Maywood Co. v. Village of Maywood , 118 Ill. 61 ( 1886 )

Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill, brought, in the Superior Court of Cook county, by appellees against appellants, for the purpose of having a certain square in said village, known as block 58, (except eertain hotel grounds in the north-west corner thereof) declared to be a public park; and praying, that appellant company-surrender the control and management thereof to the trustees, of said village, and that a trust deed, executed thereon by the company to Botsford, trustee, be set aside, and that appellants be enjoined from interfering with the use of said square, as a public park, by the said village and its residents and lot owners, and from selling or conveying the same, or" taking any steps to foreclose the trust deed thereon, etc. The-beneficiaries in the trust deed were made parties, under the-name of “Unknown Owners. ”

The record discloses such facts, as must be held to have •constituted a common law dedication of the square in question, by the Maywood Company, to the public, for the purposes of a “park.3’

By “An act to incorporate the Maywood Company, ” passed by the legislature on April 6, 1869, certain persons were-“constituted a body politic and corporate, by the name of the Maywood Company, for the purpose of purchasing land in the township of Proviso, in Cook county, and improving the same as. a suburban village, by shade trees, parks, drainage, and buildings of all classes, for educational, religious, residence, manufacturing, mercantile and other purposes, and, by that name, may sue and be sued, etc.; may purchase, hold, lease, mortgage, alienate, sell and convey real and personal estate, and generally have and exercise all the rights and privileges of corporations, for the purpose of improving, benefiting, beautifying and developing the said village of Maywood. ”

In the spring of 1869 the company purchased over five hundred acres in the town of Proviso, and, in that year, issued to the public a printed pamphlet, setting forth the advantages of Maywood, as a place of residence, and announcing, under the heading of “Public Park, ” that the land, afterwards called block 58 and contamine about sixteen acres, would be improved and ornamented as a park, and would be supplied with lakes and bays for boating and skating, with bridges, groves, walks, drives, shrubbery, arbors, swings, grottoes, etc., and other attractions for the public.

In March, 1870, the company made a subdivision or plat of five hundred and sixty acres, entitled “Maywood, ” to which is attached the usual surveyor’s certificate, and to which is also attached a certificate of acknowledgment, showing that it was duly acknowledged by the company on March 8,1870. This plat was recorded in the recorder’s office of Cook county on March 11, 1870. The original plat and the record thereof were destroyed in the great fire of October 9 1871, so that some of the figures, measurements and other details, which were probably shown on the original, do not appear upon the copy, introduced in evidence. But the plat, as shown by the proof in the record, contained blocks numbered from 53 to 265 inclusive, separated and bounded by streets. The names of the streets are given. Upon the face of the plat is shown a certain space or block, marked “58,” upon which are written the words, “Maywood Park.” Block 58 or “Maywood Park” appears from the plat itself to be bounded on the north by the Galena railroad track and First street, on the south by Second street, on the west by Fifth avenue and on the east by First avenue and the Des Plaines river. The name of the square in question and its boundaries are, thus, clearly indicated upon the plat itself. But the width and length of the streets and the dimensions of the blocks are not given.

In 1870, the company issued to the public another printed pamphlet, giving a history of Maywood, in which, under the head of “Inducements to buy and build at Maywood, ” it is; stated, that “the town now * * * has a beautiful park of sixteen acres.” This pamphlet has numerous pictures of different portions of “Maywood Park,” a “View from north shore of lower lake in Maywood Park, ” “View of lower lake in Maywood Park, ” showing boats and swans upon the waters of the lake, and groves and walks along its shores, pictures of the “Music Stand,” the “Well House,” the “Observatory,” the “Rustic Bridge” over “Put-in-Bay, ” all in Maywood Park. This pamphlet and the printed copies of abstracts of title, furnished to the purchasers of lots, contain copies of the plat of Maywood, with the words, “Maywood Park, ” written across the face of the space, designated as block “58.” Circulars were issued and posted in the vicinity and in Chicago, showing the park and the improvements therein.

