138 Ill. 628 | Ill. | 1891
delivered the opinion of the Court:
The obj ect of this litigation is to judicially determine whether a certain strip of land is a part of one of the streets of the city of Chicago. The strip is marked on the plat of Fullerton’s addition to the city of Chicago as a part of a street designated, respectively, “West Asylum Place” and “Webster avenue.” It is contended on behalf of appellant that the plat fail's to show an intent to dedicate the strip as a part of the street,, and, also, that the evidence fails to show an acceptance of the dedication, if there was one, by the city. We do not, however, in the view we take of the case, find it necessary to pass upon ■either of these questions.
The evidence shows that appellant, by a deed acknowledged •on the 9th of February, 1887, and filed for record on the same ■day, vacated that part of the plat of Fullerton’s addition to :<ChicagOi described therein as lots 46 and 47, in block 11, and, a strip of land thirty-three feet in width from north to south, lying immediately south of and adjoining said lots, and running east from the eastern line of Elston avenue to the right of way of the Chicago and Northwestern Railroad Company.. The deed recites that appellant is the owner of this property, and also that it is owner of lot 7, in block 16, in Sheffield’s addition to Chicago, immediately adjoining said strip of land on the south thereof, and it also further recites that no other person or corporation is interested in the premises, or any part thereof. No individual is claiming rights under the dedication created by the filing of the plat, and the only question we think necessary for our consideration is, whether, as between appellant and appellee, this deed vacates so much of the Fullerton plat as it assumes to vacate. Since no objection is taken to the form or to the execution of the deed, we shall assume it to be sufficient in these respects.
It is provided by section 7 of chapter 109 of the Revised Statutes of 1874, entitled “Plats,” that “any part of a plat maybe vacated in the manner provided in the preceding section, and subject to the conditions therein prescribed: Provided,. : such vacation shall not abridge or destroy any other rights or • privileges of other proprietors in such plat: And provided further, that nothing contained in this section shall authorize the closing or obstructing of any public highway laid out according to law.” The conditions prescribed in the preceding section are, simply, first, that the vacation shall be before any lots are sold; or, second, if any lots are sold, all the owners of lots in such plat shall join in the deed of vacation. And as a qualification to the language of the section 7, the meaning is, clearly, any part of a plat may be vacated by the owner of such part before any lots therein are sold, or, after lots are sold, by all the lot owfiers in such part joining in the deed of vacation. Here appellant is the owner of all the lots in the; part claimed to have been vacated, and so the conditions areé j complied with. a
“The rights or privileges of other proprietors in the plat,” we said in Littler v. City of Lincoln, 106 Ill. 861, “which the-statute protects, are necessarily legal rights and privileges, and such parties can not, therefore, be affected by the closing of streets not adjacent to their property, nor directly affording access thereto and egress therefrom. Chicago et al. v. Union Building Ass. 102 Ill. 379.) (See, also, to like effect, City of East St. Louis v. O’Flynn, 119 Ill. 200.) The record clearly shows that there are no proprietors in the plat, other than appellant,'to whose property the strip of ground here in controversy is adjacent, or who can, in a legal sense, in anywise-be affected by withdrawing this strip from public use. There-is no “public highway, laid out according to law,” across the land the plat whereof is assumed to be vacated by appellant’s deed of vacation. The words “laid out according to law” have-a well known meaning under our statutes, and they plainly include the doing of those things by the proper local officers which are essential in creating a public highway, to authorize it to be worked and traveled, and especially the surveying, marking the course and boundaries, and ordering it established " as a highway. The affirmative action of the public authorities is indispensable in such case. There is no pretense that any action of the public authorities was here ever had designating the course or boundaries, etc., of any highway over the strip in dispute, or accepting it and ordering it worked as a highway. The evidence is clear that the strip in dispute, though traveled by foot passengers, was never opened and used as a way for vehicles, and that there was never any work by the public upon it opening and improving it as a street.
"We think the court erred in dismissing the bill, and for that error the decree is reversed and the cause is remanded for ¡further proceedings consistent with this opinion.
Decree reversed.
