author:
Mr. Justice Mulkey
      Mr. Justice Magruder,

text:
    John V. Farwell et al. v. L. E. Crandall.

      Filed at Mt. Vernon January 25, 1887.

    Insolvent debtors—assignment for the benefit of creditors—jurisdiction of the county court in the administration of an insolvent estate-how far exclusive in its character. An insolvent debtor made a voluntary assignment for the benefit of creditors. -The assignee took possession of the effects and estate of the debtor, and entered upon the duties of the trust. Subsequently, one of the creditors of the assignor recovered a judgment against him, for a certain sum, in a court of record other than the county court. Execution issued upon this judgment having been returned nulla borla, process of garnishment was sued out by the plaintiff, which was served upon the assignee, commanding him to appear and answer as the garnishee of the judgment debtor. Thereupon, the assignee presented to the county court a petition, setting up the foregoing facts, and stating that no property in which the debtor could be interested had come into his hands, except by virtue of the assignment mentioned, and asking the county court to restrain the further prosecution of the garnishment proceeding. The plaintiff in the judgment answered, admitting the facts as alleged, but charging, by way of defence, that the assignment was made in fraud of creditors. Upon this presentation of the matter, the county court ordered that any further prosecution of the garnishment proceeding be restrained and enjoined, not, however, passing upon the validity of the assignment, but reserving to the plaintiff in the judgment the right to contest that question, on proper proceedings, in the county court, and also reserving to the plaintiff all rights, if any, accruing to him by reason of having commenced the garnishment proceeding, to be adjusted also in that court. It was held, this disposition of the matters presented was correct. The county court having already full power and jurisdiction over the entire subject of the assignment, and the assets being in custodia legis, that was the proper forum in which to raise and settle the question of the validity of the assignment.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. Tenney, Bashford & Tenney, for the appellants:
    An assignment, valid on its face, but fraudulent in fact, is not void. It is voidable only as to creditors who attack it. As to those who ratify it, and claim the benefit of the trust, it is valid. Rappleye v. International Bank, 93 Ill. 396; Burrows v. Alter, 7 Mo. 424; Richards v. White, 7 Minn. 345; Scott v. Edes, 3 id. 377; Frierson v. Branch, 30 Ark. 453.
    The validity of the assignment may be contested by any creditor, in a collateral action. If the assignment is fraudulent, the property transferred may be attached, or the funds, etc., in the hands of the assignee, may be garnisheed. Howard v. Edgar, 3 Scam. 417; Finley v. Dickerson, 29 Ill. 9; National Bank v. Lanahan, 60 Md. 477; Edwards v. Mitchells 1 Gray, 239; Moss v. Humphrey, 4 G. Greene, 000; Burrow, v. Lehndorf, 8 La. 96; Ruble v. McDonald, 18 Iowa, 493.

      In the following eases, under a similar statute, the assignment has been set aside as fraudulent, in a collateral action, by garnishment of the assignee, or otherwise: Farrington v. Sexton, 43 Mich. 454; Keep v. Sanderson, 12 Wis. 352; Goodrich v. Downs, 6 Hill, 438; Wilson v. Robinson, 21 N. Y. 587; McClurg v. Lecky, 3 Pa. 91; Berry v. Cutts, 42 Me. 445; Holt v. Bancroft, 30 Ala. 193; Nightingale v. Harris, 6 R. I. 321. See, also, Burrill on Assignments, 276, 287.
    It is not within the province of the county court to decide whether the assignment is fraudulent, or not. That is a question of fact, to be determined by the jury. Wilson v. Pearson, 20 Ill. 81; Nimmo v. Kuykendall, 85 id. 476; Hays v. Bernard, 38 id. 297.
    Messrs. Frank J. Smith & Helmer, for the appellee:
    The county court, when exercising the powers conferred on it by the act of May 22, 1877, is in effect an insolvency court, and the assignee’s relation to the property is that of a receiver, or of an assignee in bankruptcy; and adverse claims against the property or estate in his hands, must be presented through or with the consent of the county court.
    Most of the cases cited are not applicable to a case like the present. The act referred to has worked a radical change of the law in this State.
    When the jurisdiction of the county court has once attached, no other court has any right to interfere. Hanchett v. Waterbary, 115 Ill. 220; Cook v. Whipple, 9 B. R. 155; Field v. Ridgely, 116 Ill. 424; Preston v. Spaulding, 18 Bradw. 341.
   Mr. Justice Mulkey

delivered the opinion of the Court:

