Jordan v. City of Chenoa

Mr. Justice Craig delivered the opinion of the court: Hamilton’s first addition to Chenoa was laid out, platted and acknowledged, as required by law, on the 26th day of August, 1866, and the plat was duly recorded in the recorder’s office of McLean county on November 20, 1886. At the time the addition was laid out the lots were open and unenclosed prairie. In 1867 the appellant, Jordan, purchased lot 3, and on the third day of April, 1875, he purchased of one Peters the west half of lot 1 and all of lot 2. On the 17th of May, 1875, he purchased the west half of lot 4, and in 1894 he purchased the east half of lot 1. The city authorities of the city of Chenoa never took possession of the alley running east and west through block 15 and never did any work upon it, and there never was any travel over it. In 1867 Jordan enclosed lot 3, and about the year 1870 Peters enclosed lot 2, and in fencing their respective lots the alley between them was fenced up, and in the spring of 1875, when Jordan purchased the west half of lot 1 and the west half of lot 4, the alley, as platted, between these half lots was fenced up. It thus appears that a part of the alley in controversy was fenced up for at least twenty-seven years and the remainder for over twenty years, and during that time no effort whatever was made by the city to open or improve it. Indeed, no action was ever taken by the city in reference to the alley until in July, 1895, when an attempt was made to open it by force, and after a part of the obstructions was removed an injunction was obtained to prevent appellant from regaining possession of the property. Under the facts as presented by the record the question presented is, whether the title to the alley in July, 1895, was in the city of Chenoa, and whether the city authorities at that time had the right to open it, as they attempted to do. It may be conceded that a plat of a town, properly certified, acknowledged and recorded as required by the statute, when accepted by the municipality, operates as a conveyance in fee of the streets and alleys contained in the plat. But there must be an acceptance by the municipality. In Littler v. City of Lincoln, 106 Ill. 353, we had occasion to consider the effect of a proposed dedication like the one in question, and it was there held that until acceptance of a proposed dedication by the municipal authorities of a city or town, although the original proprietor may be estopped to deny a dedication of the streets and alleys as against intervening rights, his acts in platting an addition to the city or town, and acknowledging and recording such plat, are in the nature of a mere offer to the municipality, and until the proper authorities accept the dedication they cannot be bound, by mandamus or otherwise, to open or improve the streets, and until such acceptance they can have no right in the streets, as trustees or otherwise, and that an acceptance of the dedication cannot be presumed from mere proof of the execution and recording of the plat. Here, as has been seen, the plat was made and recorded in 1866, but the city of Chenoa took no action in regard to the alley in question until July, 1895. Had the city intended an acceptance, surely some act would have been done indicating that intention before the expiration of twenty-nine years. But it is said that the city took control of a part of the streets named in the plat of the addition, and an acceptance of a part may be regarded as an acceptance of all the streets and alleys named in the plat of the addition. That question arose in City of Chicago v. Drexel, 141 Ill. 89, and we there held that an acceptance of a part was not an acceptance of the whole. In the discussion of the question it is there said (p. 109): “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, (citing authorities). 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.” But if there had been here an acceptance, in the first instance, upon the execution and recording of the plat, there was such an abandonment or non-user on behalf of the city as would prevent it from asserting the acceptance when it attempted to open the alley in July, 1895. The appellant had been in the open and notorious possession of the west three-fourths of the block, including the alleged alley, for more than twenty years. He had trees growing in the alley, a house standing on a part of it and a hedge fence growing across the end of it, and he had used it as his own property without objection from any quarter. In City of Peoria v. Johnston, 56 Ill. 45, it was held that where ground upon which a highway was laid out, or which was dedicated for that purpose, has been in the open and exclusive adverse possession of the owner of the land for twenty years, and a complete nonuser of the easement by the public during that time, an extinguishment will be presumed. In Village of Winnetka v. Prouty, 107 Ill. 218, where an alleged street between two blocks had been fenced for twenty years, and the public authorities acquiesced in the inclosure of such street for that time, it was held that there was such an abandonment by the public as would preclude the opening of the street. Village of Auburn v. Goodwin, 128 Ill. 57, is a case also in point. There an action was brought by the village to recover possession of certain alleys in block 3, in Buck’s addition to the town of New Auburn. Among other defenses, abandonment or non-user was relied upon to defeat a recovery. There, as here, it appeared the alleys had been fenced up for over twenty years, and no effort had been made by the village authorities to remove the obstructions. In the decision of the case, after referring to Peoria v. Johnston and Winnetka v. Prouty, it was said (p. 67): “This doctrine is supported by other decisions of this court, and the evidence in the case before us brings it clearly within the rule announced. The alley running east and west, and the south half of that running north and south, have been in the open, adverse and exclusive possession of appellees for nearly thirty years, and the whole of the one north and south for more than twenty years, prior to the bringing of the suit. We are of opinion that there has been such non-user on the part of appellant as to bar its right of recovery.” It is not claimed, nor could it be successfuUyq that the Statute of Limitations has run against the city. Municipal corporations, in all matters involving mere private rights, are subject to limitation laws in like manner as individuals, but in all matters involving public rights they are not subject to the limitation laws as such. (County of Piatt v. Goodell, 97 Ill. 84.) Where streets and alleys have been dedicated and accepted they are held by the municipality in' its public capacity. They are held in trust for the benefit of the general public, and when so held the Statute of Limitations will not run in favor of a private individual to bar the rights of the public. But while the Statute of Limitations does not apply in cases of this character, the defense of equitable estoppel from abandonment or non-user may be invoked. As an illustration of this doctrine, in Lee v. Town of Mound Station, 118 Ill. 304, in the discussion of the question, it was said (p. 317): “It is true that we have held that where the public have long withheld the assertion of control over streets, and private parties have been, by the acts of those representing the public, induced to believe the streets abandoned by the public, and on the faith of that belief, and with the acquiescence of those representing the public, they have placed themselves, by making structures or improvements in the street, in a situation where they must suffer great pecuniary loss if those representing the public be allowed afterwards to allege that the street was not abandoned, the doctrine of equitable estoppel may be applied.” Under the rule established by the cases cited, we think it is clear the city of Chenoa, in July, 1895, had no right to open the alleged alley. The court therefore erred in rendering a decree making the injunction perpetual. That decree will be reversed and the cause remanded, with directions to dismiss the bill. Reversed and remanded.