Russell v. City of Lincoln

• Decision Date: 16 December 1902
• Citation: 65 N.E. 1088,200 Ill. 511
• Parties: RUSSELL v. CITY OF LINCOLN.
• Court: Illinois Supreme Court

200 Ill. 511

65 N.E. 1088

RUSSELL

v.CITY OF LINCOLN. ^*

Supreme Court of Illinois.

Dec. 16, 1902.

Appeal from circuit court, Logan county; Jno. H. Moffett, Judge.

Suit by John J. Russell against the city of Lincoln. From a decree for defendant, complainant appeals. Affirmed.

Wilkin, J., dissenting.

Humphrey & Anderson, for appellant.

Beach, Hodnett & Trapp, and John A. Larison, City Atty., for appellee.

HAND, J.

The facts in this case are not in dispute, and from the pleadings and proofs it appears that on July 20, 1836, Moses L. Knapp, Henry Bird, and Seth M. Tinsley laid out upon land of which they were the joint owners an addition to the town of Postville known as ‘Knapp, Bird & Tinsley's Addition to the Town of Postville’ (now a part of the city of Lincoln), and caused a survey and plat to be made and certified by the county surveyor of Sangamon county, upon which they certified that in conformity to the requirements of the statute they released all streets, alleys, and public grounds contained in said plat for public uses and benefits, and acknowledged the same before a justice of the peace, and filed the same for record in the recorder's office of Sangamon county, it which county the addition was then located, it now being included within the limits of Logan county. The plat was signed and acknowledged by Moses L. Knapp, Seth M. Tinsley, and Henry Bird, by S. M. Tinsley, his agent. The lots and blocks were sold according to the plat, and March 16, 1858, the appellant obtained title to the south half of block 41; May 8, 1858, to the south half of block 42; March 30, 1868, to the north half of block 41; and March 1, 1869, to the north half of block 42,-by mesne conveyances from Knapp, Bird & Tinsley. The blocks adjoined upon the east and west, and immediately upon obtaining title thereto, respectively, the appellant went into possession thereof, and in the year 1869 erected a fence around the whole of said blocks 41 and 42, including the street between them, 82 1/2 feet in width, and the alleys which bisected them, which were 16 1/2 feet in width. He had before that time erected a dwelling house and barn upon the south half of block 41, and fenced the same in with the south half of block 42, including the street and alleys, and has resided upon said south half of block 41 since the year 1858, and has maintained said fence since the blocks, street, and alleys were inclosed, in 1869. The street and alleys have been used by appellant, while in possession thereof, for agricultural purposes, but no buildings or improvements are located thereon other than the fence, and they are now used as pasture lands. In the year 1900, upon the petition of other property owners in said addition, the appellee was about, through a street commissioner, to remove the fences and open said street and alleys to the public, when the present bill was filed by the appellant to enjoin it from so doing, and a temporary injunction was issued. Afterwards an answer and replication were filed and a trial had, and a decree was entered dissolving the injunction, and permitting the appellee to open said street and alleys, from which decree an appeal has been prosecuted to his court. The injunction was continued in force upon the filing of the appeal bond until the case should be disposed of in this court.

It is evidence that Knapp, Bird, and Tinsley intended to make a statutory plat, and to dedicate to public use the streets and alleys designated thereon. The fact that the plat was signed and acknowledged by Henry Bird, by S. M. Tinsley, his agent, destroyed its validity as a statutory plat (City of Alton v. Fishback, 181 Ill. 396, 55 N. E. 150), and the fee to the streets and alleys in the addition did not pass from the original proprietors of the plat by reason of the making, acknowledging, and recording of the same, and is not now vested in the appellee. That fact, however, did not destroy the dedication. While the dedication was not good as a statutory dedication it was good as a common-law dedication, as a common-law dedication may be made by a survey and plat which is not sufficient as a statutory dedication. Maywood Co. v. Willage of Maywood, 118 Ill. 61, 6 N. E. 866;Marsh v. Village of Fairbury, 163 Ill. 401, 45 N. E. 236;Clark v. McCormick, 174 Ill. 164, 51 N. E. 215;Village of Augusta v. Tyner, 197 Ill. 242, 64 N. E. 378. ‘The difference between a statutory and common-law dedication is that the one vests the legal title to the ground set apart for public purposes in the municipalcorporation, in trust for the public, while the other leaves the legal title in the original owner, charged, however, with the same rights and interests in the public which it would have if the fee was in the corporation.’ Chicago, R. I. & P. R. Co. v. City of Joliet, 79 Ill. 25.

