200 Ill. 222 | Ill. | 1902
delivered the opinion of the court:
From the view we take of this case it will not be necessary to consider all the points raised and discussed in the briefs filed by the respective parties, as in the judgment of the court the use of the streets of the town of New Gilchrist was dedicated to the public by the acts of the appellant in staking out the town site and building upon and leasing, for residence and business purposes, its property abutting upon the streets, and that the dedication was accepted by the inhabitants of the town and the general public and that the appellant is estopped to deny such dedication, and that the easement thus created in said streets is irrevocable so long as the property of appellant is used for a town site, and that, the town being unincorporated, the appellee had the right to go upon the streets thereof and sell meat, and that the court did not err in dismissing the bill.
The town site was staked out by the appellant, and by inviting people to locate thereon it proclaimed the purposes to which it was to be dedicated. (Godfrey v. City of Alton, 12 Ill. 29.) It was not necessary to the validity of the dedication that a map of the town site should be made, (Field, v. Carr, 59 Ill. 198.) - The Statute of Frauds does not apply to the dedication of ground to the public. It may be evidenced by acts and declarations and without any writing. No particular form is required to the validity of the dedication. It is purely a question of intention. (Godfrey v. City of Alton, supra; Rees v. City of Chicago, 38 Ill. 322; Davidson v. Reed, Ill id. 167.) .The manner of making a dedication is immaterial. It may be established by parol. (Warren v. Town of Jacksonville, 15 Ill. 236; Smith v. Town of Flora, 64 id. 93; Kyle v. Town of Logan, 87 id. 64; McIntyre v. Storey, 80 id. 127; Moffett v. South Park Comrs. 138 id. 620.) While it is essential that there should be intent on the part of a donor to dedicate his land to a public use, “the intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent.” Elliott on Roads and Streets, (2d ed.) sec. 124.
In Godfrey v.City of Alton, supra, on page 35 it is said: “It is true that it does not appear that any map was made of this survey; but that was not essential to the validity of the dedication. The Statute of Frauds does not apply to the dedication of ground to the public. Such a dedication may be made by grant or other written instrument, or it may be evidenced by acts and declarations without writing. No particular form is required to the validity of a dedication. It is purely a question of intention. * * * An examination of the cases referred to on the argument will show that dedications have been established in every conceivable way by which the intention of the dedicator could be evinced. * * * A dedication must be understood and construed with reference to the objects and purposes for which it was made.”
In Smith v. Town of Flora, supra, on page 95 the court say: “Dedications may be proved in every conceivable "way,—by a survey and plat alone, and by grant, by user, and by the acts and declarations of the owner.1 * * * They may be shown by matter in pais, consisting of the acts and accompanying declarations of the owner.”
In Moffett v. South Parle Comrs. supra, on page 623 we say: “We have often held that ‘the proof must be clear of an actual intention to dedicate, or of such acts and declarations as should equitably estop the owner from denying- such intention. ’ ‘The owner of the land must do some act, or suffer some act to be done, from which it can be fairly inferred he intended a dedication to the public. ’ (Kyle v. Town of Logan, 87 Ill. 64.) Intention here, as in other cases where it becomes material, may be proved by the conduct and declarations' of the party, and any acts of his satisfactorily showing an intention to dedicate are sufficient.”
To make the dedication complete there must not only be an intention to dedicate on the part of the owner, followed by acts of abandonment to the public, but there must be an acceptance by the public. The acceptance may be an express one, evidenced by some formal act of the public authorities, or it may be one implied from their acts, such as repairing, improving, lighting or otherwise assuming control of the lands dedicated, or it may be implied from user by the public for the purposes for which it is dedicated. (9 Am. & Eng. Ency. of Law,—2d ed.— p. 43; Elliott on Roads and Streets,—2d ed.—sec. 154; Rees v. City of Chicago, supra; Smith v. Town of Flora, supra; Hiner v. Jeanpert, 65 Ill. 428; Wragg v. Penn Township, 94 id. 11; Town of Lake View v. LeBahn, 120 id. 92; Fairbury Union Agricultural Board v. Holly, 169 id. 9; Woodburn v. Town of Sterling, 184 id. 208.) When the dedication is beneficial or greatly convenient or necessary to the public, an acceptance will be implied from slight circumstances. (9 Am. & Eng. Ency. of Law, p. 45.)
