McDonald v. Stark

Mr. Justice Craig delivered the opinion of the court: The first question to be determined is, was South Railroad street laid out and platted by Jesse C. Wheaton as a street four rods wide opposite block 4? The original plat of the town of Wheaton is dated June 20, 1853, and is acknowledged and recorded on the same day and year in DuPage county. July 2, 1855, Jesse C. Wheaton platted and acknowledged an addition known as “Jesse C. Wheaton’s addition to the town of Wheaton,” which was duly recorded July 7, 1855. The original plat of the town of Wheaton and the original plat of Jesse 0. Wheat-on’s addition to the town of Wheaton appear to have been lost, and copies of the original plats were introduced in evidence, which were testified to by abstracters, and persons who had the custody of the original plats before they were lost, as being true and correct copies of the originals. Surveyors who were familiar with the plats, and who made actual surveys, found the record of these plats, and the recitals thereof, to be correct. Appellant insists that there was not sufficient preliminary proof of the loss of the original plats to allow copies of the same to be introduced in evidence. The objection made by appellant was a general objection. If the proper foundation had not been laid for the introduction of copies of the original plats, specific objection should have been made, so that appellees could have had opportunity to supply the wanting proof. (Gillespie v. Gillespie, 159 Ill. 84; Weber v. Mick, 131 id. 520.) An examination, however, of the record shows that proper search was made by the proper custodians of the original plats, in the vault where they were kept and in all places where they would likely be found, but they could not be found. The trial court then properly admitted secondary evidence, or copies of the original plats. On the question of the platted width of South Railroad street, we find that the premises of appellees in the original plat of Wheaton are included in block 10, and while no width of South Railroad street is indicated by figures within the lines of the street, the certificate to the plat recites, “the streets in said town, with the exception of North Railroad street, Main street and East street, are all one chain in width.” South Railroad street not being mentioned among the exceptions, is one chain, or four rods, in width. In the plat of Wheaton’s addition South Railroad street is left the same as in the original plat of the town of Wheaton. By referring- to the plat in the record we find that at the intersection of South Railroad street with West street the figures “100” are marked as showing the width of South Railroad street. The certificate to the plat states, “the distances and chains and links will be found designated in figures of this plat.” This shows that one hundred links, or four rods, was the platted width of the street. The certificate also shows the plat of Jesse 0. Wheaton’s addition to the town of Wheaton to be “a re-survey of blocks 9 and 10 of the original town of Wheaton,” and also, that “the size of all streets and alleys, lots and blocks in this survey can be seen by reference to the annexed plat.” A plat made February 25, 1884, by James M. Vallette, county surveyor of DuPage county, for the city council of Wheaton, shows the width of South Railroad street to be one chain in width, and shows the buildings of the appellant project twenty-five links, or one rod, within the line of the street. An examination of these plats and the descriptive parts of the plats satisfies us that South Railroad street was platted a four-rod street. It is contended by appellant that the authorities of Wheatou have never worked or accepted the street to a greater width than three rods. South Railroad street was accepted by the public authorities, and was worked and improved opposite block 4, where appellees’ property was situated, and three rods of the street has never been obstructed but has been used by the public since it was platted. In Fairbury Agricultural Board v. Holly, 169 Ill. 9, this court said (p. 16): “The appeal concerns only the portion obstructed by appellant, and in its behalf it is argued that there was only an acceptance of those parts of the alley where work was done by putting in the culvert and tile and filling the road, which was on another part. The road was a single, direct strip, and the public could not be required to make repairs where not needed, for the purpose of accepting the whole. The acceptance cannot be confined to the particular spots where the work was done, and the public be deprived of the remainder.” Neither in the case at bar can the acceptance of South Railroad street be confined to the three rods improved, but must be held to be an acceptance of its entire width of four rods, as originally platted. But even if the municipal authorities of Wheaton only worked, or improved three rods of this street, this cannot affect appellees, whose lots abut on South Railroad street. In Zearing v. Raber, 74 Ill. 409, it was said (p. 411): “It is unimportant whether the public have so far accepted the dedication as to be bound to keep the street in repair, since the question involved is simply one of private right, -x- -x- * if appellee is entitled to have the street kept open for use it will be sufficient.” We also in that case approved of the principle laid down in Smith’s Leading Cases, and cited from it as follows: “If one owning land exhibit a map of it, on which a street is defined, though not as yet opened, and building lots be sold by him with reference to a front or rear on that street, or lots be conveyed being described as by streets, (Scheuler v. Commonwealth, 26 Pa. St. 62,) this is an immediate dedication of that street, and the purchasers of lots have a right to have that street thrown open forever.” In the case of Marsh v. Village of Fairbury, 163 Ill. 401, it was said (p. 407): “But in connection with these public rights, those who purchase lots fronting on this park took with reference to the plat and had an appurtenant right therein, which was their own property as a right appurtenant, and that was to have the streets and block 10 remain open