Owen v. Village of Brookport

Mr. Justice Magruder delivered the opinion of the court: The property in controversy in this case is the levee, or water front, in Brookport, Illinois, and comprises the sloping bank of the Ohio river, situated in front of the town. The proof tends to show that at times the Ohio river rises, so that the north line of the river upon the river front of Brooklyn shifts; in time of high water it is further north than in time of low water. The space of ground between the tier of lots, commencing" at lot No. 1 and running to lot No. 30—which front to the south upon the north side of Water street—and the low-water mark of the river has no other designation upon the map than “Water street.” Water street is the first street back from the Ohio river, on the north bank of which the town is located. It is the street that runs up and down the river immediately south of and in front of the first tier of town lots and blocks, as designated on the plat. Whether or not Water street embraces the whole of the space between this tier of lots .'and the river is one of the disputed points in the case. In other words, the main issue is the location of the south boundary line of Water street; that is to say, whether the boundary line is on top of the bank, as it is called in the arguments of counsel, or at the foot of the bank. The strip of ground in controversy is about 1600 feet long and varies in width from 100 feet to 150 feet. First—The plat, which was made in August, 1850, and recorded on September 28, 1850, yms not acknowledged, as required by the statute, and, therefore, there was no statutory dedication, by the making, and recording of the plat, of the land embraced within the streets designated thereon. But there was here a common law dedication of such land. ' If the plat or map had been made in accordance with the statute, and properly acknowledged and recorded, so that it would operate as a statutory dedication, the fee in the streets, or land dedicated, would have been vested in the corporation in trust for the public. But the plat, not having been acknowledged in conformity with the statute, so that it operated as a common law dedication only; the title to the streets vested in the adjoining owners subject to the easement of the public; and the title of the adjoining owners would extend to the center of the street. (Sanitary District of Chicago v. Adam, 179 Ill. 406; Matthiessen & Hegeler Zinc Co. v. City of LaSalle, 117 id. 411; Village of Vermont v. Miller, 161 id. 210; Jordan v. City of Chenoa, 166 id. 530.) In Thompson v. Maloney, 199 Ill. 276, we said (p. 282): “In such cases the title to the streets, alleys, etc., is in the owner of the tract platted, and there remains so long as he retains the ownership of all the lots shown on the plat. If, however, he sells a lot, describing it in the deed by reference to the plat, the title to the soil of the street. in front of the lot to the center of the streét by operation of law attaches to the.fee of the lot, and the proprietor of the plat ceases to be the owner in fee of such portion of the street.” The proof shows that, about the time the plat was made, Charles Pell was the owner of the ground platted, either alone, or as tenant in common with one Thomas G. C. Davis. It is stipulated between the parties that Charles Pell in his lifetime conveyed lots, fronting on Water street, with reference to-the plat offered in evidence, describing some of them, as fronting on Water street, and others by simply calling the lot and block. It appears from the testimony in the case that the lots, fronting south on Water street, are owned by different parties, and that houses have been erected upon many of them. It follows that the title to the soil of Water street in front of the tier of lots abutting thereon, as above described, to the center of that street would attach by law to the fee of the lots. Necessarily, therefore, Charles Pell, the proprietor and maker of the plat, ceased to be the owner in fee of Water street to the center thereof in front of the lots in question. In Clark v. McCormick, 174 Ill. 164, we said (p. 174): “Each purchaser of a block in the subdivision is presumed to have bought in view of the system of streets and ways, designed by the proprietor of the plat to provide means of ingress and egress to and from all parts of the platted ground, not only for the use of the owners and occupants of the lots or blocks, but of all who might desire to pass along such streets and ways. The arrangement of streets and ways formed a part of the consideration of the purchase of each block or part thereof, not only as between the original proprietor of the plat and those who purchase from him, but also as between all subsequent' vendors and vendees. The original proprietor sold to his vendee the rights and privileges of the streets, and each subsequent vendor passed such rights to his vendee. The law implies mutual agreements between all such parties that the streets shall always remain open for use as platted. * * -x- rpim fee to the strips in question is attached to the fee in the blocks, upon which the streets abut, and rests in the owners of such blocks. It is not a title vesting in the owners of the blocks the ownership of the strips as separate, independent property, which may be detached from and sold distinct from the blocks, but it passes to any subsequent holder of the blocks.” In Davenport Bridge Railway Co. v. Johnson, 188 Ill. 472, we held that, where a plat is not authenticated as required by law, the fee to the streets does not