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(118 I11. 600)

WHITFORD v. DREXEL and others.

(Supreme Court of Illinois. November 13, 1886.)


The rule that possession of part of a tract under deed for the whole will be treated as possession of the whole applies where the claimant enters upon an unoccupied tract under a deed therefor, but not where a portion of the tract is already held by adverse possession.

Appeal from Rock Island.

Johnson & Johnson, for appellant. J. T. Kenworthy, for appellees.

CRAIG, J. This was an action of ejectment brought by Charlotte A. Whitford, in the circuit court of Rock Island county, against Johanna and Frank Drexel, to recover possession of lots 3 and 8, block 2, in the town of Cordova. The two lots described in plaintiff's declaration join lots 4 and 7 on the west, as appears from the following plat put in evidence on the trial:

[blocks in formation]

In the declaration, the plaintiff claimed to recover all of lots 3 and 8, but the proof showed that she was in the possession of the whole of said lots, except a strip of land three or four feet wide on the east side, which was occupied by the defendants, and inclosed with lots 4 and 7, which they owned. After the evidence was all in, the court instructed the jury to find for the defendants, and a verdict was returned in accordance with the instruction, upon which the court rendered a judgment.

In order to determine whether the instruction to the jury was correct or incorrect, it will be necessary to examine the evidence introduced on the trial. The plaintiff did not undertake to establish a regular chain of title from the government to herself to the property, but relied on color of title, possession, and payment of taxes for seven successive years, as required by section 6, c. 83, Rev. St. 1874, 674. For this purpose she read in evidence a deed dated December 2, 1865, made by Joseph Spencer and wife to herself, purporting to convey the property. She also proved payment of taxes for seven successive years after the execution of the deed, but she failed to establish seven successive years' possession in connection with color of title and payment of taxes, which was necessary in order to render her color of title availing under the statute. Indeed, she never was in the possession of the strip of land in dispute, or any part thereof. The proof is clear and positive that the strip of land was fenced in, with lots 4 and 7, by a fence running north and south, as early as 1856, by the person who then owned lots 4 and 7. That fence has remained there ever since, and the strip of land has been in the possession of defendants, and their grantees, in connection with lots 4 and 7 since that time.

It is said in the argument that possession of a part of a tract of land, under a deed for an entire tract, in law is possession of such entire tract; and, under this head, it is argued that, as plaintiff proved possession of a part of lots 3 and 8 for seven successive years under a deed for the whole, she was thus in possession of the whole of both lots. Where a tract of land is vacant, and a person enters into possession of a part of the tract, and makes improvements thereon, under a deed for the entire tract, the possession of the part will be re

garded as possession of the whole tract, as described in the deed under which the entry is made and possession taken. But this doctrine has no application to a case like the one under consideration. Here the strip of land in controversy, when plaintiff first went into possession of lots 3 and 8, was in the adverse possession of the defendants, and has so remained ever since, and the possession she acquired of the remaining portion of the lots had no bearing whatever on the strip held adversely. From what has been said it is apparent that the evidence failed entirely to establish title in the plaintiff, and the charge of the court to the jury to find for the defendant was correct. It is said plaintiff ought to have been permitted to recover, in any event, that part of lots 3 and 8 not embraced in the strip. The evidence shows that plaintiff had, when the suit was commenced, and still has, possession of that part of the lots; and how or why she should recover possession when she has possession is not quite apparent.

It is claimed that the court erred in refusing plaintiff the right to rebut defendant's proof of 20 years' adverse possession. Whether the defendant had been in possession of the strip of land for 20 years was immaterial. It was established beyond controversy that plaintiff never was in possession of the strip of land, and hence had no title. This being so, whether the defendant had title was of no consequence, as plaintiff was bound to recover in the strength of her own title, and not in the weakness of that of her adversary. No ground is disclosed by the record under which plaintiff could recover; and, even if some slight error had been committed on the trial of the cause, it would be no ground to reverse the judgment.

The judgment will be affirmed.

(120 Ill. 92)


(Supreme Court of Illinois. November 13, 1886.)

