Stowell v. Prentiss

• Decision Date: 09 December 1926
• Docket Number: No. 16813.,16813.
• Citation: 323 Ill. 309,154 N.E. 120
• Parties: STOWELL et al. v. PRENTISS.
• Court: Illinois Supreme Court

323 Ill. 309

154 N.E. 120

STOWELL et al.

v.PRENTISS.

No. 16813.

Supreme Court of Illinois.

Oct. 28, 1926.

Rehearing Denied with Modification, Dec. 9, 1926.

Bill by John C. Stowell and others, as Directors of School District No. 32 in the Township of Hallock, Peoria County, and for the use of the People, against George J. Prentiss and others, in which the Attorney General intervened as complainant. From the decree George J. Prentiss appeals.

Affirmed in part, and in part reversed and remanded with directions.

Appeal from Circuit Court, Peoria County; John M. Niehaus, judge.

Chester F. Barnett, of Peoria, for appellant.

Oscar E. Carlstrom, Atty. Gen. (Wallace J. Black and Clyde M. West, both of Peoria, of counsel), for appellees.

DE YOUNG, J.

On March 14, 1861, Oliver J. Parkhill owned in fee simple the southeast quarter of the southeast quarter of section 4, township 11 north, range 8 east of the fourth principal meridian, in Peoria county. A public highway ran in a northeasterly and southwesterly direction near the north boundary of the land and the tract was uninclosed. Toward the northeast corner of the land, about 565 feet south of its north line, there was a spring of considerable size, commonly known as the sulphur spring. Water was scarce in the neighborhood at the time, and the inhabitantsof the territory within a redius of four or five miles, as well as the general public, freely resorted to the spring to obtain water for domestic and livestock purposes. Early in 1861 Parkhill had under consideration the sale of his land. Certain residents of the neighborhood, fearing that the land might come into the possession of some person who would prevent the use of the spring by others, sought to purchase the spring, with sufficient ground surrounding it to permit access from the public highway, in order that the spring might be preserved permanently for public use. As the result of negotiations it was agreed that for the consideration of $30 Parkhill should sell and convey a tract of land, about three acres in area, containing the spring within its limits and extending from a point south of the spring to the public highway on the north, and that the conveyance should be made so as to insure the use of the spring by the public forever. A local surveyor made a survey to fix and determine the boundaries of the parcel of land to be conveyed. He described it as a part of the southeast quarter of the southeast quarter of section 4, township 11 north, range 8 east of the fourth principal meridian, ‘commencing at the east end of the bridge, in the center of the road; thence south 10 degrees east 41 rods to a stone, bearing due south from the center of the spring 6 rods and 19 links; thence north 30 degrees east 16 rods, intersecting the point of the bluff at a stone corner; thence north 10 degrees west nearly parallel with the bluff 34 rods to the center of the road at the foot of the bluff; thence to the place of beginning, 12 rods and 21 links along the center of said road, and containing three and one-fourth acres, more or less.’ Parkhill was present when the survey was made and accepted it as determining the parcel of land to be conveyed by him. The consideration was paid, and on March 14, 1861, Parkhill by his warranty deed undertook to convey to ‘the directors of school district No. 1 in the town of Hallock, in the county of Peoria, Ill., and their successors in officer, for the use of the public,’ the parcel described in the survey, except that by an error of the scrivener the second course in the deed read, ‘thence north 30 degrees west 16 rods,’ instead of ‘thence north 30 degrees east 16 rods.’ Immediately following the description the deed recites that--

‘The intention of the conveyance is to convey to the public the spring known as the sulphur spring, in said Hallock township, together with all and singular the hereditaments, rights, privileges and appurtenances thereunto belonging or in any wise appertaining. To have and to hold the said premises as above described, with the appurtenances, to the said parties of the second part and their successors in office, forever.’

By reason of the error the deed did not upon its face purport to convey the parcel which the grantor intended to convey, and the parcel described in the deed as it was drawn did not include the spring or any means of access thereto.

