Barney v. Board of Commissioners

Mr. Chief Justice Hand delivered the opinion of the court: A preliminary question is raised by the appellants as to the effect of the findings of fact by the master. No objections to his report having been filed with the master, the contention is made that the findings of fact by the master, for want of such objections, were binding upon the chancellor and binding upon this court. The general rule is, that where no objections are filed to the master’s report the findings of fact of the master are conclusive. (Cheltenham Improvement Co. v. Whitehead, 128 Ill. 279; Gehrke v. Gehrke, 190 id. 166.) We are of the opinion, however, when exceptions are filed in court to the master’s report, both as to questions of fact and conclusions of law, and they are heard by the -chancellor and sustained, the attention of the chancellor not having been called to the fact that no objections were made to the report before the master, that the fact that no objections were made to the report before' the master will be deemed to have been waived, and that the question of the lack of such objections cannot be raised in this court for the first time. Had that question been raised in apt time in the court below, the case could have been re-referred and the defect in the record cured. An objection that can be cured must be made in the lower court in apt time, otherwise it will be deemed to have been waived, (National Bank of Lawrence County v. LeMoyne, 127 Ill. 253,) as the rule is of general application that where a party fails to object in apt time but acquiesces in his adversary’s mode of conducting a case, he will not be permitted to make an objection for the first time in this court which he failed to make at the proper time below. Kankakee and Illinois River Railroad Co. v. Chester, 62 Ill. 235. The agreement between Caroline McCagg and the Lincoln Park commissioners provided, in substance, that the park commissioners should take possession of said premises for park purposes, improve the same and perpetually hold and enjoy the same. We construe said agreement to transfer a permanent interest in the premises covered thereby to the Lincoln Park commissioners for park purposes, which interest can only be taken from them upon the fact being shown that the use of the premises for the purposes for which they were transferred has been abandoned by the park commissioners or the use thereof diverted from the purposes of the original grant, neither of which conditions of fact is made to appear by the evidence found in this record. Neither can it be held that the right to use the premises conferred upon the park commissioners by said agreement was revoked by the conveyance to Cooper, or otherwise. While the consideration named in the agreement was one dollar, it is apparent that the extension of the Lake Shore drive, the reclaiming of said property from overflow, and the maintenance of a park thereon, at the expense of the park commissioners, free from obstruction other than trees and shrubbery, in front of the property abutting thereon, which was retained by Caroline McCagg, would be of great value to her by the enhanced value which the proposed improvement would add to her property, and to permit the rights of the park commissioners acquired under said agreement to be arbitrarily destroyed by her or her grantees would be clearly inequitable and unjust. It appears that the park commissioners took immediate possession of the property sought to be improved, including the property in question, so far as property designed for park purposes, similarly situated, could be taken possession of, and from aught that appears in this record, at the time of the commencement of this suit they were proceeding in good faith, with reasonable dispatch, to complete the extension of the Lake Shore drive and improve said property in accordance with their .original plans, and in that state of case a court of equity ought not to permit the rights acquired in said property by the park commissioners to be summarily terminated by Caroline McCagg or her grantees. (Willoughby v. Lawrence, 116 Ill. 11.) We are also of opinion, even though it be conceded that the park commissioners had no power, under the act of 1889, to acquire said lands from Caroline McCagg for park purposes, that by virtue of the act of May 31, 1879, as amended July 1, 1881, (Laws of 1881, p. 116,) which provides that “real and personal property may be granted, bequeathed, devised or conveyed to such commissioners for the purposes of the establishment of any driveway, connected or proposed to be connected, either directly or by means of a public highway or street, with such park, or for the extension, improvement or ornamentation of such park or driveway,” the park commissioners had ample authority and full power to acquire and hold said property for the purposes for which the same was conveyed to them by Caroline McCagg. Furthermore, it appears that the land which was re-claimed from the waters of Lake Michigan was platted and sold by the parties interested therein, with an understanding with the purchasers of said lots that the premises in question should be set aside and maintained by the park commissioners for park purposes, and that Samuel M. Parker marde sale of lots to various purchasers upon such representations, and that the rights acquired by Barney and Bock in the premises, if any, were acquired burdened with such public use, as George E. Gross had full notice that said premises had been dedicated to park purposes at the time he recovered judgment against Cooper, and the agreement between Caroline McCagg and the park commissioners was of record at the time the deficiency decree of Date was entered, through which judgment and decree Barney and Bock claim title, and they having derived title to said premises with knowledge that said premises were dedicated to said public use and purchasers of lots having purchased their property with reference to such public use, they are estopped from claiming said property freed from such public burden. Woollacott v. City of Chicago, 187 Ill. 504; Eisendrath & Co. v. City of Chicago, 192 id. 320; Russell v. City of Lincoln, 200 id. 511. We find no reversible error in this record. The decree of the superior court will therefore be affirmed. Decree affirmed.