pass to the municipality, but that the execution and recording of the plat operates as a conveyance to the abutting lot owners of the fee of the street to the center thereof, and that this fee attaches to the ownership of the lots and passes with each conveyance of the lots, and is burdened with the easement of use in the public. An acceptance is necessary to make a complete dedication under the statute, and, until acceptance, the fee does not vest in the municipality, but remains in the original proprietor. Such a conveyance of the lots before acceptance carries the title to the center of the street. (Hamilton v. Chicago, Burlington and Quincy Railroad Co. 124 Ill. 235; Littler v. City of Lincoln, 106 id. 353). By an act of the legislature, entitled “An act to incorporate the town of Brooklyn, Massac county, State of Illinois,” approved February 18,1855, the town of Brooklyn was incorporated by the name and style of “The President and Board of Trustees of the Town of Brooklyn;” and, by section 2 of said act, the boundary of said corporation was made to commence at the water’s edge op- posite the lower town boundary on the Ohio river. “No particular form is requisite to the validity of a dedication. It is purely a question of intention. A dedication may be made by a survey and plat alone, without any declaration either oral or on the plat, when it is evident from the face of the plat, that it was the intention of the proprietor, to set apart certain grounds for the use of the public.” (Maywood Co. v. Village of Maywood, 118 Ill. 61, and cases there referred to.) There are many circumstances to indicate0 that, when the town of Brooklyn was laid out, it was the intention of Charles Pell, or of Charles Pell and Thomas ,G. C. Davis, that Water street should extend in width to the water’s edge, and that the whole of the space between the tier of lots fronting on Water street and the river was intended to be dedicated as a street. There is nothing on the plat to indicate what the width of Water street is, and upon its face the plat would seem to show that Water street lies between the northern tier of lots abutting thereon and the low water mark of the river, or the meandering line upon the south side of the space marked Water street, intended to designate the northern bank of the Ohio river. Market street and Elizabeth street running east and west and parallel with Water street, have no figures indicating their width, but lie between the lot or block lines upon the north and south sides of said streets. If the width of Market street and Elizabeth street is to be regarded as the distance between the north line and the south line bounding those streets, then it would appear that the width of Water street would be the distance between the north line and the south line between which Water street-lies, and the lines, as indicated upon the map, between which water street lies, are evidently the north tier ofx lots and the bank of the river, the latter being designated by a meandering line upon the south side of Water street. It is conceded by both parties that the town of Brooklyn, including the land here in controversy, was a part of the fractional south half of section 14, etc., containing 76.96 acres. This fractional south half of section 14 was listed for taxation, and taxes were paid on it before Brooklyn was platted, but, after the plat was made, there is no record, showing that the land, lying in front of Brookport, was listed for taxation, or that any taxes were paid thereon. If the original owners of this ground intended to retain the ownership of it, they would have listed it for taxation after the town was platted, as they did before the town was platted. Water street is of varying width, differing in that respect from the other streets shown by the plat, and its south boundary line is not a straight line but a wavy, irregular line in imitation of the meanderings of a stream, evidently showing that it was the intention that the street should extend to the water’s edge. The plat does not show any reservation of ground in front of the town,‘and the very name of the street, which is not First street or Front street as stated in the bill, but Water street, would imply that the street was meant to border upon the river, or a body of water. In addition to all this, the town was laid out and located upon the bank of a navigable river, and such location would seem to indicate an intention that the inhabitants of the town should have free access to the river. All these facts show an intention on the part of the dedicators, that Water street should extend to the river. When the street was thus dedicated as a public highway, an easement therein arose in favor of the public, and afterwards in 1855, when the town was incorporated by an act of the legislature, the right to control the street passed to the corporate authorities, as representatives of the inhabitants of the town. (Maywood Co. v. Village of Maywood, 118 Ill. 61.) After the dedication of the street, Pell and Davis divided the lots bordering upon the street between themselves, and then sold said lots with reference to Water street, and thereby Water street became so dedicated as to be forever open to the use of the public, as a public highway, free from all claim or interference of the proprietor, or those claiming under him, inconsistent with such use; and Pell and his grantees were thereby perpetually estopped from denying the existence of the street. (Russell v. City of Lincoln, 200 Ill. 511). There is evidence in the record showing an acceptance of the