In March 1871, the eonxpany issued another pamphlet to the public, in which it is stated, that “the park is already a matter of pride to the village,” and that, “as its use is given to the public as pleasure grounds, the directors have not inventoried either the land (sixteen acres), or improvements, in the assets of the company. ” For years, the park was constantly used by the residents of the village for public purposes. It was not assessed for purposes of taxation. From 1870 to 1884, when this suit was begun, the population of the village has varied from four hundred to eight hundred. This population has settled there, and lots have been purchased and homes established there, upon the strength of the company’s representations, that, among the advantages of the village, as a place of residence, would be the use of block 58, as a park, for the benefit of all the citizens and residents.

The appellee, Small, obtained a deed from the company of a lot in Maywood about the year 1870, and, at the time of his purchase, the president of the company presented him with copies of the pamphlets of 1869 and 1870, above referred to. The north-east corner of his lot is diagonally opposite the square, marked upon the plat, as Maywood Park, and looks out upon that square. He swears, that he always supposed it was a public park. .Appellee, Hubbard, swears, that he is a resident of Maywood; that he purchased property there in 1874; that the square in question was then open for the public, that it was originally fitted up in nice shape, and had always been open and used as a park; that he saw the pamphlets and posters and obtained them from the company’s office. Other witnesses testify to their purchasing lots there, as far back as 1871, and that the square in question was laid out with walks and lakes, and was used, as a park, by the inhabitants, and the general public.

On September 30, 1881, the company made a trust deed to Botsford, as trustee, to secure certain bonds. On October 31, 1881, the village of Maywood was organized under the general act for the incorporation of cities and villages. The officers and trustees of the village have demanded of the Maywood Company the control and management of the park, and have requested from the company a conveyance of the title to the park. The refusal of the company to accede to such demand and request has led to this litigation.

The facts, above recited, indicate an intention, on the part of the Maywood Company to dedicate block 58, (with the exception of the hotel and hotel grounds, covering the north 168 feet of the west 287T5-^ feet of said block,) to the public for the purposes of a park. A dedication may be made by grant or other written instrument, or it may be evidenced by acts and declarations, without writing. No particular form is requisite to the validity of a dedication. It is purely a question of intention. • A dedication may be made by a survey and plat alone, without any declaration either oral or on the plat, when it is evident from the face of the plat, that it was the intention of the proprietor, to set apart certain grounds for the use of the public. Godfrey v. City of Alton, 12 Ill. 30; Warren v. Town of Jacksonville, 15 id. 236; Waugh v. Leech, 28 id. 488; Smith v. Town of Flora, 64 id. 93.

“The difference between a statutory and common law dedication is, that one vests the legal title to the ground set apart for public purposes in the municipal corporation, in trust for the public, while the other leaves the legal title in the original owner, charged, however, with the same rights and interests in the public, which it would have, if the fee was in the corporation. ” (Chicago, Rock Island and Pacific Railroad Co. v. City of Joliet, 79 Ill. 25.) In the case at bar, the legal title to block 58 continued in the Maywood Company, but charged with the right of the public to use the block fora public park. It is true, that the village was not incorporated until October 1881, and, therefore, there was no organized municipality to accept the dedication of the park, during the eleven years from 1870, when the park was created, and the plat, pointing it out, was recorded, to 1881, when the incorporation took place. During this period, however, the acceptance of the dedication by the public was indicated, so far as it could be, by the actual use of the block, for those purposes of pleasure and recreation, for which public parks are laid out. (Smith v. Town of Flora, supra; Rees v. City of Chicago, 38 Ill. 322.) When the village was finally incorporated, the acceptance of the dedication was manifested by the demand, on the part of the proper authorities, for the possession of the park and for a conveyance of the title. Inasmuch as the Maywood Company has refused to yield the control of the park to the village trustees, the failure of the latter to take any steps towards its improvement should not be urged, as an evidence of their non-acceptance of the dedication.

