Littler v. City of Lincoln

Mr. Justice Scholfield delivered the opinion of the Court: In the view we take of this case it is not necessary to consider the effect of the action of the city council in response to appellant’s petition of November 18, 1878, to vacate the portion of the plat therein described. By the statute then and still in force, it was and is provided, by section 6, of chapter 109, Rev. Stat. 1874: “Any such plat”—i. e., plat of a town, or addition thereto,—“may be vacated by the owner of the premises at any time before the sale of any lot therein, by a written instrument declaring the same to be vacated, executed, acknowledged or proved, and recorded in like manner as deeds of land; which declaration, being duly recorded, shall operate to destroy the force and effect of the recording of the plat so vacated, and to divest all public rights in the streets, alleys and public grounds, and all dedications laid out or described in such plat. When lots have been sold, the plat may be vacated, in the manner herein provided, by all the owners of lots in such plat joining in the execution of such writing.” And by section 7 of the same chapter, that “any part of a plat may be vacated in the manner provided in the preceding section, and subject to the condition therein prescribed: Provided, such vacation shall not abridge or destroy any of the rights or privileges of other proprietors in such plat: And provided, further, that nothing contained in this section shall authorize the closing or obstructing of any public highway laid out according to law.” This does not require the concurrence or joint action of the city council of cities, or board of trustees of villages, with the owner of the premises, but allows him, of his own volition alone, subject to the restrictions and qualifications mentioned, to vacate the plat, or part of plat, by his deed declaring that fact. Chapter 145 of the same statute has no reference to such vacations, but relates exclusively to the vacation of streets and alleys by municipal authorities. Appellant, by his deed of April 29, 1879, declares so much of the town plat as includes the streets he is charged with obstructing, vacated. The deed recites that he is owner of all the lots and blocks within the territory declared vacated, and this must be accepted as true unless it has been overcome by other evidence. Counsel for appellee claim that it has been so overcome: First, by a statement in appellant’s petition to the city council praying that body to vacate the same part of the plat; second, by two quitclaim deeds made to appellant, subsequent to the date of his deed of vacation, for lots within the territory assumed to be vacated; and third, by evidence of a witness, testifying, orally, that certain lots and blocks described by him were occupied at the date of appellant’s deed of vacation, etc. First—Appellant’s petition to the city council represented that he was the owner of all the lots and blocks in the territory within 'which he sought to have the plat vacated, except two lots belonging to the estate of-Bell, in block 152. It was not therein shown, nor has it been otherwise shown, that there was any serious hindrance to his acquiring the title to those two lots. That petition was dated on the 18th of November, 1878, and, as has been shown, his deed of vacation was dated April 29, 1879,—surely long enough subsequently to have enabled him to acquire the title to these lots. It can not, in a country like ours, where real estate changes hands with almost the same facility and rapidity as personal property, be held that because an individual did not own real estaté on the 18th of November, it conclusively follows that he did not own it on the 29th of the following April. At all events, we think the assertion of ownership at the last named date, in a matter wherein such assertion became material, as it did, in executing a deed of vacation, is sufficient to overcome the presumption of continued non-ownership, resulting from the admission that he did not own it at the first named date. Second—Quitclaim deeds, and even warranty deeds, do not prove that the grantee had no prior title. It is within every day’s experience that persons, out of abundance of caution, take deeds from different parties for the same real estate. It shows the party purchasing fears there may be superiority in the title he purchases; but it is not in fact or in theory an admission that he does not already have the superior title. Sparrow v. Kingman, 1 N. Y. (1 Comst.) 