12 Ill. 29 | Ill. | 1850
We shall rest our decision, upon the single claim of dedication, arising from the survey made by Spaulding, without investigating the various other claims insisted upon in behalf of the City.
Spaulding swears, that in 1832, Alton was extended and laid off by him at the request of the several owners, who agreed upon the plan, and that he made the survey. He surveyed block 92, and Front street. He says, “Front street was to extend into the river. It was laid out as a public highway, and landing. The matter was talked over.” Front street extended from block ninety-two, down to and into the river. Ho pretence seems to have been made at that time, nor until several years after, of any intention by Godfrey and Gilman to reserve to themselves, any thing south of Front street. They went on and made sales in block ninety-two, in reference to, and recognizing that street, and improvements were also made upon that block. This clearly amounted to a dedication of the space, thus made common for a street and public landing, according to the plan agreed upon among the proprietors, and the survey of Spaulding. The street and landing were laid off, and the owners of the soil proclaimed the purposes to which it should be devoted. All the other proprietors of the town, with whom the plan was agreed upon, as-well as those who purchased with reference to that plan and. survey, paid a consideration for the dedication, and had a direct, interest in insisting upon its perpetuity. 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. Ho particular form is required to the validity of á dedication. It is purely a question of intention. A dedication maybe made by a survey and plat alone, without any declaration,, either oral or on the plat, when it is evident from the face of the-plat, that it was the intention of the proprietor, to set apart certain grounds for the use of the public. 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. And great importance is frequently attached to the fact, that investments or improvements have been made, either by individuals or the public, in reference to a dedication, and with the knowledge of the proprietor.
A dedication must be understood and construed, with reference to the objects and purposes for which it was made. This is peculiarly the case with a public landing upon a navigable water course. That is necessarily inseparable from the margin of the water, however that may fluctuate. Without this, its enjoyment would be precarious, and often destroyed. All accretions to a public landing, must necessarily attach to and form a part of it, otherwise we should- have the novel spectacle, of a public landing, separated ftom the water, as is in fact attempted in this case. Such a proposition does not require refutation.
The only question that arises here is, -was it the intention to make this a public landing? That was the declared intention of the owners of the land, and their agreement with the other proprietors. But in the absence of any such expression, I should be equally clear, from the manner in which the ground was laid off, that it was for a public landing, as well as for a street. On the north side, it was bounded by block ninety-two, and on the south by the river, varying in width according to the meanderings of the stream. This stream was a public highway, in contact with this, another easement is granted and the very location of it, shows that it was designed for the purpose of lading and unlading freight and landing passengers from the water communication, as much as the laying out of an interior street, would show that it was designed for the use of travellers by land. The street and landing thus laid off, was subsequently—as it had been previously—-used and enjoyed by the public, and was improved and extended into the river, both by natural accretions, and by artificial means, and no pretence of any claim appears to have been set up on the part of any one, adverse to the full enjoyment of the public landing, until 1836, when the addition of Godfrey-& G-ilman to the town of Alton was platted by Bur-nap. By the marks upon this plat, we see for the first time, a claim set up to a portion of the bed of the stream, in front of this landing. The landing has since been filled up and extended into the river, so that it now covers the place designated on that plat as claimed by the proprietors of that addition. For this claim we can see no pretence whatever. As we have already seen, long previous to this time, the entire space between block ninety-two and the river, had been dedicated for a street and for a public landing, and to separate such a dedication from the river would destroy it.
But even if there had not been any previous dedication, we think the same construction should be given to the plat made in 1836. At that time, Front street, as laid out on that plat, covered the margin of the river and extended twenty or thirty feet into the stream, and it was beyond this, that a claim was indicated, of the premises in question.
When an easement is granted to the public, upon the margin of a navigable stream, the right to and treat it as a landing is undoubted. Having dedicated the banks of the river, this united the two easements, each of which was essential to the full enjoyment of the other, they had no interest in the bed of the stream which they could reserve, to the prejudice of the enjoyment of the public easement over it.
Exceptions were taken to the instructions. These are very numerous and some of them very long, and not very perspicuous, and may not have tended much to the enlightenment of the jury. It would be tedious and unprofitable to review them separately. Although some verbal alteration might well have been made to one or two of them, still on the whole, we think the law was not improperly laid down to the jury.
A verdict was returned for the defendant upon all the pleas, after which the plea of liberum tenementum, was allowed to be withdrawn, and this is assigned for error. In this there was nothing improper, nor was there anything prejudicial to the rights of the plaintiff. That plea may not have been sustained by the evidence, yet the defendant was entitled to a judgment, if the verdict upon any one of the pleas could be sustained. Because the verdict upon one plea was erroneous, it would not vitiate the finding upon the others.
The judgment of the Circuit Court is affirmed, with costs.
Judgment affirmed.
