Mason v. City of Chicago

Mr. Justice Carter delivered the opinion of the court:

It was determined in City of Chicago v. Drexel, 141 Ill. 89 , that the plat of October 24, 1855, involved in that as well as in this case, was not in conformity with the statute, and did not operate as a statutory dedication or conveyance to the public, or to any municipality, of the strip of land lying between the east line of blocks 6, 7 and 12 and Lake Michigan. We are satisfied with that decision and the reasons given in the opinion in that case, and see no reason for further discussion of that question. Even if the fee had been vested in the town of Lake View by the plat, it is clear, as there shown, that the judgment rendered for the defendants, appellants here, in the ejectment suit brought by the town before it was united with Chicago, claiming title in fee, would preclude the city of Chicago from now claiming to be the owner in fee of said land.

The question chiefly argued and pressed upon our attention by counsel on both sides is, was there, or not, a dedication as at common law of said strip of land by Hundley, evidenced by. the making and recording of the plat and by his contemporaneous and subsequent acts and declarations? Only so much of said strip as lies be-between block 12 and the lake was involved in that case, but the evidence there, as here, related to the entire strip, and it was held that the evidence was not sufficient to show, with sufficient certainty and clearness, either any intention on the part of Hundley to make such dedication or any acceptance on the part of the public or of the town.

We have carefully examined and considered the evidence, and while it is claimed on the part of the appellee that a stronger case was here made by the city in the court below than was made in the Drexel case, we are unable to see that it is sufficient to establish the dedication claimed, and have arrived at the same conclusion reached in that case, so far as the rights of the public or of the city are concerned, to so much of said strip as lies between blocks 6 and 7 and Lake Michigan, and not included within the boundaries of the east and west streets extended to the water’s edge, called, beginning at the north end, respectively, Grace, Nellie and Addison streets.

The claim of Payne, Yaggy and others, individual property owners in said re-subdivision, that they purchased their respective lots by the plan and plat laid out and adopted by Hundley, showing this and other strips of land left open for streets, highways and public ground, and upon representations made by him and his agents that said strips were so intended, and that said Hundley and all claiming through or under him are estopped from denying such dedication, so far, at least, as the rights of said property owners are concerned, presents a question which was not involved in the Drexel case. But from the view we have taken of the case this claim is not sustained by the evidence,—at least no further than as it may affect said east and west streets mentioned in the record as G-race, Nellie, Addison and Cornelia streets. These streets, while not specifiecb on the plat as streets nor designated by name so as to make a sufficient statutory dedication, were so laid out as to correspond at their western termini with what were already public streets láiown, respectively, by the names above mentioned, and apparently intended as extensions of such streets throughout the re-subdivision, and were, with what are now called Evanston and Pine Grove avenues, intersecting them at right angles and extending through said subdivision, treated by Hundley, not only as shown by the plat but by his subsequent acts, as public streets, and were accepted, improved and used as such by the public. It is true, there is no contention as to these cross streets except as to whether they end in a cul-de-sac at the western line of the land in controversy or- extend through the same to the water’s edge. In truth, it is not so much contended by appellee that these streets extend to the water’s edge, as that, by their connection with the strip in controversy lying between the water’s edge and what by the plat appears to be their eastern termini, it is made to appear that by the making and recording of the plat they are stamped with the same character of public ground. So far as appears from the face of the plat itself, this would seem to be true, except, perhaps, as to Grace street, where the center line appears to have been extended to the lake; but in considering whether or not there has been a common law dedication, or whether or not, as to the individual property owners who claim to have purchased by the plat, appellants are estopped from denying that the strips in question are streets or public grounds, under the issues many facts and circumstances shown by the evidence must also be considered in connection with the plat.

