Read v. Bartlett

• Decision Date: 03 October 1912
• Citation: 99 N.E. 345,255 Ill. 76
• Parties: READ v. BARTLETT.
• Court: Illinois Supreme Court

255 Ill. 76

99 N.E. 345

READ

v.BARTLETT.

Supreme Court of Illinois.

June 21, 1912.

Rehearing Denied Oct. 3, 1912.

Appeal from Circuit Court, Cook County; Adelor J. Petit, Judge.

Action by Frederick P. Read against Ra E. Bartlett. From the decree, defendant appeals. Reversed and remanded, with directions.

Jonas O. Hoover, of Chicago, for appellant.

Joseph H. Muhlke, of Chicago, for appellee.

CARTWRIGHT, J.

On May 31, 1890, Frederick P. Read, the appellee, and Jonathan E. Woodbridge, being the owners of block P. (except lot 9) Morgan Park, Washington Heights, subdivided the same into 47 lots, with a street (called Belmont avenue) running north and south through the block. In March, 1892, they sold lots 3, 4, and 5 to Edith J. Wolhauper as a result of negotiations with her husband, Benjamin Wolhaupter. The lots were conveyed according to the plat of the subdivision recorded in the office of the recorder of deeds for Cook county, Ill., October 23, 1890, in book 44 of plats, p. 42. The lots fronted east on Washington avenue, and west of them were lots 20, 21, and 22, fronting west on Belmont avenue. The certificate stated that the dimensions of the lots were represented in feet and decimals of a foot, and according to the plat the lots mentioned were 50 feet wide. The tier of lots fronting west on Belmont avenue were marked 160 feet in length east and west, and the line between lots 3 and 4 was marked 258.6 feet. The plat showed Washington avenue on the east, Belmont avenue through the block, and curved lines like those of a street, marked ‘Tasso Place,’ on the south and west, but it had no marks of stakes or other artificial monuments as boundaries of lots or elsewhere on the plat, and the certificate made no reference to any known and permanent monument from which future surveys might be made or to any stone planted and designated upon the plat, as required by the statute. Woodbridge conveyed by a quitclaim deed to the appellee all his interest in lots 20, 21, and 22, and appellee is now the owner of the same. Appellee and Woodbridge became convinced that there were mistakes in the distances marked on the plat, and in October, 1897, they caused another survey to be made on the theory that the mistakes were made in the length of the lots in the east tier. By this new survey and plat the length of the tier of lots fronting west on Belmont avenue was marked, as before, at 160 feet, and the new survey showed the length of the east tier of lots to be much less than the original plat. The line between lots 3 and 4 was shown on the new plat to be 230.25 feet, instead of 258.6 feet. The second plat was filed for record on November 30, 1903. On September 9, 1905, Edith J. Wolhaupter and husband conveyed lots, 3, 4, and 5 to Ra E. Bartlett, the appellant, who took possession of them according to the original plat, inclosing what the appellee claimed was the eastern portion of lots 20, 21, and 22, then owned by him. The appellee filed his bill of complaint in this case in the circuit court of Cook county on June 8, 1909, against the appellant, alleging a mistake in the first plat in setting down 258.6, instead of 230.25, and asking the court to correct and reform the plat so as to show the true dimensions of the lots. Issues were formed, which were referred to a master in chancery, with directions to take and report the evidence, with his conclusions. The master reported that at the time Edith J. Wolhaupter bought the lots the boundaries were marked by stakes, and concluded, as a matter of law, that the dimensions of the lots appearing upon the plat must give way to the actual survey as shown by the stakes, and he recommended a decree in accordance with the prayer of the bill. The chancellor heard the cause on exceptions to the report, overruled the exceptions, and entered a decree in accordance with the report, from which an appeal was prosecuted.

[1] The statute required that the plat should give the precise length and width of the lots in the subdivision, and it purported to do so. The law is that, when a conveyance refers to a plat of lots or lands, the plat becomes a part of the conveyance, just as though it had been copied into the deed. In such a case the plat is descriptive of the subject of the conveyance, and is regarded as furnishing as true a description of the boundaries and dimensions of the lots as if the dimensions marked thereon were written out upon the face of the deed. Louisville & Nashville Railroad Co. v. Koelle, 104 Ill. 455;Piper v. Connelly, 108 Ill. 646;Trustees of Schools v. Schroll, 120 Ill. 509, 12 N. E. 243,60 Am. Rep. 575;People v. New, 214 Ill. 287, 73 N. E. 362;Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566; 5 Cyc. 891.

[2] While courses, distances, and dimensions contained in the deed, either directly incorporated therein or incorporated by reference to a plat, are presumed to be true and correct, it is also the rule that natural or artificial monuments mentioned in a deed or shown upon a plat as descriptive of the subject of the conveyance will prevail over courses and distances. Such monuments, as applied to the description of lots or lands, are either natural objects permanent in character, or are artificial and placed upon the land for the specific purpose of marking boundaries. It has often been decided that in the calls of a deed fixed monuments overcame and controlled courses and distances. McClintock v. Rogers, 11 Ill. 279;Miller v. Beeler, 25 Ill. 163;Colvin v. Fell, 40 Ill. 418;Bauer v. Gottmanhausen, 65 Ill. 499;Kamphouse v. Gaffner, 73 Ill. 453;McCormick v. Huse, 78 Ill. 363;Cottingham v. Parr, 93 Ill. 233;Fisher v. Bennehoff, 121 Ill. 426, 13 N. E. 150;Ogilvie v. Copeland, 145 Ill. 98, 33 N. E. 1085;Henderson v. Hatterman, 146 Ill. 555, 34 N. E. 1041;England v. Vandermark, 147 Ill. 76, 35 N. E. 465.

The claim of the appellee rests upon these cases and the alleged fact that there were stakes at the west end of the lots when purchased by Edith J. Wolhaupter which would prevail over the distances marked on the plat. Two of these decisions (McClintock v. Rogers and Ogilvie v. Copeland) were based on the statute of the United States and the system of government surveys by which appropriate monuments were required to be erected at the corners of townships and at intervals of one mile at the corners dividing the townships into sections. The statute required that the boundary lines actually run and marked in the surveys returned should be established as the boundary lines, and that the corners marked in the surveys returned should be established as the proper corners. The court said that the monuments erected upon the land by the government surveyors were facts, while the filed notes and plat indicating courses, distances, and quantity were but description which served to assist in ascertaining the facts. In McCormick v. Huse lands bounded by a street or bayou were patented according to the official plat of the survey returned to the general land office, and, there being a dispute as to the boundaries, it was held that the original plat, or a copy thereof, might be resorted to and that the lines as originally returned would control. In Henderson v. Hatterman an Indian boundary line and a street were made matter of description in both the deed and plat, and they were held to control. In Bauer v. Gottmanhausen there were cedar stakes placed at the corners and the center lines of lots, and the purchasers having fenced their lots according to the stakes were protected both on the ground that the actual survey controlled, although the surveyor by mistake located the lot lines 10 feet too far north, and because of the statute of limitations. In Piper v....