246, et seq.; Schuchman v. Garrett, 16 Cal. 100; Cannon v. Stockman, 36 id. 539; Watkins v. Holman, 16 Peters, 25. The statute, we have seen, where lots or blocks have been sold, only requires the concurrence of all the owners of lots and blocks within the territory to be vacated, and, of course, if the petitioner has become sole owner of such lots and blocks, no concurrence of others can be wanting. And where, as here, the object is simply to vacate a part of the plat, it is only required that the owner or owners of the lots and blocks within the part sought to be vacated shall execute the deed; but it is not prescribed what the deed shall contain, further than that it shall declare the plat or part of plat vacated. The party or parties vacating must be exclusive owner or owners of the lots and blocks; but it is not required that- the deed shall make exhibit of his .title, nor recite how he became sole owner. The effect is, as we conceive, precisely as in the case of any other deed. Prima facie it is valid and conclusive, but it may be impeached by showing that the party making it did not possess the capacity. The prima facie case made by the production of the instrument itself, must be overcome by satisfactory evidence of the disability of the party to make it. If, at the date of this deed of vacation, there was an outstanding title to any of these lots or blocks, it could have been readily shown by the original deeds or by the public records, and it should have been thus proven. Third—The evidence of occupancy of certain lots is not necessarily repugnant to appellant’s claim of ownership. For aught that appears the occupants may have been in possession as his tenants. But leaving out this view, the evidence, in our opinion, is wholly inconsequential. The blocks described by the witness as being occupied are 127, 128, 107, 110, 130, 147 and 150. As we understand the evidence, these blocks all lie east of Adams street, and therefore beyond the territory involved in the controversy, and not one of them is included -in the deed of vacation. It is true, all of them, except 128, front on Adams street, and that street forms the eastern boundary of the part of the plat which the deed assumes to vacate; but that street is not affected by the deed, and has not been obstructed by appellant. The stipulation expressly admits that the obstruction complained of consists of a board fence, constructed by order of appellant, so as to inclose “all the lots and blocks in Knapp, Bird & Tinsley’s addition to the town of Postville, (now city of Lincoln,) county of Logan, and State of Illinois, that lie north of Eleventh street and west of Adams street; * s * -(¡hat none of the streets outside of said inclosure, to-wit, Adams street and Seventeenth street, in said city of Lincoln, are inclosed by said fence.” And the stipulation also further expressly admits that “all the lots and blocks embraced in and included by the fence which constitutes the obstruction complained of, were vacant and unoccupied at the time of the building of the fence, and that there are, on all sides of the tract inclosed, public streets,— none less than sixty feet wide.” The rights or privileges of other proprietors in the plat, which the statute protects, are necessarily legal rights and privileges, and such parties can not, therefore, be affected by the closing of streets not adjacent to their property, nor directly affording access thereto and egress therefrom. Chicago et al. v. Union Building Association, 102 Ill. 379. Giving the effect we have indicated to the deed of vacation of April 29, 1879, the portion of the plat therein described was then vacated. But that territory was replatted by appellant, and made an addition to the city by his plat of date May 22, 1879, and it only remains to inquire whether that plat was vacated by appellant’s deed of vacation of March 23, 1881. The stipulation admits that appellant, at that time, owned all lots and blocks embraced in that plat, and so no question in that regard arises on this deed. What we have said in other respects of the deed of April 29, 1879, applies with equal force to this deed, and need not be repeated. The chief objection urged against this deed, upon the assumption that the plat thereby sought to be vacated was valid, is, that it violates a contract between appellant and the city. But, in our opinion, this is clearly a misapprehension. The city parted with no property right as a consideration for its assent to this vacation. The stipulation admits “that all of the streets shown to exist on the plats above referred to never were worked or improved in any way, nor were they ever used or traveled by the public, said entire tract of land being now covered with a blue-grass sod, and from its general appearance it is impossible to locate any of the streets or alleys attempted to be vacated, and it has been in that condition for at least twenty years last passed. ” The