, are subject to the statute of limitations. County of Piatt v. Goodell, supra; Board of Supervisors v. City of Lincoln, 81 Ill. 156;People v. Town of Oran, 121 Ill. 650, 13 N. E. 726. In Brown v. Trustees of Schools, 224 Ill. 184, 79 N. E. 579,115 Am. St. Rep. 146,8 Ann. Cas. 96, in speaking of what was meant by ‘public rights' as used in the decisions, we said:

‘The question in this case is whether there is an implied exemption from the statute of limitations in favor of trustees of schools with respect to property held for the use of a particular school district, and that depends upon the meaning of the term ‘public rights,’ as used in the decisions. In one sense, all property held by a municipal corporation is held for public use, and the public at large, or some portion of the public, have rights or interests in such property. It may be held for the use of the people of the state generally, or the use may be limited to the inhabitants of the local subdivision or municipality, such as the city, village, or school district, and the question whether the statute applies in the latter class of cases was considered in County of Piatt v. Goodell, supra. That case involved the title to swamp lands owned by the county, in which the inhabitants of the county were interested. It was held that the public right and public use must be in the people of the state at large, and not in the inhabitants of a particular local district. It was said that there is a well-founded distinction between cases where the municipality is seeking to enforce a right in which the public in general have an interest in common with the people of such municipality and cases where the public have no such interest, that the public generally had no interest in the tract of land in question in that case in common with the voters and taxpayers of Piatt county, and that the county for that reason was subject to the limitation laws.'

We think the same may be said of the land in controversy here, and that as to such property the county of Cook, the same as an individual, is subject to the statute of limitations. The fact that the title of the property is now vested in the state of Illinois is of no importance for the reason the highway was established before the state acquired the property, and when it did so it took it subject to whatever easements or other incumbrances the county of Cook, the prior owner, had placed thereon.

The land in question through which the road runs is situated in section 18, township 4 north, range 3 east of the third principal meridian, in the township of Norwood Park, and prior to the year 1912 was owned, controlled, managed, and used by the county of Cook as a county poor farm and institution for the treatment of the insane of such county, and was commonly known as the Dunning...

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