124 Ill. 235 | Ill. | 1888
delivered the opinion of the 'Court:
Questions are made whether the proof shows the legal title to the premises to have been in Hamilton and Pearsons, the ancestors of the plaintiffs, at the time they made the plat of ■Canalport, and whether the plat was made out and acknowledged in conformity with the statute, so as to take effect as a statutory plat. We do not find it necessary to consider these questions, for the reason, that assuming their affirmative, that the proof does show the legal title to have been in Hamilton and Pearsons at the time they laid out Canalport, and that the plat was in all respects in conformity with the statute, so as to make the same a good statutory plat, still we are of opinion this action must fail.
The position of the plaintiffs is, that no acceptance by the city of Chicago, of the dedication of the streets, was necessary to vest it with the fee simple title to the streets in Canalport,— that the statute itself vested the title in the municipality immediately when the plat or map was “made out and certified, acknowledged and recorded,” as required by the act; and reliance is placed upon the literal reading of the statute, that such plat “shall be deemed, in law and equity, a sufficient conveyance to vest the fee simple * * * in trust, to and for the uses and purposes set forth and expressed,” and upon expressions which are found in certain of the earlier opinions of this court, as in Canal Trustees v. Havens, 11 Ill. 556, that “on the recording of the plat, the fee in the streets, eo instanti, passes to the corporation,” and in Hunter v. Middleton, 13 Ill. 54, that “the acknowledgment and recording of a town plat vests the legal title to the ground embraced by the streets and alleys, in the corporation of the town,” and, to like effect, in Gebhardt v. Reeves, 75 Ill. 301. But in these cases there was no question raised or considered as to acceptance of the dedication by the municipality, and what was said is to he regarded as observation upon the effect of a statutory dedication, without deciding upon what would constitute a complete statutory dedication. It is well settled, that at common law, to make a complete dedication there must be acceptance,—not any formal act of acceptance, but that there must be user, or some other act indicating acceptance by the public authorities, in order to complete the dedication. Gentleman v. Soule, 32 Ill. 271; Grube v. Nichols, 36 id. 96; Illinois Ins. Co. v. Littlefield, 67 id. 368; Town of Princeton v. Templeton, 71 id. 68; Fisk v. Town of Havana, 88 id. 208. And this principle applies to-statutory dedications by the making, acknowledging and recording of a town plat, as well as to common law dedications,, as has been expressly decided by this court. (Littler v. City of Lincoln, 106 Ill. 353.) In that case the question was presented, and underwent full consideration, when it is that the-fee contemplated by the statute relating to town plats actually vests in the municipality,—whether immediately upon the-making, acknowledging and recording of the plat, or not until acceptance of the dedication by the municipality,—and it was held that the fee did not vest until such acceptance. The law imposes upon cities and villages the obligation of improving and keeping in repair their streets, and the idea was rejected that individual owners of land, by the making of town plats, could create in municipalities the ownership of streets, and thereby impose upon them the burden and responsibility of improving and keeping in repair streets. It was held that this could not. be done without the assent of the municipality, and its acceptance of the dedication. It was there said: “And so; until acceptance by the municipality, although the owner is estopped to deny the dedication whenever private rights intervene, the act of the owner, in platting, etc., is in the nature of a mere offer to the municipality. Until the municipality accepts, it can not be bound, by mandamus or otherwise, to open or improve the streets; and until then, it necessarily can have no» rights in the streets, as trustee or otherwise.” The analogy of a conveyance by deed was adverted to, where acceptance of the deed is necessary to effectuate the conveyance; and that although acceptance of a grant may be presumed where it is beneficial, yet if a burden is imposed by the grant, an acceptance is not tb be presumed from the mere fact that the deed is executed.
In County of Wayne v. Miller, 31 Mich. 447, there was a like decision under a similar statute. In that case a statute-of Michigan provided that a plat executed in accordance with its provisions should “vest the fee of such parcels of land as .are therein expressed, named or intended for public uses, in the county.” In remarking as to the effect of a plat made under the statute, the court there say: “If the plat is only •an offer to dedicate, the, offer must be accepted, or it may be withdrawn. * * * But if the plat is regarded as a grant, it is equally necessary that there should be acceptance. No •one can thrust a grant upon another without his assent.” See Field v. Manchester, 32 Mich. 279.
