Consumers Co. v. City of Chicago

Mr. Justice Watson delivered the opinion of the court: There is ample evidence in the record supporting the findings of the chancellor as to the controlling facts in issue, and upon consideration of the same as abstracted we cannot say the findings of the court are not in accordance with the evidence. Therefore the only thing to be determined in .this court is whether the vacations referred to in the foregoing statement were lawfully made under the provisions of section 7 of chapter 109, (Hurd’s Stat. 1913, p. 1856,) so as to include the stub ends of North Fairfield avenue and West George street, and if so, whether the acceptance of said ends of said streets by the municipality, together with a proper consideration of the rights of other owners of lots in the addition, renders such vacations void as to the streets mentioned. Similar questions have been considered by this court in numerous cases, arising both under the present statute and similar statutes enacted under the constitution of 1848, but our attention is especially directed by the briefs to the opinions of this court in Chicago Anderson Pressed Brick Co. v. City of Chicago, 138 Ill. 628, and Heppes Co. v. City of Chicago, 260 id. 506, and upon the authority of those cases, mainly, we are asked to reverse the decree in the case at bar. In the Pressed Brick Co. case the object of th'e litigation was to determine whether a strip of land attempted to be vacated remained part of a city street, the vacation having been made by the pressed brick company as sole owner of the lots abutting thereon, on each side thereof, by proper deed duly recorded. It is provided by section 7 of chapter 109 of the Revised Statutes of 1874, entitled “Plats,” that “any part of a plat may be vacated in the manner provided in the preceding section, and subject to the conditions therein prescribed: Provided, such vacation shall not abridge or destroy any of the rights or .privileges of other proprietors in such plat: And, provided, further, that nothing contained in this section shall authorize the closing or obstructing of any public highway laid out according to law.” The conditions prescribed in the preceding section are, simply, first, that the vacation shall be before any lots are sold; or second, if any lots are sold, all the owners of lots in such plat shall join in the deed of vacation. And as a qualification to the language of section 7, the meaning is, clearly, any part of a plat may be vacated by the owner of such part before any lots therein are sold, or after lots are sold, by all the lot owners in such part joining in the deed of vacation. The court held in the Pressed Brick Co. case, as had been previously held in Littler v. City of Lincoln, 106 Ill. 353, that the rights or privileges of other proprietors protected by the statute are legal rights and privileges, and such proprietors are not affected by closing streets not adjacent to their property and not affording access thereto and egress therefrom. The record showing there were no other proprietors affected by the vacation, the court held the same effective as to the portion of the street in controversy. In the Pressed Brick Co. case this court also construed the clause, • “nothing contained in this section shall authorize the closing or obstructing of any public highway laid out according to law,” to refer only to such highways as had been or might be established by local highway authorities acting affirmatively and in pursuance of their statutory powers with reference to surveying, marking courses and boundaries and ordering the opening of such highways. The court stated there was in the case before it no evidence the streets in question had been designated or accepted or improved by the public authorities. All that was said in the Pressed Brick Co. case was affirmed in the Heppes Co. case, supra, and there is no doubt the provisions of section 7 of chapter 109, as there construed, permit the closing of the stub ends of the streets here in question, if the finding of facts by the chancellor brings appellant within the purview of those decisions. If we are correct in our understanding that North Fair-field avenue extends south several hundred feet beyond the embankment of the railroad and that West George street extends several blocks west of said embankment, in Bauerle’s addition, and that prior to the attempted vacations here in question of the portions of those streets abutting upon the northeasterly side of said embankment lots had been sold in the addition north and east of the railroad and depending upon those streets for access and egress to and from other portions of the city, then it would seem to follow, as an inevitable conclusion, that the rights and privileges of the owners of those lots would be abridged and destroyed so far as those streets are concerned. The fact that those streets, at the place where the attempt is made to permanently close them, abut upon a railway embankment twenty feet in height is a mere adventitious circumstance. The city has power to pierce that embankment by a subway where it crosses said streets whenever the needs of an increased population in that locality shall require such subway to be opened and used. If these portions of streets are now public highways under the evidence in the case, it would be against public policy to allow them' to be closed and retained as the private property of appellant, only to be re-taken by purchase or condemnation when the needs for a subway and for a more general use of the streets shall become apparent. A subway is possibly not needed now at that place, there being one a block either way from there, but if the appellee is correct in claiming that Fair-field avenue but for the railroad would be one of the main thoroughfares of that portion of Chicago, and that West George street is populated both on the east and west sides of the railroad, it will not be many years until a demand will arise for a subway at this place. We do not regard as sound the assumption of appellant to the effect the city or the public can never use these stub ends of streets by reason of their unique location, (next to the railroad embankment,) and that hence they are of no value to the city or the public. Appellant further contends by its bill, and renews that contention here, that the improvements placed by it or its predecessors upon the street ends in question and there suffered by the city to remain through a long period of time worked an equitable estoppel upon the appellee, so that it cannot now be permitted to assert its right in these streets even if that