236 Ill. 86 | Ill. | 1908
delivered the opinion of the court:
When block 8 was re-surveyed, a plat thereof was made and recorded showing a sixteen-foot alley extending through the center of the block from north to south. As this plat did not conform to the statute there was no statutory dedication of the alley. Thereafter, owners of real estate in that block, through whom plaintiff in error claims, conveyed realty therein according to the descriptions contained in the plat and by reference to the plat. By so doing they adopted the entire plat, with all its dedications. They thereby became estopped to deny that there had been a common law dedication of the alley. That estoppel is binding upon those who, like plaintiff in error, succeed to the title of such original owners. Smith v. Young, 160 Ill. 163.
In 1881 the city council attempted to vacate this alley. The ordinance of vacation is void and of no effect because it does not appear from the record of the city council that it was passed by the necessary three-fourths majority of all the aldermen of the city, as required by section 1 of chapter 145, Hurd’s Revised Statutes of 1905. For many years prior to the filing of the bill certain portions of this alley had been occupied by private persons and the city authorities had apparently regarded the ordinance as valid, as they had exercised no care or control over the alley after the passage of that ordinance.
Plaintiff in error contends that while the Statute of Limitations may not run against the city, yet the doctrine of equitable estoppel should be applied, both against the public and against the owners of the property in the block, so that the public and such owners will be barred from asserting a right of way over any part of the ground originally surveyed for an alley. In support of this contention we are referred to Jordan v. City of Chenoa, 166 Ill. 530. In that case the entire alley had been fenced up for over twenty years, and the doctrine of equitable estoppel, based upon such non-user, was successfully invoked. It is apparent that no such estoppel would arise as to an alley, or part of an alley, which had been in continual use as a way. The argument of plaintiff in error now under consideration is therefore without merit as to those portions of this alley which have never been closed up and which have never been actually occupied by any private individual but which have been continually used as a way, as is the case with that portion of this alley which plaintiff in error now seeks to close.
It is urged, however, that Melville F. Metz is estopped to contend that this is a public alley, because it appears that he stated in his testimony that when he bought the property in the block he understood that the alley was a private alley, and because later he obtained a deed from the parents of plaintiff in error, from whom she inherits, for a strip of ground eight feet in width from east to west, adjoining and extending across the west end of lot 5, which lot was then owned by him. The grantors in that deed owned the fee in the alley subject to the easement therein, and his acceptance of a deed from them would convey such interest therein as they had, and is in no way inconsistent with the right which he now asserts. His belief that the alley was a private instead of a public way is here without significance. If it was either public or private he would have a right to use it, and with that right plaintiff in error could not interfere. The evidence does not show that Melville F. Metz has done anything upon the strength of which the owners of the property now held by plaintiff in error have acted in such manner as to confer upon plaintiff in error the right to invoke the doctrine of estoppel against him. On the other hand, after he acquired lot 5, and after the death of the father of plaintiff in error, the mother of plaintiff in error, who seems then to have been exercising control over the property, fenced lot 7, which lies west of the southern portion of the ground now in controversy, and fenced out the alley,—that is, the fence was pláced along the west line of the alley, leaving the alley open to use, and plaintiff in error permitted that fence to remain there for many years and until it finally rotted down. Even had the alley been legally vacated, it is apparent from the evidence that Melville F. Metz has used the portion thereof here in controversy, as a way, for a period of more than twenty years, under such circumstances as would establish in him an easement of passage therein by user.
Under the proof in this case the claims of. plaintiff in error are wholly inequitable. There is no reasonable theory upon which the relief sought could have been awarded.
The decree of the circuit court will be affirmed.
Decree affirmed.
