229 Ill. 506 | Ill. | 1907
delivered the opinion of the court:
The village of North Henderson has never been incorporated. There is no allegation that the public authorities ever accepted the plat or the streets and alleys in question, or that such streets and alleys were ever thrown open to or used by the public. Until acceptance by the proper authorities they have no right in the streets and alleys designated on a plat. (Hewes v. Village of Crete, 175 Ill. 348; Jordan v. City of Chenoa, 166 id. 530; Russell v. Chicago and Milwaukee Electric Railway Co. 205 id. 155.) There is therefore no question of public right here involved.
The purchaser of a lot from an owner of land who has made and exhibited a plat thereof showing streets and alleys, acquires a right not only to the use of the streets and alleys, but that such streets and alleys shall remain open.to the use of the public. The sale and conveyance according to the plat imply a grant or covenant to the purchasers of lots and their grantees that the public streets indicated upon the plat shall be forever open as public highways, free from all claim of the proprietor, or those claiming under him, inconsistent with their use as such public highways. In such-case the acceptance by the public is unimportant, for the question involved is simply one of private right. (Zearing v. Raber, 74 Ill. 409; Earll v. City of Chicago, 136 id. 277.) The easement which was appurtenant to each lot by reason of the existence of the plat and the sales with reference to it was private property. It could not be lost merely by nonuser where there was no adverse possession. (Kuecken v. Voltz, no Ill. 264.) But a complete non-user of an easement for twenty years, with possession in another that is inconsistent with or adverse to the right of such easement, will bar the easement. (Illinois Central Railroad Co. v. Moore, 160 Ill. 9; Illinois Central Railroad Co. v. O’Connor, 154 id. 550; Illinois Central Railroad Co. v. Houghton, 126 id. 233.) Here there was a complete non-user, and for more than twenty years the appellees have been in the visible, exclusive possession of the premises, having them fenced within their respective enclosures, except that recently the fence on one side of one of the tracts has been taken away, but that tract is in the exclusive occupation of one of the appellees as a garden. This was prima facie a hostile or adverse occupancy. The bill malees no attempt to explain it. Using and controlling property as owner is the ordinary mode of asserting a claim of title. Illinois Central Railroad Co. v. O’Connor, supra; Illinois Central Railroad Co. v. Houghton, supra.
The possession and exclusive occupation of the appellees being wholly inconsistent with the existence of any easement to travel over said premises or to have them remain open as public streets, and having continued for twenty years, the bill shows no right in appellants to have the obstructions complained of removed, and the demurrer was properly sustained. Decree affirmed.
