Mr. Chief Justice Lawrence
delivered the opinion of the Court:
This was a bill in chancery brought by Johnston against the city of Peoria, to enjoin it from taking a strip of land about sixteen feet -wide, now forming a part of the inclosure between^ complainant’s house and Main street, in said city, and from making it a part of the street. The city answered, and a replication having been filed and proof taken, the cause came on to a hearing and the court made the injunction perpetual. The strip of land in question is situated in part on the south-east 4, 8 north, 8 east, and in part on the south-west quarter of the same section, and the claim made by the city to the land on each quarter rests upon different grounds.
Main street, it appears, in 1841, ran from the river in a northwest dii’ection to the south line of section 4, having a width of one hundred feet. At that time William Hale owned the south-east of 4, of which a small portion at the south-west corner crossed the line of Main street. In that year he laid out an addition to the city, on so much of the south-east quarter as lay on the north-east side of the line of Main street, and on the 31st of May acknowledged his plat, which was duly recorded. He indicated the course of Main street on his plat but did not fix its width. The other streets in his addition he made of the same width with the corresponding streets in the original town. In 1842, Hale deeded to Hamlin all of the south-east 4 lying south-west of Main street, being the corner above referred to, and Hamlin at once took possession and built the fence, where it has since stood and now stands. At the time Hale laid out his addition, although Main street proper terminated at the south line of section 4, yet a public highway had been laid out by the county authorities and for several years had been opened and traveled, which was a continuation of Main street, but only sixty-six feet wide.
The only ground upon which the city now claims the right to so much of complainant’s inclosure as lies on the south-east of section 4, is that it was dedicated by Hale. The argument is, that, as he caused Main street to be laid down on his plat, and as Main street, from the river to this point, was one hundred feet wide, and as he made the other streets in his addition of the same width with the corresponding streets in the town, he must be presumed to have intended Main street should have the same width, although he indicated no particular width on his plat, but merely showed its line or locality.
If no highway had been established in continuation of Main street when Hale platted his addition, the argument would certainly have great force. But a highway, which was such a continuation, was already there, and extended in a northwesterly direction sixty-six feet in width. This highway was not disturbed by his laying off an addition on one side of it, and we do not perceive how it can be confidently said whether he intended this highway, so far as he owned the land onqach side of it, should be of the width of that portion of the highway which extended into the country, or of that portion which extended toward the river. The probability is, he had no settled pm-pose in regard to this matter, and left it open to be decided in the future, contenting himself for the time being with indicating on his plat that a highway, in the line of Main street, bordered his addition on the south-west side.
How, as dedication is a question of intention, and the existence of such intention must be shown with reasonable clearness, we should have much difficulty, if the proof stopped here, in affirming the dedication to have been established.
But, conceding the question to be in some doubt, so far as depends upon this evidence, the course of subsequent events has been such as must compel ns to resolve all these doubts against the city, on the ground that, for twenty-eight years prior to the commencement of this suit, the grantees of Hale have been in exclusive and undisturbed possession of the premises, improving and cultivating them as a part of the ornamental grounds lying between the house and the street, this possession commencing the year after Hale made his plat. But there has been, on the part of the city, something more than mere acquiescence. In 1847, the city council passed an ordinance making the line of Main street, on the south-west side, as far down as Perry street, to conform to the fence erected by the grantee of Hale, thus recognizing his fence as the true line of the street. Again, in 1857, the city council appointed commissioners to assess the damages for condemning this land, and they were assessed, though never paid.
So far as relates to this portion of the premises in controversy, we should be inclined to hold, that, when the acts which are relied upon to show the dedication originally are of such doubtful character as in the present case, the additional circumstance that individual ownership was asserted, and exclusive possession taken the first year after the alleged dedication, and that the city has for twenty-eight years both positively recognized and passively acquiesced in such a construction of the plat as excludes the idea of dedication, during which period the premises have several times been sold, must be regarded as settling against the claims of the city whatever doubts attach to the evidence of dedication in the first instance. We may well adopt that construction of the plat which the parties themselves have acted upon for twenty-eight years.
Admitting, however, there was a dedication, there is another view of this case, arising on the question of abandonment or non-user, which we will consider, after stating the facts concerning the other portion of the premises in controversy.
