Prall v. Burckhartt

• Decision Date: 11 October 1921
• Docket Number: No. 13420.,13420.
• Citation: 132 N.E. 280,299 Ill. 19
• Parties: PRALL v. BURCKHARTT et al.
• Court: Illinois Supreme Court

299 Ill. 19

132 N.E. 280

PRALL

v.BURCKHARTT et al.

No. 13420.

Supreme Court of Illinois.

June 22, 1921.

Rehearing Denied Oct. 11, 1921.

Ejectment by Johnson S. Prall against Samuel Burckhartt, Jr., and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Stone, C. J., and Cartwright and Dunn, JJ., dissenting.Appeal from Circuit Court, Lake County; C. C. Edwards, Judge.

Charles F. Clyne, U. S. Atty., James R. Glass, and Myer Linker, all of Chicago, for appellants.

Pringle & Terwilliger, of Chicago, for appellee.

CARTER, J.

The appellee, Johnson S. Prall, brought an ejectment suit in the circuit court of Lake county against the appellants, Samuel Burckhartt, Jr., and F. B. Carrithers, to recover possession of a number of pieces of land which originally comprised streets and alleys of a subdivision platted by the appellee, and upon a trial by the court without a jury there was a judgment for the appellee, from which this appeal is prosecuted.

Defendants filed a special appearance, alleging that they were not the owners of the property in question, but were in possession thereof as officers of the United States army commanding at Ft. Sheridan, and that the land at Ft. Sheridan is occupied as a military post of the United States of America and is public property of the United States, and they thereupon moved to quash the summons. The motion was overruled, and the defendants afterward filed pleas alleging that they were commandant and adjutant, respectively, of the United States army, occupying the premises as a military post, and that the suit was to all intents and purposes a suit against the United States, and therefore could not be maintained. The plaintiff replied, denying the ownership of the land by the United States, and upon a trial, judgment having been entered for the plaintiff, the defendants took a new trial under the statute and by leave of court filed a plea of the general issue, and upon the second trial the judgment appealed from here was entered.

Except where Congress has so provided, the United States cannot be sued, but the exemption does not apply to officers and agents of the United States holding for public purposes the possession of property, when sued by a person claiming to be the owner. In such a case the right and title of the United States to the property may be determined by a court of competent jurisdiction and adjudged accordingly. In an ejectment proceeding involving the title to the Arlington estate, it was held in United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171, that ejectment being in its essential character an action of trespass, and the defendant not being sued as an officer, but as an individual, the court was not ousted of jurisdiction because he asserted authority as an officer. Stanley v. Schwalby, 147 U. S. 519, 13 Sup. Ct. 418, 37 L. Ed. 259, was also an ejectment suit against army officers, and it was decided that the action could be brought against them as soon as they entered into possession of the ground claimed by the plaintiff, and therefore their plea of the statute of limitations (Hurd's Rev. St. 1919, c. 83) was a good plea. The same doctrine was laid down by this court in McConnell v. Wilcox, 1 Scam. 344, which was an action of ejectment in the circuit court of Cook county to recover possession of land on which old Ft. Dearborn was situated and where the title of the United States was in dispute. The circuit court of Lake county had jurisdiction in this cause.

The case was tried on an agreed statement of facts, which was substantially as follows: June 21, 1889, the plaintiff owned in fee a tract of land which he subdivided into lots, blocks, streets, and alleys and caused a plat of the subdivision to be recorded on June 25, 1889. He sold part of the lots, and he and all the other lot owners joined in a vacation of the plat and made and recorded another plat of the same subdivision later, in 1889. The streets and alleys on the plat were accepted by the city of Ft. Sheridan, in which the subdivision was located. The United States filed its amended petition in the United States District Court for the Northern District of Illinois on August 3, 1906, describing the several lots in the subdivision and the ownership of the same and praying for the ascertainment of compensation to be paid for them. Most of the lots had been sold, but the plaintiff still owned some, and he and the other owners were made defendants, as was also the city of Ft. Sheridan, which it was alleged had an interest in the tract of land described in the petition, constituting the public streets and alleys, either as owner in trust for the public or as the owner of public easements in the same. There was no averment that the plaintiff had any right, title, interest, or estate in the streets or alleys and no attempt to condemn the same or ascertain compensation therefor. There was a judgment fixing and awarding compensation for each one of the lots to the owner, and the compensationwas paid, but there was no award of compensation, either to the city of Ft. Sheridan or to the plaintiff, for any right or interest in the streets and alleys.The city of Highwood, which had succeeded the city of Ft. Sheridan, on May 10, 1910, passed an ordinance vacating the streets and alleys constituting the land now in controversy. The defendants, as commandant and adjutant of the Ft. Sheridan military reservation, were in possession of the land when this suit was brought, and claimed title by the condemnation proceedings.

