Hunter v. Middleton

Treat, C. J. We adhere to the opinion, expressed in the case of the Canal Trustees v. Havens, (11 Ill. 554,) that the acknowledgment and recording of a town-plat vests the legal title to the ground embraced by the streets and alleys in the corporation of the town. The statute in substance declares, that these acts of the proprietor shall operate to vest the fee in the corporation, in trust for the uses and purposes of the public. By making and recording the plat, he voluntarily parts with the title to the streets and alleys, and transfers it to the corporation. The legal effect is precisely the same as if he had made a conveyance directly to the corporation. . The latter holds the legal estate for the benefit of the public. The title may, perhaps, revert to the former owners on the destruction of the corporation, or on the abandonment of the ground for the purposes of streets or alleys. But, until the estate is thus defeated, the fee is as completely out of him as if he had made an absolute and unconditional conveyance. While the fee continues in the corporation, he has no greater interest in the streets and alleys than any other person — the right of passage over them. Having neither the legal title nor the exclusive right of possession, he cannot bring trespass for any injury to the soil or freehold. He has no title to be assailed, no possession to be invaded. A party who conveys away a tract of land in trust, cannot maintain trespass or ejectment for any injury thereto until the purposes of the trust are accomplished and the title has reverted. And this case is not different in principle. The evidence clearly showed that the plaintiff had no cause of action. The acts complained of affected the corporation only, and for which it alone could seek redress. This is not like the case of a highway, in which the public acquire but a right of way or passage. The title still remains in the former proprietor, or his grantor, burdened only with the public easement, and he can maintain an action for any injury to the soil not resulting from the legitimate use of the highway. The judgment is affirmed. Judgment affirmed.