Lee v. Town of Mound Station , 118 Ill. 304 ( 1886 )

Per Cubiam :

First, it is objected that it can not be determined, from the evidence in this record, what is the locality, size, shape or boundaries of the lots, streets, public square, etc., as claimed to be laid off, and Village of Winnetka v. Prouty, 107 Ill. 222, is cited in support of the objection. In that case, the plat of the town was fully set out in the record, so that the court could see everything which appeared upon it-Nothing was left to inference. It affirmatively appeared that no width of streets, or size of lots or block, was designated in the attempt to lay out the ground. That is not the case-here. It is here recited, in the bill of exceptions, that “said plat, so read in evidence, covers and occupies two opposite pages of said book ‘S, ’ numbered 292 and 293, and on the-reverse side of the leaf on which No. 293 is found, and on pages No. 294, 295 and 296 of said book ‘S,’ are field notes-of a town plat of Mound Station, made for Martin McNitt, with a certificate of acknowledgment made by a justice of the peace of said county, dated 19th November, 1862. * * * The said plat, so read in evidence, consists of twenty-two-blocks, of the usual size in towns and villages, subdivided into lots, with streets and alleys, and a plot of ground designated ‘public square.’ ” This, it is to be noticed, appears not as a, copy of anything appearing on the face of the plat, but as a, conclusion of the attorney writing the bill of exceptions. If he was authorized to conclude that the blocks were of the-usual size in towns, the inference is reasonable that the plat, in some way, showed the size of those blocks. The presumption is, that the court below decided correctly, until the contrary is made to appear,—and this must be, not from the inferences of anybody, but from the actual facts occurring, upon the trial: Where it is claimed, as here, that an instru-ment or record affecting title is improperly admitted in evidence, the instrument itself must be set out accurately and at length, in the bill of exceptions. (Rogers v. Hall, 3 Scam. 5; McLaughlin v. Walsh, id. 185; Thomas v. Leonard, 4 id. 556; Glancy v. Elliott, 14 Ill. 456; Ballance v. Leonard, 37 id. 43; Hayes v. Lawver, 83 id. 182.) The plat and field notes not being copied in the bill of exceptions, we must presume they warranted the ruling of the court.

Second—It is next objected that the court erred in admitting in evidence the record of the plat, because the plat first made and acknowledged by McNitt was subsequently erased and destroyed by his order, and he made no new plat. The facts conceded are: McNitt made and acknowledged a plat on the 19th of November, 1862. This plat was certified by Parke, surveyor. McNitt, afterwards, being under the impression that it was necessary that the plat should be certified by a county or deputy county surveyor, and ascertaining that Parke was neither, employed Black, who was deputy county surveyor, to make a new plat. He adopted the work of Parke, in substance, made a new plat and signed it, and then went to the record of the plat made by Parke, erased Parke’s name therefrom, and substituted his own, as deputy county surveyor. The statute does not make it indispensable that the plat shall be certified by the county surveyor or deputy county surveyor. It may be certified by either, or by any “competent surveyor,” and the certificate of Parke was sufficient under the requirement. 2 Starr & Curtiss’ Stat. p. 1764, sec. 2; Gebhardt v. Reeves, 75 Ill. 305.

It would seem too evident to need argument in its support, that after the record was made it passed beyond the control of McNitt. He might afterwards make a new and additional record, but he could not nullify or impair that. It would remain, in a legal point of view, just as it was when it was copied upon the records of the county. This principle is recognized and applied in Merrick v. Wallace, 19 Ill. 496, Shannon v. Hall, 72 id. 354, and Steele v. Boone, 75 id. 457. It is true, until acceptance by the public, McNitt might revoke the dedication by deed; but there is no pretence that this attempt at making a new plat was, or that it was intended to be, such a revocation. Its purpose was to perfect, not to destroy, a dedication. There was, therefore, in our opinion, •competent and sufficient evidence for the jury that the plat recorded was that made by McNitt, and that the several pages copied were of consecutive pages of the recorded plat and annexed field notes, and hence there was no error in admitting the record of the plat in evidence.

Third—Evidence was given, over the defendant’s objection, that this square was, on one occasion, not assessed by the assessor as private property. We think the evidence was admissible, as tending, though it may be very slightly, to •show a public acceptance of the dedication, and an acquiescence therein by McNitt. And inasmuch as it is the fact, and not the mere record, that can be of any significance in that respect, we think it was susceptible of proof by parol. But, in any view, the square ought not to have been assessed as private property, and the ruling could, therefore, do the defendants no harm.

