City of Springfield v. Springfield Consolidated Railway Co.
295 Ill. 234
Ill.
1920
Check Treatment
Mr. Chief Justice Cartwright

delivered the opinion of the court:

The plaintiff in error, the city of Springfield, on February 23, 1920, filed its petition in the county court of" Sangamon county for the levy of a special assessment to pay for the construction of an ornamental street lighting system on several streets, including Fifth street from Ash street to Broad place. The system consisted of cast-iron single-light standards on concrete bases, together with' all necessary electrical appliances, to be connected to the aerial feeders leading to the city’s electrical lighting plant and power station. The ordinance provided that upon that part of the streets which had grass plots in the center the lamp-posts and electrical appliances should be constructed in the center of such grass plots, and attached to' the ordinance there was a plat which showed a grass plot in the center of Fifth street where a part of the system was to be installed. The streets in which the lighting system was to be constructed were in Payne’s South Side addition, second plat, .which was laid out, platted and dedicated to the city by Edward W. Payne. The defendant in error, the Springfield Consolidated Railway Company, was not a party to the proceeding for the levy of the assessment and was not upon the assessment roll and did not appear. No objection was made to the assessment roll and it was confirmed on March 15, 1920. On March 17, 1920, the defendant in error filed its petition in the cause for leave to intervene, and moved to set aside the order confirming the assessment roll on the ground that on February 16, 1915, before the dedication to the city, Edward W. Payne, being then the owner in fee simple of the real estate described in the ordinance as Fifth street between Ash street and Broad place, not incumbered by any street, roadway or easement,' executed and delivered to the defendant in error a deed conveying to it the right from time to time, and at any time, to construct, maintain and operate a single or double-track railway over, upon and along the. strip of ground designated as the grass plot described in the petition for the assessment. The intervening petition alleged that the deed was made and was recorded on August 7, 1915; that the plat of the addition by virtue of which Fifth street between Ash street and Broad place was dedicated for street purposes was filed for record on August 11, 1915? but that the strip described in the deed was not thereby dedicated to public use, and that the installation and construction of the lamp-posts and lighting system in the grass plot would be a taking and damaging of property of defendant in error, and no proceeding for making just compensation therefor had been begun, instituted or taken. The prayer was that the order of confirmation should be set aside and the application continued until the city should have proceeded to make just compensation for the property which would be taken and damaged by the improvement. The city answered that on July 26, 1915, Edward W. Payne presented to the city a plat of the addition, which was accepted and approved; that no reference was made to the deed from Payne to the railway company; that Payne and the railway company conspired together fi> evade the law of the State requiring a frontage petition and an election for the construction of a railroad in a street, and on account of the fraud the approval of the plat was void; that Fifth street between the designated points for more than forty years had been a public thoroughfare and street, dedicated to and accepted by the public; that said part of Fifth street was originally in the village of South Springfield and was annexed to the city in 1898, and that in 1908 the city constructed by special assessment a sewer in Fifth street. The court heard evidence on the petition to intervene, and on March 31, 1920, set aside and vacated the order of confirmation and granted leave to the defendant in error to become a party, and it then filed its petition to dismiss the proceeding. It was stipulated that the evidence which had been heard on the petition to intervene should be considered- on the motion to dismiss, and the court, after a hearing, dismissed the petition for the levy of the assessment, and the city sued out a writ of error from this court to review the judgment.

The grounds presented in argument for the reversal of the judgment are, (1) that the deed from Payne to the railway company of the strip of ground in the center of Fifth street was of no valid force or effect against the rights of the public, for the reason that the strip of ground so conveyed was, when the deed was made, part of a public street acquired by prescription; (2) that the easement purported to be granted conveyed no vested rights because the railway company had no license from the city to build a street railway on the strip of ground, and the right, if granted, would have to be approved by a majority of electors of the city voting thereon at a general or special election, as provided in the act for the commission form of government, under which the city is organized.

