author: Mr. Justice Walker

text:
    Charles Worden v. Howard C. Crist et al.

      Filed at Springfield March 29, 1883.

    1. Specific) performance—title of purchaser held in pledge by vendor to indemnify him as surety. Where the purchaser of land, after having paid the purchase money so as to entitle himself to a deed, pledges the title, then in the hands of a third person, to his vendor, to indemnify the latter against loss as surety of the purchaser in another transaction, a specific performance will not be decreed until the debt for which the vendor is surety has been paid, and a decree granting a specific performance upon condition of the payment of such debt by a day fixed, and in default of such payment ordering the premises to be sold for such indebtedness, is not erroneous as to the party seeking such specific performance.
    2. Statute of Frauds—pledge of title to land to indemnify surely— not in writing—the ninth section of the statute in relation to trusts, construed. A purchased a tract of land and-took a bond for a deed from B, the vendor. The premises had before been sold on the foreclosure of a prior mortgage, and to cut off a dower right in the wife of the mortgagor, B procured an assignment of the certificate of purchase to his son, who received a 'master’s deed investing him with a clear, legal title, and A, after payment of the purchase money, procured B to become his surety upon a note for $1000, agreeing that the title might remain in B’s son as an indemnity to B, until such note should be paid: Held, on bill by the assignee of A for specific performance, that the agreement respecting the holding of the title by B’s son as an indemnity to the vendor was not within the Statute of Frauds, and was valid and binding, though not in writing.
    3. The ninth section of the Statute of Frauds was intended to prevent persons holding the title to land from creating a trust, appointing a trustee, and declaring who should be the beneficiary, and declaring the terms of the trust in any other manner than in writing. It was not intended to prevent the holder of the legal title from agreeing with the holder of the equitable title upon other and different terms and conditions than those originally agreed upon, when the latter shall be entitled to a conveyance of the legal title. Such parties may verbally agree upon new terms for the conveyance of the legal title, or may rescind the contract altogether.
    4. Purchaser of an equity—chargeable with notice. A party purchasing only an equity takes it subject to all equities with which it may be encumbered. So, where a person takes an assignment of a bond for a deed after his assignor has pledged the title in the hands of a third person to indemnify the maker of the bond as his surety, the assignee will take no better right or equity than his assignor had at the time of the assignment.
    5. Error—who may avail of it. A party will not be allowed to avail himself of an error which does him no harm.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Walter M. Hatch, for the appellant:
    Even if the oral agreement set up by the defence be considered established by the oral evidence, the agreement was and is void by the Statute of Frauds. It is directly in the teeth of the 9th section of said statute. Rev. Stat. chap. 59, secs. 2, 9.
    All trusts in lands for third persons must be in writing, signed by the party creating the trust. Smith v. Hallenbeck, 51 Ill. 223; Adams v. Adams, 79 id. 517; Rev. Stat. chap. 60, sec. 9; Hovey v. Holcomb, 11 Ill. 660; Perry v. McHenry, 13 id. 227.
    The Statute of Frauds is the plain law of the land, and it is the duty of courts to enforce it. Hite v. Wells, 17 Ill. 88; Olt v. Lohnas, 19 id. 576; Gaddis v. Leeson, 55 id. 83; Albertson v. Ashton, 102 id. 50.
    The violation of a parol promise or trust, as to an interest in land, will not, of itself, constitute such a fraud as will take a case out of the Statute of Frauds. Rogers v. Simmons et al. 55 Ill. 76.
    An oral contract or agreement, if void by the" Statute of Frauds, can not be used as a defence any more than it can be used as a cause of action. Brown on Frauds, sees. 131, 133; Comes v. Lamson, 16 Conn. 246; Scotten v. Brown, 4 Harr. (Del.) 324; King v. Wilson, 5 Gray, 41.
    Messrs. Spencer, Weldon & McNulta, for the appellees:
    The appellant, Charles Worden, had notice of the rights, whatever they may be, of H. C. Crist, and can claim no higher equities than James Worden himself can claim.

      The rights of appellees in this case are not embarrassed or arrested by the Statute of Frauds. The decree appealed from is more favorable to appellant than he was entitled to, and, therefore, he has no just ground of complaint. The decree as rendered does justice to the parties.
   Mr. Justice Walker

delivered the opinion of the Court:

About the 15th day of June, 1872, David L. Crist, claiming to own the tract of land in controversy, executed to James Worden a bond for a conveyance, upon his paying $502.80, on or before the 20th of May, 1873, and all taxes on the land. This was the balance of the purchase money on the lot. The bond provided, that if the money should be paid by that time the conveyance should be by general warranty, but if not, then by quitclaim deed. The land having been sold by the master in chancery to Alexander Campbell, Jr., on the foreclosure of a mortgage, and the redemption expiring on that day, it required the sum named in the bond to redeem, and it was designed to be used for that purpose. The certificate of purchase was in the hands of Williams & Burr, his attorneys, and the redemption was to be paid to them by arrangement between the parties, and they were to fill in the name of the person redeeming, in a blank assignment of the certificate. On the 16th day of May, 1872, four days before the payment fell due, Burr, for his firm, received from Worden $500 of the amount to be paid on the bond. He being absent, Crist called at the office of Williams & Burr the next day, and paid them $502.80, the full amount, and not knowing that Burr had, the day before, received the $500 from Worden, Howard C. Crist’s name was inserted in the blank, and the certificate delivered to him. On the 24th of May, 1873, there was paid to Williams & Burr, $2.80 for Worden,—the balance of the sum named in the bond. The arrangement was to have a master’s deed, to free the property from a claim of dower, and enable Crist to safely warrant the title. Subsequently, Howard C. Crist, the son of David L. Crist, received a master’s deed, and it was recorded. On his return from Michigan, Worden paid the full amount of the money to 'Crist advanced by him to obtain the assignment of the certificate of purchase, but Howard C. refused to convey by general warranty, but tendered a quitclaim deed, which Worden refused to receive. Afterwards James Worden sold and assigned Grist’s bond for a conveyance to complainant, who claims to have purchased without any notice of any kind of defence. On receiving the assignment of the bond he went into possession of the land, and has so remained ever since. James Worden afterwards became a bankrupt, and received a discharge from his debts.

These facts are not controverted. This of itself would make a clear case for a specific performance. It is, however, set up and relied on as a defence, that James Worden, before he assigned the bond, being desirous to borrow $1000 of the Home Bank, proposed to David L. Crist that if he would become his surety for the amount, Howard G. might hold the title, to indemnify him against liability to loss until the amount should be paid; that this arrangement was consummated and the money borrowed, and that there has been paid but $200 of the amount; that David L. Crist has died testate, and defendant Howard C. became and is the executor of his last will; that the note to the Home Bank has been filed and allowed against the estate. And it is claimed that Howard C. Crist, the executor, has a right, under that agreement, to hold this security to indemnify the estate against loss until complainant shall pay the debt.

It is urged that the evidence preponderates in favor of the appellant, and that appellees failed to establish their defence by the proofs heard on the trial. It is true James Worden denies most explicitly that he ever made an arrangement with D. L. Grist that Howard C. should hold the title to indemnify him as surety on the note to the Home Bank. But Howard C. testifies as positively and distinctly that the agreement was made, and states he was present and heard all that was said before his father and Worden went to the bank, and on their return they said he was to hold the title until the note was paid. His evidence is as positive as is that of James Worden. Again, Gill testifies most positively that James Worden admitted to him there was such an arrangement, stating in detail its terms. But it is insisted that these witnesses have a direct interest in the suit, and that James Worden’s denial of the agreement should preponderate over their testimony,—that Worden is disinterested, and his evidence should therefore have the greater weight. It is true he testifies that he has no interest, but he stated to Gill that he could have had the deed before, but he preferred the title should remain as it was, because he had creditors. Nor does he or complainant testify complainant was not indebted to him in a sum sufficient to take up the Edwards note, claimed to be the consideration for the assignment of the bond, nor that James did not furnish appellant with the means to pay the note.

The fact that James Worden was financially embarrassed •when he procured the loan from the Home Bank, the size of the loan, and the" fact that Howard C. Crist held the title subject to his father’s control, renders it more than probable that D. L. Crist would insist that the title should be held as it then was, to indemnify him, as a condition to his becoming surety for such an amount for a man in embarrassed and doubtful circumstances. Few men of prudence would have failed to avail themselves of the means of indemnity. This fact lends aid and strong support to the evidence of Howard C. and Gill, if one is an heir and the other the husband of another heir to the estate of D. L. Crist. We are unable to say that the court below found the facts contrary to the weight of evidence.

It is, however, claimed, that conceding the agreement was made as alleged, it not being'in writing it was void under the Statute of Frauds, which is relied on in the bill. This agreement was not for the sale .of the property, or any interest therein, hence it does not fall within the letter of the second section of that statute, nor does it fall within the purview of that section. The manifest purpose of the second section was to prevent all sales of real estate, or an interest therein, for more than one year, unless the sale, or the agreement to sell, should be manifested by writing, signed by the seller. Here James Worden did not hold the title,—that was in Howard C. Crist, by a regular chain of title of "record. Worden did not claim to hold the legal title, but an equitable title, that he could convert into a legal title at will. Nor was there any agreement to sell the property. The agreement purported only to permit the title to remain where it then was until the note should be paid,—to indemnify Worden’s surety on the note. We are therefore wholly unable to see that the agreement falls within the provisions of the first or second section of the act. The cases referred to are unlike this, both in facts and principle.