It is conceded by counsel that no right in the streets and alleys on said plat was acquired by virtue of the condemnation proceeding. The petition did not allege that the appellee here had any right, title or interest, either in reversion or otherwise, in said streets and alleys, and no award of compensation was made to him for any interest.

The question whether or not the judgment of the trial court should be sustained depends very largely upon the validity of section 2 of chapter 145 of the Illinois Revised Statutes, in relation to the vacation of streets. That section provides that, when any street, alley, lane, or highway, or any part thereof, is vacated, the lot or tract of land immediately adjoining on either side shall extend to the center line of such street, alley, lane or highway, or part thereof, so vacated, etc. Appellee platted the land here in question and filed the plat of the subdivision on December 23, 1889, under the provisions of chapter 109 of the Revised Statutes. The provisions of the Plat Act and the Vacation Act heretofore referred to were both then in force and must be construed in pari material, and it would seem to follow that appellee, in making and recording the plat of 1889, must be held to have done so in contemplation not only of the Plat Act, but also of the Vacation Act. Section 3 of the Plat Act provides, as it did then, that the execution and recording of a plat shall be held to be a conveyance to the municipality, in fee simple, of the streets and alleys shown on the plat. This court, in construing that section, has held that it vested in the municipality not a fee-simple title absolute, but a qualified, base, or determinable fee, which may continue forever, but is determined by the vacation of the plat. The fee vests in the municipality so long, and only so long, as the land is devoted to the public use. Hunter v. Middleton, 13 Ill. 50;St. John v. Quitzow, 72 Ill. 334;Gebhardt v. Reeves, 75 Ill. 301;Helm v. Webster, 85 Ill. 116;Village of Hyde Park v. Borden, 94 Ill. 26;Matthiessen & Hegeler Zinc Co. v. City of La Salle, 117 Ill. 411, 2 N. E. 406,8 N. E. 81. The crux of the question here involved is whether, when a plat is vacated, the fee in the streets and alleys reverts to the dedicator or to the one who owns the adjoining land at the time of the vacation.

At common law the dedication of a street or alley passed to the municipality merely an easement. The dedicator still continued to own the fee, subject to the easement. A deed of an abutting lot passed the title to the center of the street-or included the entire street, as the case might be-burdened, of course, with the easement. If the street was abandoned or vacated by the municipality, the abutting owner continued to hold his title to the center of the street just as he had held it before, but now freed from the easement. It seems to have been early considered by the Legislature of this state that the public interests would be better subserved if a municipality were to have a more complete control over its streets and alleys than was possible where it had only an easement therein. Accordingly as far back as 1833 (Rev. Laws 1833, p. 600) the Legislature passed an act embodying substantially the same provisions as those of section 3 of the Plat Act, providing that the making and recording of a plat should be held to be a conveyance of the streets and alleys in fee to the municipality. Thereafter it was found that a new difficulty arose, that from time to time conditions changed, and that it might be desirable to vacate streets and alleys which had been dedicated by plat. The dedication and acceptance had vested a determinable fee in the streets and alleys in the municipality, and the question arose what was to become of the title to the land included in such streets and alleys when they were vacated. This problem had arisen in construing deeds. Frequently the calls in a deed ran to a road and then ‘along said road.’ When later the road was abandoned or vacated the scattered heirs of the grantor would lay claim to the road, and, as was noted in a dissenting opinion in Buck v. Squiers, 22 Vt. 484:

‘A bootless, almost objectless, litigation shall spring up to vex and harass those who in good faith had supposed themselves secure from such embarrassment.’

This principle was favorably commented on by this court in Gebhardt v. Reeves, supra, where the...