Wilson, who seems to have been connected officially with the town of Lake View since 1870, part of the time as town clerk, testified that by the direction of the town board he graded and improved Grace street to the lake, and in doing so deposited the refuse sand and other material on this open strip in front of block 6; that the work was done in 1870 or 1871, and that Hundley then claimed the land where witness deposited the sand in front of block 6 as belonging to him, and threatened to sue Wilson. As we understand the testimony of this witness, Hundley did not complain of the improvement of Grace street, but of the placing of the excavated material on his land in front of block 6. Hundley’s position in this respect is better established by his acts, which are clearly proved, in dealing with the land, than by the testimony of witnesses as to what he said so many years ago. About the time mentioned by Wilson, Hundley built a fence upon the strip in controversy along the south side of Grace street, and extended it one hundred and seventy-five feet east of the east line of the block to a point not far short of the water’s edge, and thence southerly about one hundred and forty feet. He also built a sidewalk on the south side of Grace street across this strip, outside of this fence and extending more than one hundred feet toward the lake. This fence and sidewalk were never removed, but still remain. This was, of course, many years after the plat was made, but there is not sufficient evidence in the record to show that Hundley had previously dedicated this strip to the public, or, if he had that intention when the plat was made, that his offered dedication had been accepted. Some, perhaps the larger number, of the witnesses testify that following the making of the plat he said he intended that there should be a public street along there, while some say he said he intended it for the abutting property owners fronting on the lake, to be improved and beautified for their use and benefit. The latter view is more consistent with the acts of all parties in interest than is the former; yet the evidence, when considered in all its bearings, tends to prove rather the lack of any settled, definite purpose pn the part of Hundley in this regard than otherwise. Counsel for appellee ask, why would he make and record a plat with lots fronting upon this strip if he did not intend it as a street or highway, by means of which access might be had to such lots? And it is justly said that it could not well be supposed that he intended these lots to abut upon a piece of private property which might, after the lots were sold,'be built upon or devoted to private use to the almost total destruction of the value and usefulness of the lots fronting upon it. Still, it is not, nor can it be, claimed that simply by so dividing and platting his land, and in a manner insufficient to establish a statutory dedication, that act alone would amount to a dedication at common law. He might, of course, make such a plat and reserve the question of the use of the strip for future determination. He could devote it to public uses, or, so long as he retained control of it and did not, by the sale of lots with reference to it as open public ground or as a street, estop himself, he could, in the absence of acceptance of it by the public, change his mind in dealing with it, even if he had originally intended to dedicate it as a public highway.

A part of the strip in question in front of block 7 was fenced in as early as 1862, and since 1871 Mason, one of the appellants, has been in possession of all that part of the strip in front of block 7, claiming to own it. He fenced it in in 1872, and it has remained so fenced ever since, except that it was opened that year to allow the owners of property abutting on this strip to construct, at their own expense, a twenty-foot driveway, which driveway, after having been used for a short time, was washed away or covered with sand by the action of the waters and was abandoned and the fence restored. The property owners abutting on this strip expended considerable sums of money in erecting piers on the margin of the lake, to prevent, and did thereby prevent, the encroachment of the lake upon much of the land in controversy as well as upon their lots, and by the same means the width of the strip was increased. Some of these owners made other improvements by hauling and depositing black soil upon the sandy beach, by planting trees, sowing grass seed, and otherwise improving the land. Hundley, and after his death his executors, made deeds to several of the lot owners whose lots abutted on this strip, conveying to them all riparian rights in front of their property, and by other deeds purported to convey, in express terms, parts of the strip itself. It is claimed by appellees that the fencing in of portions of the strip was not done under claim of ownership and in hostility to the claims of appellees, but to protect the lots of the lot owners from sand which the wind carried upon their premises, and to keep out intruders, who were in the habit of hauling away the sand and gravel, to be used for building purposes, which was deposited on the beach of the lake. But this view is not, we think, established by the evidence, nor is it shown that the public had any rights to be thus invaded. If it had, it is somewhat strange that no action was taken for so many years by the town of Lake View or by any one representing the public interests, when the town had notice, as Wilson testifies, that Hundley was claiming the strip as his private property, and he, and those in privity with him, were in possession of it and devoting it to their own private uses. Nor was there any money expended or labor bestowed on behalf of the town or the public, in any way, upon the land in question, but under their several claims of ownership and possession the appellants, or some of them, and those with whom they were in privity, retained possession, improved parts of the land, and sold and removed large quantities of sand and gravel from other parts without hindrance, for more than twenty years. There was no traveled road there. It was, so far as it was unfenced and sufficiently level, used, to some extent, by the public in passing along the lake shore, but no more than any vacant and unoccupied land, similarly situated would be used. But it was not only proved without contradiction that it was Hundley’s intention that the east and west streets above mentioned should be public streets through to the lake, as continuations of the streets with which they connected on the west, but it was proved, also, that they were kept open and used to the water’s edge, and that sewers were laid and extended in some of them to the lake. It is worthy of notice, also, that in fencing in portions of the strip in question, neither Hundley, nor those succeeding him in interest, extended their fences across these streets. They were taken -possession of by the public and used up to their connection with the lake,—itself a great public highway; and although it is said that, so far as indicated on the plat itself, there is no more evidence of an intention to dedicate them to the public than the strip in controversy, still, in the lapse of time, they have been differently treated by all concerned, and it is now too late, we think, to regard them otherwise than as public streets to the water’s edge. But we cannot regard the setting apart of them, and their appropriation and improvement through the strip in question, as sufficient evidence, when considered with the other evidence in the record, of a dedication by the owner and an acceptance thereof by the public authorities of the strip in question to public uses, so far as the land lies in front of blocks 6 and 7.

