120 Ill. 92 | Ill. | 1886
delivered the opinion of the Court:
The statute under which this plat was made, requires the owners to cause the town or subdivision to be surveyed by the county surveyor, and the plat thereof to describe particularly all the streets, etc., within or adjoining the same, giving the names, widths, corners, boundaries and extent of such streets ; that out-lots shall not exceed ten acres in size, shall be progressively numbered, and their precise length and width stated on the plat or map, together with any streets, etc., which shall divide or border on the same. The statute provides that a plat made out in conformity to its provisions shall operate as a conveyance, in fee, of the land intended for streets, and that they shall be held in the corporate name of the municipality, for the uses and purposes expressed or intended. Rev. Stat. 1845, p. 115.
Objection is taken to the plat as not being in accordance with the statute, in that it was not certified to by the county commissioners. We do not understand the statute to so require. It provides for the ease of laying out towns or subdivisions by county commissioners, or other persons; and as we read the statute, where county commissioners cause the plat to be made, they are to acknowledge it, and where other persons cause the plat to be made, they only are required to acknowledge it, and that the plat need only to be certified by the county surveyor.
The only other objection made to the plat is, that it is indefinite and uncertain, in not giving the length and width of the streets and blocks; that there are naked figures here and there upon the plat, but nothing to show what any of the figures mean. They evidently denote lengths of lines. But then it is said, there is nothing on the plat to determine whether inches, feet, rods, chains or links are intended by the figures. Let us see if this be so. Take George street,. the one in question, and we find at each end the figures, “50” and “50,” on each side of the dotted line running through the middle of the vacant space. There is no doubt these figures represent the width of George street. We reasonably know that as a street it was not intended to be one hundred inches, one hundred rods or one hundred chains wide. It can then be only feet or links which the figures represent. We are to look upon this as a plat made by a surveyor, and from an examination of the plat it would seem apparent, to a person of ordinary intelligence, that the measurement indicated thereon is surveyor’s measurement,—chains and links,—and not long measure,—feet and inches. At least with a competent surveyor, from the data which appear upon the plat, the various figures representing lines of different lengths, the dimensions which are given of all the blocks, there could be no manner of doubt that the measurement used was chains and links, and not feet and inches. Accordingly, the witness Alvorda, surveyor, says the width of the streets as platted in the subdivision is one hundred links,—sixty-six feet wide. We consider the figures “50” and “50,” at each end of George street, denote that street to be one hundred links wide, just as unmistakably as if it had been written in words on the face of the plat, George street is one hundred links wide. And so, in our judgment, there is enough appearing upon the face of the plat to determine what is the length of all the other lines appearing thereon. We view the’plat as in substantial compliance with the provisions of the statute.
The case of Village of Winnetka v. Prouty, 107 Ill. 218, referred to by appellee’s counsel, where a plat was held to be insufficient under the statute, is plainly distinguishable from the present case. The plat there did not show the devotion of any ground to public use. In that case, there were no streets named or mentioned on the plat,—there was no strip of land which was even called a street. Vacant spaces upon the plat, which might be imagined to have been intended for streets, there was nothing upon the plat to show what was their width,—not even any figures which might be supposed, to denote it,—upon the street there in question.
It is said there was no acceptance by the town prior to 1873, when the owner fenced in this particular strip of thirty-three feet, and has ever since held possession of the same, and that acceptance by town authorities is necessary prior to withdrawal of a tender of dedication. However this may be in the case of an ordinary common law dedication, we can not recognize the doctrine as applying where there has been a statutory dedication. In such case, the statute says, the plat shall be deemed a sufficient conveyance to vest the fee simple in the streets in the municipality, and we do not admit any power of withdrawing the dedication. In Waugh v. Leech, 28 Ill. 492, this court said, upon this subject: “We certainly think a more unequivocal mode of dedication of streets could not be adopted than surveying and platting the ground and selling lots abutting on the streets, even if the streets should not be used by the public. If they 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 again, page 493: “The fact that White laid out this land into lots, streets and alleys, and had them duly platted, acknowledged and recorded, was a dedication of the streets and alleys to the public as highways, * * * and they remained highways, with the width designated on the plat, until such time as they should be legally vacated. ” And see Town of Derby v. Alling, 40 Conn. 435; Mayor of Jersey City v. Morris Canal and Banking Co. 12 N. J. 553. In the latter case, in speaking upon this subject of streets, it is said: “There is a large class of cases where the acts of dedication by the owner of the fee are of such a character as to preclude the owner from-retracting the dedication, even before any act of acceptance on the part of the public, ”—citing many cases.
