The City of Peoria v. Johnston

• Citation: 1870 WL 6476,56 Ill. 45
• Parties: THE CITY OF PEORIAv.ROBERT JOHNSTON.
• Decision Date: 30 September 1870
• Court: Supreme Court of Illinois

56 Ill. 45

1870 WL 6476 (Ill.)

THE CITY OF PEORIA

v.ROBERT JOHNSTON.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

The opinion states the case.

Messrs. WEAD & JACK, for the appellant.

On the question whether the city was estopped from claiming that the land was dedicated for a public street, by reason of having taken steps to condemn the ground, cited Owen v. Bartholomew, 9 Pick. 520; Jackson v. Cary, 16 Johns. 302; Farrel v. Higley, Hill & Denio (N. Y.), 9. As to the rule in regard to estoppels, Freeman v. Cooke, 2 Wels. H. & G. Rep. 653; Brewster v. Stryker, 2 Comst. 19; Hazelton v. Batchelder, 44 N. H. 40.

However well the acts pleaded by way of estoppel in this case might avail as between individuals acting in their private capacity, the rule is different when applied to their acts as trustees of the public. State v. Graves, 19 Md. 351; McCracken v. San Francisco, 16 Cal. 591; Ex parte Mayor, etc., of Albany, 23 Wend. 277. Nor is the city estopped by any admission of its officers or municipal records. McFarlane v. Kerr, 10 Bosw. 249. Neither can the city forfeit its rights by non-user. City of Alton v. Illinois Trans. Co., 12 Ill. 38; Waugh v. Leigh, 18 Id. 491; Trustees v. Haven, 11 Id. 555; Hunter v. Middleton, 13 Id. 50; New Orleans v. United States, 10 Pet. 662, and cases there cited. Laches is not imputable to the public. Madison County v. Bartlett, 1 Scam. 67; State Bank of Ill. v. Brown, Id. 107; Belleville v. Stookey, 23 Ill. 444; Waugh v. Leech, 28 Id. 491.

Chancery had no jurisdiction to enjoin a mere trespass. Danl. Ch. Pr. 1742; Coulson v. White, 3 Atk. 21; 2 Story's Eq. Jur., §§ 925, 926; Bolster v. Catterlin, 10 Ind. 117; Jerome v. Ross, 7 Johns. Ch. 334; and generally on this subject, Spooner v. McConnell, 1 McLean, 328; Mayor, etc., Rochester v. Curtiss, 1 Clarke, 336; Waldron v. Marsh, 5 Cal. 119; Rhea v. Forsyth,36 Penn. St. 503; King v. McCully, 38 Id. 76; Coe v. Lake Co., 37 N. H.; Storm v. Mann, 4 Johns. Ch. 21; Stewart v. Chew, 3 Bland, 440; Willard's Eq. Jur. 382; Hart v. Mayor of Albany, 3 Paige, 213; Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Dana v. Valentine, 5 Metc. 8; Nevitt v. Gillespie, 1 How. (Miss.) 108; Dunning v. City of Peoria, 40 Ill. 480.

Messrs. MCCOY & STEVENS, for the appellee.

The question of dedication is one of intention, but that intention must be clear and unequivocal. Rees v. City of Chicago, 38 Ill. 336; Connor v. Pres. and Trustees, New Albany, 1 Blackf. 43; Ketchum v. The State, 12 Ind. 620; Haynes v. Thomas, 7 Id. 38; City of Logansport v. Dunn, 8 Id. 378; 2 Smith's Lead. Cas. 234, 235; in the case of Rees v. City of Chicago, 38 Ill. 336. On the question of abandonment by the city, see Town of Lewiston v. Proctor, 27 Id. 418; 3 Kent's Com. 600, 601; Champlin v. Morgan, 20 Ill. 182.