The evidence is voluminous, and no extended review of it can be here made, but it does not greatly differ from the facts presented in City of Chicago v. Drexel, supra, where the south end of the strip in front of block 12 was adjudged to be private property, except, as before said, in respect to the claims of individual property owners who are interested in having this strip declared to be a public street, and we are now brought to a more direct consideration of that branch of the case.

It is insisted that the law is, that where an owner sells and conveys lots according to a plat showing the subdivision of the land into blocks, lots and streets, there is an implied covenant with the purchaser that such streets shall remain open as public streets, independently of the question whether or not there has otherwise been a dedication of such streets to or an acceptance of them by the public, and that such purchasers have rights in such streets, which they may themselves enforce, to prevent their appropriation or obstruction, and that this principle is not limited in its application to the single street on which the lots so purchased are situated. Zearing v. Raber, 74 Ill. 409 .

In Earll v. City of Chicago, 136 Ill. 277 , in citing Littler v. City of Lincoln, 106 id. 353 , and Hamilton v. Chicago, Burlington and Quincy Railroad Co. 124 id. 235, this court said (p. 285): “The announcement of the principle that there must be an acceptance of the street as a public highway is qualified by the statement that the owner is estopped to deny the dedication whenever private rights intervene. In the latter case it is also said that there may well be private rights, in respect to streets, in grantees of conveyances made under the plat, although there may have been no complete dedication of the streets to the public by an acceptance of the proffered dedication. In Zearing v. Raber, 74 Ill. 409 , this court said: ‘It is unimportant whether the public have so far accepted the dedication as to be bound to keep the street in repair, since the question involved is simply one of private right.’ The doctrine of that case, and of Gridley v. Hopkins, 84 Ill. 528 , Maywood Co. v. Village of Maywood, 118 id. 61, Smith v. Town of Flora, 64 id. 93, and of numerous other cases, and of the common law, is, that if the owner of land exhibits a map or plan of a town, or addition platted thereon, and on which a street is defined, and sells lots abutting on such street, and with clear reference to the plat exhibited, then the purchasers of such lots have a right to have that street remain open forever; and such right is not a mere right that the purchaser may use that street, but is a right vesting in the purchasers that all persons may use it,—that the sale and conveyance of lots according to the plat imply a grant or covenant to the purchasers of lots, and their grantees, that the public street indicated upon the plat shall be forever open to the use of the public as a public highway, free from all claim or interference of the proprietor, or those claiming under him, inconsistent with such use, and that the owner, and all claiming under him, will be perpetually estopped from denying the existence of the street.”

It is contended by appellants that this principle applies only to the purchasers of lots abutting or calling to bind on the particular street, and counsel cite Hawley v. City of Baltimore, 33 Md. 270 , where it was, among other things, said; “The doctrine of implied covenants will not be held to create a right of way over all the lands of a vendor which may lie, however remote, in the bed of a street. The lands must be contiguous to the lot sold, and there must be some point of limitation. The true doctrine is, as we understand it, that the purchaser of a lot calling to bind on a street not yet opened by the public authorities is entitled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public highway.” Counsel cite also in support of this view, Littler v. City of Lincoln, 106 Ill. 353 , City of Chicago v. Union Building Ass. 102 id. 379 , City of East St. Louis v. O’Flynn, 119 id. 200, Village of Winnetka v. Prouty, 107 id. 218, Chicago Pressed Brick Co. v. City of Chicago, 138 id. 628, and other cases. The same question of fact arises, however, necessarily: was the strip in question defined as a street or public ground?

