Seeger v. Mueller

• Decision Date: 14 May 1890
• Citation: 133 Ill. 86,24 N.E. 513
• Parties: SEEGER v. MUELLER et al.
• Court: Illinois Supreme Court

133 Ill. 86

24 N.E. 513

SEEGER

v.MUELLER et al.¹

Supreme Court of Illinois.

May 14, 1890.

Error to appellate court, second district.

E. L. Bedford, for plaintiff in error.

D. & T. J. Sheean, for defendants in error.

BAILEY, J.

This was a bill in chancery brought by William Seeger, against Frederick Mueller and others, to restrain the defendants from placing obstructions upon a certain strip of land 20 feet in width, which the complainant claims the right to use, enjoy, and improve as a public highway, or at least as a private way appurtenant to his lands. The complainant also prays that the defendants be required to abate the nuisances of fences and other obstructions placed by them on said strip of land. The alleged street or way is on section 16, township 28, range 1 west of the fourth principal meridian, said section being a part of the common-school lands granted by the United States to the state; and it appears that on or about the 10th day of December, 1855, the trustees of the township in which said land was situated, with a view of selling the same, caused said section to be divided into 26 tracts or lots, the largest containing 50.80 acres of land, and the smallest 10 acres, and caused a plat of such division to be made. There appeared on the margin of said plat, running around the entire section, and bordered by parallel lines, a strip of land on which was written the words, ‘Road, 20 feet wide;’ also, running east and west across the center of the section, a strip marked, ‘Road, 33 feet wide,’ and in two other places, running part way across the section, were similar strips, marked, ‘Road, 20 feet wide.’ The controversy in this case relates to the strip on the south and east margins of the plat. Shortly after said plat was made the several lots or tracts into which said section was divided were sold to various purchasers, and patents were thereupon issued by the state to such purchasers. The complainant is now the owner of three of said lots, viz., those numbered 17, 19, and 22, by mesne conveyances from the patentees. The defendants are in like manner the owners of various of the other lots adjoining. Said patents, in describing the several tracts of land granted, refer to the plat, but they also contain words of description which include in the grants all the land in the section, without reference to the alleged roads. Thus, the description in the patent conveying lots 17 and 19, each of which had upon its border one of the strips of land designated as roads, was as follows: ‘A certain lot of land lying in the county aforesaid, being part of section number 16, granted by the United States to the state of Illinois for the use of the inhabitants of township 28 north, range number 1 west of the fourth principal meridian, for the use of schools, known and designated, on the map of said section as made by the trustees of school lands within said township, as lot number 17,-being the southwest quarter of the north-east quarter of the south-east quarter, and the south fractional half of the north-west quarter of the south-east quarter; and lot number 19,-being the north-east quarter of the south-east quarter of the south-east quarter, (all east of river,)-of section, township, and range aforesaid.’ It appears that the land over which the road or way which the complainant is seeking to have opened runs, is rough and hilly, and is traversed by deep ravines and gullies, and that a road over it cannot be made passable without the expenditure of a large sum of money; that it has never been traveled or worked by the public as a highway, but, on the contrary, that the public authorities have expressly refused to expend money upon it because of its impracticability, and have in fact condemned it, and advised the adjoining proprietors to fence it up; and that portions of it have been fenced up for over 20 years. The complainant claims that by said plat the strips of land designated as roads were dedicated to the public, and thereby became and still are public highways, in the enjoyment of which he, by reason of the situation of his land, should be protected; or, if the plat was insufficient to effect a dedication, the complainant and his grantors, having purchased with reference to the plat, obtained a perpetual easement, in the nature of a private way, over the lands so designated. The bill alleges certain prior proceedings at law brought to determine in that tribunal the complainant's right to said easement, and which, as he claims, resulted in his favor, and he therefore insists that he is now entitled to seek protection in the enjoyment of his easement in a court of equity. Answers and replications were filed, and, the cause coming on for hearing on pleadings and proofs, a decree was rendered dismissing the bill at the complainant's costs for want of equity. Said decree, on appeal to the appellate court, was affirmed, (28 Ill. App. 28,) and the record is now brought here by writ of error to that court.

The authority by virtue of which the trustees of schools divided and platted the land in question was that conferred by the ‘Act to establish and maintain common schools,’ approved February 12, 1849, (Laws 1849, p. 153.) Section 16 of that act provided that, when the inhabitants of any township should desire the sale of the common-school lands of the township, they should present to the school commissioner of the county a ...