The claim made by the city to that portion of the strip of land, situate on the south-west of section 4, rests on the survey and plat of a road made by the county in 1839. It is claimed that the plat of the road on file in the‘county clerk’s office covers the premises in question. It is, however, proved that the road, as it was actually staked by the viewers, was laid out so that the south-west side was in a line with the fence as it now stands in front of complainant’s premises. The fence in front of this part of the premises was built the same year, and there it has stood to the present time. The road as staked by the viewers, and soon afterward fenced by the then owner of the premises in controversy, has been the recognized highway to the present time, having the full width of sixty-six feet called for by the survey. The case, then, as to this portion of the premises falls within the principle recognized in Champlin v. Morgan, 20 Ill. 182, and Town of Lewiston v. Proctor, 27 id. 418, that the public loses its right to a highway where it has abandoned it and accepted another in its stead for such a length of time and under such circumstances as to give it a title to the substituted road.
But, independently of this principle, conceding this highway was laid out as claimed by appellant, and conceding there was an intention to dedicate the premises on the south-east of section 4, we are of opinion that the adverse possession of the appellee, open and exclusive as it has been, and the complete non-user of the easement by the public for more than twenty years, are a sufficient answer to the claim now made by the city. It is said in Kent (vol. 3, marg.
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Mr. Chief Justice Lawrence
delivered the opinion of the Court:
This was a bill in chancery brought by Johnston against the city of Peoria, to enjoin it from taking a strip of land about sixteen feet -wide, now forming a part of the inclosure between^ complainant’s house and Main street, in said city, and from making it a part of the street. The city answered, and a replication having been filed and proof taken, the cause came on to a hearing and the court made the injunction perpetual. The strip of land in question is situated in part on the south-east 4, 8 north, 8 east, and in part on the south-west quarter of the same section, and the claim made by the city to the land on each quarter rests upon different grounds.
Main street, it appears, in 1841, ran from the river in a northwest dii’ection to the south line of section 4, having a width of one hundred feet. At that time William Hale owned the south-east of 4, of which a small portion at the south-west corner crossed the line of Main street. In that year he laid out an addition to the city, on so much of the south-east quarter as lay on the north-east side of the line of Main street, and on the 31st of May acknowledged his plat, which was duly recorded. He indicated the course of Main street on his plat but did not fix its width. The other streets in his addition he made of the same width with the corresponding streets in the original town. In 1842, Hale deeded to Hamlin all of the south-east 4 lying south-west of Main street, being the corner above referred to, and Hamlin at once took possession and built the fence, where it has since stood and now stands. At the time Hale laid out his addition, although Main street proper terminated at the south line of section 4, yet a public highway had been laid out by the county authorities and for several years had been opened and traveled, which was a continuation of Main street, but only sixty-six feet wide.
The only ground upon which the city now claims the right to so much of complainant’s inclosure as lies on the south-east of section 4, is that it was dedicated by Hale. The argument is, that, as he caused Main street to be laid down on his plat, and as Main street, from the river to this point, was one hundred feet wide, and as he made the other streets in his addition of the same width with the corresponding streets in the town, he must be presumed to have intended Main street should have the same width, although he indicated no particular width on his plat, but merely showed its line or locality.
If no highway had been established in continuation of Main street when Hale platted his addition, the argument would certainly have great force. But a highway, which was such a continuation, was already there, and extended in a northwesterly direction sixty-six feet in width. This highway was not disturbed by his laying off an addition on one side of it, and we do not perceive how it can be confidently said whether he intended this highway, so far as he owned the land onqach side of it, should be of the width of that portion of the highway which extended into the country, or of that portion which extended toward the river. The probability is, he had no settled pm-pose in regard to this matter, and left it open to be decided in the future, contenting himself for the time being with indicating on his plat that a highway, in the line of Main street, bordered his addition on the south-west side.
How, as dedication is a question of intention, and the existence of such intention must be shown with reasonable clearness, we should have much difficulty, if the proof stopped here, in affirming the dedication to have been established.
But, conceding the question to be in some doubt, so far as depends upon this evidence, the course of subsequent events has been such as must compel ns to resolve all these doubts against the city, on the ground that, for twenty-eight years prior to the commencement of this suit, the grantees of Hale have been in exclusive and undisturbed possession of the premises, improving and cultivating them as a part of the ornamental grounds lying between the house and the street, this possession commencing the year after Hale made his plat. But there has been, on the part of the city, something more than mere acquiescence. In 1847, the city council passed an ordinance making the line of Main street, on the south-west side, as far down as Perry street, to conform to the fence erected by the grantee of Hale, thus recognizing his fence as the true line of the street. Again, in 1857, the city council appointed commissioners to assess the damages for condemning this land, and they were assessed, though never paid.