But were there failure, here, to show a statutory dedication, we are of opinion there was a valid common law dedication. While this eighty-acre tract of land was owned in common by all the original proprietors, they made this plat, and this arrangement of the land for future use and enjoyment, by the division of it into blocks, with streets surrounding each block. With the land thus arranged for use and enjoyment, it was partitioned and divided among the owners, each one taking certain of the blocks as his or her several share. Each block was thus burdened with the easement of a street upon a strip of land thirty-three feet wide around it, and entitled to the benefit of the easement of a street of like width upon the adjoining side of the opposite block, so far as there was a block opposite, thus making a street sixty-six feet wide around each block, excepting one or two streets, which were a little wider. The blocks were allotted and accepted with these burdens and benefits of streets attached to them as incidents. For the burden of the easement of the street which there was upon each block, there was received the benefit of a like easement in another block. In taking the several blocks of land with the arrangement of this system of streets, there were implied mutual agreements that the streets should ever remain as platted,—a dedication to public use of the ground laid out as streets, as effectual as could have been made by deed solemnly executed. (Cihak v. Klekr, 117 Ill. 643.) There was more than a mere dedication. There was a valuable consideration moving to each block owner in the making of the division, which should make withdrawal of the dedication beyond his power, further than that the street might be vacated in the mode pointed out by the statute. He took and held an estate upon the condition of its being burdened with the easement of the streets, and the public authorities, in opening and improving the streets, act as the representatives of the lot owners, with others of the public, in so doing. There is no difficulty in regard to the width of the street, as respects a common law dedication. The testimony is, that when this survey was made, stakes were placed at the corners of the blocks, exclusive of the streets, and nowhere else, and that two old surveyor’s stakes were discovered a day or two before the hearing in the court below,—one on the south-west corner, and the other on the. north-west corner, of Perry and George streets. These stakes were just sixty-six feet apart, and so fix that distance as the width of George street.
If it were necessary in this case that there should be an acceptance by the public in order to render the dedication a valid one, we would regard that as sufficiently shown here. An acceptance may be shown by user by the public, as, by travel, or by the acts of the public officers in repairing and keeping up the streets. (Rees v. City of Chicago, 38 Ill. 336.) South-port avenue was opened to public use in 1871,—the very year in which the plat and division were made,—and other streets were opened from time to time. This George street was opened in 1877, its entire length, except between the two blocks 5 and 10. Perry, Diversey, Wellington streets, and Ashland avenue, appear to have been thrown open by the people who owned the ground. In 1874 or 1875 a culvert was built by the town authorities over the ditch on the east side of Reuben street, or Ashland avenue, across the west end of this unopened portion of George street. Immediate opening and user, by the public, of all .the streets for their entire length, or immediate formal acceptance by some competent public authority, can not be necessary to give effect to a dedication of land to the public use of a street, by the making of a town plat, and the selling and conveying of lots with reference to the plat. A municipality must be permitted to wait its reasonable time for opening and improving,its public streets, as its own resources and the public need may allow and require, without thereby rendering its streets subject to appropriation for the exclusive use and enjoyment of individuals.
A point is made as against the town, in the payment of town and other taxes on this block. It is described in the assessment books, “block 5, 5y§-2g acres.” To make that number of acres, requires the block to be bounded by the dotted line appearing in the- plat, in the centre of the streets surrounding the block, and bounding the block by its solid continuous lines gives but about 3f acres. This assessor’s description is the same designation as appears upon the plat. The land of the block does extend to the dotted line in the centre of the street, but the strip of it thirty-three feet wide, between the dotted line and the continuous block line, is subject to the easement of a public street. We see no significance in this payment of taxes. There may sometimes be such circumstances in a particular case which would make it so inequitable for the public authorities to exercise their power over a public street, as to create an estoppel against their doing so. But there is nothing of that kind in the present case. The'town authorities have but suffered the fence to remain across George street until there seemed to them a need for the public use that the fence should be removed. The erections put upon the street were mere encroachments upon a public street, made by the parties - with their eyes open, and at their peril. They can remove the same. They gain no right by their encroachment on the street. '
The decree will be reversed, and the cause remanded, with directions to dismiss the bill for want of - equity.
Decree reversed.