Fourth—It is objected that the first instruction is erroneous, because it submitted questions of law to the jury. Those questions relate to the sufficiency of the plat to convey title to the public, and the evidence of acceptance. Without caring to inquire whether the reasonable construction of the instruction sustains the objection, as a matter of fact, we content ourselves by saying, the error, if it exists, could do deféndants no harm. If we are right in holding that, inasmuch as counsel have not transcribed the record of the plat and field notes into the bill of exceptions, we must assume they sufficiently proved what they were offered to prove, it must follow, as a matter of law, that the record of a plat was read in evidence, which operated as a conveyance in fee simple of such portions of the premises platted as were marked or noted on such plat as donated or granted to the public, and as a general warranty against the donor, his heirs and representatives, to such donee or grantee, for the uses and purposes therein named, and for no other use or purpose, etc. (2 Starr & Curtiss’ Stat. p. 1764, sec. 3.) No one pretends that McNitt ever made any deed revoking that dedication. True, the proof shows that he remained in possession, but it also shows that throughout the time he remained in possession, at various intervals, up to July 8, 1875, he acknowledged, by indirection, if not directly, that he had made the dedication, and he also, during that period, made various •conveyances predicated upon the good faith and validity of his dedication, and in one deed conveying land in the same quarter section, but outside of this plat, he used this exception : “Except that portion of said quarter section laid off and included in the town of Mound Station, as recorded in the recorder’s office in Brown county, ” and then referring to the same book and pages from which the record of the plat here read in evidence is copied,—and as to these declarations, ■conveyances, etc., there is no countervailing proof. It is, moreover, further recited in the bill of exceptions, “that on "the 17th day of January, 1865, a vote was had in said town •of Mound Station upon the question whether the same should become incorporated or not, which resulted in favor of incorporation ; and it was admitted by defendants that said town was duly incorporated, under the law of 1845, on that day.” Other evidence recited shows the election of the requisite municipal officers from time to time, the adoption of ordinances, working upon streets, etc. And it is distinctly proved that the square in controversy is within the limits of the town as thus incorporated. In our opinion, this is conclusive evidence of the acceptance of the dedication by the public. McNitt lays off certain territory as an addition to a town, makes the necessary plat, etc., and that territory thus laid off and .platted becomes incorporated. Its limits must, in part, be the limits of McNitt’s plat, and its streets, alleys and squares must also, in part, be those indicated and marked as such on his plat. The Mound Station incorporated is the Mound Station created in part by MeNitt’s plat, for there is no other. It would seem difficult to give more conclusive evidence of the acceptance of the dedication. City of DesMoines v. Hall, 24 Iowa, 234.

There is no authority for holding that every street or square should have been forthwith opened and improved. The corporation has a discretion as to the time within which such things may be done. The court might, then, have told the jury, that, under the evidence, it was their duty to find that the fee of the square was vested in the public by the plat,— that the dedication had not been legally revoked, but had been legally accepted by the public,—for this is the legal effect of the record evidence before them; and their finding, under this instruction to that effect, could, in no view, be prejudicial to any rights of the defendants.

Fifth—It is objected that the second instruction given at the instance of the plaintiff is erroneous, because it does not specify what acts would constitute such a dedication as therein contemplated, and in requiring a longer period of adverse possession to authorize the jury to find that' the town had lost its right by non-user or non-claim, than is required by law. Inasmuch as there was ample evidence of a statutory dedication before the jury, it is but reasonable to conclude that the jury would understand it was that dedication to which the instruction had reference, and it does not appear to us that it was probable that they could have been misled by the instruction, in that respect. Assuming that there was a statutory dedication, and an acceptance by the public, the title to the property was vested in the corporation in trust for public use. The corporation held it in its governmental capacity only, and could therefore invest private parties with no rights in it inconsistent with the public use, and the Statute of Limitations would not, therefore, run in favor of a private party, to bar the rights of the public. (City of Alton v. Illinois Transportation Co. 12 Ill. 38; City of Quincy v. Jones, 76 id. 231, Logan County v. Lincoln, 81 id. 158.) It is true, that we have held that where the public have long withheld the assertion of control over streets, and private parties have been, by the acts of those representing the public, induced to believe the streets abandoned by the public, and on the faith of that belief, and with the acquiescence of those representing the public, they have placed themselves, by making structures or improvements in the street, in a situation where they must suffer great pecuniary loss if those representing the public be allowed afterwards to allege that the street was not abandoned, the doctrine of equitable estoppel may be applied. (Chicago, Rock Island and Pacific Railroad Co. v. Joliet, 79 Ill. 26.) But there is no evidence of any of the necessary elements of equitable estoppel here. The mere permitting the original dedicator to remain in possession,—he at the time disclaiming hostility to the public,— would not be a bar, even under the Statute of Limitations, if it were applicable in such cases. The instruction, if inaccurate, was more favorable to the- defendants than they were entitled to have the law stated. It could not prejudice their rights.

