Smith v. Heath

• Decision Date: 31 March 1882
• Parties: UZZIEL P. SMITH et al.v.ASAHEL H. HEATH.
• Court: Illinois Supreme Court

102 Ill. 130

1882 WL 10211 (Ill.)

UZZIEL P. SMITH et al.

v.ASAHEL H. HEATH.

Supreme Court of Illinois.

Filed at Ottawa Jan. 18, 1882.Rehearing denied March Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding.

Messrs. PALMER & DURKEE, for the appellants:

It is unimportant to determine where the fee in the square is. If the lot owners are entitled to have the square kept open for use, it is sufficient. Merely a question of private right is involved. Zearing v. Raber, 74 Ill. 411; VanMeter v. Hankinson, 2 Whart. 309; Selden v. Williams, 9 Watts, 12; Gridley v. Hopkins, 84 Ill. 531; Smith v. Town of Flora, 64 Id. 93; Hunter v. Trustees of Sandy Hill, 6 Hill, 412; 2 Smith's Leading Cases, 154, 167.

It is not at all necessary that the owner should part with the title which he has, for dedication has respect to the possession, and not the permanent estate. Rees v. City of Chicago, 38 Ill. 337; Zearing v. Raber, 74 Id. 411.

As to the distinction between a dedication and an easement, see Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Pomeroy v. Mills, 3 Vt. 279.

Lot owners have an easement over the square, whether the square is public or private. Childs v. Chappell, 5 Seld. 254; Lewis v. Beattie, 105 Mass. 411; Washburn on Easements, pp. 243-232; Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 442; Leach v. Waugh, 24 Id. 230; Bateman v. Buck, 14 Eng. L. & E. 73; 3 Kent, 432, note, 433, 434; Gebhardt v. Reeves, 75 Ill. 307; City of Cincinnati v. Lessee of White, 6 Pet. 431; New Orleans v. United States, 10 Id. 710; People v. Jackson, 7 Mich. 450; Conners v. New Albany, 1 Blackf. 45; Goddard on Easements, 264.

Not important that a street should be opened or plat recorded. Trustees v. Walsh, 57 Ill. 368; Zearing v. Raber, 74 Id. 411.

Plat becomes part of deed, and if not referred to may be connected by parol evidence. Trustees v. Walsh, 57 Ill. 368; Noonan v. Lee, 2 Blackf. 499.

Dedication presumed, as grantor obtained enhanced price, and this latter presumption can not be contradicted by parol proof. Wyman v. Mayor, etc. 11 Wend. 487; Waugh v. Leech, 28 Ill. 492; United States v. Chicago, 7 How. 185; 2 Smith's Leading Cases, 154.

Appellee is estopped, legally and equitably, by his acts and gross laches. Field v. Carr, 59 Ill. 200; Carter v. City, etc. 4 Ohio, 347; Washburn on Easements, 243; Child v. Chappell, 5 Seld. 254; Fisher v. Beard, 32 Iowa, 356; Mayor v. Council of Macon, 12 Ga. 243; Canal Trustees v. Haven, 11 Ill. 556; Dimon v. People, 17 Id. 416; Rees v. Chicago, 38 Id. 322; Corbett v. Narcross, 35 N. H. 115; Heard v. Hall, 16 Pick. 457.

Mr. FRANCIS ADAMS, and Mr. JOHN P. WILSON, also for the appellants:

Appellee is estopped by his acts and releases from asserting any lien upon Aldine Square as against the parties owning the lots fronting on the square. People v. Brown, 67 Ill. 435; Knoebel v. Kircher, 33 Id. 315; Baker v. Pratt, 15 Id. 571; Mills v. Graves, 38 Id. 465; Smith v. Newton, 38 Id. 235; International Bank v. Bowen, 80 Id. 545; Higgins v. Ferguson, 14 Id. 270; Morgan v. Railroad Co. 96 U. S. 716; Bank of United States v. Lee, 13 Pet. 107.