1. DEEDS-PLATS-ACKNOWLEDGMENT AND CERTIFICATION-REV. ST. ILL. 1845, PAGE 115. The provisions of Rev. St. Ill. 1845, p. 115, as to plats by county commissioners and other persons, required the acknowledgment of county commissioners to plats made by them, and only to such plats; and of such "other persons," as makers, to plats made by them, and required certification by the surveyor only.


Where owners of land in common, by mutual agreement, divide it into blocks, with streets, and then, by agreement, partition the blocks among themselves, each taking a number of blocks in severalty, there is a common-law dedication by each of the streets, based on a valuable consideration moving from the other owners, and such dedication is irrevocable.1


Acceptance by the public of streets dedicated may be shown in pais by user by the public; as by travel over the street, and by acts of the public officers in repairing and keeping them up. Such user and maintenance need not be over the entire length of the street.2

[blocks in formation]

An error in the assessment of a lot adjacent to a street dedicated by a commonlaw dedication, by which error the area of such street is included in the adjacent lot, and taxes are levied and collected on the same, will not defeat such dedication, nor rebut the presumption of acceptance.

Appeal from superior court, Cook county.

This is a chancery proceeding brought by appellee to enjoin the appellant town from disturbing appellee in his possession of certain land claimed by the town to be a public street, but claimed by appellee to be his private property, free from any public easement. The claim of the city was based upon a

1 See Quinn v. Anderson, (Cal.) 11 Pac. Rep. 746, and note.

2 See Hoadley v. City and County of San Francisco, (Cal.) 12 Pac. Rep. 125, and note,

plat made and recorded in 1871, with streets, etc. This plat was made by the owners of a tract of land embracing the premises in question, during the pending of a partition suit to divide the same between them, and the partition was made according to the plat. Plaintiff derives title from one of these tenants in common. Additional facts regarding the platting and use of the premises, so far as necessary to an understanding of the case, are given in the opinion. The evidence referred to in the arguments of counsel, as offered to explain the plat, related principally to figures appearing thereon, which did not indicate what measurements were meant, whether feet, links, or what. The plaintiff had judgment below, and defendant appealed. Hervey H. Anderson, for appellant.

The platting was in compliance with the law then in force, and constituted a dedication. Gross, St. 1871, c. 25, §§ 35, 36, 38, 39. Substantial compliance with the statute is sufficient. 2 Dill. Mun. Corp. 625, (3d Ed.;) Delaunay v. Burnett, 4 Gilman, 489; Chimquy v. Catholic Bishop of Chicago, 41 Ill. 152; Stuart v. Dutton, 39 Ill. 93; Sourville v. Pierson, Id. 447; Thomas v. Eckard, 88 Ill. 593.

The facts show a dedication at common law. Rees v. Chicago, 38 Ill. 336; Littler v. Lincoln, 106 Ill. 353; Cincinnati v. White's Lessees, 6 Pet. 431; Winnetka v. Prouty, 107 Ill. 225; Waugh v. Leech, 28 Ill. 489; Alvord v. Ashley, 17 Ill. 363.

An acceptance of a street may be shown by user by the public; as by travel, or by the acts of the public officers in repairing and keeping it up. Rees v. City of Chicago, supra; Littler v. Linclon, 106 Ill. 353.

Acceptance of a part is an acceptance of the whole. Derby v. Alling, 40 Conn. 410; Henshaw v. Hunting, 1 Gray, 203; Mayor of Jersey City v. Morris Canal, etc., Co., 12 N. J. Eq. 547.

Courts will take judicial notice of the width of streets. Winnetka v. Prouty, supra. See, also, Bouv. Law Dict.; 1 Greenl. Ev. § 6; Solomon v. State, 28 Ala. 83; Starkie, Ev. (10th Ed.) 735; Wade, Notice, § 1417.

The expert testimony offered was admissible to explain the plat. 1 Greenl. Ev. 389; Sheldon v. Benham, 4 Hill, 129.

More importance attaches to a black, continuous line on a plat, than to a dotted one. Princeton v. Templeton, 71 Ill. 70.