Sixth—What has been said will show that, in our opinion, defendants could not have been prejudiced by the plaintiff’s third instruction.

Seventh—It is objected, against plaintiff’s instruction numbered 4J, first, that the court assumes that the plat made by McNitt was the plat of a town; and second, that the corporate authorities accepted the dedication. The court can see, or, rather, could, if the plat had been incorporated into the record, as it should have been, by the counsel preparing the bill of exceptions, of what it is the plat, and the effect of the plat is a question of law. There was no error in telling the jury that it was a plat of a town, especially since the defendants admitted that the town named in the plat, and of which the plat formed a part, had since been incorporated under the general law. The effect of the incorporation was also a question of law, and we hold that, under the circumstances in evidence, it was an acceptance of the dedications in the plat, and so, in our opinion, the instruction is correct in both respects.

Eighth—The fifth of plaintiff’s instructions is objected'to-as a mere abstraction. It is entirely consistent with the law, as we understand it, and even if it be conceded that it was unnecessary, we fail to perceive how it could have misled the jury to the prejudice of the defendants.

Ninth—Plaintiff’s instruction No. 5g- is objected to, because it tells the jury that an acceptance may be proven by working upon the streets. If we are right in concluding that the incorporation of the town, under the circumstances in evidence, was a conclusive acceptance of the dedications on the plat, it is wholly immaterial whether the language of this instruction is correct or not, since it could, by no possibility, have-prejudiced the defendants.

Tenth—The question is presented, by rulings on other instructions, whether the plaintiff, having entered upon the public square while in the possession of Lee, and thrown down fences across the streets which run on its different sides, and enclosed the square and adjacent streets by a. fence, acquired such a lawful possession that it could maintain trespass against the defendants for afterwards entering upon the square, by virtue of whatever right Lee may have-had, and throwing down the fence around the square, destroying the fencing material, etc. It is not pretended that McNitt reserved any rights in this square by the plat which he made dedicating it to the public, and we have already said, that, in our opinion, he could acquire no rights therein subsequently, either by grant from the corporation or by mere-limitation. His possession, therefore, as against the public, must have been in subordination to its rights. If lawful, it must have been in trust for the public, and to enable those-representing the public to appropriate it to its distinct use at any moment they deemed advisable. He held by mere sufferance, and in the absence of statutory requirement or express, contract, one so holding is entitled to no notice to surrender-possession. So, also, if his possession was unlawful, he was a mere trespasser, and entitled to no notice to surrender. Wade on the Law of Notice, sec. 592; Taylor on Landlord, and Tenant, (2d ed.) secs. 4, 64.

We held in Fort Dearborn Lodge v. Klein et al. 115 Ill. 177, that where the owner of land having the right to the immediate possession, makes an entry thereon in a quiet and peaceable manner, or without actual force or violence, he is not liable in trespass to one who has neither the right of property nor a right to the possession. Plaintiff having lawfully obtained possession, then, by this act of entry, is unquestionably entitled to maintain trespass against those who-have tortiously invaded it.

These views sustain the ruling of the court below on all the other questions, not before herein specifically noticed, which, in our opinion, demand attention.

On the whole, we are unable to discover any such prejudicial error to the rights of the defendants, in the record, as will justify us in reversing the judgment below. It is therefore affirmed.

Judgment affirmed.

Mr. Chief Justice Scott, dissenting.

Mr. Justice Shops having tried this cause in the circuit court, took no part in the consideration thereof in this court.