In Elliott on Roads and Streets, (2d ed.) sec. 154, the author says: “There has been much diversity of opinion as to whether user by the public will amount to an implied acceptance. * * * This uncertainty is removed by the later authorities, and it may now be considered as the prevailing opinion that an acceptance may be implied from a general and long continued use by the public as of right.”
In volume 9 of the American and English Encyclopedia of Law, (2d ed.) on page 45 it is said: “When the dedication is beneficial to the public, an acceptance will usually be implied from slight circumstances or from user by the public for the purposes for which dedicated. No formal action of any particular body or individuals is necessary, but the acceptance may be implied from any acts of the public generally, showing an intent to appropriate and use the property dedicated.”
In Smith v. Town of Flora, supra, the court say that acceptance may be proved by the user of the public or by the acts of officers, and a dedication may be inferred from length of user and acquiescence by the owners.
In Rees v. City of Chicago, supra, (p. 336) it is said: “When ground is dedicated to the public and accepted by them it then becomes a highway, and acceptance may be shown by user by the public, as by travel, or by the acts of the public officers in repairing and keeping it up.”
In Hiner v. Jeanpert, supra, on page 430 it is said: “No express act of dedication is necessary, and consent may be implied from acquiescence and user by the public, and the user does not depend upon any fixed period of time.”
In Wragg v. Penn Township, supra, on page 25 the court say: “In order to constitute a dedication it is not essential that the intention be evidenced by words, either written or spoken. If the acts of the party indicate an intention to dedicate the land to the public use it is sufficient, and if the dedication is accepted by the public, as by use and travel, it is complete.”
In Town of Lake View v. LeBahn, supra, on page 102 it is said: “If it were necessary in this case that there should be an acceptance by the public in order to render the dedication a valid one, we would regard that as sufficiently shown here. An.acceptance may be shown by user by the public, as by travel, or by the acts of the public officers in repairing and keeping up .the streets.”
In Fairbury Union Agricultural Board v. Holly, supra, on page 15 the court say: “Where a road is outside of a municipal corporation, as this one is, no particular acts are required by the law to constitute an acceptance. Where it is traveled, recognized and worked upon as a highway a presumption of acceptance arises, and where no repairs are needed, use by the public sufficiently long and general to evidence an acceptance will be sufficient.”
In Woodburn v. Town of Sterling, supra, it is said (p. 215): “The user by the public must be in such a way and at such a time as that the public accommodation and private rights will be materially affected by the interruption of the enjoyment.”
The fact that the streets in question are not only beneficial, greatly convenient, but absolutely necessary to the public, taken in connection with their use by the public, if anything in addition to their use is necessary to show an acceptance of the offered dedication, (Woodburn v. Town of Sterling, supra,) establishes beyond all question the acceptance of said streets by the public. Furthermore, the appellant is estopped to deny the dedication. The law is well settled if the acts of the owner show a valid dedication, and others have been induced, on the strength of such supposed, dedication, to expend money, or have acquired valuable rights which would be lost or injured should the dedication be withdrawn, the owner may not overcome the legal effect of such acts by showing that he did not intend to dedicate his land to the use of the public. (9 Am. & Eng. Ency. of Law, p. 41.) Here the appellant staked out the town, built houses and leased residence and business property with reference to its streets, and the persons occupying such property have established homes, built up i;rade within the town and acquired valuable rights. To destroy their only means of ingress and egress to and from the outside world, and to deprive them of the right to leave their homes and business places, and to prevent them from having access to the public places situated in the town, over its streets, would destroy the town and bring ruin to its inhabitants. All must concfede this cannot legally be done; and the right to use the streets in the town is not confined alone to the inhabitants thereof, but extends to the general public.
In Earll v. City of Chicago, 136 Ill. 277, Mr. Justice Baker, in discussing the rights of the public in a case similar in principle to the case at bar, on page 286 said: “Such right [the right to have the street remain open] is not a mere right that the purchaser may use that street, but is a right vesting in the purchasers that all persons may use it; that the sale and conveyance of lots according to the plat imply a grant or covenant to the purchasers of lots, and their grantees; that the public street indicated upon the plat shall be forever open to the use of the public as a public highway, free from all claim or interference of the proprietor, or those claiming under him, inconsistent with such use; and that the owner, and all claiming under him, will be perpetually estopped from denying the existence of the street.”
The fact that the lots in question were described by metes and bounds, and leased only for a term of years instead of conveyed in fee, does not change the principle above announced.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