for public use. The vendor or those privy to his title would, by his acts in platting and selling lots by this plat, be estopped from enclosing block 10 as a private ground. Such being the case, the question as to whether or not the village authorities accepted the dedication of that block would not defeat the right of individual purchasers from asserting their rights to have the same open forever for the use of the public.” (Earll v. City of Chicago, 136 Ill. 277.) The evidence shows that appellees purchased their respective lots relying on the plat as to the width of said street, and that it should always remain of the width of four rods. Appellant argues that this case has been adjudicated ■once, because one of the appellees, in 1885, made a complaint against the appellant, and a warrant issued in the name of the People for obstructing this north one rod of South Railroad street, and the circuit court dismissed the prosecution on appeal. To make a former action res judicata there must be identity in the thing sued for, identity of the cause of action and identity of persons and parties to the action. The criminal action was in the name of the People of the State of Illinois, and not in the name of appellee Stark, as an individual. There was no identity to the action, and it cannot be a bar to this action. Appellant insists, also, that appellees are not entitled to relief because they were guilty of laches, and acquiesced in appellant’s use of the street, and therefore are estopped from asserting that appellant’s buildings are in the street. The proof shows appellees did not acquiesce in appellant’s use of the north one rod of said South Railroad street. Martin Stark, one of the appellees, made the complaint in the criminal proceedings in the name of the People against appellant for obstructing the street. A notice was also served by Stark on appellant, McDonald, August 29, 1893, notifying him to refrain from erect-. ing an ice house within the lines of South Railroad street, and another notice was served by John Knippin and Stark on April 18, 1895, protesting, as property owners, against McDonald erecting any building on the north side of the street that would obstruct or encroach upon the street at a less width than four rods. These notices, instead of showing acquiescence on the part of appellees, expressly show that appellees remonstrated against appellant obstructing the street, and that appellant knowingly persisted in erecting buildings within the line of said street. The deed received by appellant July 10,1880, from Jesse C. Wheaton was notice to him that the land conveyed abutted on a four-rod street, and his subsequent procurement of a quit-claim deed of the north one rod of the street from Wheaton, who had platted it and had sold lots to others abutting on said street, shows an attempt on appellant’s part to knowingly continue his trespass. In the case of Village of Wayzata v. G. N. Ry. Co. 46 Minn. 505, the court said: “One who enters upon and possesses land of another without right,—a mere trespasser and knowing- he is such,—cannot, no matter to what use he may put it nor how much he may improve or expend upon it, claim that the owner is estopped, by mere delay in ousting him, to seek a remedy, legal or equitable, appropriate to the case. In such case, so long as the latter remains the owner such remedies are open to him unless barred by the statute.” In the case of Mullaney v. Duffy, 145 Ill. 559, this court said (p. 565): “If it is intended to insist that appellee is estopped by conduct from asserting his right, and if it be conceded that such defense is available at law, the effect of the estoppel being to prevent showing the truth, the rule is that it must be strictly made out. Where the estoppel is sought to be established from the silence of the party who, in equity and good conscience, should have spoken, as it is here, if there be any ground of estoppel it is essential that the party should have had knowledge of the facts and the other party have been ignorant of the truth, and have been misled into doing that which he would not have done but for such silence. (Smith v. Newton, 38 Ill. 230; Commercial Ins. Co. v. Ives, 56 id. 402; Noble v. Chrisman, 88 id. 186; Hill v. Blackwelder, 113 id. 283.) The facts which would have led to accurate knowledge of the boundary between the lots were open equally to the parties, and could be availed of by one as readily as the other. Appellant at no time sought information from appellee as to the boundary, nor did appellee at any time do or say anything the effect of which would be to mislead appellant in respect of the same.” Appellees, having an easement in the street, have a rig'ht to have the same kept open its entire width. The evidence shows a statutory plat of the original town of Wheaton, and of Jesse C. Wheaton’s addition to the town of Wheaton, and that South Railroad street was platted four rods in width. The north one rod has been obstructed by appellant. As was said in Zearing v. Raber, supon, (on p. 412): “If the owner of land * * * exhibits a plan of the town, with various plats of spare ground, * * * and sells the lots with clear reference to that plan, the purchasers of the lots acquire, as appurtenant to their lots, every easement, privilege and advantage which the plan represents as belonging to them as a part of the town, or to their owners as citizens of the town. * * * The sale and conveyance of lots in the town and according to its plan imply a grant or covenant to the purchasers that the streets and other public places indicated as such upon the plan shall be forever open to the use of the public, free from all claim or interference of the proprietor inconsistent with such use.” Maywood Co. v. Village of Maywood, 118 Ill. 61. The evidence shows appellees are entitled to the relief prayed for in the bill, irrespective of the rights of the city of Wheaton. The evidence also shows the obstructions are a nuisance and threaten to become permanent, and are injurious to the property of appellees, which is a well recognized ground for equitable interposition. The decree of the circuit court is affirmed. Decree affirmed. Mr. Justice Phillips, dissenting.