It is, however, claimed that the agreement is condemned by the ninth section. It declares that all creations or declarations of express trusts shall be in writing, and it is urged that the agreement in this case was the creation or declaration of an express trust, and it is not in writing, and is therefore void. This is not of the character of trusts intended to be embraced in that section. It was intended to prevent persons holding the title to lands from creating, a trust, appointing a trustee, and declaring who should- be the beneficiary, and declaring the terms of the trust, in any other manner than in writing. It was not intended to prevent the holder of the legal title from agreeing with the holder of the equitable title upon other terms than those by which he was originally entitled to have a conveyance of the legal title. The statute was not intended to prevent parties thus situated to agree upon other and different terms ■ from those contained in the original agreement,—by express agreement to vary, enlarge, diminish, or agree upon new terms for the conveyance of the legal title. That the parties by express verbal agreement might have rescinded the contract, none will, we presume, question or deny. Had these parties by mutual verbal agreement rescinded the contract, and the consideration been restored, it would be monstrous to hold that the purchaser could compel a conveyance under the bond on proving he had paid the purchase money, and the seller precluded under the statute from proving that after the payment the contract had been rescinded, and the purchase money returned to the purchaser. It would work great and palpable injustice to give the statute such a construction. It would open the door to greater and more flagrant frauds than those intended to be suppressed. If parties thus situated may rescind such contracts by verbal agreement, upon the same principle and for the same reason they must have the power by mutual agreement, even by parol, to change the terms of the contract and impose new conditions. Here the purchaser ■ procured the seller to become his surety, by which he obtained money that he did not, nor is it probable he- will ever, pay, by agreeing the title in Howard C. Crist should remain in pledge to indemnify the seller against loss,—and as between them there can be no question the agreement was valid. Had the bond not been assigned, and after this arrangement was made James Worden had filed his bill for a specific performance, and the agreement had been set up and proved, would it not have shocked the sense of all men having the slightest sense of justice to reject the defence and decree the relief ? No one could justify such a decree.

This, then, was the attitude of the parties to the bond when it was assigned. Did appellant take it in a better condition than it was held by his assignor ? We think not. Howard C. Crist owned or held the fee of record. The bond was not given by him, nor was there anything of record or any writing in existence binding him to convey the property to James Worden, or any one else. Appellant should therefore have inquired of Howard G. before purchasing. Had he done so he would have learned the true condition of the title and of this incumbrance. He failed to do so, and has purchased an equity, and he took it subject to all equities with which it was incumbered. He could, under the circumstances, acquire no greater or better right than his assignor held.

The court decreed that complainant pay the Home Bank the note given by him to it, and allowed against the estate of D. L. Crist, within three months, or in default thereof that the land be sold, and of the proceeds of the sale that claim shall be paid. It is urged that this is error, as the court could not grant such relief on answer, but a cross-bill should have been filed to warrant that part of the decree. Concede it was error, how can it operate to the prejudice of appellant? The decree gave him the power to redeem in the time specified, and on his failing to do so he would be foreclosed, and would lose all right or claim to the land, and when that right shall be lost it does not concern him what shall become of the land. If there is error it is not such as appellant can be heard to urge.

We perceive no error in the record requiring a reversal, and the decree is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Samuel T. Lockwood v. William T. Johnson, Collector.

      Filed at Ottawa March 29, 1883.

      Taxation—duty of agent to list property in his hands—duty of the assessor if the agent omit to do so. It is the duty of one having property of manufacturers and others in his hands, as agent, on the first day of May, to list the same in his own name, as merchandise, in the town where he carries on such business. If he neglects to do so on request, the assessor is required to ascertain the amount and value of such-property, and assess the same in such agent’s name, and the failure of the assessor to add the words “as agent,” after such person’s name on the assessor’s books, will not invalidate the assessment.
    Appeal from the Circuit Court' of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Lockwood resided in the town of West Chicago, and under the style of S. T. Lockwood & Co., carried on business in the town of South Chicago of a commission merchant,—that is, of receiving consignments of goods from divers manufacturers, and storing and selling the same on commission. On the 1st of May, 1880, he had in his possession at his store in the town of South Chicago, as the agent of more than twenty different consignors residing without the State of Illinois, merchandise belonging to them, of the aggregate value of at least $3000, which he was to sell for them. The assessor of the town in which this place of business was, called on Lockwood at his store, and left a blank, in the usual form required by law, to be filled up by him, with a statement of personal property for taxation. Lockwood told the assessor that he resided in the town of West Chicago, where he paid his personal taxes, and that the goods and merchandise at this store were held by him simply on consignment. The assessor went away, leaving the blank, without saying what he would do about making an assessment of this property. Lockwood paid no further attention to the assessor’s demand for a listing of this property. He did not give the names of the respective owners of the property. The assessor listed this property as the property of S. T. Lockwood & Co., and valued the same at $3000, and on this valuation a tax was extended in the ordinary mode. ' This is a bill in chancery, brought by Lockwood, to enjoin the county collector (into whose hands this tax came for collection) from proceeding to collect the same from Lockwood out of his private property. The circuit court, on. hearing, dismissed the bill.
    Messrs. Sleeper & Whiton, for the appellant.
    Mr. Consider H. Willett, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

We find no cause to disturb the decree of the circuit court. Lockwood was in possession of the property, apparently as owner. The property was a proper subject of assessment and taxation in the town of South Chicago. Section 6 of the Revenue act, (clause 10,) says: “The property of manufacturers and others, in the hands of agents, shall be listed by and in the name of such agent, as merchandise.” By section 83, the assessor, where he fails to get a list of personal property from the person required by law to list the same, is required to ascertain the amount and value of the property, and assess the same. The assessor failing to get this property listed by the agent, proceeded to list and assess the same. He listed it in the name of the agent, assumed by him for this business, which was S. T. Lockwood & Co.

It is insisted that this assessment is invalid because the assessor did not enter upon his books the words “as agent,” or some other phrase showing that it was the property of some person or persons other than the agent. We find no statute requiring this. It is to be listed “in the name of the agent.” This assessment is so made. It is said, however, that section 256 provides a lien on the property in favor of the agent when property is assessed “to any person as agent of another, ” and, by implication, requires that the agency must appear on the face of the assessor’s books, and this for the protection of the agent. Without inquiring whether such lien be or not dependent upon such an entry on the face of the assessment, it is sufficient to say that it was the duty of Lockwood to have listed this property with the assessor of the town of South Chicago, in his own ñame. He neglected to do so. The assessor, as he was required, undertook to make the list and assessment by the best lights he had. If he failed in the mode,—in a matter which, if directed by statute, is so directed merely to give the agent better means of availing himself of his lien,—the agent can not complain of this failure. Had he done his duty no mistake of this kind (if mistake it is) could have occurred. The property was subject to assessment and taxation in the town of South Chicago, where the agent had his place of business, and to be listed in the name of the agent, and the mere fact that the words, “as agent, ” are not added, can not invalidate the assessment. It was clearly the purpose of the statute to make the agent liable for the tax, else no lien would have been given the agent for his protection.

The decree of the circuit court is therefore affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    The City of Quincy v. Lorenzo Bull et al.

      Filed at Springfield March 29, 1883.