dedication thus made. “The acceptance may be an express one, evidenced by some formal act of the public authorities, or it may be one implied from their acts, such as repairing, improving, lighting or otherwise assuming control of the lands dedicated, or it may be implied from user by the public for the purposes for which it is dedicated. * . * * When the dedication is beneficial or greatly convenient or necessary to the public, an acceptance will be implied from slight circumstances.” (Alden Coal Co. v. Challis, 200 Ill. 222). In the case at bar, the evidence shows that in 1860 and 1861 the town of Brooklyn had a marshal, and was acting under its charter, and that there were three traveled roads on Water street all leading down to the river, which were kept in repair by the town authorities. Again, in 1889, the municipal authorities of Brooklyn, or Brookport, graded and graveled the ground in controversy, putting in $400.00 or $500.00 worth of work there. It would appear that the town was subsequently incorporated under the general Incorporation act, and since that time the village authorities have exercised control over this river front. They granted track privileges over it to the Illinois Central railroad, and wharf privileges to certain persons,' and ferry privileges to the appellant himself and his brothers, as will be hereafter shown. The proof tends to show that this property here in controversy has been traveled by the public, and used uninterruptedly as a common highway, for some fifty years. There can be no other conclusion, therefore, than that there was an acceptance of the dedication by the municipality. In what has been said above as to the extension of the ownership to the center of the street, reference has been had to the ordinary street without reference to its location on a stream or river. Here, however, Water street, being located upon the river, the street extends to the middle of the river. On the plat the southern line of Water street along the river is an irregular, wavy liue, depending upon the meanderings of the river and indicating the river as a boundary. “Grants of land bounded on rivers or upon their margins, above tide water, carry the exclusive right and title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge of the river.” (Davenport Bridge Railway Co. v. Johnson, supra). In Village of Brooklyn v. Smith, 104 Ill. 429, it was held that a street bounded upon a navigable stream, above high-water mark, like a grant so bounded, will extend to the center of the stream, unless an intention is clearly shown in the grant or act, laying out the street, to stop at the edge' of the river; and that, where a street of an incorporated, village, situate upon the bank of the Mississippi river, extends to the center of the stream, the fee of the street is in the corporation for the benefit of the lot owners and the public, and the village authorities may properly interpose to prevent an intruder from cutting and removing ice, which may have formed upon such street; and in that case we said (p. 436): “Here is a town laid out upon the bank of a navigable river, with Water street in front of the town between it and the river, and the idea of the street not extending to the river seems preposterous. Of what use to the proprietors would be the reservation to them of anything between the street and the river, and what a lessening of the value of a town site upon a navigable stream would be the absence of a public landing? It must be supposed that such a town is laid out with reference to the use find enjoyment of the river. A public landing would be viewed as a thing of prime interest, which would be an element of value pertaining to every town lot which was to be sold. As was said by this court in a similar case, (Godfrey v. City of Alton, 12 Ill. 29): ‘This stream is a public highway. In contact with this another easement is granted, and the very location of it shows it was designed for the purpose of lading and unlading freight and landing passengers from the water communication, as much as the laying out of an interior street would show it -was designed for the use of travelers by land.’ The western line of Water street, as marked upon the original plat, is not a straight line, but an irregular, wavy line, denoting, as we take it, the meandering of the river, and thus indicating the river to be the boundary.” In view of what has been said, and of the authorities referred to, it seems to follow, as a necessary conclusion, that the original proprietor, who made this plat, divested himself of all right or title to the land lying between the northern tier of lots and the bank of the river; and, as appellant holds under the original proprietor, Charles Pell, he could not have obtained any title to this strip from Pell. Having begun a partition suit, appellant must show that he owned an undivided interest in the property sought to be partitioned, as alleged in his bill. He seeks to establish a paramount fee simple title to the strip here in controversy under a deed, executed by Pell in 1870. If the views thus far expressed are correct, then the title to that strip, either to the center of the river, or, certainly, 'to the edge of the river, was vested by dedication and acceptance in the village of Brookport, and, therefore, in 1870 Charles Pell had no title when he made the deed to Valentine Owen, appellant’s father. Second—But for other reasons, we are of the opinion that appellant had no title to any of the property here in controversy, aside from the question of dedication. On December 22, 