There is not to be the implication that the offer of dedication made by a town plat may, at any time before acceptance, be withdrawn, at the will of the offerer. There is a distinction here in respect of the public, and individuals having private rights. It was recognized, in Littler v. City of Lincoln, that the owner might be estopped to deny the dedication whenever private rights intervene. And in Waugh v. Leech, 28 Ill. 492, speaking of streets not used by the public, it was said: “If they (the streets) are not reclaimed by the original proprietor in some mode authorized by law, they remain public, open to the use of the public, whenever they may choose to appropriate them.” And see Town of Lake View v. LeBahn, 120 Ill. 101; 2 Dillon on Mun. Corp. sec. 642. We have statutes which jirovide for the vacation of town plats in whole or in part.
The acts relied on as showing an acceptance here, are, first, the proceedings of the common council of Chicago in 1854, adopting an ordinance “for planking Blue Island avenue,” and -the assessment to pay for this improvement; second, the fact -that from-1851 the property, was assessed for taxation under -the description of lots and blocks; third, an act of the legis.'lature, in 1865, entitled “An act to authorize the dedication, :xe-subdivision and partition of Canalport, in Cook county,” :and an amendatory act in 1869, conferring like powers on the ^Superior Court of Chicago.
As to the proceedings for the improvement of Blue Island', avenue, it appears that these proceedings originated in the petition of Henry Walker and others, presented to the common; council February 6,1854, for “planking Blue Island avenue1 from Harrison street to the bridge of the Blue Island Plank. Boad Company, across the west branch stream.” On March; 6, the committee on streets and alleys, to whom was referred! the petition, reported in favor of the same. The further proceedings consisted of an order for the improvement, and an assessment to pay for it, and a return of the assessment warrant. In all of these proceedings the improvement is described! as “the planking of Blue Island avenue,” but in some of them-. Canal street is mentioned, in describing the course of the improvement, as being along that street about a quarter of a mile. After making the original plat of Canalport, Hamilton and Pearsons made a new plat, called the lithograph map, which, covered the same and a large amount of other adjoining property. There is no pretense that this map was ever acknowledged, or that it was a statutory plat. It showed Canal street, the same as the original plat. It is plausibly urged that the references in these proceedings were to this lithographed plat, from the fact that in the assessment warrant and order of’ sale, the blocks not shown in the original plat of Canalportappear by the numbers and descriptions given on the lithograph map. It is not claimed that these proceedings had any reference to the particular streets sought to be recovered in this action. The only appearance of any street over the entire territory covered by the plat of Canalport was the Blue Island plank road, a toll road laid out by a private company in 1848, which road was afterwards called Blue Island avenue. There, was no Blue Island road, or Blue Island avenue, or any street corresponding to it, on the plat of Canalport. Blue Island avenue ran south-westerly through Canalport, crossing its platted streets diagonally. Thus crossing the platted streets, the-recognition and use of Blue Island avenue was inconsistent with the plat of Canalport, and proceedings for the improvement of that avenue would not seem to be in harmony with and in acceptance of the dedication by the plat, but the reverse.
Because of the reference to Canal street,—one of the streets shown on the plat,—in describing the course of Blue Island avenue, as being for a short distance along a part of that street, we do not think that therefrom there should be attributed to the common council an intention to accept the entire plat of Canalport, with its twenty-six streets, having a total length of about ten miles. The condition, afterwards as well as before, evinces that there never was any such intention. ■Canalport was but a projected town. A plat of it was made and recorded, but the town was never built. The site remained vacant prairie, except as it was occupied and used for a brickyard. There was no public to have use for the streets, and it appears that from the date of the making of the plat, (1835,) until the vacation of the plat in 18'Tl, not one of all these ■streets, in any part, was opened or improved, or in any way used by the public, except as Blue Island avenue followed along a part of Canal street for a short distance, as above stated.
We can not think that there should be given to this proceeding for the planking of Blue Island avenue, the effect of an acceptance of the dedication of the streets of Canalport. The fact that the lots in the subdivision were assessed as such, does not show an acceptance. (Kennedy v. Mayor of Cumberland, 65 Md. 514; Baker v. Johnson, 21 Mich. 319.) In the former case, it was a question whether the dedication of Lee street, shown on a plat called “Shriver’s addition,” had been accepted. The court say: “The fact that lots were assessed in the assessment books of the city, as lots in ‘Shriver’s addition,’ is, in our opinion, entitled to no weight whatever in determining this question of acceptance. This was simply the recording the description of the lots for the purpose of taxation, as the owners themselves had chosen to describe them in their deeds, and in order to distinguish and identify the property assessed and taxed.” In the latter case, a plat had been made showing upon it a public square. In remarking upon acts evidencing acceptance on the part of the public, the court say, page 350: “The assessment or non-assessment of the premises we do not regard as material, as the assessing officers do not represent the public for the acceptance of dedications.” In Lee v. Town of Mound Station, 118 Ill. 314, where evidence had been admitted that the square in question, which, it was claimed, was dedicated, was not assessed for taxation, this court, referring to this evidence, say: “We think the evidence was admissible, as tending, though it may be slightly, to show a public acceptance.” Clearly, the assessment in the present case is of little weight against the strong evidence that there was no acceptance.
