City of Chicago v. Drexel

Mr. Justice Bailey delivered the opinion of the Court: It seems to us to be very clear that Hundley’s subdivision of lots 3 to 21 and 33 to 37, inclusive, in Pine Grove, was not in conformity with the statute, and therefore did not operate as a statutory dedication or conveyance to any municipal corporation, or to the public, of any portion of the lands subdivided, for the purposes of public streets or highways. The plat of said subdivision was made, acknowledged and recorded October 24, 1855, and while the provisions of the Revised Statutes of 1845, in relation to plats of subdivisions of land and their legal effect were in force. Said statutes provided, that when any person wished to lay out a town, or an addition or subdivision of out-lots, he should cause the same to be surveyed, and a plat or map thereof made by the county surveyor, “which plat or map shall particularly describe and set forth all the streets, alleys, commons or public grounds, and all in and out-lots, or fractional lots, within, adjoining or adjacent to said town, giving the names, widths, corners, boundaries and extent .of all such streets and alleys.” Such plat or map was required to be certified, acknowledged and recorded, and it was then provided that when that was done, said map or plat should be deemed in law and in equity a sufficient conveyance, to vest the fee simple.of the streets, alleys, ways, etc., indicated thereon, in the corporate authorities of the town or city, in trust, for the uses and purposes therein set forth and expressed or intended. R. S. 1845, chap. 25, div. 1, secs. 17-21. In one very material respect at least, Hundley’s subdivision failed to comply with these statutory requirements. Ho names were given of any streets, alleys or public grounds, nor were any portion of the lands depicted on said plat even designated as streets. Particularly is it true that no name or designation whatever was given to the strip of land lying between the easterly lines of blocks 6, 7 and 12 and the lake. The statute having expressly required that plats of subdivisions of land shall give the names of streets, it must be assumed that the giving of such names was intended by the Legislature as one of the essential and necessary evidences of an intention to grant lands to the public for street purposes, and where such requirement is not complied with, either literally or in substance, the plat can not have the force of a statutory conveyance. In Village of Auburn v. Goodwin, 128 Ill. 57, a case arising under the provisions of the Revised Statutes of 1845, we held that a plat not made out, certified and acknowledged substantially as required by said statutes, afforded no evidence of title in the municipal corporation to' the streets and alleys. In Village of Princeville v. Auten, 77 Ill. 325, the proprietors of land, in laying out and platting a village thereon, left a square blank, without any designation of its purpose, except that it was not divided into lots, and although it appeared from extrinsic evidence that the makers of the plat intended the square for public use, it was held that the plat did not constitute, under the statute, a conveyance of said square to the municipal corporation, or a statutory dedication of it to the public. In Village of Winnetka v. Prouty, 107 Ill. 218, it was held that the failure to indicate upon a plat the names of the spaces claimed to have been intended for streets, or to even call them streets, and also the failure to indicate the length and width of such spaces, was fatal to the operation of the plat as a statutory dedication or conveyance of the fee to the public. See also Town of Lake View v. Le Bahn, 120 Ill. 100. We are also of the opinion that the city of Chicago is precluded from claiming the fee in the strip of land in controversy, the title with which it would be vested if said plat could be held to operate as a statutory dedication, by the judgment in the ejectment suit set up in the bill. The city of Chicago, the defendant here, is the successor and therefore in privity with the town of Lake View, the plaintiff in that suit, and Anthony J. Drexel, the complainant here is the remote grantee, and therefore in privity with Oliver Ditson, one of the defendants to that suit, and said judgment is binding upon the present parties by virtue of such privity. The judgment in that suit was conclusive on the parties thereto that, at the time said suit was instituted, the town of Lake View was not vested with the fee to said strip of land, and it has the same conclusiveness here as between the present parties. But it is claimed that Oliver Ditson, though named as a party defendant to said ejectment suit, was not served with process and did not appear, and that he was therefore no party to said judgment, and that neither he nor his privies can take advantage of it. The conclusive answer to this contention is, that prior to the hearing of the present bill, a stipulation was entered into between the complainant and defendant, by which various admissions as to the facts at issue were made, and particularly, that Mason, the two Kohlsaats and said Ditson were the defendants to said ejectment suit; that said defendants-pleaded not guilty, and that upon the trial a verdict was rendered finding said defendants not guilty, and that judgment was thereupon rendered on said verdict in favor of said defendants. A solemn stipulation by a party as to the facts, so long as it stands, is conclusive between them, and can not be met by evidence tending to show that the facts are otherwise. If a stipulation has been entered into unadvisedly or through misinformation, the party injured should seek, by some direct proceeding, to have is set aside and cancelled, but such party will