1870, Charles Pell a,nd wife executed to Valentine Owen a deed, dated December 22,1870, conveying to Valentine Owen, the father of appellant, an undivided one-half of the premises, sought to be partitioned, as described in the bill. Valentine Owen died intestate in 1872, leaving certain heirs of whom the appellant is one. Since then, appellant has obtained deeds from the other heirs, so that he is the holder of whatever title, if any, was in Valentine Owen at the time of his death. But Valentine Owen had no title at that time, because his grantor, Charles Pell, had, prior to December 22,1870, parted with all the interest he had in the south half of fractional section 14. Prior to September 17, 1851, Charles Pell and Thomas G. C. Davis appear to have been the owners of the south half of fractional section 14, each owning" an undivided one-half thereof. On September 17, 1851, a partition deed was made between Charles Pell and Thomas G. C. Davis in pursuance of a contract for partition previously made on July 4, 1851. Prior to that, to-wit, on February 8, 1851, the legislature of Illinois passed an act, granting to Charles Pell and Thomas G. C. Davis a ferry franchise from Brooklyn, Illinois, to the Kentucky shore for the term of fifty years with right to land a ferry boat at any point on the Ohio river between lot 1 and lot 30 in Brooklyn, Illinois. The partition deed of September 17, 1851, recites that Pell and Davis are seized of and hold in fee, as tenants in common, the south half of fractional section 14, containing 76.96 acres, and" that they "have laid off and established a town, known and called by the name of Brooklyn; and, by the terms of the partition deed, Pell deeds to Davis, his heirs and assigns, “all that part of said tract of land situated, lying and being west, below and adjoining said town of Brooklyn, and " * * * also” certain lots in the town of Brooklyn, “and all the said Charles Pell’s and the said Priscilla Pell, his wife’s, right, title and interest in and thereto, to have and to hold the same to him, the said Thomas G. C. Davis, his heirs-and assigns, and to his and their use and behoof forever.” The deed contains the following covenant: “And the said Charles Pell, for himself and his executor and administrator, does covenant with the said Thomas G. C. Davis, his heirs and assigns, that he and they shall and may forever hereafter have, hold, occupy, possess and enjoy the said part of said tract of land, and said town lots hereby assigned to the said Thomas G. C. Davis, free and discharged of and from all claims and demands thereto to be made by the said Charles Pell or his assigns, and all persons claiming under him or them.” The words in the deed, “all that part of said tract of land situated, lying and being west, below, and adjoining said town of Brooklyn,” include the property here in controversy, if such property is not embraced in Water street, and lies south thereof and between Water street and the river. The strip here in controversy, if not embraced in Water street, must be “below and adjoining said town of Brooklyn.” If, therefore,-there was a space of ground south of' Water street and between the river and said street, which was not embraced in that street, it passed from Pell to Davis by the partition deed of September 17, 1851. It is true that, when the deed of September 17, 1851, was executed, Pell must have had merely an equitable title, as the record does not show that he had the legal title, but appellant introduced in evidence a deed from John T. Madden and wife to Charles Pell, dated December 16, 1851, conveying to Pell the south half of fractional section 14; and the chain of conveyances shows title thereto from the government down to Madden. We are of the opinion that the title, subsequently acquired by Pell on December 16, 1851, inured to the benefit of Davis, his grantee in the partition deed. That deed recites upon its face that Pell, owned a fee simple title, and it conveys that title and the land itself, as well as his interest in the land, ánd it also contains a covenant that Davis shall hold the land, deeded to him, free and discharged from all claims and dertiands that may be made in the future by Charles Pell, or his assigns, and all persons claiming under him or them. Surely, under this covenant and in view of the fact that the deed passes a fee simple title, Pell could not set up against Davis the after acquired title, conveyed to him by the deed of December 16,1851. (Rev. Stat. chap. 80, sec. 7; 1 Starr & Curt. Ann. Stat.—2d ed.-—p. 918; Holbrook v. Debo, 99 Ill. 372; Bowen v. McCarthy, 127 id. 17; Guertin v. Mombleau, 144 id. 32). Subsequently, on February 16, 1854, Pell conveyed to James Campbell all his remaining interest in the south half of fractional section 14, and also in the same deed conveyed to Campbell the undivided half of the ferry privileges owned by Pell, the other undivided half of which privileges had been granted to Thomas G-. C. Davis. We are, therefore, of the opinion that, if the title of Pell to this strip of land here in controversy did not pass to the village of Brookport by dedication, it was conveyed away by Pell to Davis and Campbell long before December 22, 1870; and, therefore, no interest passed from Pell to Valentine Owen by the deed, executed on December 22, 1870. Third—But appellant claims that, if he did not obtain paramount title through the deed from Pell to his father, Valentine Owen, yet that that deed, conveying an undivided one-half of the premises in question, was good color of title, and that, under the same