Kelly v. City of Chicago

Illinois Supreme Court

Kelly v. City of Chicago

48 Ill. 388

CourtIllinois Supreme Court

DecidedSeptember 15, 1868

StatusPublished

Cited by12 cases

This text of 48 Ill. 388 (Kelly v. City of Chicago) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. City of Chicago, 48 Ill. 388 (Ill. 1868).

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Opinion

Mr. Justice Lawkehce

delivered the opinion of the Court:

The only question in this case is, whether there is sufficient 'vidence of dedication, and we agree with the superior court, mat there is not. As this court has in several cases said, in order to justify us in holding that title has been divested by dedication, the proof should be very satisfactory, either of an actual intention to dedicate, or -of such acts or declarations as should equitably estop the owner from denying such intention.

In this case, although a road-way or street was thrown ■up -in 1854, by digging ditches on each side, yet Myrick, the owner, was, at the time, out of the State, and this was done without his knowledge. From that time to the present, he ■has permitted the road-way to be constantly used by the public, but that he could not prevent, except by enclosing the land or bringing actions of trespass, and we can not hold that a failure to do this is conclusive evidence of an intention to dedicate.

But, whatever weight might be given to this evidence, standing by itself, it is met by proof, that in the same year when this street was thrown up, the owner executed and placed upon record a formal instrument of dedication, opening the street through a portion of his property, but stopping at the part now in controversy; and this part, although the public has been using it as a street, has always been laid out in lots in the recorded plat of his addition. We must regard this evidence as rebutting any presumption of intention that might be drawn from user by the public of his vacant and unenclosed land.

The evidence of the witness, Kelly, is flatly denied by that of Myrick, and both are interested. There remains only the testimony of Kiebling, to the effect that he purchased a certain lot as a corner lot, which it would not be if Myrick Avenue were not continued to twenty-ninth street. But the language of the witness is, that Myrick said, “ it would make a good business corner some day,” which may well be construed as merely meaning that Myrick Avenue would some day be continued to twenty-ninth street, and anticipating that fact, the parties spoke of this lot as a corner lot, as it is now being made in this proceeding.

"We see no ground for reversing this judgment.

Judgment affirmed.

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Mr. Justice Lawkehce

delivered the opinion of the Court:

The only question in this case is, whether there is sufficient 'vidence of dedication, and we agree with the superior court, mat there is not. As this court has in several cases said, in order to justify us in holding that title has been divested by dedication, the proof should be very satisfactory, either of an actual intention to dedicate, or -of such acts or declarations as should equitably estop the owner from denying such intention.

In this case, although a road-way or street was thrown ■up -in 1854, by digging ditches on each side, yet Myrick, the owner, was, at the time, out of the State, and this was done without his knowledge. From that time to the present, he ■has permitted the road-way to be constantly used by the public, but that he could not prevent, except by enclosing the land or bringing actions of trespass, and we can not hold that a failure to do this is conclusive evidence of an intention to dedicate.

But, whatever weight might be given to this evidence, standing by itself, it is met by proof, that in the same year when this street was thrown up, the owner executed and placed upon record a formal instrument of dedication, opening the street through a portion of his property, but stopping at the part now in controversy; and this part, although the public has been using it as a street, has always been laid out in lots in the recorded plat of his addition. We must regard this evidence as rebutting any presumption of intention that might be drawn from user by the public of his vacant and unenclosed land.

The evidence of the witness, Kelly, is flatly denied by that of Myrick, and both are interested. There remains only the testimony of Kiebling, to the effect that he purchased a certain lot as a corner lot, which it would not be if Myrick Avenue were not continued to twenty-ninth street. But the language of the witness is, that Myrick said, “ it would make a good business corner some day,” which may well be construed as merely meaning that Myrick Avenue would some day be continued to twenty-ninth street, and anticipating that fact, the parties spoke of this lot as a corner lot, as it is now being made in this proceeding.

"We see no ground for reversing this judgment.

Judgment affirmed.

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