12 Ill. 38 | Ill. | 1850
In 1818 Easton claiming to be the owner of the land, laid out the town of Alton, upon the recorded plat of which, the two blocks, lying between Front street and the Mississippi river are marked “Reserved,” and the premises in controversy are a portion of one of these blocks. Subsequently, Whitesides and Reynolds set up a claim to the land upon which the town was laid out. These parties settled their controversy, by executing and interchanging the deeds, upon the construction of which, the decision of this case depends. These deeds, recite that the parties had conflicting claims or titles to the land, and ' that for the purpose of compromise, they had agreed to relinquish to each other, the part allowed to him or them in the compromise, in pursuance of which the deeds were simultaneously interchanged. They are therefore to be construed together as parts of the same transaction. As to the dedications, the public is to be considered the grantee, and the other parties to the deeds the grantors. Whoever subsequently purchased lots or made improvements in the town, paid to the proprietors a proportionate consideration for the dedications of land made to the public use. Easton by his deed, conveyed to Whitesides and Reynolds, certain specified lots and blocks in the town, and then, expressly “covenants and agrees, that all the lots, for public, scholastic and religious purposes, for a public landing or any reservations of common, east of the Fountain Creek, as designated on the plat aforesaid of said town; and particularly the land that lies between Front street and the river Mississippi as designated in said plat, fronting on the river between the said Fountain Creek and Henry street, shall be and forever remain a public landing place, and shall be and remain for the use of the public as designated on said plat, excepting and reserving to said Rufus Easton and his heirs forever the exclusive right of a ferry or ferries on and from said land so made common.” Here are erased in the deed the words “or for any other purpose” between the words “common" and “east,” and the words “that lies between Front street and the river Mississippi, as designated in said plat,” are interlined.
Upon the plat several interior lots and blocks are marked as dedicated to the public, one for a Court House, some for religious and some for educational purposes, and upon the river and immediately east of Fountain creek, a fraction is marked for a public landing, and farther east and between the blocks marked reserved, and Henry street, is a space marked “ promenade or common.” We are to determine what part of the town plat is by this covenant, declared dedicated to the public. In the forepart of the clause quoted, are described in clear and unequivocal terms, all of the lands and lots which are marked upon the plat, as dedicated for specified purposes, and these are all, which judging from the face of the plat, I should he inclined to hold, Easton had dedicated to the public. It is insisted, that by the subsequent part of the sentence, the parties did not intend to make any new dedication, but only to confirm what had already been designated for the public use, upon the plat. I cannot so understand the covenant. That subsequent clause, is as follows : “ and particularly the land that lies between Front street and the river Mississippi, and designated in said plat, fronting on the river, between the said Fountain Greek and Henry street, shall be and forever remain a public landing place,” &c. If the parties meant what they expressed, then certainly all the land described in this clause was dedicated to the public, and the only question which can arise, is, are the two blocks marked “Reserved” embraced in this description. They are as unequivocally described, as if they had been designated by name, and yet if that had been the case, I amagine this controversy would never have arisen, notwithstanding the reference which is made to the plat, and which it is urged, signifies a different intention. Here the metes and bounds of certain premises which are designated for the public use, are given, and in the center of the tract included within those bounds are the two blocks, which it is now insisted were not dedicated to the public. But the covenant says, that the land that lies within those bounds, “shall be and forever remain a public landing place.” If these blocks were not intended to be included in this dedication, why was this clause inserted at all ? Every other tract had been clearly and pointedly described in terms which admit of no doubt, and unless these two blocks were intended to be added to the list already dedicated, then this clause is worse than useless. A construction which requires us to reject an entire clause of a deed is not to be admitted, except from unavoidable necessity. We are not at liberty to reject this part of the deed, which clearly expresses- a meaning more extended, than is manifest in other parts of the instrument. We are bound to presume it was inserted for a purpose, and has its office to perform. The rule is thus laid down in Cruise’s Dig. Title 32, Deed, chap. 19, Sec. 5. “ The construction ought to be made on the entire deed and not merely on any particular part of it. Fx antecedentibus et consequentibus fit optima interpretado. Therefore every part of a deed ought if possible to take effect, and every word to operate.”