not he permitted to dispute by evidence a fact solemnly admitted by such stipulation, the stipulation being still in force. Evidence was "offered tending to show that Ditson was not in fact served with process and did not appear in the ejectment suit, but in view of the stipulation by the city to the contrary, the court below was justified in disregarding such evidence. There being an entire failure to show a statutory dedication of the strip of land in question for the purposes of a street, the question remains whether the evidence is sufficient to' establish a common law dedication. To prove such dedication, both an intention on the part of the owner of the land to-make it, and an acceptance of such dedication by the proper public authorities must be shown, and the proof as to these facts must be clear and unequivocal. As said in Grube v. Nichols, 36 Ill, 92: “To make a sufficient dedication, the owner of the soil must devote the right of way to public use, and it must be accepted and appropriated by the public to that use by travel, and a recognition as a public highway by the proper authorities, by repairs or otherwise. But when a dedication is relied upon to establish the right, the acts of both the donor and the public authorities should be unequivocal and satisfactory of the design to dedicate on the one hand and to accept and appropriate to public use on the other.” See also Trustees v. Walsh, 57 Ill. 363; Kyle v. Town of Logan, 87 id. 64. It must of course be conceded that where the owner of a tract of land subdivides it, and makes, acknowledges and records a plat of his subdivision, designating thereon certain strips of land as streets or highways, such plat, though not made in accordance with statutory requirements, will be evidence of an intention, as well as of an offer, to dedicate to the public a right of way over the strips of land thus designated, as at common law. Trustees v. Walsh, supra; Gould v. Howe, 131 Ill. 490. The plat in this case, however, fails to designate any strips of land as public streets or highways, all that appears on it being, certain blocks of designated dimensions and numbers, part of which are subdivided into lots consecutively numbered, with strips of land of certain designated widths lying between the blocks. Nothing appears, apart from their form, location and dimensions, indicating the purpose for which said strips of land are laid out, or to which it was the intention of the maker of the plat to devote them. Now while it may be true that, notwithstanding all this, the plat when considered in connection with other evidence in the case, may furnish some evidence of an intention to dedicate said strips of land to the public for the purposes of streets or highways, its force, when considered alone, is very greatly weakened by the fact above noted, that no parts of the land subdivided are designated as streets or highways. There is no rule of law which forbids the subdivision of land by the owner in such way as to establish over it only private ways for the sole benefit of those who may become owners of lots in the subdivision, and in which the public, as such, will have no interest and over which it will have no control, and we are unable to see that the plat in question may not be, so far as is shown by anything appearing on its face, quite as consistent with such intention, as with an intention to donate a right of way over such land to the public. It should be observed that no question as to the private rights of the owners of lots in said subdivision is before us. No private owners of lots are parties to the bill, and so far as we are advised, none of them are desiring to contest the relief which the complainant is seeking by his bill to obtain as against the city of Chicago. It may be admitted that owners of lots in said subdivision who have purchased by the plat, are entitled to certain easements in and over the grounds laid off on said plat as ways, but their right to such easements has no tendency to establish the title of the city to said ways' as public streets or highways. The evidence principally relied upon by the city to establish a common law dedication of the strip of land lying between the easterly lines of blocks 6, 7 and 12 and the lake as a public street, consists of the testimony of witnesses as to declarations of Hundley at the time the plat was executed, and at various times thereafter, down to the date of his conveyance of his interest in said strip of land to the remote grantors of the complainant. This evidence is quite voluminous, and tends to prove declarations by Hundley, some of which were to the effect that said strip of land was a public street, or would be a public street, and other declarations to the effect that he had never dedicated said land to the public, but merely for the benéfit of lot owners. Some of these declarations, if made in the language attributed to Hundley by the witnesses, would have a strong tendency to show an intention on his part to dedicate, or perhaps an actual dedication. But when the whole evidence is taken together, especially in view of the fact that its value depends upon the accuracy of the memories of witnesses as to conversations which took place from twenty to thirty-five years before their testimony was taken, we are unable to say that it furnishes that clear and unequivocal evidence of an intention to make the dedication which the law requires. But the city, in its effort to establish its right to the use of said strip of land as a public street, is confronted by another obstacle which is equally insurmountable, viz., the absence of evidence tending to show an acceptance of the alleged dedication by any competent public authority. Said strip of land consists of a sandy beach, sometimes