A proceeding to acquire the right to use land for a street is an admission that no previous right ff> such use existed, (Weber v. Blynn, 282 Ill. 452,) but if there was a street at the place in question created by prescription it would be a mere easement for street uses, and the acceptance of a dedication of the fee by Payne would not be an admission that there was no- easement. The city was not barred from proving, if it could, that there was a street by prescription before the dedication. On that question it appeared that Fifth street runs north and south; that Edward W. Payne acquired title to the land west of the present west line of the street in 1887; that there was a fence forty feet east of .the west line of Fifth street and a ditch east of that fence; that all the land east was open commons and that Payne bought the forty feet in front of his property; that the region was within the corporate limits of the village of •South Springfield, and there were several sink holes, caused by the mining of coal in the vicinity. The present grass plot is 17.1 feet in width and there is a paved roadway on each side of it. Payne testified that from the time he first knew the land until he made the plat there was practically no travel west of the east edge of the grass plot. The ground was traveled over especially by teams hauling coal, but it was low and wet and portions of what is now called Fifth street were frequently impassable. The user to create a road by prescription must be adverse to the owner under a claim of right, continuous, uninterrupted and with the knowledge of the owner yet without his consent. A continued and uninterrupted use of land for a highway for the statutory period, in the absence of proof to the contrary, will be presumed to have been under a claim of right. But there must be something more than, mere travel over unenclosed lands. The law has been frequently stated and need not be repeated here. (Kyle v. Town of Logan, 87 Ill. 64; Town of Brushy Mound v. McClintock, 150 id. 129; City of Chicago v. Sawyer, 166 id. 290; O’Connell v. Chicago Terminal Transfer Railroad Co. 184 id. 308; Falter v. Packard, 219 id. 356; City of Chicago v. Galt, 224 id. 421; Smith v. Roath, 238 id. 247; Thorworth v. Scheets, 269 id. 573; Town of Anchor v. Stewart, 270 id. 57; Phillips v. Leininger, 280 id. 132.) There was' testimony of travel on the strip or part of it, but without going into detail it was clearly insufficient to show that there had been an adverse use of the land for a street for fifteen years prior to the dedication. A sewer was laid in the center of what is now the street in 1908, which would have justified a conclusion that there was a claim of right in the public to the premises as a street. But that was only seven years before the dedication. The city failed to prove the existence of a street by prescription.

It is contended by the railway company that the premises being private property when the deed was made it can ' build its railway thereon, and by the city that there must be frontage consent, a license and an affirmative vote at an election. However that may be, the question only goes to the value of the easement. If the railway company must comply with other conditions before it can enjoy the easement they need not all be acquired before the easement has any value. The deed granted a perpetual easement. (Oswald v. Wolf, 126 Ill. 542; Walker v. Illinois Central Railroad Co. 215 id. 610; Funston v. Hoffman, 232 id. 360.) The easement is property and has the protection of the constitutional provision that private property cannot be taken or damaged without just compensation. Payne made his deed to the railroad company on February 16, 1915, and he was then the owner in fee simple of the land. He made his plat dedicating the street and acknowledged the same on July 12, 1915. It was presented to the city council and approved on July 26, 1915. The deed to the railway company was filed for record on August 7, 1915, and the plat was filed for record on August 11, 1915. The deed was of record and afforded notice when the plat was filed. A deed conveying title ordinarily takes effect from delivery, but there is no delivery in the case of a dedication to' the public, and recording takes the place of delivery. The provision of the statute is that the acknowledgment and recording shall have the same effect as in the case of deeds, and the recording is essential to a complete dedication. People v. Clifford, 166 Ill. 165 ; Brewster v. Cahill, 199 id. 309.

Sections 7 and 8 of the Local Improvement act require the resolution of the board of local improvements and the ordinance, whenever private property must be taken or damaged for a proposed improvement, to describe the property proposed to be taken. (City of Chicago v. Farwell, 260 Ill. 565.) That requirement of the statute was not complied with.

The necessary conclusions from a consideration of the record are, that there was no street by prescription; that the deed to the railway company invested it with a perpetual easement, which was a freehold; that Payne’s plat was effective to dedicate the whole street for public uses but subject to the easement, and that the resolution and ordinance failing to describe property which would be taken for the improvement, the court did not err in dismissing the petition for the assessment.

The judgment is affirmed.

Judgment affirmed.