Then we are not at liberty to suppose that the parties did not mean what they have so emphatically said, in this entire and distinct clause, and that they only meant what they had previously expressed. But there is a circumstance on the face of this deed, which clearly shows that the description which embraces these two blocks was not inadvertently or carelessly inserted. I allude to the interlineation after the word “land” of the following : “ that lies between Front street and the river Mississippi as designated in said plat." The description, before these words were inserted, was of the land lying on the river between the creek and Henry street, which necessarily included the two blocks, but as if to silence every doubt, they inserted the interlineation, which points directly to these two blocks; for by a glance at the plat, it will be seen that they occupy the whole space between Front street and the river so far as that street is extended and delineated on the maps. Really it would seem as if the parties had exhausted their ingenuity and command of language, in order to expel every doubt of their intention to dedicate these blocks to the public.
The only argument urged against this explicit declaration of ■ the parties, is drawn from the expression “as designated on said plat,” which it is insisted limits the description, to such lands as were by the plat dedicated to the public. These are usually, if not universally, words of description and not of quality. They serve to connect the deed with the plat, so that by applying the one to tlie other, the former may be rendered intelligible. They give effect to the expressions of the deed but they do not limit them. If there be that upon the face of the plat, to which the expressions of the deed can apply, then of course we must make the application, rather than reject the words of the deed, as not expressing the intentions of the parties. This reference to the maps, occurs three times in the description part of the covenant. Such reference was indispensable, in the description of the premises, but was quite unnecessary for the purpose of specifying the objects or purposes of the dedication. It seems to me that it can admit of no doubt, that in the two first instances the reference is made merely for the purpose of description. In the last, it may have been designed to limit the words “shall be and forever remain a public landing place,” so as to prevent them from being applied in such a sense as to make the Court House square and other interior lots, a public landing, for which they were altogether inappropriate.
But conceding that these references show that no new dedication was intended, then it is clear that the parties construed the plat as having already reserved them for the public use. If the plat is made to control the extent of the dedication, we must construe the plat as the parties understood it, and that is explained by the unequivocal expressions of the covenant. The two blocks are certainly embraced in the description of the land dedicated, and the construction contended for so far from proving that they did not intend to include thorn in the dedication, shows that they considered that they had already been dedicated by the plat. This construction, makes the parties say, that “these blocks shall remain reserved for a public landing, as the same are designated and set apart on said plat.”
I will now advert to the other deed, from which it will appear, if possible with still more clearness, that it -was the intention of the parties to include these blocks in the dedication. As before remarked, these deeds are a part of one transaction and must be construed together. The corresponding clause in the second deed, is in the form of a reservation, and is as follow's: “These presents shall not be construed to convey to, or vest in said Easton any exclusive interest in any of the streets, lots for public or scholastic or religious purposes; for a public landing, or any reservation of commons to the east of Fountain Creek, in said town of Alton, as designated on the plat of said town. But that all the ground from the public landing inclusive, as designated on said plat, to Henry street, and that lies between Front street and the river Mississippi shall forever be and remain a public landing for all persons whatsoever, except for a ferry landing.” In this deed we find the same property described in the same order, and in almost the identical language, except that that which points to these two blocks, is if possible, still more explicit than in the other. This deed says, “that all the ground from the public landing inclusive, as designated on said plat, to Henry street, and that lies between Front street and the river Mississippi shall forever,” &c. These two blocks occupy nearly the centre of the tract thus described, and if all of that tract is dedicated to the public, it is placed beyond cavil, that these two blocks are included in that comprehensive word. This seems so clear, that neither argument or illustration can make it more so. To my mind this is so manifest, both upon first impression, and after the most careful study of both deeds, that there is no room for construction. But as some understand them different^, I shall now admit that there is some ambiguity in the terms employed to express the meaning of the parties, and then we must resort to the well known rules of law for the purpose of construction.
