Elson v. Comstock , 150 Ill. 303 ( 1894 )

Mr. Justice Magruder

delivered the opinion of the Court:

Hugh W. McGinnity was not the owner of the .premises when he executed and recorded the plat. The fee was then in his wife, Mary McGinnity. Whatever interest in the land he may have had as the husband of his wife ceased when the divorce was granted for his fault. (1 Starr & Cur. page 904, sec. 14; Rendleman v. Rendleman, 118 Ill. 257). It follows, that there was no effectual dedication of the square by reason of the execution and recording of the plat. “A dedication of property for public use is in the nature of a conveyance for the purposes of the use; but a person can convey or donate no more or greater title than he holds. If he has no title, or his title is conditional, and it fails, the dedication fails.” (Gridley v. Hopkins, 84 Ill. 528).

Here, it appears from the plat, attached to the bill, that the lots of plaintiffs in error do not front upon the block claimed to be a public square, but upon a street at some distance from the block, and not running by it; nor does the bill allege that any of the lots conveyed to and by Mrs. MeGinnity fronted upon the block in question. Whether or not Mrs. McGinnity and her grantee are estopped from denying, that the block was dedicated to the public as a “public square” because of her alleged recognition of the plat by receiving and making conveyances with reference to the plan therein indicated, is a question which does not properly arise in this case in view of the allegations of the bill in regard to the judgment in the trespass suit.

The rights of the public, if it had any, to the use of the block as a “public square” prior to 1883 became vested in the village of North Peoria when it was organized in that year. Erom that time the incorporated village was the representative of the public; and whatever easements or privileges the purchasers of lots in the Addition were entitled to claim in the “square,” as appurtenant to their lots, must be regarded “as belonging to them as a part of the” village thus incorporated. (Zearing v. Raber, 74 Ill. 413 ; Maywood Co. v. Village of Maywood, 118 id. 61). In 1891 the village attempted to assert its claim to the block in question by removing therefrom the fences of the defendant in error, Comstock, who had taken possession of the block in 1870 under a quit-claim deed from Mrs. McGinnity, and had remained in possession for more than twenty years. Defendant in error “was dispossessed for a time” by these acts of the village, hut at once brought an action of trespass guare clausum fregit against the village and its officers. The bill alleges that the trial of this action resulted in a judgment in favor of the defendant in error, and against the village, and that the judgment still remains in full force, and “is a final and conclusive adjudication against the claim of the village of North Peoria for possession of said square.”

It has been held, that, if, in an action of trespass guare clausum fregit, the defense pleaded is liberum tenementum, judgment for the plaintiff is conclusive upon the defendant when he afterwards attempts to set up title, subject to the qualification that the close described in the second action is the same as that described in the first. Other decisions hold that, while the judgment in such ease will not be regarded as conclusive, yet it may he shown by parol testimony or otherwise, that the question of title was actually tried and passed upon in the action of trespass. (Dunckle v. Wiles, 5 Denio, 296; Moran v. Mansur, 63 N. H. 377; Parker v. Leggett, 13 Rich. (S. C.) 171; Campbell v. Cross, 39 Ind. 155; White v. Chase, 128 Mass. 158; McKnight v. Bell, 135 Pa. St. 358; Stapleton v. Dee, 132 Mass. 279; Wells on Ees Adjudicata and Stare Decisis, sec. 315; 21 Am. & Eng. Ency. of Law, 244; Dean v. Comstock, 32 Ill. 173.) Such a judgment is necessarily conclusive as to what appears from the record, or is shown by parol, to have been involved in the issues made by the pleadings in the suit, and to have actually come in question on the trial. (Dunckle v. Wiles, supra; 21 Am. & Eng. Enc. of Law, 185.) While the action of trespass quare clausum fregit does not necessarily involve the title or seizin, yet the gist of the action is the injury to the possession. (Dean v. Comstock supra; Fort Dearborn Lodge v. Klein, 115 Ill. 177; 2 Greenl. on Ev. 613.) Hence, the judgment in such action will ordinarily be conclusive upon the right of possession. (White v. Chase, supra; 2 Greenl. on Ev. secs. 625, 626; 2 Hilliard on Torts, page 11; Lee v. Town of Mound Station, 118 Ill. 304.)

In the case at bar, the bill states specifically what defences were pleaded by the village in the action of trespass. The pleas therein filed alleged title in the village; that the block in question had been previously dedicated to the public as and for a public square; that such dedication had been accepted by the public; and that the village was simply possessing itself of the block for its own benefit. The issues made by the pleas were decided adversely to the village. The questions -of title, and of the right of possession, and of dedication and acceptance, appear to have been passed upon, and determined in favor of the defendant in error. There is nothing to show, that the judgment rendered in the trespass suit upon the issues thus stated has ever been reversed, and, as long as it stands, it must be regarded as res judicata, so far as the rights of the village to possess and use the block as and for a public square are concerned. The judgment is also conclusive upon any rights, which the plaintiffs in error might ■ otherwise have to such use of the block, because their rights are dependent upon those of the village, and can only be derived and held through the village, as the representative of the public.

The decree of the Circuit Court is affirmed.

Decree affirmed.