59 Ill. 492 | Ill. | 1871
delivered the opinion of the Court:
This was a bill for an injunction, exhibited by appellee against appellant, to restrain the latter from building upon a portion of block 10 in the city of Beardstown, the appellee claiming that such portion was an alley appurtenant to a sub lot of said block, of which he was the owner in possession.
The bill alleges that about the year 1848, one Charles Sprague, then being the owner of lots 9 and 10 in said block, caused the same to be divided into sub lots, thereby laying off the alleged alley; that he made a plat of the sub-division with the alley designated thereon, and sold and conveyed said sub lots with reference to this plat, and avers that Sprague thereby solemnly dedicated it to the use of the owners of the sub lots in particular, and, as complainant believed, to the use of the public generally; that for many years the alley had been used as such' by the owners of the sub lots and the public generally, up to May, 1868, when appellant began an excavation therein for a cellar, and to erect a brick building thereon.
Appellee, by his bill, deduces his title from Sprague.
Appellant, by his answer, set up as an estoppel, and conclusive, the judgment of the Cass circuit court in a certain cause between the city of Beardstown and one George J. Schmidt, involving the legal existence of such alley. He also traversed the allegations of appellee’s bill, and alleged title in fee to the locus in quo in himself. Replication was filed and the cause heard upon the pleadings and proofs. Decree for a perpetual injunction, and the case brought to this court by appeal.
In order to make out a case, it ivas necessary for appellee to prove title in Sprague at the time of making the alleged sub-division of lots 9 and 10 in block 10, or to show that the appellant claimed title under Sprague. It is expressly conceded by appellee’s counsel that there was no evidence on either side as to the title of appellant.
The evidence fails to show title in Sprague. Unless he owned the fee, he could make no valid dedication to public use. A primary condition of every valid dedication is, that it shall be made by the owner of the fee. Post v. Pearsall, 20 Wend. 442; Wood v. Veal, 5 Barn. & Ald. 454; Angell on Highways, sec. 134.
The record failing to show either title in fee in Sprague, or that appellant claimed under him, the decree is unsupported by the evidence, and must be reversed and the cause remanded.
Decree reversed.