right were not lost through the deeds of vacation. It is true the two street ends are now occupied or crossed by railroad and street car tracks, but such use of the surface of the streets is in no way interfered with by the decree in this cause. A coal shed projects a few feet into North Fairfield avenue at the place in controversy, which is of comparatively little value, and otherwise the streets are not shown to be occupied by buildings or structures of appellant of any considerable value. We think the doctrine of equitable estoppel does not apply. The most serious dispute as to the facts arose over the question of the acceptance by the city of the portions of streets sought to be vacated, appellant claiming there was never any acceptance and appellee taking the position that by its undisputed acceptance of other streets in the addition and of other portions of these streets it should be held to have accepted the entire system of streets and alleys shown by the original plat, and also that it specifically recognized and accepted the particular portions of the streets in controversy, and that to thereafter allow the vacation of the premises in dispute will not only deprive the municipality of its vested rights, but will operate to deprive other property owners in the subdivision of property rights without due process of law. In the absence of a contrary intention being shown, we have held acceptance by a municipality of the principal portion or nearly all of the streets of a subdivision raises the presumption of acceptance by it of all of the. streets in the subdivision. (Kimball v. City of Chicago, 253 Ill. 105; Village of Lee v. Harris, 206 id. 428.) Also, that evidence of the acceptance of streets by a city is found in the affirmative act of taking possession thereof for the purpose of placing therein water mains or sewers. (City of Rock Island v. Starkey, 189 Ill. 515; Fairbury Agricultural Board v. Holly, 169 id. 9; Barrows v. City of Sycamore, 150 id. 588.) The evidence in the case at bar shows, and the court found, that in 1893, in pursuance of an ordinance the appellee laid a water main in North Fairfield avenue, passing under the railroad tracks, (which were not elevated until 1898,) and extending some distance north and south from the tracks, and in 1895 laid another in West George street to the center of its junction with North Fairfield avenue, which mains are still in use. ■ The proofs also show the city, in accordance with another ordinance, laid sewers in the middle of North Fairfield avenue and in the middle of West George street to the point of intersection of the two streets. Another method of proving acceptance of streets by a municipality is to show general user thereof by the public for a considerable period of time, and such user was satisfactorily shown in the case at bar. (Kimball v. City of Chicago, supra; City of Rock Island v. Starkey, supra.) We are therefore convinced that by each of the methods herein mentioned appellee accepted North Fairfield avenue and West George street, including these stub ends, and is now in possession of the stub end of North Fairfield avenue by and through the location of its water main therein. The proof shows the appellee has never worked or improved the stub ends in question, except as above recited, aná the appellant contends that such fact contradicts any presumption of acceptance thereof. But it was said in the case of Village of Lee v. Harris, supra: “The fact that a number of the streets and alleys had never been improved by the village and had been for some years within the enclosure of private persons had no potency to defeat the action of the village. Whether the interests of the public require that a street or alley shall be improved or that repairs thereon are necessary is committed to the judgment and discretion of the governing board of the city or village. Mere adverse possession by a lot owner of a portion of a public street, however long continued, does not, by virtue of the Statute of Limitations, bar the right of the public to be restored to possession of the street to its full width. (City of DeKalb v. Luney, 193 Ill. 185.) Mere non-user of a street or alley, no matter how long continued, does not deprive the city or village, as the representative of the public, of the right to take possession thereof and improve the same.” Unquestionably, the right of vacation exists as to part of a subdivision, under the provisions of said section 7 of chapter 109, as we have construed the same in the Pressed Brick Co. case, supra, and the Heppes Co. case, supra, even after acceptance by the city, but in view of the rights of those who had purchased lots prior to the attempt to make such vacation, near to and dependent for outlet upon the streets in question, we hold such right was not successfully exercised in this case. The “rights and privileges” accorded to those lot owners who had purchased before the attempted vacations are not confined to the surface use of the street but extend below, to the sewers and water mains; also, they are not confined to the use of that portion of the street upon which their property abuts, but extend to present, and, more important still, to future, use of the street as a means of ingress and egress to and from the property so purchased. The law does not contemplate that having purchased with a view to streets furnishing suitable and convenient passways to other portions of the community, the purchaser should thereafter, at the will of the original or subsequent owner of some portion of the subdivision, find himself located in a cul de sac, as would be the case here with lot owners on the east side of North Fairfield avenue and the north side of West George street. We think, also, it would be contrary to public policy to declare the street ends in question, under the proofs in the case at bar, the private property of appellant, and so enable it to require the city to remove therefrom its public service water pipes, laid, as before stated, in the year 1893, under the surface of North Fairfield avenue, extending both north and south of the railroad right of way. While the claim of private ownership has been maturing, the wooden sidewalks placed upon the street ends in question by owners of lots in the subdivision have grown old, rotted away and disappeared, but, so far as the evidence discloses, the sewers leading to the street intersection are still there, as is the water pipe aforementioned. We are not of opinion appellant is equitably entitled to the relief prayed in and by its amended bill, and the decree of the circuit court is affirmed. Decreg affirme±