    X. Municipal corporation—power to grant leave to lay water pipes under the streets. A city having the exclusive power and control over its streets may allow any use of them consistent with the public objects for which they are held, and uses for the purpose of sewers, gas pipes, water pipes, etc., are among those which may be granted.
    2. Where a charter in terms gives a city the power to supply, or authorize its inhabitants to be supplied with, water, the city council may use, or as an incidental power may permit a contractor to use, the streets for this purpose. The use of streets for the purpose of laying water pipes being necessary to the construction of water works, the power to contract for their construction includes, as a necessary incident, the power to contract for the use of the streets for that purpose.
    3. Same—granting right of way over streets for certain purposes—subject to reasonable regulation. Where a city grants a right of way over its streets for a number of years for the purpose of laying water pipes under the ground, neither the grant, nor an injunction to restrain the city from preventing the laying of such pipes, will interfere with the police power of the city over the streets, so as to debar it from making reasonable regulations as to the manner of making use of the right of way granted.
    4. Same—construction of grant of right to lay water pipes under streets—whether limited to such streets as may be indicated from, time to time by the city council. An ordinance of a city granted to a contractor the exclusive right to construct, maintain and operate water works in the city for thirty years, and the exclusive right to sell water in the city for municipal arid private use, and also granted to him the right of way in all the streets and alleys of the city for the purpose of laying mains and services, etc., his compensation for the outlay to depend upon the sale of water for municipal and private use. To guard against an insufficient supply of water, the ordinance further provided that within a time limited the contractor should have constructed water works of a certain specified extent, and that he should extend the mains when ordered by the city council, with the qualification that in such case there should be a fire hydrant on each cross street intersection, for which the city was to pay him a certain price: Held, that by the ordinance there was granted the right to extend the mains under any of the streets and alleys without being ordered to do so by the city council; and that a further clause that the city council should indicate the location of mains and hydrants did not require a different construction, as that might be satisfied by indicating the portion of the street to be used.
    5. Same—grant of use of streets is not revocable. Where a city, by ordinance, grants the right to a party to construct water works at his expense to supply the city and its inhabitants with water, with the right to lay water pipes under the surface of the streets and alleys, for a period of years, which grant is accepted and the work partially performed, the privilege of the use of the streets is not a mere license, revocable at the pleasure of the city council, but it is a grant under an express contract, for an adequate consideration, and is binding as a contract. When there is power in a city to make a contract, there is power to make one that will bind the parties.
    6. Ordinance—when void in part and valid as to other matters. One part of an ordinance or law may be declared void while another part is considered valid, when the different parts are capable of being separated in their operation. So where an ordinance of a city grants an exclusive use of its streets for thirty years for laying water pipes, etc., to supply the city with water, and fixes the compensation the city shall pay for the use of water supplied to it, the ordinance may be void as to the grant of an exclusive use, and as to the indebtedness incurred thereby, it being in excess of the constitutional limit, yet valid as to the right of the grantee to construct the water works and lay his mains and pipes in the streets for the purpose of supplying water for private use.
    7. Injunction—construed, as to the time of its continuation. Where a city had granted to an individual the right to construct and maintain water works for thirty years, with leave to extend water pipes through its streets, and afterward the city repudiated the contract and sought to prevent the grantee from laying such pipes under the streets, as he was entitled to do, the court, on bill for that purpose, entered a decree perpetually enjoining the city from interfering to prevent the exercise of such right. It was held, that the fair construction of the decree of injunction was, that it was coextensive with the right granted and claimed, and had no further extent.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    This was a bill in chancery, brought by Lorenzo Bull, Edward Prince and William B. Bull, against the city of Quincy and its chief of police, to restrain their interference with the laying of water pipes by the complainants in streets of said city. The circuit court overruled a demurrer to the bill, and the defendants abiding by their demurrer, the court made a decree in favor of the complainants, enjoining such interference, which decree, on appeal to the Appellate Court for the Third District, was affirmed, and the city appealed to this court.
    The bill sets forth, in substance, that in the spring of 1873, the city of Quincy being without water works, and having no supply of water to extinguish fires, except such as was contained in public cisterns distributed here and there in the business portions of the city, established the so-called “temporary pumping works, ” these consisting of a pump and boiler set up in a pumping house built by the city on the edge of the Mississippi river, and other property used in connection therewith. The city laid less than half a mile of pipe to connect with said pump, the pipe so laid extending from said river up Main street, to the corner of Fifth and Main streets. Through this pipe it was intended to pump water from the river into a few public cisterns which could be reached in this way; that said works soon proved wholly inadequate, and there was a desire for a general system of water works to be established in the city, whereupon the city council began to negotiate with complainant Prince to induce him to construct water works in the city, the city having no money to build with itself, and being indebted beyond the five per cent limit of the constitution, could borrow none; that the negotiations with Prince resulted in an agreement between Prince and the city of Quincy, based on the terms of the ordinance next mentioned; that on August 7,1873, the city council of the city passed an ordinance, entitled “An ordinance to provide the city of Quincy with water. ” The bill sets out the ordinance at length. By section 1 thereof the exclusive right to construct, maintain and operate water works in Quincy is given to Prince for thirty years. By section 9 he is given the exclusive right to sell water in the city for municipal and private use, with a proviso that such grant should not deprive any one from hauling water from the river and selling, as theretofore. Section 11 is as follows:
    “Sec. 11. The city of Quincy grants to said Prince the right of way in all streets and alleys in the city, and all other property-over which said city has or may have control, for the purpose of laying mains and services, valves, valve boxes, extra castings and necessary main and service appendages, said Prince being in all cases responsible for all damages arising from said work, and in case of alteration of street grades the city paying said Prince the amount of damage done him by such alteration. ”
    By section 2 the city conveys to Prince the boiler, pump, pump house, etc., and other things purchased by the city for temporary pumping works, Prince therein agreeing to pay the city its actual outlay in said works. By section 3 Prince agreed to cover a certain portion of the business part of the city with mains, and have water turned on in one hundred days from his acceptance of the ordinance. Section 19 provides that when Prince shall, by an instrument in writing, filed with the city comptroller, signify his acceptance of the terms and provisions of the ordinance, then the ordinance, together with such written acceptance, shall constitute a contract between the city and Prince. By other sections of the ordinance Prince agrees that if the city shall order mains, he will obey the order of the city in that behalf, the condition of the city’s ordering mains being, that one fire hydrant shall be ordered at each cross street intersection, for each of which fire hydrants the city agrees to pay Prince $200 a year, in monthly payments.
    The bill alleges acceptance by Prince of the ordinance as provided, on August 11, 1873, and compliance by him with all the requirements of the ordinance on his part, and that on or before October 1, 1873, he paid the city between seven and eight thousand dollars for said temporary pumping works; that orders for extensions of mains, and the location of hydrants, were given by the city at different times during 1874, 1875, 1877, and, lastly, on October 6, 1879, and these were obeyed by Prince, until, when the last order had been obeyed and fulfilled, Prince had laid seven miles of mains, and located seventy-seven hydrants, and these were located in and furnished a fire protection to the business and more thickly settled residence portions of the city; that Prince assigned portions of his interests to his co-complainants, and at the commencement of the suit the complainants owned the water works built under the ordinance; that complainants had a large number of private consumers of water, and had built up an extensive and valuable business in supplying factories, business houses, hotels, stores, etc., in Quincy; that on March 12, 1881, the city council passed an ordinance repealing said ordinance of August 7, 1873, which was without the consent of the complainants; that they went on furnishing water, and the city continued to use it as before, the city council, at the time of the repealing ordinance, passing a resolution that the city would pay a just and equitable compensation for whatever use the city should make of the hydrants of the water works company; that the city being indebted to complainants for water furnished, and three different suits having been instituted for the recovery of amounts due, and the city having set up, by way of defence to each suit, that the quality and quantity of water furnished by complainants were not such as called for by the ordinance, and different members of the city council and the mayor having, at different times, complained of the quality of water furnished, the complainants, in the fall of 1881, commenced the construction of, and partially completed, a large reservoir, of 16,000,000 gallons capacity, on ground of their own, at the highest point in said city of Quincy, at an expense of many thousand dollars; that the only source of supply for such system of water works, as existing when said reservoir was commenced, was two large tanks, situated at Twelfth and Broadway streets, in said city; that without a reservoir there was no way of improving the quantity and quality of the water, and that for a reservoir no point so good as that where complainants had located their reservoir could be found; that owing to the distance of said reservoir from the nearest point of their system of water works, it became necessary to buy and lay a large amount of new mains and pipes to connect the reservoir with their water works; that at the same time, complainants, being requested by many citizens so to do, determined to extend their system of water works, to afford the convenience of water to many inhabitants living where their works had not, up to that time, extended, and to connect with said reservoir and make said extensions it became necessary for complainants, in the fall of 1881, to buy a large amount of new pipe, which they, relying on the faith of the ordinance of August 7, 1873, did, at an expense to themselves of $40,000; that said pipe began to arrive in January, 1882, and upon arrival of the same had been distributed on and along the line in which their extension was to be made, and that in distributing the pipe, the same had been done so as to interfere as little as possible with travel or with the individuals dwelling on the streets; that on January 16, 1882, the city council passed ordinance No. 119, and on February 20, 1882, ordinance No. 121. Each ordinance is in substance and effect the same, and declares the things which complainants were authorized to do under the ordinance of August 7, 1873, a nuisance, and requires the police of the city to arrest any one engaged in placing any obstruction whatever in the streets, or in digging up the streets, and to seize and move away any such obstruction, unless the leave of the mayor or the city council, entered of record, was first had for the doing of the same; that complainants afterward, in a petition to the city council, requested leave to lay pipes along the streets of their contemplated extension, but their petition was disregarded, no action being taken thereon, except to order it filed; that the pipe ordered by complainants still continuing to arrive after the passage of the two last named ordinances as before, their contractor proceeded with the hauling, the result being a number of prosecutions under the ordinances last aforesaid, the arrest of the teamsters doing the hauling, by the police, and the seizure and removal by the police of the pipe of complainants; that the city threatened to continue arrests under said ordinances, and to enforce them, even by force, if necessary, and complainants being required to employ a great many men,, and the city threatening to arrest them as often as there was any digging in the streets, to avoid these interruptions, which made, and would make, the further prosecution of their business impossible, and to prevent innumerable suits, an injunction was asked to restrain interference in making use of any of the streets of the city for the purpose of laying water pipes to connect complainants’ water works with the reservoir mentioned, or for the purpose of making extensions of their system of water works, or of connecting any private consumers of water with the water mains laid or to be laid. Such injunction was decreed.
    Messrs. Sibley, Caster & Govert, for the appellant:
    A fair construction of section 11 fails to show an intention to grant to Prince the right to use all the streets and alleys, etc., of the city for thirty years, in any manner he might think fit, for his own private advantage. But if such was its import, section 11 is void for want of power in the city council - to make it binding on its successors. Municipal corporations possess a double character,—one governmental, legislative or public, the other, “in a sense,” proprietary or private. Dillon on Mun. Corp. sec. 39; Potter on Corporations, sec. 394, p. 476; Bailey v. Mayor of New York, 3 Hill, 531; Oliver v. Worcester, 102 Mass. 189; Commissioners v. Duckett, 20 Md. 468; Western Savings Fund Society v. Philadelphia, 31 Pa. St. 175; The People ex rel. v. Detroit, 28 Mich. 228; Small v. Danville, 51 Me. 359.
    In adopting section 11 of the ordinance in question, the city council was acting in its governmental and legislative capacity, and not in a private sense. City of Detroit v. Corey, 9 Mich. 165; State ex rel. v. Cincinnati Gas Light and Coke Co. 18 Ohio St. 262.
    No legislative body can so part with its powers by any proceeding as not to be able to continue the exercise of them. It can and should exercise them again and again,—as often as the public interests require. Cooley on Const. Lim. 206 ; Gozler v. Georgetown, 6 Wheat. 596; East Hartford v. Hartford Bridge, 10 How. 535.
    The following and many other cases uphold the doctrine that a municipal corporation has no power to devote its streets to a different use from that to which they were originally dedicated, even by the license of the corporate authorities or by legislative enactment: Melhaw et al. v. Sharp, 17 Barb. 485; Davis v. Mayor of New York, 14 N. Y. 506; People v. Kerr, 27 id. 188; Presbyterian Church v. Mayor, 5 Cow. 538; Coates v. Mayor, 7 id. 585; Mayor v. Second Avenue R. R. Co. 32 id. 261;. State v. Graves, 19 Md. 351; Callender v. Marsh, 1 Pick. 417; O'Connell v. Pittsburg, 18 Pa. St. 187; Smith v. Washington, 20 How. 135; Graves v. Otis, 2 Hill, 466; Lafayette v. Bush, 19 Ind. 326; Creal v. Keokuk, 4 Green, 47; Sherman v. Hartford Bridge Co. 29 Conn. 523.
    The diversion of a public street from its appropriate use, or grant of its use to a private individual for other purposes than for travel, if it can be made, can be made only by legislative authority. Commonwealth v. Ruch, 14 Pa. St. (2 Harris,) 186; Commonwealth v. Bowman, 3 Pa. St. (3 Barr,) 202; Waterman v. Philadelphia, 33 Pa. St. 206; St. Johns v. New York, 3 Bosw. (N. Y.) 483; Richmond Gas Light Co. s. Middleton, 59 N. Y. 228; State v. Cincinnati Gas Co. 18 Ohio St. 262; Smith v. Metropolitan Gas Co. 12 How. Pr. 187;
      Indianapolis v. Indianapolis Gas Co. 66 Ind. 462; Lord v. Oconton, 47 Wis. 386; Mathews v. Alexander, 68 Mo. 115; State v. New Brunswick, 1 Vroom, 31.
    Messrs. Marsh & McFadon, for the appellees:
    The facts in the bill admitted by the demurrer show a contract with Prince binding upon the city, if it had the power to make such grant. City of Burlington v. Burlington Street Ry. Co. 49 Iowa, 147; Mayor v. Second Avenue R. R. Co. 32 N. Y. 272; Railway Co. v. Village of Carthage, 36 Ohio St. 634; State ex rel. v. Cincinnati Gas Co. 18 id. 295.
    The city council, by virtue of its exclusive control over the streets, had the right to make the grant. Private Laws 1857, p. 170, sec. 33; Cairo and Vincennes R. R. Co. 92 Ill. 174; Moses v. Pittsburg, Ft. Wayne and Chicago R. R. Co. 21 id. 522; Murphy v. Chicago, 29 id. 279; Chicago and Northwestern R. R. Co. v. Elgin, 91 id. 251. The only limitation being that the use must not he exclusive, so as to bar all travel, and the purpose must be one required by public convenience. 2 Dillon on Mun. Corp. (3d ed.) see. 688; People v. Walsh, 96 Ill. 248; City of Chicago v. Rumsey, 87 id. 364. And the use of the streets for the purpose of laying gas and water pipes is a proper use of said streets. 2 Dillon on Mun. Corp. (3d ed.) secs. 691, 697; Foster & Co. v. Fowler, 60 Pa. St. 27.
    By implication from the express power to supply the city with water, the power to grant the use of the streets, as done in the ordinance of 1873, existed in the city council. State ex rel. v. Cincinnati Gas Co. 18 Ohio St. 295; Des Moines Gas Co. v. Des Moines, 44 Iowa, 508; Indianapolis v. Gas Light Co. 66 Ind. 396; 2 Dillon on Mun. Corp. (3d ed.) sec. 697.
    Such an ordinance will be interpreted by the rules governing contracts, and not by rules for construing laws. Argenti v. San Francisco, 16 Cal. 270; Touchard v. Touchard, 5 id. 307; Holland v. San Francisco, 7 id. 361.