As already stated, the plat in this case does not give the length and width of the streets, or of the blocks, nor the dimensions of the portion of block 58, which is devoted to hotel purposes. In these respects, it does not comply with the act of 1845, which was in force in 1870, when the plat was made, and, therefore, may not be completely valid, under the technical requirements of the law. (Village of Winnetka v. Prouty, 107 Ill. 218.) If it had been free from the defects here indicated-, the recording of it would have constituted a statutory dedication, and the fee of the park, as well as of the streets, would have remained in abeyance, subject to vest in the village corporation, as soon as it was created. (Canal Trustees v. Haven, 11 Ill. 554; Waugh v. Leech, supra; Gebhardt v. Reeves, 75 Ill. 301; Village of Princeville v. Auten, 77 id. 325; Village of Brooklyn v. Smith, 104 id. 429.) Upon the incorporation of the village in 1881, the fee of this park, theretofore in abeyance, would have vested in the village at ■once, if the plat had been executed in conformity with the statute in all particulars. As it was, there was such a dedication of the square, as that the fee thereof, which remained in the Maywood Company, as the original proprietor, was burdened with the right of the public to use it for a park. (Manly v. Gibson, 13 Ill. 308.) Whatever rights the public, or the residents of the village, when in an unorganized condition, .acquired, by virtue of the dedication, became vested in the village, as the legal representative of such residents, after the incorporation took place.

To constitute a dedication, it was not necessary, that the legal title should pass from the Maywood Company, nor that the grantee of the use should be in existence. It is sufficient, that the company has assented to the use of the land, as a park, and that the inhabitants of the village have actually •enjoyed that use, in such a way and for such a time, as that the public accommodation and private rights will be materially affected by an interruption of the enjoyment. City of Cincinnati v. White’s Lessee, 6 Peters, 431.

“If the owner of land lays out and establishes a town, and makes and exhibits a plan of the town, with various plats of .spare ground * * * and sells the lots with reference to that plan, the purchasers of the lots acquire, as appurtenant to their lots, every easement, privilege and advantage, which the plan represents, as belonging to them, as a part of the town, or to their owners, as citizens of the town. * * * The sale and conveyance of lots in the town and according to its plan, imply a grant or covenant to the purchasers, that the streets and other public places, indicated, as such, upon the'plan, shall be forever open to the use of the public free from all claim or interference of the proprietor, inconsistent with such use.” Zearing v. Raber, 74 Ill. 409.

The Maywood Company has persuaded over four hundred, people to settle in their village and buy lots of them, by holding out, among other inducements, the inducement, that this, square should be keqit open and used as a public park. The law considers their conduct in the nature of an estoppel in pais, which precludes them from revoking their dedication. To do so would be a violation of good faith to the inhabitants of the village. The company holds the legal title as trustee, for the use and benefit of the village and its citizens. It can not be allowed to divert its trust by mortgaging the property. A mortgage of it may lead to a sale and conveyance of it to-private individuals, and an appropriation of it by them to-such purposes, as they may desire. City of Jacksonville v. Jacksonville Ry. Co. 67 Ill. 540.

The holders of the trust deed, which has been executed upon this block 58, must be held to be affected with notice of the interests of the public therein. Its use by the public has been constant and open and notorious, and the plat, upon which it is designated, as “Maywood Park,” was on-record, when the trust deed was made, and was fully shown upon all the abstracts of title.

A 'court of equity has jurisdiction to entertain the bill, filed in this case. As a foreclosure of the trust deed would probably result in the ownership of the “park” by private parties, there was a threatened perversion of the trust, upon which the property was held. Equity will interpose to prevent the perversion of a trust. (City of Jacksonville v. Jacksonville Ry. Co. supra.) Again, the evidence shows a threatened nuisance, tending to deprive appellees and others of the full and free use-of this park, as they were entitled to have it used. This is a well recognized ground for equitable interposition. Zearing v. Raber, supra.

The objection of multifariousness or misjoinder of complainants we do not regard, as well taken to the bill. Small and Hubbard, as residents of the village, have a common interest with each other and with the village itself, in preventing any obstruction to the use of the public square for the purposes of a park. (Trustees of Watertown et al. v. Cowen, 4 Paige, 510; Green et al. v. Oakes, 17 Ill. 251; Gage v. Chapman, 56 id. 311; 2 Story’s Eq. Jur. secs. 924, 924 a.) They are, therefore, properly joined with the village, as complainants.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.