When a deed is so drawn, that some will read it one way and some another, it is a well established rule, that that meaning shall be adopted, which is adverse to the interests of the grantor. In Cruise's Digest, Tit. 32, Deed, Chap. 19, Sec. 13, the rule is thus stated: “A deed is always construed most strongly against the grantor, verba charlarum fortuis accipiunter contraproferentem ; <et qu/xlibet conce-ssio fortissimo contra chnatorem interpretanda est. For the principle of self-interest will make men sufficiently careful not to prejudice themselves by using words of too extensive a meaning. And all manner of deceit is hereby avoided in deeds; for people would always affect ambiguous expressions, if they were afterwards at liberty to put their own construction on them.” If there be ambiguity in this deed, in no case could this rule apply with more reason- or justice. Here the parties have made them deeds and spread them upon the records of the county for the inspection of the public, whereby they have made certain dedications, the object and effect of which was, to invite purchasers and improvements, and to enhance the value of the residue of the town property. In that way they expected to be remunerated for the dedications thus made, and every man who purchased a lot of them, or made improvements there, paid a proportion of the consideration, for the property donated to the public. To say the least of it, these deeds were so drawn as to induce a largo proportion of purchasers to believe that the premises in controversy were dedicated, and thus they have received a consideration from the public for this very land, and to allow them now to say, that they did not intend to include it, is to allow them to practice a palpable fraud upon the public, and to take advantage of their own wrong. This the plainest dictates of common honesty forbids. The law will not allow them to affect ambiguous expressions, and then permit them to put their own construction upon them. Ilere the words are emphatically their own, for the grantees—the public—were not there to dictate or suggest, and certainly the principle of self-interest was sufficient to make them “careful not to prejudice themselves by using words of too extensive a meaning.” It is incredible to me, that intelligent parties could have used such emphatic and pointed words to include these blocks, if it was not the intention of the parties to embrace them in the dedication. It may be observed that several of the lots, sot apart to Whitesides and Reynolds, are immediately in the rear of one of these blocks, and their value very much depended upon having the space in front of them open to the river, rather than have it obstructed by the individual property of Easton. And this may explain why even stronger expressions are used in the reservation contained in the deed to him, than are found in the covenant to Easton. Possibly other words might have been used, so as to have left less room for controversy in the minds of some, that the parties did intend to include these blocks in the dedication; yet this is no reason for saying, we will not believe that they intended what they have said. This would be reversing the rule of the law and throwing every doubt or uncertainty in favor of the grantor. I cannot entertain a doubt, that by every rule of law and of reason, we ought to hold that the premises in question were dedicated to the public use.
Nor do we think the rights of the public are barred by our statute of limitations, which prescribes that certain real actions shall be brought within seven years after possession taken by the defendants. Without stopping to inquire whether the rule that laches are not imputable to the public, or that time does not run against the government, applies to inferior municipal corporations, such as towns, cities and counties, as well as to 'the state, we entertain no doubt that this statute has no application to the case before us. Whatever title to these public grounds may be vested in the city, she has not the unqualified control and dispo-' sition of them. They were dedicated to the public for particular purposes, and only for such purposes can they be rightfully used. For those purposes the city may improve and control them, and adopt all needful rules and regulations for their management and use, but she cannot alien or otherwise dispose of them for her own exclusive benefit, nor are they subject to the payment of her debts. At most she but holds them in trust for the benefit of the public. The right to the use of the joroperty is not limited exclusively to the citizens of Alton, but the citizens of the state generally have an equal right with them in the appropriate enjoyment ©f the dedication. This is not like the case of property purchased by the city for her own exclusive use, which she could dispose of at her pleasure. Whether an adverse possession would run against property thus held, we do not now propose to inquire, but we entertain no doubt that this statute does not apply to this case, and that the rights of the public in this dedication have not been forfeited by non-user, or barred by adverse possession.
Russell’s judgment against Easton, under which the defendant claims to hold title, was subsequent to the deeds, and as the deeds were recorded within the time prescribed by the statute then in force, the title conveyed by them could not be prejudiced by that judgment.
The judgment is reversed and the cause remanded.
Judgment reversed.