as such claim and color of title, Valentine Owen, appellant’s father, and appellant, and his brothers, held adverse possession of the strip in question for a period of twenty years, and more. The only evidence of possession introduced is that Valentine Owen, and appellant and his brothers, ran a ferry boat from the Kentucky side of the river to the village of Brookport, and landed their ferry boat at the landing or wharf upon the strip of land in question. They had a float, which they attached by stakes to the ground, in order that passengers and freight, coming down from Brookport, might the more easily reach the ferry boat. This float was movable, and its position was changed as the water in the river rose or fell. It was situated further up the bank in time of high water, and further down the bank in time of low water. Its location appears to have been opposite block 3 between Perry and Crocket streets. It appears that other boats than the ferry boat of Valentine Owen and his sons landed upon this river' front. It is a serious question whether the mere fact, that the ferry boat landed upon this river front and that the owners of the' ferry boat used upon the bank a movable float, attached to the bank by stakes for the purpose of more easily taking on freight and passengers upon the ferry boat, really constituted such adverse possession as is required by the law. In Mississippi River Bridge Co. v. Lonergan, 91 Ill. 508, it.was held that the landing of a ferry boat along the shore at such places, as might from time to time be most suitable or convenient, did not constitute adverse possession. But the evidence shows that, after the village of ’ Brookport had passed an ordinance, granting to the Illinois Central Railroad Company the right to lay down their tracks upon this strip of ground here in controversy, appellant, or one of his brothers under whom he holds, applied to the village of Brookport for the privilege of landing his ferry boat at the landing in question. In pursuance of his application so made, a lease was executed by the town of Brookport in the year 1891, leasing to one of appellant’s brothers, who was appellant’s grantor, for the term of fifteen years the privilege of landing his ferry ,boat at this landing. The proof tends to show that the appellant himself was the agent of his brother in negotiating this lease from the town; and, as we understand the evidence, it is not denied on the part of appellant that the landing was thus leased by his brother from the village. By taking this lease appellant, or his grantor, admitted that the village of Brook-port had title to the landing in question. When the president of the board of trustees of the village executed this lease, a record of it was made upon the records of the municipality, and the record book, showing the execution of the lease in 1891, was introduced in evidence. It is said that, while this lease was made by the village through the president of its board of trustees, yet the same was not signed by appellant, or by his brothers, Robert Owen, or Henry Owen. But the evidence is quite clear that, after the execution of this lease, appellant himself and his grantor ran the ferry boat and landed it in pursuance of thé lease, and in recognition of the authority of the village to control the use of the premises here in question. As this lease was to run for fifteen years from 1891, it has not yet expired. During the existence of the tenancy appellant is estopped from disputing the title of his lessor, the village of Brookport. A tenant is never permitted to deny the validity of the title of any one from whom he has accepted a lease. If the lease was made to one of his brothers, yet, as he is grantee of his brother, he is equally bound by the estoppel, as was the original lessee. (Tilghman & West v. Little, 13 Ill. 239; Alsup v. Stewart, 194 id. 595; Carter v. Marshall, 72 id. 609; Fleming v. Mills, 182 id. 464). In what has been said it has been assumed that the Statute of Limitations in regard to adverse possession for a period of twenty years can run against the village of Brookport. The general rule, however, is that the Statute of Limitations does not run against a municipal corporation in respect to streets or property, held for public use; and that an adverse possession of such property,no matter how long continued, is of no effect. (Shirk v. City of Chicago, 195 Ill. 208; City of Sullivan v. Tichenor, 179 id. 97; Russell v. City of Lincoln, 200 id. 511; Catlett v. People, 151 id. 16). In.any view, which we can take of this case, we are forced to hold that appellant was not the owner of an undivided one-half of the property, sought to be partitioned, and, therefore, was not entitled to a decree for partition. The controversy here is not between the appellant, claiming to own one undivided half and the heirs and grantees of James Campbell, alleged to be the owners of the other undivided one-half. The heirs and grantees of Campbell have been defaulted, and make no contest. The contest here is between appellant tin the one side and the village of Brookport and the Illinois Central Railroad Company on the other, the latter claiming the right to use its tracks, laid down upon the strip of ground in question, under an ordinance passed by the village. We are of the opinion that the court below correctly decided, that appellant had no interest in the property •except as lessee or licensee of the village, and committed no error in rendering a decree dismissing the bill. Accordingly, the decree of the circuit court is affirmed. Decree affirmed.