| Ill. | Mar 30, 1896
delivered the opinion of the court:
This was a bill in chancery, by Robert M. Miller and Sarah A. Miller, against the village of Vermont, to enjoin the entering of a certain strip of land for the purpose of opening a street. The decree was in accordance with the prayer of the bill. The cause is brought here by writ of error.
On August 16, 1868, one Joab Mershon, owner of a certain tract of land in the north part of the village of Vermont, caused said land to be surveyed and platted by the county surveyor of Fulton county, and on April 16, 1869, acknowledged before the circuit clerk and recorder of that county said survey and plat as his second addition to said village, and released and quit-claimed, for the use of the public, all that part of said plat marked streets and alleys. Among the streets so platted is one two rods wide, running north and south, known as “Liberty street.” On February 13, 1884, Robert M. Miller purchased a one-acre tract out of said addition, abutting and fronting east on Liberty street, and on August 3, 1881, Sarah A. Miller purchased lots numbered 1, 2, 19 and 20 in said addition, said lots 19 and 20 abutting and fronting west on Liberty street, and lying directly opposite the southern part of the said one-acre lot. Up to the time this suit was brought that part of Liberty street lying in said addition had never been used by the public as a highway. On the contrary, portions of it had been used for years by adjoining lot owners for calf-pens, pig-pens, etc. A portion of it was fenced and used by R. M. Miller for such purposes, and shortly before the commencement of this suit he built a fence through the center of the street the entire length of his one-acre lot, enclosing one-half of the width thereof with his lot and the other half with his wife’s lots 19 and 20, to the extent of their frontage on the said street. Thereafter the village ordered those fences torn down and the street to be opened to the public. Upon refusal of the Millers to comply with this order the village authorities removed the fences and attempted to take possession of the street. To enjoin the village from further interfering with their supposed rights in said Liberty street this bill was filed.
Plaintiff in error refers to Commissioners of Highways v. Green, 156 Ill. 504" date_filed="1895-06-13" court="Ill." case_name="Comrs. of Highways v. Green">156 Ill. 504, and other cases, and claims that the injunction does not lie against it to prevent trespasses on the land here in controversy, in a case such as shown by this record. A sufficient answer to this claim is, that this objection was not made in the court below, but is first made here. The existence of a remedy at law can not be set up, on appeal, to defeat an injunction, when it was not presented by way of demurrer or answer to the bill: Monson v. Bragdon, 159 Ill. 61" date_filed="1895-11-25" court="Ill." case_name="Monson v. Bragdon">159 Ill. 61.
Plaintiff in error claims the right to the use and com trol of Liberty street on the ground that the acknowledging and recording of the plat by Joab Mershon vested in it the fee of the street, or, at least, an easement therein. Whether or not this claim is a just one is the only question presented by this record.
Among other requisites to constitute a valid statutory dedication, under the statutes then in force, the plat must have been acknowledged by the grantor before a justice of the Supreme Court, justice of a circuit court, or a justice of the peace in the county where the land was situated. (Gross’ Stat. of Ill. 1868, chap. 25, div. 1, sec. 20.) This plat, however, was acknowledged, not before either of the above designated officers, but before the circuit clerk and recorder of the county. The acknowledgment was not in conformity with the requirements of the statute, and there was, therefore, no valid statutory dedication of the street. Consequently, the recording of the plat did not vest the fee of the street in plaintiff in error. The making and filing of the plat was a mere offer to dedicate, and had it been accepted by the village there would have been simply a common law dedication. By virtue thereof the village would have had an easement, for the purposes of a street, in the land so dedicated.
After the recording of the plat, Joab Mershon conveyed to the grantors of defendants in error the lots adjoining Liberty street hereinbefore described. This invested each of them with the fee of the street to its center, to the extent of the frontage of their respective lots thereon, burdened only by the offer of dedication. (Hamilton v. Chicago, Burlington and Quincy Railroad Co. 124 Ill. 235" date_filed="1888-03-28" court="Ill." case_name="Hamilton v. Chicago, Burlington & Quincy Railroad">124 Ill. 235.) This offer of dedication, however, had never been accepted up to the time the village ordered the removal of the fences of defendants in error. Thus a period of twenty-three years of non-user of the easement by the public elapsed after the recording of the plat. The question then arises, is this offer of dedication still open, and can plaintiff in error, at this late date, step in and claim the easement? In City of Peoria v. Johnston, 56 Ill. 45" date_filed="1870-09-15" court="Ill." case_name="City of Peoria v. Johnston">56 Ill. 45, this question is answered in the negative, and it is there said, (quoting 3 Kent’s Com. 448,) “that mere non-user for twenty years affords a presumption of extinguishment, though not a very strong one, in a case unaided by circumstances, but if there has been, in the meantime, some act done by the owner of the land charged with the easement inconsistent with or adverse to the right, an ex-tinguishment will be presumed.” In the case at bar the presumption of extinguishment is aided by the circumstance of possession on the part of defendants in error, and by the further fact that no private rights have intervened adverse to their claims, for it does not appear that the adjoining lot owners have used, or desire to use, this land as a street. On the contrary, it appears that several of them have used portions of the supposed street for their own private purposes.
On the authority of the case last cited, we must hold that plaintiff in error, by having allowed so long a period of time to elapse without accepting the offer of dedication, has lost whatever right it may have had to an easement in- that part of Liberty street occupied by defendants in error, and cannot now come in and claim the right to use for a public highway the part of the proposed street occupied by defendants in error, the owners of the fee.
The decree of the circuit court was right, and it is accordingly affirmed.
Decree affirmed.