      Where a city makes a contract under its private or local powers, its contracts are as binding as those of an individual. Lloyd v. Mayor, 5 N. Y. 375; Bailey v. Mayor, 3 Hill, 531; 1 Potter on Corporations, secs. 376, 395.
    But a contract relating to pipe-laying is a purely local matter, and is made under the private powers of a city, and not under its governmental powers, and hence binding on a city as the same kind of contract would be on an individual, (The People ex rel. v. Mutual Gas Light Co. 38 Mich. 155,) and contracts made by a city for the purchase of gas and water are contracts made under the local and private powers of a city, and hence binding upon it. Cooley’s Const. Lim. 249, sec. 282, note 1; 1 Dillon on Mun. Corp. (3d ed.) sec. 27; City of Indianapolis v. Indianapolis Gas Co. 66 Ind. 406; San Francisco Gas Co. v. San Francisco, 9 Cal. 648 ; Western Savings Fund Society v. City of Philadelphia, 31 Pa. St. 189; Bailey v. Mayor, 3 Hill, 531; Western College v. Cleveland, 12 Ohio St. 377; Detroit v. Corey, 9 Mich. 183 ; DeVoss v. Richmond, 18 Gratt. 338; Gale v. Kalamazoo, 23 Mich. 351.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The questions presented here are chiefly upon the ordinance of August 7, 1873. One is a question of construction of the ordinance, it being insisted that the ordinance, in its ■ purport, gave to Prince the right to extend his water mains only when so ordered by the city council.

By the 1st section of the ordinance there is granted to Prince the exclusive right to construct, maintain and operate water works in Quincy for thirty years. By the 9th section he is granted the exclusive right to sell water in the city for municipal and private use. By the 11th section the right of way is granted to him in all the streets and alleys of the city for the purpose of laying mains and services, etc. There is here granted, in the broadest terms, the right to construct water works in Quincy, and the right of way in all the streets and alleys of the city, for the purpose of laying mains and services, etc. For compensation for the large expenditure he would incur, Prince was to depend upon the sale of water for municipal and private use. To guard against an insufficient accommodation of the needs of the city, other parts of the ordinance provided that within a timé limited Prince should have constructed water works of a certain specified extent, and there is then the further provision that he shall “extend the mains when ordered by the city council to do so, ” which is with the qualification that in such case there shall be a fire hydrant on each cross street intersection, and that the city shall pay at the rate of $200 per annum for each fire hydrant until the number of one hundred hydrants was reached, and then a lower rate per hydrant. This provision that Prince should “extend the mains when ordered by the city council to do so, ” is relied upon in support of the position that Prince could not extend his water mains except when ordered by the city council to do so.

We can not regard that provision as limiting the broad rights granted to Prince by the portions of the ordinance first above referred to, so that he could only lay mains when and as ordered by the city council. Why should it do so ? The wants of private citizens, or the interest of Prince in getting compensation from private use of water, might call for the extension of mains. The city council might not be willing to order it. Municipal needs might not require the extension, or the city might be unwilling or unable to incur the increased expenditure of $200 per hydrant at each cross street intersection, which would be required when it should order the extension. The extension of the mains without the order of the city council would cause no additional cost to the city, and would be in accommodation of the wants of citizens, and in aid of Prince in deriving compensation from private use of water. The ordinance has in view the supplying of the wants of the inhabitants, and the compensation of Prince for his expenditure. We think it the reasonable and fair construction of the ordinance, taking all of its sections together, as appellees’ counsel properly insists they should be, that Prince might extend the mains without being ordered to do so by the city council. The provision that the “city council shall indicate the location of mains and hydrants, ” we do not regard as requiring a different construction. That provision might be satisfied by indicating the portion of the street to be used.

The other and more important question which is made with respect to the ordinance concerns its validity. It is contended that the section of the ordinance granting the right of way for the purpose of laying water pipes, etc., in the streets, is entirely void, for want of power in the city council to make such a binding grant.

