Village of Brooklyn v. Smith

Mr. Justice Sheldon delivered the opinion of the Court: The principal inquiry which arises in this case, as we view it, is as to the extent of Water street, in the town of Brooklyn, as it was originally laid out and platted—whether the western boundary of that street was the Mississippi river, or a straight north and south line, distant eighty feet west from the. front and west tier of blocks in the town. The complainant contends that the latter is the western boundary line of the street, and that this is conclusively determined to be so from the statement on the plat of eighty feet as the width of the street. Under the circumstances appearing in this case, we can not regard this mention on the plat of the width of the street as fixing the western boundary of Water street to be a line eighty feet west from the western line of the town lots. Here is a town laid out upon the bank of a navigable river, with Water street in front of the town, between it and the river, and the idea of the street not extending to the river seems preposterous. Of what use to the proprietors' would be the reservation to them of anything between the street and the river, and what a lessening of the value of a town site upon a navigable stream would be the absence of a public landing ? It must be supposed that such a town is laid out with reference to the use and enjoyment of the river. A public landing would be viewed as a thing of prime interest, which would be an element of value pertaining to every town lot which was to be sold. As was said by this court m a similar case,— Godfrey v. The City of Alton, 12 Ill. 29: “This stream is a public highway. In contact with this another easement is granted, and .the very location of it shows it was designed for the purpose of lading and unlading freight and landing passengers from the water communication, as much as the laying out of an interior street would show it was designed for the use of travelers hy land.” The western line of Water street, as marked upon the original plat, is not a straight line, hut an irregular, wavy line, denoting, as we take it, the meandering of the river, and thus indicating the river to be the boundary. The express reservation, on the plat, of the exclusive right to all ferry privileges, indicates the understanding of the proprietors that Water street extended to the river. We have the express testimony of the civil engineer who laid out the town under the supervision of two of the 'proprietors, who visited the ground" with him and designated the work to be done, that Water street extended from the front of the town to the bank of the river, and followed the course of the river from north to south,—that all the land west, extending westwardly from the front of the blocks fronting towards the river, was considered Water street, whatever that might be. We can have no doubt, from all that appears in the case, that the western boundary of Water street was the Mississippi river. All the meaning that we can ascribe to the designation of eighty feet as the width of the street, is, that that was about the average width of the space between the front tier of blocks and the river. A point is made upon the subsequent plat made by Ludwig in 1873, upon the incorporation of the village, its adoption and being placed on record by the board of trustees, as ¿stopping the village from claiming Water street to be any greater in extent than it appears to be as marked on that plat. It was the original plat, and the original proprietors that made the dedication. The board of trustees, or Ludwig, had no power to make any dedication, or to subtract from the original dedication. There was no authority of law for the making or recording of this plat of Ludwig. Ludwig was employed only to make a re-survey of the old town. If he misconceived the extent of Water street, and made it to appear less than it in truth was, he would have failed to make an accurate re-survey; but that would not matter—it would he the original survey and dedication which would prevail. We can not see in all this any elements for the founding of an estoppel against the village from claiming Water street in its integrity, as originally laid out. The fee of the street, as thus laid out, is held by the corporation for the benefit of the lot owners and the public. The legislative vacation of the original plat, in 1845, is insisted upon as an annulment of that plat. This might well be, had there been no sale of lots; but at that time many, if not all, the lots had been sold. The right to the use and enjoyment of this Water street for a street and public landing, appertained to these lots as a valuable privilege, and the legislature did not undertake to do the unjust thing of destroying such rights; but the act of vacation contained the express proviso that the act should not interfere with, or prejudice, the rights of any individual or individuals who might have become the purchaser of any lot or lots in the town. The evidence, perhaps, does not show distinctly that all of the lots had then been sold, but it warrants the conclusion that a large number, if not all, had been sold. The interests of these lot owners, by its express terms, are unaffected by the act, and it is through this village corporation that they may be protected and asserted. The legal title to the streets is vested in the corporation, for the use and benefit of the lot owners and the public. It does not matter that the town had no corporate existence at the time the act was passed. If the town has not a corporate existence, the fee in the streets remains in abeyance, subject to vest in the corporation the moment it is created. (Canal Trustees v. Haven, 11 Ill. 554; Gebhardt v. Reeves, 75 id. 301.) We must regard this vacating act as inoperative upon any rights here involved. Finding, as we do, the boundary of Water street to be on the Mississippi river, the stre’et extended to the center of the river. Grants of land bounded on rivers or upon their margins, above, tide water, carry the exclusive right and title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge of the river. (Braxon v. Bressler, 64 Ill. 488, and authorities there cited.) The premises in question, then, were in Water street, of the village of Brooklyn. It appears from the evidence that Water street was ever regarded by the inhabitants of the village as extending to the river,' and so used, with no pretense ever made of any private claim to the contrary, until in 1873, when Mrs. Purdy went upon the river front and fenced a portion of it, claiming title, as her husband says, under deeds from the heirs of Osborn. No deeds were shown in evidence. But supposing there had been shown deeds from Osborn’s heirs, they would have conveyed but Osborn’s interest, which at most could have been only a one-fifth interest, as one of the five original proprietors. But Osborn left no interest to descend and be conveyed. The acknowledgment by him and recording of the original plat, had all the force of an express grant to convey from him the land embraced by Water street, and vest it in the corporation of the village. (Canal Trustees v. Haven, supra.) The corporation was the owner in fee of the streets. In Washington Ice Co. v. Shortall, 101 Ill. 46, we held ice formed upon a stream of water to belong to the owner of the bed of the stream. The case presented seems to be that of an intruder upon the public street of a village seeking an injunction against the village authorities to prevent their interference with his operations in cutting and removing ice from the street—that is, a trespasser asking against the legal owner freedom from interruption in the despoilment of the latter’s property. We perceive no right in the complainant which may lay claim to the interposition of a court of equity for its protection. The decree will be reversed, and -the cause remanded for further proceedings in conformity with this opinion. Decree reversed. Mr. Justice Mulkey dissenting.