By the plat made in May, 1874, the square was dedicated to the owners of the abutting lots for a park. Morgan v. Railroad Co. 96 U. S. 716; Rev. Stat. 1845, ch. 25, sec. 21; Godfrey v. City of Alton, 12 Ill. 29; City of Columbus v. Dahn, 36 Ind. 330; City of Cincinnati v. Lessee of White, 6 Pet. 431; Holder v. Cold Spring, 24 N. Y. 474; Rowan's Exrs. v. Town of Portland, 8 B. Mon. 232.

By releasing the lots in the subdivision, Heath has released all rights appurtenant to such lots, among which is the right to the use of the square. Hagen v. Inhabitants of West Hoboken, 23 N. J. Eq. 354.

It is well established law that the owner of property may recognize a plat or subdivision made by another of his property, by making conveyances of lots in such subdivision, and that the owner thereby becomes bound by the subdivision. Gridley v. Higgins, 84 Ill. 528; Smith v. Town of Flora, 64 Id. 93; Zearing v. Raber, 74 Id. 409; Field v. Carr, 59 Id. 198.

Messrs. HOLDEN & FARSON, for the appellee:

Acts relied upon as an estoppel must evidence an intention to dedicate. Warren v. Jacksonville, 15 Ill. 236; Kelly v. Chicago, 48 Id. 388; Godfrey v. City of Alton, 12 Id. 29; Marcy v. Taylor, 19 Id. 634; City of Chicago v. Wright, 69 Id. 328; Gentleman v. Soule, 32 Id. 272; Princeville v. Auten, 77 Id. 325; Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Id. 25; Manly v. Gibson, 13 Id. 312; Princeton v. Templeton, 71 Id. 68; Proctor v. Lewiston, 25 Id. 153; Manrose v. Parker, 90 Id. 581; Rees v. City of Chicago, 38 Id. 322.

Where a party has only a lien upon a parcel of land, and his lien is of record, and is by such record notice of his rights, no dedication by the owner can operate against the lien by way of estoppel. Hoole v. Attorney General, 22 Ala. 195; Marston v. Brackett, 9 N. H. 336; McMannis v. Butler, 49 Barb. 176; Bigelow v. Topliff, 25 Vt. 273; Bigelow on Estoppel, (2d ed.) pp. 467, 476; Herman on Estoppel, secs. 430, 435; 2 Smith's Leading Cases, (5th Am. ed.) 619, 642, 646, 660-663; Story's Eq. Jur. (12th ed.) sec. 1537; 3 Washburn on Real Prop. 75; 4 Kent's Com. (9th ed.) p. 261; Odlin v. Gove, 41 N. H. 465; Gray v. Bartlett, 20 Pick. 186; Tongue's Lessee v. Nutwell, 17 Md. 212; Bales v. Perry, 51 Mo. 449; Dessaunnier v. Murphy, 22 Id. 95; Sahler v. Signer, 44 Barb. 606; Hill v. Epley, 31 Pa. St. 332; Rennie v. Young, 2 DeG. & Jones, 136; Green v. Cross, 45 N. H. 575; Mills v. Graves, 38 Ill. 465.

A private right of way or easement can not be acquired by dedication. Goddard on Easements, 263; Washburn on Easements, (2d ed.) 129, 175; Illinois Central R. R. Co. v. Indiana and Illinois Central R. R. Co. 85 Ill. 211; Com. v. Newbury, 2 Pick. 51; Roberts v. Karr, 1 Campbell, 262; State v. Strong, 25 Me. 297; Carpenter v. Gwynn, 35 Barb. 395; McWilliams v. Morgan, 61 Ill. 92; Illinois Ins. Co. v. Littlefield, 67 Id. 368; Proctor v. Lewiston, 25 Id. 153.