It is proper to have understood at the first what the exact question is which is involved here. Comment has been made in the argument on the exclusive right which the ordinance grants to construct and maintain the water works for thirty years, and on the compensation which the city agrees to pay for that period of time, and there is citation of authority adverse to the validity of the ordinance in respect of those features of it. In these respects we shall not consider the ordinance, or express any opinion, regarding it immaterial to the present decision. The ordinance might be deemed invalid as regards the particulars named, and yet be held good in all other respects, the rule being familiar that one part of a law may be declared void, while another part of the same act is considered valid, where they are capable of being separated in their operation. There is no exclusive use asserted here. It is not a question of exclusive use, but of use at all. There is no attempt at recovery from the city of the price of water on the basis of the contract rate. The simple question involved here is, whether complainants, nn.der the ordinance, have the right of way in the streets for the purpose of laying water pipes under the surface, to supply the city and inhabitants of Quincy with water, and for the purpose of repairing their pipes laid.

The ordinance of August 7, 1873, and the acceptance of it by Prince, constituted a contract between him and the city of Quincy, by which there was granted the right of way which is claimed. The power of the city to make such a grant seems quite clear. It may be derived from the exclusive control of its streets given to the city by its charter, section 33 of which is as follows: “The city council shall have exclusive power over the streets and alleys, and may abate any and all obstructions and encroachments therein in such manner as may be provided by ordinance.” (Private Laws 1857, p. 170.) In this State there is vested in municipal corporations a fee simple title to the streets. Under the power of exclusive control over streets, it is very well settled by decisions of this court that the municipal authorities may do anything with, or allow any use of streets, which is not incompatible with the ends for which streets are established, and that it is a legitimate use of a street to allow a railroad track to be laid down in it. (Moses v. Pittsburgh, Fort Wayne and Chicago R. R. Co. 21 Ill. 522; Murphy v. Chicago, 29 id. 279; Chicago and Northwestern Ry. Co.v. Elgin, 91 id. 251.) The laying of water pipes under ground would be much less of an obstruction and interference with the ordinary purposes of a street than the laying and maintaining of a railroad track upon its surface.

It is the general doctrine that municipalities, under the power of exclusive control over their streets, may allow any use of them consistent with the public objects for which they are held, and that uses for the purpose of sewers, gas pipes and water pipes are among those for which the use of streets may be granted.' 2 Dillon on Mun. Corp. (2d ed.) secs. 544, 551, and authorities there cited.

By section 22 of its charter the city is further empowered “to provide the city with water, to erect hydrants and pumps in the street for the convenience of the inhabitants. ” (Private Laws 1857, p. 181.) By implication from this express power to supply the city with water, the power .to grant the use of the streets, as was done in the ordinance of August 7, 1873, existed in the city council of Quincy.

In 2 Dillon on Mun. Corp. (2d ed.) sec. 551, it is laid down: “The use of streets for the purpose of laying down water pipes, stands upon the same principle as their use for sewers and gas pipes. Where the charter gives to the city, in terms, the power to supply, or authorize the inhabitants to be supplied with, water, the municipal council may use, or as an incidental power may permit the contractor to use, the streets for this purpose, and the adjoining fee-holder is not entitled to compensation as for a new servitude, for it is not such, but only a proper or necessary use incident to a street in a populous place. ” And see, State ex rel. v. Cincinnati Gas Co. 18 Ohio St. 295; Indianapolis v. Gas Light Co. 66 Ind. 396; Des Moines Gas Co. v. Des Moines, 44 Iowa, 508.

Under this power to provide the city with water, then, the city might have erected its own water works and supplied itself with water, or it might have contracted with some one else to construct the water works and furnish the supply of water to the city. The city council saw fit to adopt the latter course, and accordingly, by the ordinance in question, made a contract with Prince that he should construct the watei: works, and at his own expense, and furnish the city with water. The use of the streets for the purpose of laying the water pipes may be regarded as indispensable for the construction of the water works, so that the power to contract for their construction included, as a necessary incident, the power to contract for the use of the streets for the purpose.

We thus find that there was full power in the city council to contract with Prince for the construction of these water works, and for his use of the streets for that purpose. This privilege of the use of the streets by Prince is not a mere license, revocable at the pleasure of the city council, but it is a grant under an express contract, for an adequate consideration received, and binding as such.

The position taken by appellant in opposition to the binding force of the ordinance, as it respects the use of streets, is, that the city, in the passage of the ordinance, was acting in its public, not its private, character, and that the act was a legislative or governmental act, in the exercise of the city’s legislative power of control over the use of its streets, which power of control was incapable of being abridged, but must be left free, to be exercised unrestrictedly from time to time, as the city council may see fit; and the case is put as if it were a diversion of the use of the streets from the purpose for which they were dedicated, and the permitting an obstruction in them by an individual for his private use. As we have seen, this was no diversion of the use of the streets from their proper purpose, but a use of them consistent with such purpose. It was not for a mere private object, but for the public benefit of the city, in supplying it with water. We do not perceive how the doctrine as to the legislative governmental powers of a municipality can be brought in and have any bearing upon the facts of this case. See DeVoss v. City of Richmond, 18 Gratt. 338; 1 Potter on Corp. secs. 376, 395.

We have found that the city council had power to make this contract for the use of the streets; that it had power to contract for the putting in of the water works; that they could not be constructed without the use of the streets for the purpose,—and, therefore, the power to contract for the water works included, as a necessary incident, the power to contract for the use of the streets for that purpose. The power to make a contract, but not to make a binding one, is unmeaning. Where there is power to make a contract, there is power to make one that shall bind. We see no more to be involved here than the simple law of contract,—whether a municipal corporation may at its will repudiate the obligation of a fair contract which it has made, and which it was authorized to make. The attempt is to take back a grant which the city has made under a contract. The' State itself may not revoke a grant it has made. The city must be bound by the contract and grant it has made, and had authority to make, the same as would an individual. 1 Potter on Corp. sec. 376; City of Burlington v. Burlington Street Ry. Co. 49 Iowa, 144.

Nothing hereinbefore said is to be taken as in any way in conflict with the decision in Prince v. City of Quincy, 105 Ill. 138. While the agreement for the payment of money may not be of obligatory force upon the city, because of the constitutional inhibition to incur any indebtedness when it is in debt beyond the limit prescribed by the constitution, yet in all other respects the contract may be valid and binding upon the city. We do not consider that the ordinance, or the injunction allowed, is a prevention of the exercise of the police power of the city over the streets, so as to debar the city council’s making, or complainants being subject to any, proper and reasonable police regulation with respect to the manner of making use of the right of way granted.

An objection is taken to the form of the decree in the respect of the duration of the injunction, it being made perpetual. We think the decree must be considered with reference to the claim of right which is made, and that the fair construction of the injunction is, that it is coextensive with the existence of the rights granted by the ordinance of August 7, 1873, and has no further extent.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    David T. Littler v. The City of Lincoln.

      Filed at Springfield March 29, 1883.