In the case of Village of Augusta v. Tyner, supra (on page 245, 197 Ill., and on page 379, 64 N. E.), it is said: ‘Notwithstanding his intention the plat did not have the effect of conveying the fee to the village, for the reason that the Revised Statutes of 1845, then in force, required the survey and certificate to be made by the county surveyor. The survey and certificate were made by a deputy county surveyor in his own name, as deputy, and not in the name of the county surveyor, so that the plat did not have the effect to convey the fee of the street. Village of Auburn v. Goodwin, 128 Ill. 57, 21 N. E. 212. The question, therefore, is whether there was a dedication of this street good at the common law. Such a dedication may be made by a survey and plat which is insufficient as a statutory dedication. It could be made by the survey and plat alone, by which Catlin set apart the street for the use of the public.’

In Clark v. McCormick, supra (on page 170, 174 Ill., and on page 218, 51 N. E.) the court say: ‘It was not necessary that a declaration, either oral or written, should be established in order to show it was the intention of the proprietor to dedicate the strips to such uses. Such intention may be established in any conceivable way by which it may be made manifest. A survey and plat alone are sufficient to establish a dedication, if it is evident from the fact of the plat it was the intention of the proprietor to set apart certain grounds for public use.’

In Maywood Co. v. Village of Maywood, supra (on page 69, 118 Ill., and on page 869, 6, N. E.) it was said: ‘A dedication may be made by grant or other written instrument, or it may be evidenced by acts and declarations without writing. No particular form is requisite to the validity of a dedication,-it is purely a questionof intention. A dedication may be made by a survey and plat alone, without any declaration, either oral or on the plat, when it is evidence from the face of the plat that it was the intention of the proprietor to set apart certain grounds for the use of the public.’

It is doubtless true that a municipal corporation cannot be required to open and improve a street, or be held liable for damages by reason of the unsafe condition thereof, until it has accepted the same (Littler v. City of Lincoln, 106 Ill. 353), which acceptance may be evidence by some formal act of the public authorities, or from repairing, improving, lighting, or otherwise assuming control over the same, or by its use by the public for the purposes for which it is dedicated (9 Am. & Eng. Enc. Law [2d Ed.] p. 43; Elliott, Roads & S. [2d Ed.] § 154; Rees v. City of Chicago, 38 Ill. 322;Smith v. Town of Flora, 64 Ill. 93;Hiner v. Jeanpert, 65 Ill. 428;Wragg v. Penn Tp., 94 Ill. 11, 34 Am. Rep. 199;Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269;Board v. Holly, 169 Ill. 9, 48 N. E. 149;Woodburn v. Town of Sterling, 184 Ill. 208, 56 N. E. 378); and a mere offer to dedicate a street may be withdrawn before acceptance (City of Chicago v. Drexel, 141 Ill. 89, 30 N. E. 774); yet when the owner has caused a survey and plat to be made, signed, acknowledged, and recorded, in which he offers to dedicate certain streets and alleys shown thereon for a public use, and has sold lots and blocks designated thereon in accordance with the description given upon the plat, he cannot withdraw such offer of dedication, but leaves the streets and alleys indicated upon the plat to be opened by the municipal authorities at such time as the public interest may require, and of which time they are the judges (Elliott, Roads & S. [2d Ed.] § 118; Earll v. City of Chicago, 136 Ill. 277, 26 N. E. 370;Rusk v. Berlin, 173 Ill. 634, 50 N. E. 1071;Eisendrath & Co. v. City of Chicago, 192 Ill. 320, 61 N. E. 419; Village of Augusta v. Tyner, supra; Lee v. Town of Mound Station, 118 Ill. 304, 8 N. E. 759; Town of Lake View v. Le Bahn, supra; Reilly v. City of Racine, 51 Wis. 526, 8 N. W. 417;Town of Derby v. Alling, 40 Conn. 410; Shea v. City of Ottumwa, 67 Iowa, 39, 24 N. W. 582;Henshaw v. Hunting, 1 Gray, 203;Meier v. Railway Co., 16 Or. 500, 19 Pac. 610,1 L. R. A. 856).

In Elliott, Roads & S. (2d Ed.) § 118, it is said: ‘An owner who makes a plat on which spaces are left indicating the dedication of roads or streets, and sells lots with reference to the plat, cannot recall his dedication, for he leaves the streets to be opened by the proper local authorities at such a time as the public interest may require, and of this the local authorities are the judges.’

In Earll v. City of Chicago, supra (on page 285, 136 Ill., and on page 372, 26 N. E.), it is said: “It is unimportant whether the public have so far accepted the dedication as to be bound to keep the street in repair, since the question involved is simply one of private right.' * * * If the owner of land exhibits a map or plan of a town, or addition platted thereon, and on which a street is defined, and sells lots abutting on such street, and with clear reference to the plat exhibited, then the purchasers of such lots have a right to have that street remain open forever; and such right is not a...