So far as relates to this portion of the premises in controversy, we should be inclined to hold, that, when the acts which are relied upon to show the dedication originally are of such doubtful character as in the present case, the additional circumstance that individual ownership was asserted, and exclusive possession taken the first year after the alleged dedication, and that the city has for twenty-eight years both positively recognized and passively acquiesced in such a construction of the plat as excludes the idea of dedication, during which period the premises have several times been sold, must be regarded as settling against the claims of the city whatever doubts attach to the evidence of dedication in the first instance. We may well adopt that construction of the plat which the parties themselves have acted upon for twenty-eight years.
Admitting, however, there was a dedication, there is another view of this case, arising on the question of abandonment or non-user, which we will consider, after stating the facts concerning the other portion of the premises in controversy.
The claim made by the city to that portion of the strip of land, situate on the south-west of section 4, rests on the survey and plat of a road made by the county in 1839. It is claimed that the plat of the road on file in the‘county clerk’s office covers the premises in question. It is, however, proved that the road, as it was actually staked by the viewers, was laid out so that the south-west side was in a line with the fence as it now stands in front of complainant’s premises. The fence in front of this part of the premises was built the same year, and there it has stood to the present time. The road as staked by the viewers, and soon afterward fenced by the then owner of the premises in controversy, has been the recognized highway to the present time, having the full width of sixty-six feet called for by the survey. The case, then, as to this portion of the premises falls within the principle recognized in Champlin v. Morgan, 20 Ill. 182, and Town of Lewiston v. Proctor, 27 id. 418, that the public loses its right to a highway where it has abandoned it and accepted another in its stead for such a length of time and under such circumstances as to give it a title to the substituted road.
But, independently of this principle, conceding this highway was laid out as claimed by appellant, and conceding there was an intention to dedicate the premises on the south-east of section 4, we are of opinion that the adverse possession of the appellee, open and exclusive as it has been, and the complete non-user of the easement by the public for more than twenty years, are a sufficient answer to the claim now made by the city. It is said in Kent (vol. 3, marg. page 448, eleventh edition) that mere non-user for twenty years affords a presumption of extinguishment, though not a very strong one, in a case unaided by circumstances, but if there has been, in the mean time, some act done by the owner of the land charged with the easement inconsistent with or adverse to the right, an extinguishment will be presumed. The eases quoted in the notes fully sustain the doctrine of the text and some of them state it more strongly. See Corning v. Gould, 16 Wend. 531, where the law on this subject is fully reviewed; Wright v. Freeman, 5 Harr. & Johns. 477; Emerson v. Wiley, 10 Pick. 310 ; Yakle v. Nace, 2 Whart. 123; Knight v. Heaton, 22 Vt. 480. A case can hardly be presented in which the nonuser on the part of the public, and the acts of the private claimant inconsistent with the easement, could be more complete than in the present.
The case of The City of Alton v. Illinois Transportation Co., 12 Ill. 38, cited by counsel for appellant, only held that our peculiar seven years’ statute of limitation did not apply to the case then before the court, and we are aware of no decision by this court in conflict with the foregoing principle. It is reasonable in itself and fully sustained by the authorities.
It is urged, however, by counsel for appellant, that this is not a proper case for chancery jurisdiction, or that, in any event, the court should merely have enjoined the city until the rights of the parties could have been settled at law.
As to the first point, it is only necessary to say that the complainant was seeking, not merely to enjoin a trespass, but to restrain the city, under color of its chartered powers, from taking absolute possession of property to which it had no right, and inflicting a permanent and continuing injury upon the complainant. In such cases, injunction is a proper remedy. Smith v. Bangs, 15 Ill. 402.
The answer to the second objection is, that the complainant, having been compelled to come into chancery as the only means by which he could secure himself against the threatened lawless acts of the city, had a right to ask the court to grant him complete relief, and the court, having once, acquired jurisdiction on its chancery side, very properly went on to administer complete relief. The city cannot complain. She could have brought her action of ejectment in the first instance, and tried the title at law if she desired. She pursued a different course, and one which compelled the complainant to come to chancery for aid, and she cannot now be permitted to complain that this court has administered complete relief. The court was obliged to hear the entire case in order to determine whether any relief should be given, and, having heard it, why send the parties to a court of law to have the case reheard ? There is little controversy as to the actual facts, aud the court acted very properly in settling the rights of the parties.
Decree affirmed.