One out of possession is not bound by dedicatory acts of others. Hoole v. Attorney General, 22 Ala. 190; Goddard on Easements, p. 160; Winship v. Hudspeth, 10 Exch. 5; Baxter v. Taylor, 4 Barn. & Ad. 72; Arkwright v. Gell, 5 M. & W. 203; Webb v. Bird, 13 Com. B. (N. S.) 841; City of Hannibal v. Draper, 36 Mo. 337.

The equitable estoppel ordinarily arising from lying by and permitting valuable improvements to be made without objection, does not arise where such expenditures are made with the knowledge of a record title, and especially where the estoppel is sought to be enforced against a mortgage only. Bigelow on Estoppel, (2d ed.) 467, 476; Herman on Estoppel, secs. 430, 435; 2 Smith's Leading cases, (5th Am. ed.) 619, 642-646, 660-663; Story's Eq. Jur. (12th ed.) sec. 1537; Odlin v. Gove, 41 N. H. 465; Marston v. Brackett, 9 Id. 336; Gray v. Bartlett, 20 Pick. 186; Tongue's Lessee v. Nutwell, 17 Md. 212; Bales v. Perry, 51 Mo. 449; Dessaunnier v. Murphy, 22 Id. 103; Sahler v. Signer, 44 Barb. 615; Rennie v. Young, 2 DeG. & Jones, 136; Green v. Cross, 45 N. H. 586; Hoole v. Attorney General, 22 Ala. 195; Bigelow v. Topliff, 25 Vt. 273; Mills v. Graves, 38 Ill. 465; Scott v. The State, 1 Sneed, (Tenn.) 629; Hill v. Epley, 31 Pa. St. 332; 3 Washburn on Real Prop. 75; 4 Kent's Com. (9th ed.) p. 261; McMannis v. Butler, 49 Barb. 176.

A gratuitous grantee can not claim by estoppel. A releasee of a mortgage is a gratuitous grantee. The debt must be paid. The release of the mortgage is required by statute without fee or reward. Hoole v. Attorney General, 22 Ala. 195; Fairley v. Fairley, 34 Miss. 18; Thompson v. Thompson, 9 Ind. 323; Weaver v. Lynch, 1 Casey, 449; Goodale v. Scannell, 3 Cal. 827. Mr. JUSTICE SCOTT delivered the opinion of the Court:

The bill in this case is to foreclose a mortgage given by Uzziel P. Smith to Asahel H. Heath, on the 5th day of February, 1870, to secure the note of Uzziel P. Smith, of even date, payable to the order of Asahel H. Heath, on or before the 25th day of February, 1875, for the sum of $45,000, with interest thereon at the rate of ten per cent per annum after February 15, 1870, payable semi-annually. Embraced in the mortgage were lots 6, 7, 8, 9 and 10, and the north half of the south half of lot 5, in block 3, in Ellis' first, or west, addition to Chicago. Subsequently the mortgagor made what is known as the “Aldine Square subdivision” of the mortgaged premises. A plat of this subdivision was properly acknowledged by the mortgagor, was certified by the surveyor who did the work, was approved by the board of public works of the city, and was recorded in Cook county, where the property is situated. In the center of the plat is shown a square, called “Aldine Square.” Most, if not all, of the lots of this subdivision front on “Aldine Square,” with an alley in the rear. All of the lots fronting on this square, described therein as represented on the plat, had been released by the mortgagee, so that all the property described in the mortgage was in fact released before the bill was filed, except the alleys and ““Aldine Square,” shown on the plat. As complainant does not ask a decree of foreclosure that would embrace any of the alleys shown on the plat, the controversy relates exclusively to “Aldine Square.” On the hearing in the Superior Court a decree was passed giving complainant a foreclosure of his mortgage as to “Aldine Square,” and in case the sum found due him on the note secured was not paid by a day fixed, it was ordered the property be sold, as is usual in such cases. That decree was affirmed in the Appellate Court, and defendants bring the case to this court on appeal. Prior to the making of the mortgage it seems complainant and Smith were joint owners of the property. It had been bought on joint account,...