As to the claim of adverse possession, see Henshaw v. Hunting, 1 Gray, 203.

The fact that the land has been taxed for city and county purposes will not conclude the public from claiming the use of the land for a public street. City of Chicago v. Wright, 69 Ill. 319; Lemon v. Hayden, 13 Wis. 177; Wyman v. State, Id. 663.

John P. Altgeld, Frank J. Smith, and Mr. Helmer, for appellee.

Appellee has been in possession for five years, and therefore the city, if it claims title, should resort to due process of law to obtain possession. Chicago v. Gosselin, 4 Bradw. 570; Reeder v. Purdy, 41 Ill. 279.

The plat was not executed according to statute requirements, because not certified to by the county commissioners, and because indefinite, and "the precise length and width of the outlots are not stated." Winnetka v. Prouty, 107 Ill. 218; Gross, St. (3d Ed.) p. 102, §§ 35-39.

The plat itself, with the report of commissioners in partition thereon, and the decree of court confirming same, by the number of acres marked in each block, and the acreage stated by the commissioners to be in each block, shows an intention not to dedicate any land to public uses.

There was no acceptance by the town prior to 1873, when the owner fenced in this particular strip, and has ever since held possession of same. Acceptance by town authorities is necessary prior to withdrawal of a tender of dedication. Littler v. Lincoln, 106 Ill. 353; Gentleman v. Soule, 32 Ill. 279; Rees Chicago, 38 Ill. 336; Trustees, etc., v. Walsh, 57 Ill. 371; Hiner v.

Jeanpert, 65 Ill. 430; Wragg v. Penn Tp., 94 Ill. 25. The doctrine that acceptance of a part is an acceptance of the whole is inapplicable to commonlaw dedication. Fulton v. Mehrenfeld, 8 Ohio St. 440; Ang. Highw. 157.

The town has taxed block 5 as five and a fraction acres, up to and including 1885, and have therefore taxed the strip of land in question as belonging to appellee and his grantors for some 14 years, and have never been in possession, and have acquiesced in its inclosure and use for about 12 years prior to these proceedings. This amounts to a refusal to accept, or to an abandonment. Knight v. Heaton, 29 Vt. 480; Grube v. Nichols, 36 Ill. 92; Peoria v. Johnston, 56 Ill. 51; Mansur v. State, 60 Ind. 357, 363.

The cases upon appellant's brief, to the point that acceptance of a part is an acceptance of the whole, are distinguishable. The decision in Henshaw v. Hunting is based solely on special laws relating to a particular locality. See page 213 of opinion. In each of the other two cases there had been a conveyance in fee. The cases cited to show that taxation by the city is not evidence are also distinguishable. In all of them there was not only dedication, but acceptance and long use by the city.

SHELDON, J. The statute under which this plat was made, requires the owners to cause the town or subdivision to be surveyed by the county surveyor, and the plat thereof to describe particularly all the streets, etc., within or adjoining the same, giving the names, widths, corners, boundaries, and extent of such streets; that outlots shall not exceed 10 acres in size, shall be progressively numbered, and their precise length and width stated on the plat or map, together with any streets, etc., which shall divide or border on the same. The statute provides that a plat made out in conformity to its provisions shall operate as a conveyance in fee of the land intended for streets, and that they shall be held, in the corporate name of the municipality, for the uses and purposes expressed or intended. Rev. St. 1845, p. 115.

Objection is taken to the plat as not being in accordance with the statute, in that it was not certified to by the county commissioners. We do not understand the statute to so require. It provides for the case of laying out towns or subdivisions by county commissioners or other persons; and, as we read the statute, when county commissioners cause the plat to be made, they are to acknowledge it; and, where other persons cause the plat to be made, they only are required to acknowledge it, and that the plat need only to be certified by the county surveyor.

The only other objection made to the plat is that it is indefinite and uncertain, in not giving the length and width of the streets and blocks; that there are naked figures here and there upon the plat, but nothing to show what any of the figures mean. They evidently denote lengths of lines.