general doctrine has been repeatedly recognized by this court, that to constitute a complete dedication there must be an acceptance. It is not essential that there should be any prescribed formal act of acceptance, but there must be user, or some other act indicating acceptance, by those authorized in such matters to represent the public, to complete the dedication. Gentleman v. Soule, 32 Ill. 271; Rees v. City of Chicago, 38 id. 322; Illinois Ins. Co. v. Littlefield, 67 id. 368; Town of Princeton v. Templeton, 71 id. 68; Fisk v. Town of Havana, 88 id. 208. It was never intended by our statutes that owners of property, by making plats "of additions to cities and villages, could compel the municipal authorities to accept the dedications thereby declared, change municipal boundaries to correspond therewith, and open and work the streets as marked on such plats, for if this might be done, the boundaries of municipalities, and the location, extent and width of streets, would largely depend on the will of property owners, and not on the judgment of the proper municipal authorities. But an examination of the statutes will show, that so far from this being the fact, the making and filing of the plat of an addition does not, of itself, bring the territory platted within the jurisdiction of the municipal authority. It may appear upon the records as part of the plat of the city or village, and yet not be within the boundaries of the city or village government; and, likewise, territory of which no plat is filed may be included within the boundaries of the city or village government. See chap. 109, Rev. Stat. 1874; and sec. 5, art. 1, sec. 1, art. 5, of chap. 24, Rev. Stat. 1874; sec. 16, art. 3, of chapter 24, same statute; and sec. 195, et seq., of same chapter; and, also, act of May 29, 1879, Laws 1879, p. 77. And where the municipality is organized under a special charter, the charter defines the territorial extent and boundaries of the municipality. (Dillon on Mun. Corp. (1st ed.) sec. 124.) And so, until acceptance by the municipality, although the owner is estopped to deny the dedication whenever private rights intervene, the act of the owner in platting, etc., is in the nature of a mere offer to the municipality. Until the municipality accepts, it can not be bound, by mandamus or otherwise, to open or improve the streets; and until then, it necessarily can have no rights in the streets, as trustee or otherwise. In the case of a deed by A to B, it is, in general terms, said, the deed vests the fee in B, but B can not be compelled to accept; and if a burden is imposed by the deed, an acceptance can not be assumed from the mere fact that the deed is executed. 1 Washburn on Real Estate, (2d ed.) 311, *315; 2 id. 607, *581; Hulick v. Scovil, 4 Gilm. 177, et seq.; Union Mutual Ins. Co. et al. v. Campbell, 95 Ill. 284, et seq. So here, where the plat, if accepted as a conveyance, imposes the burden on the city authorities to open, improve and keep in répair the streets, the acceptance can not be assumed from the mere proof of execution of the plat. See City of Chicago v. Gosselin, 4 Bradw. 573; State v. Trask, 6 Vt. 355; Underwood v. Stuyvesant, 19 Johns. 181; City of Oswego v. Oswego Canal Co. 6 N. Y. 257; Holdame v. Trustees of the Village of Cold, Spring, 21 id. 474; Commissioners v. Taylor, 2 Bay, 282; Dillon on Mun. Corp. (1st ed.) sec. 505, and note 2,—and it is upon this doctrine that secs. 6 and 7, of chap. 109, proceed. Where no private rights in the lots or blocks are involved, and no public highway has been laid out according to law, no one has an interest which can be adversely affected by the vacation. No trust is, in such case, assumed by the municipality, and no duties which concern the public are imposed upon it. The vacation can, therefore, take from the municipality nothing, in the sense of property, which belongs to it. It has nothing of a property nature to confer upon the private owner which can form the consideration for a contract. Our conclusion, therefore, necessarily is, no contract has been violated by this deed of vacation. It is to be observed, the vacation of a plat has nothing to do with streets laid out by municipal authority, and it forms no impediment to the future laying out of streets across the territory affected,—it simply has the effect to withdraw the proposed dedication, and leave the municipality to act with reference to the territory as it would had the plat never been made and filed. It is quite clear there was no public or private right here affected by the deed of vacation. The conviction, in our opinion, was wrong. The judgment must be reversed, and the cause remanded for further proceedings consistent with this opinion. Judgment reversed.