      1. Vacating town plat—by the owner—concurrence of municipal authorities not essential. The statute authorizing the owner or owners of lots platted as an addition to a town to vacate the same, or any part thereof, does not require the concurrence or joint action of the municipal authorities with the owner of the premises, but allows him, of his own volition alone, to vacate the plat, or part of it, by his deed declaring that fact, subject only to the restrictions named in the statute that it shall not abridge or destroy the rights or privileges of other proprietors in such plat, and shall not authorize the closing or obstructing of any public highway laid out according to law. Chapter 145 of the Revised Statutes has no reference to such vacations, but relates exclusively to the vacation of streets and alleys by municipal authorities.
    2. Same—of the mode of making the vacation—by whom it may be made—and what the instrument declaring the same must contain. The statute only requires that the owner of the lots or blocks within the part of a town plat sought to be vacated, shall execute the deed for that purpose. The act does not prescribe what the deed shall contain, further than it shall declare the plat or part thereof vacated. The party vacating must be the exclusive owner of the lots and blocks, but it is not required that the deed shall make exhibit of his title, nor recite how he became the sole owner. And a deed vacating a part of the plat of an addition by one person, is prima facie valid and conclusive of his right to make such vacation; but it may be impeached by showing that the party making it did not possess the capacity, for want of ownership of all the lots in the part of the plat attempted to be vacated. The prima facie case made by the production of such deed must be overcome by satisfactory evidence of the disability of the party to make it.
    3. Same—evidence in respect to ownership—presumption of ownership from deed of vacation. A petition of a party to a city council for leave to vacate a plat of an addition, or a part thereof, which states he was the owner of all the lots and blocks within the territory in which it is sought to have the plat vacated, except two lots, is not sufficient evidence of a want of ownership of the part so excepted to overcome the presumption of his entire ownership arising from his deed of vacation of the whole plat, made at a subsequent time.
    4. Same—taking subsequent deed, as evidence of want of prior title. The taking of a quitclaim or even a warranty deed does not prove that the grantee therein had no prior title. It is not an admission which affords evidence of a prior want of title.
    5. Same—occupancy by another, as evidence of outstanding title. Proof of the occupancy by another, of certain lots in a plat vacated by one claiming to be the owner of all the lots in such plat, is not such evidence of an outstanding title as to defeat his deed of vacation, as the occupant may have been his tenant.
    6. Same—who may object to the vacation—other proprietors. The rights and privileges of other proprietors in the plat of an addition to a town or city, which the statute protects against the vacation of the plat, or a part thereof, are legal rights and privileges, and such parties can not be affected in such rights by the closing of streets not adjacent to their property, nor directly affording access thereto and egress therefrom.
    7. Same—dedication of streets—vacation of plat before acceptance of dedication. Where the public authorities of a town or city have not accepted a dedication of the streets in a plat on an addition, and no public highway has been laid out according to law, and no private rights in any of the lots or blocks are involved, no one has an interest which can’ be adversely affected by the vacation of the plat, and the owner so vacating a portion of such plat and inclosing the streets is,not liable to any penalty for an obstruction of the same.
    8. Same—as to streets which have been or may be laid out by the public authorities. The vacation of a plat of an addition to a town or city will not affect streets laid out over the addition by municipal authority, and forms no impediment to the future laying out of streets across the territory affected. It has simply the effect to withdraw the proposed dedication of the streets, as shown upon the plat.
    9. Dedication for public streets—there must be an acceptance—and how the acceptance to be indicated. To constitute a complete dedication of land for a street or highway there must be an acceptance. While it is not essential there should be any formal act of acceptance, there must be user,. or some other act indicating acceptance, by those authorized in such matters to represent the public, to complete the dedication.
    10. Same—effect of platting an addition to a town or city, as a mere offer to dedicate the streets—presumption as to acceptance. Until acceptance of a proposed dedication by the municipal authorities of a city or town, although the original proprietor may be estopped to deny a dedication of the streets and alleys as against intervening private rights, his act in platting an addition to the city or town, and acknowledging and recording such plat, is in the nature of a mere offer to the municipality, and until the proper authorities accept the dedication they can not be bound, by mandamus or otherwise, to open or improve the streets, and until such acceptance they can have no right in the streets, as trustees or otherwise. Acceptance of the dedication can not be presumed from the mere proof of the execution and recording of the plat.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.
    Suit was commenced by the city of Lincoln against David T. Littler, before a justice of the peace of Logan county, for obstructing certain streets. The justice rendered judgment for Littler, and the city appealed to the circuit court of that county. Judgment was there rendered in favor of the city, and against Littler, for $200. Littler appealed from this judgment to the Appellate Court for the Third District, and that court affirmed the judgment of t'he circuit court. This appeal is from the last named judgment.
    Upon the trial the city read in evidence a petition addressed by Littler to the city council of Lincoln, in which Littler represented that he was the owner of all lots and blocks (except two lots belonging to the estate of-Bell, in block 152,) north of Eleventh street and west of Adams street, in Knapp, Bird & Tinsley’s addition to Postville, then part of the city of Lincoln; that such lots- and blocks were vacant and unoccupied ; that there were no sufficient streets either on the north or west of said addition; and proposing, in ease the prayer of his petition was granted, to convey to the city, for street purposes, enough land on the north and west of said addition—(on the west, north from Eleventh street to the north-west corner of said addition,)—to make good and sufficient streets, and to replat the land in accordance with a plat thereto annexed, and concluding by praying the vacation of all the streets, parts of streets, and all the alleys and parts of alleys, lying north of Eleventh street and west of Adams street, in said addition. The city then also read in evidence the following ordinance, passed by the city of Lincoln in response to said petition:

      “Be it enacted by the City Council of the City of Lincoln:

    “Section 1. All the streets, parts of streets, and all the alleys and parts of alleys, north of Eleventh street and west of Adams street, in Knapp, Bird & Tinsley’s addition to Post-ville, (now a part of the city of Lincoln,) are hereby vacated; and the right of said city is hereby released to David T. Littler, who is the owner of the land embraced within the limits aforesaid.
    “Sec. 2. So much of the plat of said addition as lies north of Eleventh street and west of Adams street is hereby vacated.
    “See. 3. All the rights, grants and privileges embraced in the first and second sections of this ordinance, upon this express condition, that the said Littler will convey to the city of Lincoln, for street purposes, the following described strips of land, to-wit: sixty-six feet on the north line of said addition on the land owned by said Littler, and sixteen feet on the west side of Adams street, (and adjacent thereto,) running north from Eleventh street over the land owned by him, which said strips of land are required of the said Littler as the consideration for the grants, rights, privileges, to the said Littler contained in the first and second sections of this ordinance, which said land, when so conveyed, is hereby declared to be subject to the absolute control of the city of Lincoln for street purposes.
    “Sec. 4. The land lying north of Eleventh street and west of Adams street shall be surveyed and platted substantially in the manner as shown by plat thereof filed in the city clerk’s office with the petition of said Littler, and this ordinance shall take effect and be in force only from and after the time the said Littler shall cause such survey and plat to be made, acknowledged and recorded, as provided by law in such cases, which platting, etc., shall he made and completed within six months from the date of approval of this ordinance.
    “Approved February 3, 1879; passed February 3, 1879.
    D. L. Braucheb, Mayor.
    0. M. Knapp, City Clerk.”
    (Certificate of city clerk, under seal, of the passage and publication of said ordinance.)
    Also, a record of a plat filed by Littler, and recorded May 22, 1879, in recorder’s office of Logan county. This plat is in' conformity with the proposition of Littler, submitted in his petition to the city council. It was properly certified by the county surveyor, and duly acknowledged by Littler.
    The city then also read in evidence the record of a quitclaim deed from Sarah Keown and others, to Littler, dated April 2, 1879, conveying their interest in "lots 9 and 10, in block 151, in Knapp, Bird & Tinsley’s addition to the late town of Postville, (now a part of the city of Lincoln.) Also, a quitclaim deed from Clement Carpenter and wife, to Littler, dated March 22, 1881, conveying lots 3, 4 and 5, in block 152, Knapp, Bird & Tinsley’s addition to the city of Lincoln.
    The city then called D. H. Harts as a witness, on its behalf, who, being sworn, testified: “I am mayor of the city of Lincoln. Block 127, in Knapp, Bird & Tinsley’s addition to the city of Lincoln, is occupied by a school house, and 128, 107 and 110 are occupied by residences. Blocks 130, 147, 150, are each fenced by themselves, but there are no houses upon them. There are a large number of residences in that addition south of Eleventh street, and all of said premises are within the corporate limits of the city of Lincoln. ”
    The city then also read in evidence the following stipulation between the parties:
    “It is stipulated by and between the parties to this suit that the facts are as follows:

      “1st. That D. T. Littler, defendant, in May, 1881, through his agents, constructed a board fence so as to inclose the following described real estate: All the lots and blocks in Knapp, Bird & Tinsley’s addition to the town of Postville, (now city of Lincoln,) county of Logan, and State of Illinois, that lie north of Eleventh street and west of Adams street, in what is claimed to be streets and alleys inside of the boundaries above mentioned; that none of the streets outside of said in closure, to-wit, Adams street and Seventeenth street, in said city of Lincoln, are inclosed by said fence.
    “2d. That notice in writing was served upon said Littler to remove said fence as an obstruction to the public streets claimed to exist inside of the boundaries of said inclosure, in May, 1881, by the marshal of said city, under authority from said city.
    “3d. That the fence never has been removed, but still remains as originally constructed.
    “4th. All ordinances of the city of Lincoln referring to or bearing upon the. controversy are to be read in evidence, by consent, together with all papers in this case.
    “5th. Petition of D. T. Littler to the city council of the city of Lincoln, dated-, and plat accompanying the same, together with all resolutions and ordinances passed by the city council in connection with said petition, are to be read in evidence, by consent.
    “ 6th. The deed of vacation, of date April 21, 1881, of David T. Littler, together with all other papers, plats and records made and recorded in connection with such vacation; also, all papers showing a replatting of said real estate are to be read in evidence.
    “7th. All deeds vacating plats inclosed by fence above mentioned, together with all other papers, records, etc., by which said Littler vacated or attempted to vacate that part of said plat embraced by the fence above mentioned, filed in spring of 1881,—it being agreed as to all papers above mentioned, if the originals are not present the records or certified copies may be read in evidence.
    “9th. That no part of said fence is outside the boundary lines of the corners fixed by Thomas G. Gardner in the survey accompanying said plat filed in the recorder’s office of Logan county, Illinois, and any map of the city of Lincoln, published by authority of the city of Lincoln, may be presented to the court, by consent, and is to be put in evidence by consent.
    “10th. It is agreed that defendant, Littler, owned the fee title to all lots and blocks embraced in that part of above plat vacated or attempted to be vacated by said Littler in the spring of 1881, before vacation, and that since the vacation he has conveyed the land embraced within the limits aforesaid to one Wm. Kurtz, the record of which deed shall also be read in evidence; that all of the streets shown to exist on the plats above referred to never were worked or improved in any way, nor were they ever used or traveled by the public, said entire tract of land being now covered with a blue-grass sod, and from its general appearance it is impossible to locate any of the streets or alleys attempted to be vacated, and it has been in that condition for at least twenty years, last passed; that there are on all sides of tract inclosed, public streets, none less than sixty-six feet wide.
    “11th. That all of the lots and blocks embraced and inclosed by the fence were vacant and unoccupied at the time of building fence. It is agreed that either party may call witnesses, or offer proof, upon any issue not covered by this stipulation. ”
    The city then read in evidence the following ordinance:
    “See. 2. Whoever shall place, throw or leave, or cause to be placed, thrown or left, any obstructions or incumbrance, not authorized by ordinance, in any street or alley, shall be subject to a penalty of not less than three dollars, and a like penalty for each day he shall not remove the same after being notified so to do by the mayor, street commissioner, or any police officer of said city.”
    Also, paragraph 20 of the charter of the city of Lincoln, to prevent incumbering of streets, sidewalks, alleys and public grounds of the city, with any article or substance whatever.
    This was all the evidence introduced by or on behalf of the city.
    Littler then read in evidence the following deed of vacation, which was filed for record April 21, 1879:
    “Know all men by these presents, that I, David T. Littler, of the county of Sangamon, and State of Illinois, am the owner of the following described real estate, to-wit: Blocks 99, 100, 101, 102, 103, 104, 105, 106, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 151, 152, 153, 154, 155. 156, 157, and 158, in Knapp, Bird & Tinsley’s addition to the town of Post-ville, (now part of the city of Lincoln,) and also the owner of reversionary interest in the parts of streets and alleys embraced within that part of said addition above described, and being the owner of said premises aforesaid, and in pursuance of the power in me vested by chapter 109 of the Revised Statutes of the State of Illinois of 1874,1 do hereby, and by these presents, vacate so much of said plat as lies north of Eleventh street and west of Adams street, in said addition, which portion of said plat embraces only the premises above described; and I hereby ask, that so much of said plat as lies within the limits aforesaid be cancelled of record, in pursuance of the statute above mentioned.
    “Given under my hand and seal the 29th day of April,
    David T. Littler. [Seal.]
    “Acknowledged before T. T. Holton, clerk of the circuit court of Logan county. ”