of greater and sometimes of lesser width, dependent upon the action of the waters of the lake, the action of said waters having, at certain times, proceeded so far as to cut entirely through said strip and to wash away a part of said block 12. To prevent the encroachments of the lake and thus save their property from destruction, the owners of block 12 have been compelled, at very considerable expense, to drive piles and construct piers east of said block and in said strip of land. The evidence tends to show that, with the exception of a short time during which a way constructed by private parties, was maintained over it, said strip of land is and always has been substantially in its natural state, being a rough, uneven, sandy shore, with numerous depressions and elevations, and wholly unfit for public travel. We fail to find in the record any clear, distinct or unequivocal evidence of an acceptance of said dedication prior to September 18, 1871, the date at which Hundley executed to Nixon a deed purporting to convey to him all the grantor’s interest in that part of section 21, etc., lying east of said block 12. In fact, we find no evidence of any acts of the authorities of said town during that entire period of over fifteen years, even tending to establish an acceptance or an intention to accept a dedication of the strip of land on the lake shore for a street. As tending to show an acceptance of the dedication, reliance is placed upon certain proceedings of the board of trustees of the town of Lake View at a meeting of said board held November 14, 1870. At that meeting a petition on behalf of the Lake View Avenue Company, a private corporation organized for the purpose of constructing a drive or roadway along the lake shore, from a point north of the premises in question to a point south of said premises, was presented to said board,, signed by Samuel H. Kerfoot, the secretary of said company, requesting permission to construct its drive or roadway on the street known as Sedgwick street, extending from Diversey street to Walsh street, “and on the highway lying east of blocks 6, 7 and 12, in Hundley’s re-subdivision,” etc. It appears that a motion was made and carried granting said petition, but that said motion was immediately thereafter reconsidered, and the matter postponed to a subsequent meeting. At a meeting of said board held December 10, 1870, the said petition was again considered and a resolution passed appointing a committee, with power to act, to confer with said company, in relation to the right of way over and across the streets and alleys indicated by the plat of its route and petition, and to arrange terms and conditions upon which the right of way be granted said company. Said committee was appointed, but there is no evidence that anything further was done, but it appears that said company soon after abandoned its scheme, and no further action seems to have been taken in the matter of said petition. We are unable to see any tendency in this evidence to prove any acceptance by the town of Lake View of the dedication of the land in question for a street. The only reference to said strip of land as being, a street is found in the petition of the company seeking to obtain a right of way over it and even. if the vote granting the petition could be regarded as a recognition of the truthfulness of the fact assumed by the petition, the vote by which the petition was granted was immediately reconsidered, thus placing the whole matter in the same situation as though no action had been taken. In the subsequent action of the board there is nothing furnishing any indication, one way or the other, as to whether the town board intended to treat the strip of land in question as a street or not. Placing upon this evidence the construction most favorable to the city, it is manifestly too vague, uncertain and equivocal to fill the legal requirements in relation to proof of an acceptance of a dedication. It is also urged that the acceptance by the municipal authorities of the town of Lake View of other streets in said Hundley’s subdivision is to be regarded as a constructive acceptance of a street over the strip of land in question. The rule, which seems to be abundantly supported by the authorities, is, that when a person, in platting property, maps out streets thereon, the authorities may accept them in whole or in part. An acceptance of a part is no acceptance of the whole. Field v. Manchester, 32 Mich. 279; Kennedy v. Cumberland, 65 Md. 514; Bell v. City of Burlington, 68 Iowa, 296 ; State v. Trask, 6 Vt. 355; Wolfskill v. Los Angeles, 86 Cal. 405; Hall v. City of Meriden, 48 Conn. 416; Village of Winnetka v. Prouty, 107 Ill. 218. The authorities also seem to be clear that, since to render a dedication complete and effectual, it must be accepted by the public, it is, before acceptance, a mere offer, which the owner of the land may revoke at any time. County of Wayne v. Miller, 31 Mich. 447; Field v. Manchester, 32 id. 279; Baker v. Johnson, 21 id. 319; Philips v. Day, 82 Cal. 24; Wolfskill v. Los Angeles, supra; Forhes v. Balenseifer, 74 Ill. 183; Village of Winnetka v. Prouty, 107 id. 218; Trustees v. Walsh, 57 id. 363; Littler v. City of Lincoln, 106 id. 353; Mills’ Thompson on Highways, (5th ed.) 52. We are of the opinion that Hundley’s conveyance of the ’ strip of land in question to Nixon September 18, 1871, was in law a revocation of his offer to dedicate said land to the public for the purposes of a public street, and that no acceptance of the dedication by the authorities, of said town or its successors subsequent to that date could be of any avail. We think, in view of the entire record, that the decree of the Superior Court is right, and it will therefore be affirmed. Decree affirmed.