The point as applicable here, where Payne, Yaggy and others became parties, is, that all but Yaggy purchased lots which were not adjacent to the strip in question, but which abutted on streets from thence fully recognized as public streets and opened, improved and since maintained as such, and most of them more or less remote from this strip on the lake. Payne, who is the only one of the non-adjacent proprietors whose case deserves especial mention, owned lots 1, 2, 13 and 14, and the north half of lots 3 and 12, in block 11. Some of these lots abutted on Evanston and some on Pine Grove avenue, and from all there was free access to the lake by way of Addison street. He testified that he purchased these lots from Hundley through his agent, Rees, in 1868, and has lived there since 1870, and that when he first knew the property, in 1867, it was fenced into ‘blocks; that he wanted to buy property running to the lake, and that he first tried to buy in block 7, but was informed by Rees that they were not offering that property as it did not go to the lake,—that there was a street intervening; that Rees represented that this strip of land was a street; that he, witness, then tried to buy in block 16, which was acre property carrying riparian rights. As Payne was desirous of purchasing land running to the lake, and first tried to buy in block 7 and was refused because the lots did not run to the lake and there was a street intervening, it would seem he did not then understand from the plat that the open space to the lake was a public street, else he would not have endeavored to purchase there, so as to have his land run to the lake. At any rate, his testimony at this point is more consistent with the view that he supposed purchasers of lots fronting on this strip on the lake would acquire rights to the strip which other lot owners would not enjoy. But the proprietor of the subdivision was then not offering those lots for sale, according to the testimony of this witness, and the only reason given is, that Rees said there was a street intervening. It would seem more in line with the evidence, and consistent with all proper inferences to be drawn from it, that the use to which the strip in question should finally be devoted was as yet an unsolved problem with Hundley. At any rate, it cannot be claimed that simply by the sale of the lots in block 11 to Payne there could arise any implied covenant to him that the strip in controversy in front of blocks 6 and 7 should be devoted to the purposes of a street or way either for the benefit of the lot owners or the public at large, for the plat did not designate any purpose for which such strip should be used, but this omission was sought to be supplied by the testimony of Payne of representations made to him by the owner’s agent when he endeavored to purchase block 7. Whatever else might be here said, it would seem to be sufficient to say that he did not buy, upon such representations, in block 7, but afterward bought in block 11 without any representations whatever, and, so far as the evidence discloses, without being induced or in any way influenced to purchase by what had been said about the strip in question. So far as Yaggy’s rights are concerned, he simply testified that he was,—that is, at the time of the trial in 1892,—the owner and in possession of lots 1 and 2, in block 7. Of whom or when he bought, or how he derived title, was not shown. At the time of the trial this strip in front of Yaggy’s lots was, and had been for more than twenty years, in possession of others under claim of ownership, and Yaggy’s rights, if he had any, were barred. So, too, in regard to Payne and other individual lot owners. They stood by and saw this strip, which they now claim was intended as a street or way for their benefit, enclosed, appropriated and used by Hundley, Mason, Kohlsaat and others as private property, without in any manner seeking to enforce their alleged rights for more than twenty years, and without extending this opinion in the discussion of the relative rights of abutting and other lot owners, we conclude the consideration of the case by holding that all of their alleged rights are barred by lapse of time and laches. They became parties to the suit in 1892, and, so far as their rights are concerned, the suit must, as to them, be regarded as having been then first commenced. Dunphy v. Riddle, 86 Ill. 22 .

The decree in each case is reversed, and the causes are remanded for further proceedings not inconsistent with this opinion. 1

„ , 7 , , ~ Reversed and remanded. *

The record in this cause was, in the lifetime of Mr. Justice Bailey, assigned to him to prepare the opinion of the court, but he died before any opinion was prepared, and the record was reassigned after his death.