DocketNumber: No. 22634. Decree affirmed.
Citation Numbers: 194 N.E. 576, 359 Ill. 306
Judges: Mr. JUSTICE FARTHING delivered the opinion of the court:
Filed Date: 12/19/1934
Status: Precedential
Modified Date: 1/12/2023
The appellant, Clara Hart Kennedy, filed her bill in the circuit court of McLean county to restrain the town of Normal from interfering with a tract of land which she claims to own but which the town of Normal was proceeding *Page 308 to open as a public alley. The bill also prayed that the town of Normal should be compelled to restore the appellant's property to its former condition before that town committed the trespass charged against it. A temporary injunction was issued, but after a reference to a master in chancery and his report, the temporary injunction was dissolved and the appellant's bill was dismissed for want of equity. The appeal has been taken directly to this court because a freehold is involved.
The land over which the appellee town is seeking to construct and maintain an alley is a ten-foot strip running north and south through the center of block 6 of K.H. Fell's addition to the town of Normal. A plat of this addition was recorded on May 23, 1874, and it is admitted that there is not a sufficient statutory dedication. Both parties admit that a true copy of the original plat is not in evidence, but that such plat shows a strip running north and south through block 6 that opens into the streets adjoining the north and south sides of the block. The plat in evidence shows the strip of land to be closed at the openings into the streets and shows that the strip is intersected by the lot lines. Accompanying the plat was a certificate by Kersey H. Fell, who was the owner and sub-divider of the addition. In part it reads as follows: "The streets and alleys as noted on said plat are hereby donated to the public."
The appellant owns lots 1, 4 and 5 of block 6 as the same is shown on the original plat. Over her objection the owners of lots 2, 3 and 6, which adjoin the ten-foot strip on the west, were allowed to intervene and answer the appellant's bill. This action of the chancellor is assigned as error and will be considered later.
There are in all fourteen lots in block 6. Kersey H. Fell subsequent to 1874 conveyed all fourteen of these lots to various persons by deeds containing descriptions with reference to the plat. Thomas F. Tipton acquired *Page 309 title to the entire block about the year 1880 under deeds each of which was made by lot number in block 6 with reference to the plat. Title to and possession of all the lots in the block remained in him until his death, in 1907. Between 1908 and 1918 the heirs of Tipton sold the various lots, describing them by number with reference to the "plat of K.H. Fell's addition to the town of Normal." The appellant acquired title to lots 1, 4 and 5 by a similar description. There was evidence that the entire block was enclosed by a fence in 1880 and that there was a fence through the middle of the block for a number of years. The evidence for the appellant showed that the strip of ground through the block was always used for private purposes, but the appellees' evidence showed that the way had been used in hauling brick when the streets around the block were being paved and to haul garbage from houses located on other lots in the block. This was denied by the appellant and her witnesses.
It is admitted that there was not a sufficient statutory dedication of the strip of ground as an alley, and the appellant contends that there was no common law dedication of it. One difference between statutory and common law dedications is, that in the former the fee is vested in the municipal corporation, while in the latter the owner retains the fee subject to an easement in favor of the public. (Russell v. City of Lincoln,
The appellant contends that there was no intention on the part of Kersey H. Fell to make an offer to dedicate the land in question to the public, and that the plat is too indefinite to show such an intention because the plat *Page 310
does not show that the strip was marked as an "alley." No particular way or manner of expressing the intention to dedicate is necessary. (Ingraham v. Brown,
It is next insisted that there was no acceptance by the town of Normal of the offer to dedicate, that the offer has been revoked, and the town cannot now open up the alley. The appellant argues that the conveyances by Kersey H. Fell to his various grantees before the municipality accepted the offer to dedicate was a revocation. The appellees insist that the very act of conveyance of the land with reference to the plat made the offer irrevocable, and that it could be accepted by the town of Normal when it saw fit to open the alley and the needs of the community required it. The appellees rely uponRussell v. City of Lincoln,
We have now to determine whether there was an acceptance by the town of Normal. A municipality may accept a part of the streets and alleys shown upon a plat and reject a part of them, or as to a particular street or alley it may accept a part and reject the remainder of it, (Clokey v. Wabash Railway Co.
The contention of the appellant that the appellee town is estopped to enter upon the land and claim rights in the alley is not well taken. There are circumstances where a municipality may be estopped by its conduct to assert its rights to an easement, as where there has been a long period of non-user and permanent buildings or improvements have been built upon the land in good faith, (City of ElPaso v. Hoagland,
As to the appellant's contention that the adjoining property owners should not have been allowed to intervene, we are of the opinion that the chancellor erred in permitting them to do so. The question in this case was between the appellant and the town of Normal and involved only its *Page 313
right to open the alley for public use. The adjoining owners were not necessary parties. (Nimpfer v. Village of Fox Lake,
As to the remaining point urged by appellant, viz., that the chancellor erred in ordering her, over her specific objection, to pay to the master his fees before he would be required to render his report, the statute (Cahill's Stat. 1933, chap. 53, par. 34, p. 1425; Smith's Stat. 1933, chap. 53, par. 38, p. 1475;) authorizes the making of such an order by the chancellor.
The decree dismissing the appellant's bill for want of equity is therefore affirmed.
Decree affirmed.
Nimpfer v. Village of Fox Lake. , 334 Ill. 46 ( 1929 )
Kadlec v. Dorsey , 223 Ariz. 330 ( 2009 )
Zemple v. Butler , 17 Ill. 2d 434 ( 1959 )
The People v. City of Peoria , 378 Ill. 572 ( 1941 )
McCue v. Berge , 385 Ill. 292 ( 1944 )
J&A Cantore, LP v. The Village of Villa Park , 2017 IL App (2d) 160601 ( 2017 )
Terwelp v. Sass , 111 Ill. App. 3d 133 ( 1982 )
City of Rochelle v. Suski , 206 Ill. App. 3d 497 ( 1990 )
General Auto Service Station v. Maniatis , 328 Ill. App. 3d 537 ( 2002 )
Warzynski v. Village of Dolton , 23 Ill. App. 3d 50 ( 1974 )
School Dist. v. School Dist. , 293 Mich. 1 ( 1940 )
J&A Cantore, LP v. Village of Villa Park , 2017 IL App (2d) 160601 ( 2017 )