      Littler then gave in evidence a copy of the resolutions passed by the city of Lincoln May 29, 1879, approving the .plat of his addition to the city, and also the record of a deed of his vacating that plat, dated March 23, 1881, and the cancellation of the plat of record. He also gave in evidence the record of a deed by himself to the city of Lincoln, for a strip of land sixty-six feet wide, on the west side of Knapp, Bird & Tinsley’s addition to Postville, (now part of the city of Lincoln,) and extending north from Eleventh street, in said addition, to the north-west comer of said addition. Also, a strip of land sixty feet wide, described as follows: “Beginning at the south-west corner of the south-west quarter of section 25, town 20 north, range 3 west, third principal meridian, thence south sixty feet, thence east parallel with the quarter section line to the west line of Adams street, in said above named addition, thence north sixty feet, to the quarter section line, thence west on the quarter section to the place of beginning; also, a strip of land sixteen feet wide, described as follows: beginning at the north-east corner of block 151, in said above named addition, thence west sixteen feet, thence south parallel with Adams street, in said addition, to the line of Eleventh street, thence east sixteen feet, to the south-east corner of block 106, in said addition, thence north on west line of Adams street to the place of beginning— all for street purposes, with a reservation in said deed that if the land should cease to be used for street purposes, to revert back to the grantor. ”
    Mr. M. Hay, and Messrs. Blinn & Hoblitt, for the appellant :
    Where a person is in peaceable possession of land, a municipal corporation can not try the validity of proceedings to vacate streets and alleys, or the title thereto, by indirect means. It must be attacked directly by suit in ejectment. City of Chicago v. Gasselin, 4 Bradw. 570.

      Suit can not be maintained under á city ordinance for obstructing a street, unless it appear that the street had been opened for public use, and was in fact, as well as in law, a public street. City of Chicago v. Gasselin, 4 Bradw. 573; City of Oswego v. Oswego Canal Co. 2 Seld. 264; Underwood v. Stuyvesant, 19 Johns. 186; Bissell v. New York Central R. R. Co. 26 Barb. 630; The State v. Corver, 5 Strob. (L. R.) 217.
    The city of Lincoln had the power, under its charter, to discontinue any streets or alleys, upon consent,' in writing, of those owning land or lots adjoining the street, by vote of three-fourths of. the aldermen. See charter of the city of Lincoln, 1 Private Laws of 1867, p. 399, sec. 20.
    Having exercised that power by the passage of the ordinance in evidence, the law will presume it was done lawfully. 1 Dillon on Mun. Corp. 325, see. 310; Lexington v. Headley, 5 Bush, 508; Covington v. Boyle, 6 id. 204; McCormick v. Bay City, 23 Mich. 457; Stockert v. East Saginaw, 22 id. 104.
    Independently of the action of the city council in consenting to the vacation of streets and alleys, appellant had the right, under the statutes of this State, to vacate that part of Knapp, Bird & Tinsley’s addition that he owned, by deed of vacation. Sec. 7, chap. 109, Underwood’s Stat. 1878, p. 954.
    At the time the deed was filed vacating “Littler’s addition, ” it is agreed he owned the fee title, and upon vacation of the plat the right of the public to the streets and alleys, under the statute, became divested, and the title vested in the original owner of the plat.
    Mr. O. C. Sharp, and Messrs. Beach & Hodnett, for the appellee:
    The party making the plat must be the owner of the lands platted. Rev. Stat. 1874, sec. 1, p. 771.
    A party can not vacate a plat unless he is the owner of all the lots in the plat. Rev. Stat. 1874, sec. 6, p. 772; Leech v. Waugh, 24 Ill. 228.

      A city holds its streets in trust for the public, and has no power to alienate them to others, or divest itself of control over them. Kreigh et al. v. City of Chicago, 86 Ill. 407; City of Alton v. Transportation Co. 12 id. 60; City of Quincy v. Jones, 76 id. 231; Brooklyn Commissioners v. Armstrong, 45 N. Y. 234; State v. Mayor of Mobile, 5 Porter, (Ala.) 564; 3 Dillon on Mun. Corp. secs. 445, 512; Illinois Canal Co. v. St. Louis, 2 Dill. (U. S.) 84; Oakland v. Carpenter, 13 Cal. 540; Gale v. Kalamazoo, 32 Mich. 344.
    The city of Lincoln having no power to pass the ordinance vacating and releasing to appellant its streets and alleys, is not estopped from denying the validity of the same. Schœffer et al. v. Bonham et al. 95 Ill. 368; Miller et al. v. Goodwin et al. 70 id. 659; 1 Dillon on Mun. Corp. sec. 381, and authorities cited; City Council v. Plankroad Co. 31 Ala. 76; McPherson v. Foster, 43 Iowa, 48; Loan Association v. Topeka, 20 Wall. 655.
    Powers of municipal corporations are strictly construed. 1 Dillon on Mun. Corp. sec. 55, and note; Petersburg v. Metzker, 21 Ill. 205; Minturn v. Larue, 23 How. (U. S.) 435; Leonard v. Canton, 35 Miss. 189; Argenti v. San Francisco, 16 Cal. 282; Douglas v. Placerville, 18 id. 643; Lafayette v. Cox, 5 Ind. (Porter,) 38; Bank v. Chillicothe, 7 Ohio, 31; Collins v. Hatch, 18 id. 523.
    The power to enact city ordinances, being delegated, must be strictly construed. Heeney v. Sprague, 11 R. I. 456; S. C. 23 Am. Rep. 502.
   Mr. Justice Scholfield

delivered the opinion of the Court:

In the view we take of this case it is not necessary to consider the effect of the action of the city council in response to appellant’s petition of November 18, 1878, to vacate the portion of the plat therein described. By the statute then and still in force, it was and is provided, by section 6, of chapter 109, Rev. Stat. 1874: “Any such plat”—i. e., plat of a town, or addition thereto,—“may be vacated by the owner of the premises at any time before the sale of any lot therein, by a written instrument declaring the same to be vacated, executed, acknowledged or proved, and recorded in like manner as deeds of land; which declaration, being duly recorded, shall operate to destroy the force and effect of the recording of the plat so vacated, and to divest all public rights in the streets, alleys and public grounds, and all dedications laid out or described in such plat. When lots have been sold, the plat may be vacated, in the manner herein provided, by all the owners of lots in such plat joining in the execution of such writing.” And by section 7 of the same chapter, that “any part of a plat may be vacated in the manner provided in the preceding section, and subject to the condition 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.”

This does not require the concurrence or joint action of the city council of cities, or board of trustees of villages, with the owner of the premises, but allows him, of his own volition alone, subject to the restrictions and qualifications mentioned, to vacate the plat, or part of plat, by his deed declaring that fact. Chapter 145 of the same statute has no reference to such vacations, but relates exclusively to the vacation of streets and alleys by municipal authorities.

Appellant, by his deed of April 29, 1879, declares so much of the town plat as includes the streets he is charged with obstructing, vacated. The deed recites that he is owner of all the lots and blocks within the territory declared vacated, and this must be accepted as true unless it has been overcome by other evidence. Counsel for appellee claim that it has been so overcome: First, by a statement in appellant’s petition to the city council praying that body to vacate the same part of the plat; second, by two quitclaim deeds made to appellant, subsequent to the date of his deed of vacation, for lots within the territory assumed to be vacated; and third, by evidence of a witness, testifying, orally, that certain lots and blocks described by him were occupied at the date of appellant’s deed of vacation, etc.

