30 N.E.2d 58 | Ill. | 1940
The village of Oak Park and the park district of Oak Park have appealed from a decree of the circuit court of Cook county finding title in fee simple to certain premises in appellee and ordering registration thereof in her name, under an act concerning land titles, commonly known as the Torrens law, (Ill. Rev. Stat. 1939, chap. 30, par. 45, et seq.) subject to general taxes for 1938 and 1939, an ordinance of the village establishing charges for water and sewer service, and an easement of the general public in a cement sidewalk approximately five feet wide across the south side of the premises.
The property is lot 28, except the south one foot and seven inches thereof, in block 1 in Central Re-subdivision of certain lots in Denton's Subdivision of the west half of the southwest quarter of section 7, town 39 north, range 13, east of the third P.M., and is located at the southeast corner of the intersection of Wisconsin avenue and Randolph street, (formerly Division street,) in the village. The lot is 178 feet long, east and west, and 50 feet wide, north and south.
Appellants and appellee each claim title to the premises. The common source of title is from the Chicago, Harlem and Batavia Railway Company, which owned lot 28 and 50 feet off the north end of lots 29 and 30, across the alley east of lot 28. The appellants claim title through an alleged dedication of the tracts by the railroad company to the town of Cicero (predecessor of the village) by a plat recorded July 5, 1888. Appellee claims through mesne conveyances *635 from the common source. She contends the plat is insufficient and invalid as a dedication. Appellants contend appellee does not show a connected chain of title in fee simple; that they have occupied and improved the premises since 1888 and that appellee is estopped by laches.
At the time the plat was made, the railroad company had a double track along the center of Division (now Randolph) street, which was 66 feet wide. The plat shows "depot grounds," colored red, 35 feet wide along the south line of the south track extending east 248 feet from Wisconsin avenue to a point opposite the east line of lot 29. It embraced the street south of the tracks and overlapped the north 7 feet of lots 28 and 29. Lot 28 and the north 50 feet of lots 29 and 30, except the overlapping 7 feet, are shown as a part of Division street along the south side and east end of the depot grounds. The plat recites that it was made "upon condition that the town of Cicero shall, by its acceptance of this plat * * * agree to ensure to said company the permanent right to use for depot grounds that portion of Division street marked red upon this plat, and shall also by said acceptance agree to forever save and keep harmless said company from any and all damages that may result from the change in said Division street." The plat shows acceptance "upon the terms and conditions above set forth." A station was erected on the "depot grounds" and remained there until the spring of 1904. In February, 1903, we held, in Chicago Terminal Railroad Co. v. Cityof Chicago,
Appellants claim it was incumbent on appellee to allege and prove the premises were vacant and unoccupied or that they were occupied by appellee or some one claiming under her. The applicable statute makes no such requirement. Section 11 of the Torrens law (par. 55) requires only that the application shall set forth, substantially: "Whether the land is occupied or unoccupied, and, if occupied by any other person than the applicant, the name and postoffice address of each occupant, and what estate or interest he has or claims in the land." The application states the land is occupied by the park district, and otherwise complies with the act. In Draper v. Tope,
The streets of a municipality, and their care, maintenance and preservation, are committed by law to it in trust for the benefit of the public, and the exclusive use of a street, or any portion of it, cannot be diverted or appropriated to the benefit of any individual or corporation. While it is a legitimate use of the streets to allow railroads to traverse them, it is only legitimate to the extent that such use, being one of he modes of conveyance, shall not be to the exclusion of any or all other modes of conveyance. (Pennsylvania Co. v. Bond,
The statute relating to plats in effect at the time of the alleged dedication requires a survey and certificate by the county surveyor or some other competent surveyor. (Ill. Stat. 1889, chap. 109, pars. 1, 2.) The certificate on the plat in controversy shows the survey was made by Willis S. Jones, without any showing whether he was a surveyor, and there is no such showing in the record. If the statute is not fully complied with, the plat can have no effect as a statutory dedication. (Ryerson
v. City of Chicago,
In order to constitute a dedication at common law, it is essential that there be an intention on the part of the proprietor of the land to donate the same to public use. The vital, controlling element in a common law dedication is theanimus donandi, (an intent to donate.) (City of Chicago v.Borden,
An owner, making a voluntary dedication of his property to public use, may annex such conditions and limitations to his grant as are not inconsistent with the dedication and will not defeat the operation of the grant. (People's Gas Light and CokeCo. v. City of Chicago,
In appellee's chain of title is a deed dated October 4, 1935, by the Chicago Title and Trust Company, as trustee, to Herbert R. Preston, James M. Sheean and others. The deed in trust to the grantor, dated November 7, 1910, pursuant to a trust agreement therein mentioned, grants authority to convey "at any time or times hereafter and before the end of 21 years from the date hereof." The record of the trust agreement or its provisions was not proved. Appellants claim that in order to prove that the conveyance, made after the twenty-one year period, was valid, it was necessary to offer the trust agreement in evidence to show the conveyance by the title and trust company was authorized *640
by it and did not violate the rule against perpetuities. Another deed by Helen Cross Preston conveys her interest as "the widow and sole and only devisee of Herbert R. Preston, deceased." Ahiatus is claimed because the abstract shows no proceedings were of record in the matter of the decedent's estate. Under section 18 of the Torrens law, supra, abstracts of title or certified copies thereof are admissible in evidence and may constituteprima facie evidence of title, subject to be controverted by other competent proofs. When appellee's abstract was offered in evidence before the examiner the only objection interposed by appellants was as to the sufficiency of the certificate which is not urged here. The examiner's report finds the abstract shows the record title in appellee. Appellant the village of Oak Park objected to the report on the ground that "the findings that the abstracts of title introduced in evidence show the record title to the premises to be in Genevieve B. Sundstrom is unsupported by the evidence." This is the only way the question of appellee's title was raised in the trial court. The abstract made a primafacie case and no attempt to controvert it was made, except by the claim of a dedication which was void. Glos v. Cessna,
The claim that appellee is estopped from asserting title because of a failure by her and her predecessors to claim *641
ownership until she filed application for registration, and because the park district expended over $3000 in improving the premises is equally untenable. The record is barren of any claim of ownership by appellants save by the activities mentioned herein. The use of vacant and unoccupied land by the public is presumed to be permissive and not adverse. The user must be under claim of right in the public and not by mere acquiescence on the part of the owner. (Gietl v. Smith,
There was no error in excluding testimony to show the premises were not included in the return of a successor railroad for taxes of the year 1907, and were not thereafter carried on the tax rolls. They were marked "exempt" at the suggestion of an employee of the county clerk's office, and there was no offer to show it was done at the instance, or with the knowledge, of any of the owners or of either of appellants. The testimony, if admitted, could in no way tend to validate the attempted void trade or to convert it into a dedication. While, under a valid transaction, it might be admissible to show the premises were regarded as public property, that situation is not present here. The law does not demand the forfeiture of appellee's title merely because she or her predecessors did not cause it to be listed for taxation.Poole v. City of Lake Forest,
The decree of the circuit court is affirmed.
Decree affirmed.
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