Thorworth v. Scheets

Decision Date27 October 1915
Docket NumberNo. 10122.,10122.
Citation269 Ill. 573,110 N.E. 42
PartiesTHORWORTH et al. v. SCHEETS et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Kane County; C. E. Irwin, Judge.

Suit by John F. Thorworth and others against John Scheets and others. Decree dismissing the bill for want of equity, and plaintiffs bring error. Reversed and remanded, with directions.John C. Murphy and E. L. Lyon, both of Aurora, for plaintiffs in error.

John S. Sears and Roy J. Solfisburg, of Aurora, for defendants in error.

CARTER, J.

This was a bill filed by plaintiffs in error in the circuit court of Kane county to enjoin defendants in error from obstructing an alleged alley in the city of Aurora. After a hearing the court dismissed the bill for want of equity. On the case being appealed to this court it was dismissed at the April term, 1915, for want of necessary parties. Thereafter this writ of error was sued out; all the complainants in the bill joining therein.

The strip of land in question which is claimed to be a public alley by prescription extends substantially north and south from New York street to Main street through about the center of block 5 of the original town of Aurora. Since the original platting of block 5 an assessor's survey has been made, and apparently the division into tracts and the location of the buildings still follows substantially the lines of the assessor's survey, and the lots mentioned in this opinion are according to the lot numbers in said survey. For the purpose of a better understanding of the facts in this case a copy of said survey is given herein, with the side lines of the portion claimed as an alley added:

Image 1 (2.53" X 3.88") Available for Offline Print

In order to avoid repetition, the strip claimed to be an alley will be termed in this opinion the ‘alley.’

The evidence discloses that the block in question is located in the principal business portion of Aurora. Plaintiffs in error are the owners of most of the lots over which the alley passes north of the line of defendants in error's property. Defendants in error own the southwesterly corner of block 5, on which they operate a flour mill, and over their tract the south 75 feet of said alley pass. The plat of block 5 does not show any alley dedicated at the time of the platting. When lots 1, 2, 3, and 4 were sold by the then owner, at quite an early day, a strip was reserved across them for use as an alley. No question is raised that the strip reserved for an alley across these four lots does not conform to the alley as claimed here. Nothing is shown in the evidence to indicate that the defendants in error or their grantors had made any objection to the use of this alley by the public or property owners in this block until shortly before this bill was filed, when they built a fence on their own property across the alley about [269 Ill. 576]75 feet north of the north line of Main street. It was to remove this fence that this bill was filed.

[1] At the close of plaintiffs in error's case defendants in error moved to dismiss the bill for want of equity. While this is not considered proper practice, if such a motion is made, it amounts to nothing but a submission of the case on the merits to the chancellor. Koebel v. Doyle, 256 Ill. 610, 100 N. E. 154. On the testimony offered by plaintiffs in error the court heard this motion and dismissed the bill for want of equity, entering a decree in accordance with that finding. The chief question in dispute is whether the proof in the record shows that this alley has been established by prescription, especially the south 75 feet across defendants in error's property. To settle this question necessitates an examination of the evidence.

[2] The evidence, except in some unimportant details, is undisputed. There is testimony in the record as to the buildings on and use of this block for over 70 years prior to the time of the hearing. The lots facing Broadway were originally occupied by wooden buildings used largely for merchandise purposes and which have been replaced by the brick bildings now located thereon, used for like purposes. On the back of lot 1, facing on New York street, there is a brick building that has been in use for years. On the back of lot 2 is another building, now used for a livery stable. The buildings on the front and back of these two lots and on the front of lots 3 and 4 extend to the alley shown on the plat. Back of the buildings on Broadway from this point to the Hotel Arthur (on lots 17, 18 and 19, on the southeast corner of Main and Broadway) until recent years the buildings extended back only 80 feet, and therefore not quite to the east line of the alley as it is shown on the plat. The land between the back of the buildings and the east line of the alley, according to the testimony, was used for loading and unloading merchandise into the buildings, and the wagons of the merchants, when not in use, frequently stood back of the buildings, and teams were tied there. The property between the west line of the alley and the river on all lots between 2 and 9 was used at various times for outbuildings, horse sheds. and junk piles, all of which were situated a little way back from the alley. On the back of lots 9, 10 and 11 for many years there have been sheds or barns used in connection with the buildings on the front of the lots. Originally just back of the building on lot 11 there was a platform used for loading and unloading merchandise, which extended towards the east line of the alley about 8 feet. On the back part of this lot for some years was a tinshop. No one took measurements of it, and the testimony as to its size differs largely-some stating it was 10 by 12 feet; others that it was larger. It extended east into the alley, as it is shown on the plat, about 4 feet. For years, while it was located there, an overhead bridge extended from the building in front to this tinshop, apparently being built to allow persons to cross between the store and the tinshop without interfering with the traffic on the alley below; the bridge being high enough to allow ordinary teams to pass under. Some 10 or 15 years before the hearing a mail carrier, who testified he drove through there daily with his covered wagon, caught the top of it on the bridge. He complained to the city authorities, and the owners, under the direction of the city, tore the bridge down. The tinshop ceased to be used as such, and was removed years before this hearing. The present owners of lots 9, 10 , and 11 some 6 or 8 years ago extended their buildings 20 feet further back. A platform was also constructed on the back end of these buildings, about 4 feet wide, for loading and unloading. The barns on the back part of lot 10 had previous to that extended about 4 feet east of the west line of the present strip claimed as the alley. At the time these buildings were extended the owner of lot 10 cut 4 feet off the east end of the barn, so that now the east ends of the barns and sheds on the back ends of lots 9, 10, and 11 extend to the west line of said alley. The alley across these lots is now 18 feet wide; the platform back of these buildings extending about 4 feet into it. Lots 12, 13, and 14 have had buildings on them 80 feet deep for many years. Between the back ends of these buildings and the east line of said alley is a space of about 20 feet, which has been and is being used for the purpose of loading and unloading merchandise, Back of lot 12 and the north part of lot 13 is located a barn belonging to defendants in error 30 by 24 feet in size. Its east line is the west line of said alley, as shown on the plat. Lots 1 to 11, inclusive, run from Broadway to the river, but lots 12, 13, and 14 only run as far back as defendants in error's property. Some 20 years ago the owner of lot 13 built on the back end of his lot, immediately adjoining this barn and in a portion of the alley, a shed, which he used for storing salt in connection with his business. Many of the witnesses testified as to the size of this structure, but, as they were relying on their recollection only, they differed-some placing it as small as 6 by 8 feet; and others as large as 16 by 20. The weight of the testimony is that it was about 10 feet east and west by 12 feet north and south. All the testimony agrees that this shed was only there for a few years, and that it was torn down a number of years ago. Defendants in error own all the property extending from the rear ends of lots 19, 14, 13, and 12 to the river. Many years ago on this property a sawmill and a gristmill were located. The sawmill apparently ceased to be used over 50 years ago, but the flourmill is still in use, and has been for over a half century. It is located, as already stated, on the southwest corner of this block. The property between this mill...

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