First—Appellant’s petition to the city council represented that he was the owner of all the lots and blocks in the territory within 'which he sought to have the plat vacated, except two lots belonging to the estate of-Bell, in block 152. It was not therein shown, nor has it been otherwise shown, that there was any serious hindrance to his acquiring the title to those two lots. That petition was dated on the 18th of November, 1878, and, as has been shown, his deed of vacation was dated April 29, 1879,—surely long enough subsequently to have enabled him to acquire the title to these lots. It can not, in a country like ours, where real estate changes hands with almost the same facility and rapidity as personal property, be held that because an individual did not own real estaté on the 18th of November, it conclusively follows that he did not own it on the 29th of the following April. At all events, we think the assertion of ownership at the last named date, in a matter wherein such assertion became material, as it did, in executing a deed of vacation, is sufficient to overcome the presumption of continued non-ownership, resulting from the admission that he did not own it at the first named date.

Second—Quitclaim deeds, and even warranty deeds, do not prove that the grantee had no prior title. It is within every day’s experience that persons, out of abundance of caution, take deeds from different parties for the same real estate. It shows the party purchasing fears there may be superiority in the title he purchases; but it is not in fact or in theory an admission that he does not already have the superior title. Sparrow v. Kingman, 1 N. Y. (1 Comst.) 246, et seq.; Schuch man v. Garrett, 16 Cal. 100; Cannon v. Stockman, 36 id. 539; Watkins v. Holman, 16 Peters, 25. The statute, we have seen, where lots or blocks have been sold, only requires the concurrence of all the owners of lots and blocks within the territory to be vacated, and, of course, if the petitioner has become sole owner of such lots and blocks, no concurrence of others can be wanting. And where, as here, the object is simply to vacate a part of the plat, it is only required that the owner or owners of the lots and blocks within the part sought to be vacated shall execute the deed; but it is not prescribed what the deed shall contain, further than that it shall declare the plat or part of plat vacated. The party or parties vacating must be exclusive owner or owners of the lots and blocks; but it is not required that- the deed shall make exhibit of his .title, nor recite how he became sole owner. The effect is, as we conceive, precisely as in the case of any other deed. Prima facie it is valid and conclusive, but it may be impeached by showing that the party making it did not possess the capacity. The prima facie case made by the production of the instrument itself, must be overcome by satisfactory evidence of the disability of the party to make it. If, at the date of this deed of vacation, there was an outstanding title to any of these lots or blocks, it could have been readily shown by the original deeds or by the public records, and it should have been thus proven.

Third—The evidence of occupancy of certain lots is not necessarily repugnant to appellant’s claim of ownership. For aught that appears the occupants may have been in possession as his tenants. But leaving out this view, the evidence, in our opinion, is wholly inconsequential. The blocks described by the witness as being occupied are 127, 128, 107, 110, 130, 147 and 150. As we understand the evidence, these blocks all lie east of Adams street, and therefore beyond the territory involved in the controversy, and not one of them is included -in the deed of vacation. It is true, all of them, except 128, front on Adams street, and that street forms the eastern boundary of the part of the plat which the deed assumes to vacate; but that street is not affected by the deed, and has not been obstructed by appellant. The stipulation expressly admits that the obstruction complained of consists of a board fence, constructed by order of appellant, so as to inclose “all the lots and blocks in Knapp, Bird & Tinsley’s addition to the town of Postville, (now city of Lincoln,) county of Logan, and State of Illinois, that lie north of Eleventh street and west of Adams street; * s * -(¡hat none of the streets outside of said inclosure, to-wit, Adams street and Seventeenth street, in said city of Lincoln, are inclosed by said fence.” And the stipulation also further expressly admits that “all the lots and blocks embraced in and included by the fence which constitutes the obstruction complained of, were vacant and unoccupied at the time of the building of the fence, and that there are, on all sides of the tract inclosed, public streets,— none less than sixty feet wide.” The rights or privileges of other proprietors in the plat, which the statute protects, are necessarily legal rights and privileges, and such parties can not, therefore, be affected by the closing of streets not adjacent to their property, nor directly affording access thereto and egress therefrom. Chicago et al. v. Union Building Association, 102 Ill. 379.

Giving the effect we have indicated to the deed of vacation of April 29, 1879, the portion of the plat therein described was then vacated. But that territory was replatted by appellant, and made an addition to the city by his plat of date May 22, 1879, and it only remains to inquire whether that plat was vacated by appellant’s deed of vacation of March 23, 1881. The stipulation admits that appellant, at that time, owned all lots and blocks embraced in that plat, and so no question in that regard arises on this deed. What we have said in other respects of the deed of April 29, 1879, applies with equal force to this deed, and need not be repeated.

The chief objection urged against this deed, upon the assumption that the plat thereby sought to be vacated was valid, is, that it violates a contract between appellant and the city. But, in our opinion, this is clearly a misapprehension. The city parted with no property right as a consideration for its assent to this vacation. The stipulation admits “that all of the streets shown to exist on the plats above referred to never were worked or improved in any way, nor were they ever used or traveled by the public, said entire tract of land being now covered with a blue-grass sod, and from its general appearance it is impossible to locate any of the streets or alleys attempted to be vacated, and it has been in that condition for at least twenty years last passed. ” The general doctrine has been repeatedly recognized by this court, that to constitute a complete dedication there must be an acceptance. It is not essential that there should be any prescribed formal act of acceptance, but there must be user, or some other act indicating acceptance, by those authorized in such matters to represent the public, to complete the dedication. Gentleman v. Soule, 32 Ill. 271; Rees v. City of Chicago, 38 id. 322; Illinois Ins. Co. v. Littlefield, 67 id. 368; Town of Princeton v. Templeton, 71 id. 68; Fisk v. Town of Havana, 88 id. 208.

It was never intended by our statutes that owners of property, by making plats "of additions to cities and villages, could compel the municipal authorities to accept the dedications thereby declared, change municipal boundaries to correspond therewith, and open and work the streets as marked on such plats, for if this might be done, the boundaries of municipalities, and the location, extent and width of streets, would largely depend on the will of property owners, and not on the judgment of the proper municipal authorities. But an examination of the statutes will show, that so far from this being the fact, the making and filing of the plat of an addition does not, of itself, bring the territory platted within the jurisdiction of the municipal authority. It may appear upon the records as part of the plat of the city or village, and yet not be within the boundaries of the city or village government; and, likewise, territory of which no plat is filed may be included within the boundaries of the city or village government. See chap. 109, Rev. Stat. 1874; and sec. 5, art. 1, sec. 1, art. 5, of chap. 24, Rev. Stat. 1874; sec. 16, art. 3, of chapter 24, same statute; and sec. 195, et seq., of same chapter; and, also, act of May 29, 1879, Laws 1879, p. 77. And where the municipality is organized under a special charter, the charter defines the territorial extent and boundaries of the municipality. (Dillon on Mun. Corp. (1st ed.) sec. 124.) And so, until acceptance by the municipality, although the owner is estopped to deny the dedication whenever private rights intervene, the act of the owner in platting, etc., is in the nature of a mere offer to the municipality. Until the municipality accepts, it can not be bound, by mandamus or otherwise, to open or improve the streets; and until then, it necessarily can have no rights in the streets, as trustee or otherwise. In the case of a deed by A to B, it is, in general terms, said, the deed vests the fee in B, but B can not be compelled to accept; and if a burden is imposed by the deed, an acceptance can not be assumed from the mere fact that the deed is executed. 1 Washburn on Real Estate, (2d ed.) 311, *315; 2 id. 607, *581; Hulick v. Scovil, 4 Gilm. 177, et seq.; Union Mutual Ins. Co. et al. v. Campbell, 95 Ill. 284, et seq. So here, where the plat, if accepted as a conveyance, imposes the burden on the city authorities to open, improve and keep in répair the streets, the acceptance can not be assumed from the mere proof of execution of the plat. See City of Chicago v. Gosselin, 4 Bradw. 573; State v. Trask, 6 Vt. 355; Underwood v. Stuyvesant, 19 Johns. 181; City of Oswego v. Oswego Canal Co. 6 N. Y. 257; Holdame v. Trustees of the Village of Cold, Spring, 21 id. 474; Commissioners v. Taylor, 2 Bay, 282; Dillon on Mun. Corp. (1st ed.) sec. 505, and note 2,—and it is upon this doctrine that secs. 6 and 7, of chap. 109, proceed. Where no private rights in the lots or blocks are involved, and no public highway has been laid out according to law, no one has an interest which can be adversely affected by the vacation. No trust is, in such case, assumed by the municipality, and no duties which concern the public are imposed upon it. The vacation can, therefore, take from the municipality nothing, in the sense of property, which belongs to it. It has nothing of a property nature to confer upon the private owner which can form the consideration for a contract.

Our conclusion, therefore, necessarily is, no contract has been violated by this deed of vacation.

It is to be observed, the vacation of a plat has nothing to do with streets laid out by municipal authority, and it forms no impediment to the future laying out of streets across the territory affected,—it simply has the effect to withdraw the proposed dedication, and leave the municipality to act with reference to the territory as it would had the plat never been made and filed. It is quite clear there was no public or private right here affected by the deed of vacation.

The conviction, in our opinion, was wrong. The judgment must be reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.