The court of chancery had jurisdiction. Smith v. Bangs, 15 Ill. 402; The Mohawk and Hudson R. R. R. Co. v. Archer et al., 6 Paige's Ch. 83; Green v. Oakes, 17 Ill. 249; Belknap v. Belknap, 2 Johns. Ch. 463; Baldwin v. City of Buffalo, 29 Barb. 896; Cenvou v. Mayer, 25 Id. 513; Hill'd on Injunc. (2d ed.) 443; Carpenter v. Gwynn, 35 Barb. 404; Holdane v. Trus. Village of Coldwater, 21 N. Y. 474.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was a bill in chancery brought by Johnston against the city of Peoria, to enjoin it from taking a strip of land about sixteen feet wide, now forming a part of the inclosure between complainant's house and Main street, in said city, and from making it a part of the street. The city answered, and a replication having been filed and proof taken, the cause came on to a hearing and the court made the injunction perpetual. The strip of land in question is situated in part on the south-east 4, 8 north, 8 east, and in part on the south-west quarter of the same section, and the claim made by the city to the land on each quarter rests upon different grounds.

Main street, it appears, in 1841, ran from the river in a northwest direction to the south line of section 4, having a width of one hundred feet. At that time William Hale owned the south-east of 4, of which a small portion at the south-west corner crossed the line of Main street. In that year he laid out an addition to the city, on so much of the south-east quarter as lay on the north-east side of the line of Main street, and on the 31st of May acknowledged his plat, which was duly recorded. He indicated the course of Main street on his plat but did not fix its width. The other streets in his addition he made of the same width with the corresponding streets in the original town. In 1842, Hale deeded to Hamlin all of the south-east 4 lying south-west of Main street, being the corner above referred to, and Hamlin at once took possession and built the fence, where it has since stood and now stands. At the time Hale laid out his addition, although Main street proper terminated at the south line of section 4, yet a public highway had been laid out by the county authorities and for several years had been opened and traveled, which was a continuation of Main street, but only sixty-six feet wide.

The only ground upon which the city now claims the right to so much of complainant's inclosure as lies on the south-east of section 4, is that it was dedicated by Hale. The argument is, that, as he caused Main street to be laid down on his plat, and as Main street, from the river to this point, was one hundred feet wide, and as he made the other streets in his addition of the same width with the corresponding streets in the town, he must be presumed to have intended Main street should have the same width, although he indicated no particular width on his plat, but merely showed its line or locality.

If no highway had been established in continuation of Main street when Hale platted his addition, the argument would certainly have great force. But a highway, which was such a continuation, was already there, and extended in a northwesterly direction sixty-six feet in width. This highway was not disturbed by his laying off an addition on one side of it, and we do not perceive how it can be confidently said whether he intended this highway, so far as he owned the land on each side of it, should be of the width of that portion of the highway which extended into the country, or of that portion which extended toward the river. The probability is, he had no settled purpose in regard to this matter, and left it open to be decided in the future, contenting himself for the time being with indicating on his plat that a highway, in the line of Main street, bordered his addition on the south-west side.

Now, as dedication is a question of intention, and the existence of such intention must be shown with reasonable clearness, we should have much difficulty, if the proof stopped here, in affirming the dedication to have been established.

But, conceding the question to be in some doubt, so far as depends upon this evidence, the course of subsequent events has been such as must compel us to resolve all these doubts against the city, on the ground that, for twenty-eight years prior to the commencement of this suit, the grantees of Hale have been in exclusive and undisturbed possession of the premises, improving and cultivating them as a part of the ornamental grounds lying between the house and the street, this possession commencing the year after Hale made his plat. But there has been, on the part of the city, something more than mere acquiescence. In 1847, the city council passed an ordinance making the line of Main street, on the south-west side, as far down as Perry street, to conform to the fence erected by the grantee of Hale, thus recognizing his fence as the true line of the street. Again, in 1857, the city council appointed commissioners to assess the damages for condemning this land, and they were assessed, though never paid.

So far as relates to this portion of the premises in controversy, we should be inclined to hold, that, when the acts which are relied upon to show the dedication originally are of such doubtful character as in the present case, the additional circumstance that individual ownership was asserted, and exclusive possession taken the first year after the alleged dedication, and that the city has for twenty-eight years both positively recognized and passively acquiesced in such a construction of the plat as excludes the idea of dedication, during which period the premises have several times been sold, must be regarded as settling against the claims of the city whatever doubts attach to the evidence of dedication in the first instance. We may well adopt that construction of the plat which the parties themselves have acted upon for twenty-eight years.

Admitting, however, there was a dedication, there is another view of this case, arising on the question of abandonment or...