42 Ill. App. 132 | Ill. App. Ct. | 1891
This was a prosecution against appellant for obstructing a public street in violation of an ordinance of appellee, and resulted in a fine against appellant.
The burden was on the village to show by a clear preponderance of the evidence not only the placing of the obstruction, but that there was a public highway at the point where the obstruction was placed. The placing of the obstruction is admitted, and as the appellant holds the fee to the land over which the alleged public street crosses, the only question in the controversy is whether a dedication has been made by him.
Appellee was organized as a village in 1883, and abuts upon the northern portion of the city of Peoria. Linn street extends in the city of Peoria to its north line limits. Appellant, many years before the village was organized, became the owner of lots 20, 21, 26, 27, 28 and 29 in what is known as Armstrong’s subdivision. Those lots are immediately north of the city limits and an extension of Linn street beyond the boundary line traverses the east part of lots 20 and 27, leaving a small portion of those lots and lots 28 and 29 on the east side, and the greater part of lots 20 and 27 and lots 21 and 26 on the west side. In 1871 appellant sold and conveyed lots 28 and 29 and parts of lots 20 and 27 extending back “ to the line of Linn street projected,” and the purchasers erected a fence along the west side of the tract bought; that fence is the east line of the street 294 feet, running north from the city limits. A few years afterward appellant, for his own convenience, and in view of the fact that a street there would some day be needed and probably his land condemned by proceedings extending Linn street, as he claims, built a fence from the point where the west line of Linn street intersects the city limits line, north across lots 20 and 27. In this way an opening was made across appellant’s land of the same width as Linn street, and formed an unobstructed passage-way or continuation of Linn street north to its intersection with an east and west lane, which has since been widened and named Bichmond avenue.
For erecting and maintaining a fence across the opening on the north line of lot 20 appellant was prosecuted and fined for the offense of obstructing one of appellee’s public streets.
The facts in proof relied upon by appellee as supporting its claim of dedication, are the fencing out of the strip of land corresponding in width with Linn street in manner as described above, the acquiescence of appellant in its use by the public for travel eight or ten years, the planting of shade trees on the west side in line with other shade trees on Linn street, the building of gravel sidewalks between the trees and his fence, and reference made by him in considerations and writings to this strip as “ Linn street ” and “ Linn street projected.”
Those facts, taken by themselves, afford strong evidence of a dedication, and without countervailingproof could be accepted as satisfactory; but they can not prevail over the explanation of appellant that he fenced out the strip for his own convenience, and in view of the fact that it would at some future time be needed as a public highway, his positive testimony that he never intended to dedicate, and the corroborating circumstances that he has at different times since fencing it out, maintained cross fences over it and cultivated it, that such work as was needed to make it passable when open has always been done by himself, and that he has always forbidden the village authorities from working it or assuming control over it as a public street.
The opening of a road by the owner of the land for his own convenience and permitting the public to use it, is not conclusive evidence of a dedication. Proctor v. Lewistown, 25 Ill. 189; Illinois Ins. Co. v. Littlefield, 67 Ill. 368.
To justify the claim that land has been dedicated by the owner to a public use, proof of the owner’s intention to that effect must be unequivocal and satisfactory. The vital principle of dedication is the intention to dedicate—the animus dedicándi. Washburn on Easements (star page), 133; Angell on Highways, Sec. 142; Marcy v. Taylor, 19 Ill. 634; Rees v. City of Chicago, 38 Ill. 322; Harding v. Town of Hale, 61 Ill. 192; City of Bloomington v. Cemetery Association, 126 Ill. 221.
The evidence taken in this case was quite voluminous. We have not the space to discuss it in detail, but can say that, all taken together, it clearly demonstrates that the appellant, in leaving open the strip of ground in question, in making the improvements he did on adjacent property, and by references made by him to it in conversations, and deeds to third parties, did so in view of Linn street being at some future time extended over the strip, but that he did not at any time donate its use to the public as a highway.
We recognize the principle that although a land owner may never have intended to dedicate, yet his acts and declarations may have been such as to equitably estop him from denying such intention. The proofs in this case, however, do not warrant an application of that principle against appellant.
The strip of land over which appellant built his fence was not a public street and the imposition of a fine against him was unauthorized.
The judgment of the Circuit Court is reversed and the cause remanded.
Reversed, and remanded.
