City of Edwardsville v. Barnsback

Mr. Presiding Justice Green delivered the opinion of the Court. This was a suit in forcible entry and detainer by appellee against appellant, to recover possession of a strip of land in Madison county, described as follows: “ Beginning at a point 208 feet north of the half section corner on the line between section 10 and 11, T. 4 N., R. 8 W. 3d P. M.; running thence north 70 feet; thence east 218 feet; thence south 70 feet; thence west 218 feet to the place of beginning, which land it is averred the appellant unlawfully took, and withholds the possession thereof from appellee.” A jury was waived, the cause was tried by the court, the defendant found guilty, judgment for costs entered against it, and a writ of restitution for said premises was ordered to be issued. Defendant thereupon took this appeal. Appellant claims it had the right to enter and take possession of the land in controversy, by virtue of a plat of Edwardsville, acknowledged by James Mason, December 3, 1825, and recorded December 29, 1825, in which plat appears a street named Bandle street, which would’take in and include the strip of land claimed by appellee. This plat was objected to, because before it was acknowledged, Mason bad conveyed the said premises and was not the owner thereof, and because the plat is indefinite in the description of the alleged street, its length or distance from any fixed line or established corner, and the plat shows nothing from which a correct measurement could be made, establishing its length or location. Each of these objections are sustained by decisions of our Supreme Court. To make a good dedication, either under the statute, or at common law, requires a definite and certain description of that which is proposed to be dedicated (Village of Winnetka v. Prouty, 107 Ill. p. 223, 224), and the dedication must be made by the owner. Kyle v. Town of Logan, 87 Ill. 66; Chicago v. Johnson, 98 Ill. 618. But if the dedication had been valid and appellant had acquired rights in the loans in quo in 1825, those rights would be barred by the non-acceptance and non-user on the part of appellant, and the open, adverse, and entire possession of the premises in dispute, by appellee and those through whom he claims. The acknowledgment and recording of a town plat vests the legal title to the ground embraced by the streets and alleys in the corporation of the town. But to make it a complete dedication there must be acceptance; not any formal act of acceptance, but there must be user, or some other act indicating acceptance by the authorities, in order to complete the dedication, and this principle applies to statutory dedications, as well as common law dedications. In support of the principles above stated, Peoria v. Johnson, 56 Ill. 49-51; C. & N. W. Ry. Co. v. People, 91 Ill. 251; Village of Auburn v. Goodwin, 128 Ill. 60; Village of Winnetka v. Prouty, supra; Schmitz v. Germantown, 31 Ill. App. 285, are in point. If the proof shows in this case that appellant never acquired the right to said street, or that, by its non-acceptance and non-user, and adverse, open and complete possession by appellee, and those through whom he claims, all right thereto was barred, then a forcible entry into, and taking possession of said premises, to open said alleged street, by appellant, was an unlawful, forcible entry into, and withholding possession thereof from appellee as charged in the complaint. The proof justified the court in finding that appellee and those under whom he claims have been in the peaceable, open and adverse possession of the strip of land in question for more than fifty years, and during that period said strip has been inclosed, and uninterruptedly used as a part of the house lot of appellee and those through whom he claims, and has had on it buildings, a well, orchards and fences, and fruit trees twenty years old- when appellee took possession, planted to replace others which had rotted down. During all this period appellant had actual knowledge of the fact that the said improvements were being made from time to time, and the persons in possession were acting and using said strip in a manner inconsistent with, and adverse to the alleged rights of the appellant, yet appellant made no objection, did no work upon said strip, nor indicated by any act the acceptance of the alleged dedication, and these being the facts, on the day as alleged in the complaint, appellant, by its mayor, certain city officials and others, with actual force invaded the possession of appellee, tore down and removed his fence, and cut down four of his apple trees upon said strip, and did this, as is claimed, in the lawful execution of a right to open said street. Under the facts proven and the cases cited, the court properly found appellant guilty. There was no valid dedication accepted by the city of the street claimed, and the private rights of appellee to the peaceable possession of the premises and improvements placed thereon, acquiesced in by appellant for so long a period, should be protected, and justice requires that an equitable estoppel shall be asserted and maintained barring the city from setting up as a defense any right to said street. See authorities before cited and County of Piatt v. Goodell, 97 Ill. 84. Costs were properly awarded against appellant in this character of case. Christian County v. Rockwell, 25 Ill. App. 20. The court properly refused to hold as the la.w under the facts the refused propositions asked on behalf of the appellant, and in holding the six propositions to be the law as required on its behalf, gave several more favorable than the evidence warranted. No error is perceived requiring a reversal, and the judgment is affirmed.