But then it is said there is nothing on the plat to determine whether inches, feet, rods, chains, or links are intended by the figures. Let us see if this is so. Take George street, the one in question, and we find at each end the figures "50" and "50," on each side of the dotted line running through the middle of the vacant space. There is no doubt these figures represent the width of George street. We reasonably know that, as a street, it was not intended to be 100 inches, 100 rods, or 100 chains wide. It can, then, be only feet or links which the figures represent. We are to look upon this as a plat made by a surveyor, and from an examination of the plat it would seem apparent to a person of ordinary intelligence that the measurement indicated thereon is surveyor's measurement, chains and links, and not long-ineasure feet and inches. At least, with a competent surveyor, from the data which appear upon the plat, the various figures representing lines of different lengths, the dimensions which are given of all the blocks, there could be no manner of doubt that the measurement used was chains and links, and not feet and inches.

Accordingly, the witness Alvorda, surveyor, says the width of the streets as platted in the subdivision are 100 links--66 feet-wide. We consider the figures "50" and "50" at each end of George street denote that street to be 100 links wide, just as unmistakably as if it had been written in words on the face of the plat, "George street is one hundred links wide." And so, in our judgment, there is enough appearing upon the face of the plat to determine what is the length of all the other lines appearing thereon. We view the plat as in substantial compliance with the provisions of the statute.

The case of Village of Winnetka v. Prouty, 107 Ill. 218, referred to by appellee's counsel, where a plat. was held to be insufficient under the statute, is plainly distinguishable from the present case. The plat there did not show the devotion of any ground to public use. In that case there were no streets named or mentioned on the plat. There was no strip of land which was even called a street,-vacant spaces upon the plat, which might be imagined to have been intended for streets. There was nothing upon the plat to show what was their width; not even any figures which might be supposed to denote it upon the street there in question.

It is said there was no acceptance by the town prior to 1873, when the owner fenced in this particular strip of 33 feet, and has ever since held possession of the same; and that acceptance by town authorities is necessary prior to withdrawal of a tender of dedication. However this may be in the case of an ordinary common-law dedication, we cannot recognize the doctrine as applying where there has been a statutory dedication. In such case the statute says the plat shall be deemed a sufficient conveyance to vest the fee-simple in the streets in the municipality, and we do not admit any power of withdrawing the dedication.

In Waugh v. Leech, 28 111. 492, this court said upon this subject: "We certainly think a more unequivocal mode of dedication of streets could not be adopted than surveying and platting the ground and selling lots abutting on the streets, even if the streets should not be used by the public. If they are not reclaimed by the original proprietors in some mode authorized by law, they remain public,-open to the use of the public whenever they may choose to appropriate them." And, again, page 493: "The fact that White laid out this land into lots, streets, and alleys, and had them duly platted, acknowledged, and recorded, was a dedication of the streets and alleys to the public as highways, * and they remained highways, with the width designated on the plat, until such time as they should be legally vacated." And see Town of Derby v. Alling, 40 Conn. 435; Mayor of Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq. 553, 554. In the latter case, in speaking upon this subject of streets, it is said: "There is a large class of cases where the acts of dedication by the owner of the fee are of such a character as to preclude the owner from retracting the dedication even before any act of acceptance on the part of the public;" citing many cases.

* *

But, were there failure here to show a statutory dedication, we are of opinion there was a valid common-law dedication. While this 80-acre tract of land was owned in common by all the original proprietors, they made this plat, and this arrangement of the land, for future use and enjoyment, by the division of it into blocks, with streets surrounding each block. With the land thus arranged for use and enjoyment, it was partitioned and divided among the owners, each one taking certain of the blocks as his or her several share. Each block was thus burdened with the easement of a street upon a strip of land 33 feet wide around it, and entitled to the benefit of the easement of a street of like width upon the adjoining side of the opposite block, so far as there was a block opposite, thus making a street 66 feet wide around each block, excepting one or two streets, which were a little wider. The blocks were allotted and accepted with these burdens and benefits of streets attached to them as incidents. For the burden of the easement of the street

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