Parkhill died testate on October 31, 1862, and owned at the time of his death all of the southeast quarter of the southeast quarter of section 4 except the portion conveyed to the school directors. On September 10, 1869, Robert Will, as the executor of his last will and testament, conveyed to Anson A. Prentice ‘the south and west side of the southeast of the southeast quarter of section four (4), in township number eleven (11), north, range number eight (8), east of the fourth principal meridian, containing 37 1/2 acres.’ Subsequently, on October 26, 1897, Prentice and his wife, Catherine, by their warranty deed conveyed the tract to George J. Prentiss by the same description, and he has owned it ever since. The tract, except the parcel surveyed to include the spring, was prior to 1871 enclosed with fences. These fences have been since maintained, and have indicated, approximately, the boundary lines of the parcel of land intended to be conveyed to the school directors, except the north line of that parcel, which the public highway has constituted. For many years so much of the parcel of ground in which the spring is situated as lies in the southeast quarter of the southeast quarter of section 4 has not been assessed for taxation but has been marked upon the tax books as public property, not assessable, and no tax has been paid upon it.

The public highway near the north boundary of the southeast quarter of the southeast quarter of section 4 varied from the quartersection line, and in consequence a small portion of the northeast quarter of the southeast quarter of the same section, north of the parcel of land in which the spring is situated, lay south of the highway. When Parkhill made the deed to the school directors John Scott owned the northeast quarter of the southeast quarter, and Scott, with his wife, by warranty deed dated October 21, 1861, conveyed that 40-acre tract to Anson A. Prentice. Afterwards, on May 27, 1901, Prentice having died prior to that time, his heirs at law and the devisees under his will conveyed the same land to George J. Prentiss.

The spring is located in or near the bed of Henry creek, which flows in a general southeasterly direction through the southeast quarter of section 4. During many years high water has deposited sand and gravel upon the ground surrounding the spring. When the deed to the school directors was made the use of these deposits was not considered, since the sole purpose of that conveyance was to provide water for those who sought it. In the course of time, however, the sand and gravel proved to be valuable for the improvement of public highways and in private construction, and considerable quantities were hauled away and used for those purposes. This practice continued until early in 1920, when George J. Prentiss, the owner of the adjoining land, publicly denied the right to remove any sand or gravel from the land which Parkhill had intended to convey to the school directors and forbade all persons to enter upon the land with such an object in view, charging that the removal of the deposits caused damage to his property. For the avowed purpose of preventing such removals Prentiss constructed a substantial fence along the south line of the highway from the northeast corner of the parcel of land in which the spring is located west to the southerly line of the bridge over the creek. He asserted his right to do so because he said that the fence was built within the northeast quarter of the southeast quarter of section 4 and that the land belonged to him. The fence did not prevent the public from reaching the spring but made access to it inconvenient and difficult and to some extent deprived the public of the free and unrestricted use of the water of the spring which theretofore had been generally enjoyed. The use of the land which Parkhill intended to convey to the school directors to gain access to the spring and the free use of the spring as a public source of water supply had been with the knowledge and acquiescence of the owners of the rest of the southeast quarter of section 4 ever since the execution of Parkhill's deed.

On February 18, 1921, John C. Stowell, El bert I. Nurse, and Mrs. John Bridgeman, directors of school district No. 32 in the township of Hallock, Peoria county, the successor to school district No. 1 in the same township existing on March 14, 1861, as such directors, and also for the use of the people, filed their bill in the circuit court of Peoria county against George J. Prentiss, asking that the deed from Parkhill be reformed to describe the land intended to be conveyed; that the boundary lines of the parcel of land be established and the title thereto quieted and confirmed; that Prentiss be enjoined from interfering with the public use and enjoyment of the land and from encroaching upon it with his fences, and for general relief. Prentiss filed an answer to the bill, and the cause was referred to the master in chancery, who heard the evidence. The master's conclusions were that by reason of the error in the description the legal title to the parcel of land did not pass from Parkhill, but remained in his heirs or other legal representatives, and that there was no right to a reformation of the deed without making the present owners of the legal title parties to the suit; that at the time the deed was made to the school directors Parkhill had no title to or interest in any part of the northeast quarter of the southeast quarter of section 4, and that the deed could not, in any event, be reformed so as to include any part of that...