The act of the legislature of 1865, which is referred to as an acceptance of the dedication, provides that the proprietors of a majority in numbers of the lots in Canalport may file a petition in the circuit court, in chancery, making the other proprietors parties, and authorizes the court, on such petition and notice to the other proprietors, to appoint commissioners, etc., and enter a decree vacating the subdivision and re-platting and partitioning the property among the several proprietors. This act recognizes the existence of the plat of the subdivision, that there were private rights in respect thereto, and provides for a partition among the lot owners. But we are unable to perceive that in this there was any recognition that there had been an acceptance, by the public, of the dedication of the streets. There might well have been private rights, in respect to streets, in grantees of conveyances made under the plat, although there may have been no complete dedication of the streets to the public by an acceptance of the proffered dedication, as we have before suggested.
The above are the facts which are relied upon as showing an acceptance.. We find them to be insufficient, and that there was no acceptance, by the public, of the dedication of the streets.
■ But with or without such acceptance, the title did not, in our opinion, revert to the plaintiffs, the heirs of Hamilton and Pearsons, on the vacation of the plat. The several lots on the original plat, which abut on the streets sued for, are thirty-one in number. Hamilton and Pearsons, the original proprietors, conveyed away all these lots prior to 1854, the last of the conveyances being of the date February 23,1853. The first alleged act of acceptance was the passage of the ordinance for the planking of Blue Island avenue, in 1854, so that the acceptance, if one there was, was subsequent to the conveyance of all the lots which abutted on the portion of the streets sued for.
In Gebhardt v. Reeves, 75 Ill. 301, this court held, where there had been a statutory dedication of streets, and afterwards a conveyance, by the town proprietor, of the lots abutting on the streets, that upon a vacation of the plat subsequently, the title to the streets reverted to the original owner who dedicated the same, and not to the abutting lot owners. But this was upon the ground, that at the time when the conveyances were made the fee of" the streets was vested in the municipality, and was not in the original owner. In the present case, however, we find that at the time Hamilton .and Pearsons made their conveyances, the fee of the streets was not vested in the ■municipality, but was in Hamilton and Pearsons, and hence we think a different rule applies here. The doctrine is, that a conveyance of a lot abutting on a highway or street, where there has been no statutory dedication, conveys the grantor’s interest in the street to the centre,—so that Hamilton and Pearson’s conveyances of the lots (the fee of the streets then being in them,) conveyed the fee in the streets to their grantees, and on vacation of the plat there was no interest in the streets to revert to Hamilton and Pearsons, and none did revert to them or their heirs. We hold, in accordance with the doctrine of the Littler case, that an acceptance is necessary to make a complete dedication under the statute; that until acceptance, the fee does not vest in the municipality, but remains in the original proprietor. Hence a conveyance of the lots before acceptance carries the title to the centre of the street. The fee in the streets passed to the grantees by the conveyances here,—not the fee absolutely, but the fee burdened with the offer of dedication which had been made but not yet accepted. Gebhardt v. Reeves went upon the assumption that there had been a complete dedication before the conveyances there were made. No question of acceptance arose in the case.
These views render it unnecessary to consider the alleged errors in refusing the two propositions of law submitted by the plaintiffs, and in the admission and rejection of evidence. These all relate solely to the sufficiency of the plat; but this opinion proceeds upon the assumption that the plat was a valid, statutory plat, and that upon that assumption the plaintiffs are not entitled to recover. This makes the rulings in respect to the plat immaterial to the plaintiffs’ right of recovery, and so not prejudicial to them.
It is insisted the court erred in permitting Walker and Davis to be made parties defendant. It appears that they were permitted to be joined as defendants because of their warranty of title, they having conveyed the premises to the defendant railroad company by a'warranty deed Wait on Actions and Defences, (vol. 3, page 85,) says: “The person from or through whom the defendant derived his title may properly be admitted to defend the title.” And see Redwine v. Brown, 10 Ga. 311.
It does not appear that making these two additional parties defendants, in any way affected the issues, and it is not ground for reversing the judgment.
The judgment of the Superior Court of Cook county will be affirmed.
Judgment affirmed.
Mr. Justice Scott : I do not concur in this opinion.