A. H. Norton made a voluntary assignment to J. Hughes Fisher, for the benefit of creditors. Fisher having refused to act, the county court of Cook county, by an order duly-entered of record, on the 22d day of January, 1886, appointed L. E. Crandall assignee, in the place of Fisher. Upon such appointment, Crandall, on the samé day, gave bond, took possession of the effects and estate of Norton, and entered upon the duties and trust imposed by the assignment. On the 3d day of February, 1886, John Y. Farwell & Co. recovered a judgment in the Superior Court of Cook county, against Norton, for $4361.34, upon which an execution was issued, and returned by the sheriff of the county, nulla bona. The plaintiffs in the judgment thereupon caused a summons to be sued out of said Superior Court against the assignee, commanding him to appear therein, and answer, as garnishee of Norton. Upon being served, the assignee presented to the county court a petition, setting forth the foregoing facts, and averring that the only property held or controlled by him, in which the said Norton was in anywise interested, was held by virtue of the assignment in question, and prayed that the plaintiffs in the garnishee proceeding might be restrained from further prosecuting the same. The plaintiffs in the judgment answered the petition, admitting the facts therein stated, but charged, by way of defence, that the assignment was made to hinder, delay and defraud creditors. The county court, ■upon this presentation of the matter, made and entered of record the following order:

“It is hereby ordered by the court, that said plaintiffs, John Y. Farwell et al., in the garnishment cause above named, their agents and attorneys, and each and every one of them, be and they are hereby restrained and enjoined from further prosecuting said garnishment cause against said L. E. Crandall, assignee, as aforesaid, and against any of the funds in his possession, as aforesaid, the court, however, not passing herein upon the validity of said assignment. It is further ordered by the court, that said plaintiffs in said garnishment cause above named, shall be protected in this court, and allowed to set up herein, on proper proceedings, their claims against said assignment that are or can be set up, in any way, in said garnishment proceedings, and that all rights, if any, accruing to them by reason of commencing said garnishment suit, be and the same are hereby preserved to them, to be prosecuted and recovered in this court by proper proceedings or petition. ”

On the appeal of defendants in the petition, this order has been approved and affirmed, respectively, by the circuit court of Cook county, and the Appellate Court for the First District, and by their further appeal the case is brought to this court.

The appellants concede that the right and jurisdiction of the county court, under a valid assignment, to enforce the trust and distribute the fund lawfully in the hands of the assignee, is, under our statute, exclusive; but they insist that the validity of the assignment itself, though regular on its face, may be attacked in another tribunal, on the ground of fraud. To permit suits to be prosecuted in other courts for such a purpose, would necessarily interrupt and greatly embarrass the collection, and distribution of the insolvent’s estate among his creditors, and in many cases would practically defeat the objects of our Voluntary Assignment act, one of which is, doubtless, to enable the insolvent debtor to make a just and equitable division of his estate among all his creditors, in such a way as to repel, as far as possible, any suspicion of its entire fairness. The most effectual way of accomplishing this object, is, doubtless, the one which was adopted, viz., to require his .effects to be administered by some disinterested person, under the constant guidance and direction of an enlightened and impartial tribunal, open at all times, and to all persons alike, having or claiming to have any interest in or claim upon the insolvent’s estate, and desiring to be heard upon' the same. Under the scheme adopted, the individual interest of each creditor or claimant will naturally lead him to keep a watch overfall, the others, and to see that no claim is allowed against the insolvent’s estate that is fictitious or unjust. By reason.of all the claims and parties in interest being in and before the game court, this may easily be done, and with comparatively but little expense. The statute, it will be remembered, expressly authorizes the creditors to contest the claims of one another,, whenever, in their judgment, they think proper to do so. Now,, it is quite clear, the objects of .the act in these respects could not be attained if any and everybody having a claim, real or pretended, against the insolvent’s estate, were permitted to assert them in other courts, by replevying or attaching the assets in the assignee’s hands. If this could be done, a dozen suits, in as many different courts, might all be going on at one time. In such case, could he give them all his personal attention ? If not, how would he know which to attend to and which to neglect, if all should equally demand his presence ? And if, as in the present case, the creditors were not before these courts, as they probably would not be, who would protect them ?

We might go on, almost without limit, suggesting embarrassments and difficulties that would result from permitting other courts to interfere .after the jurisdiction of the county court has once attached; but we forbear, with the additional remark that the most serious objection to the view in question is, that it is clear the legislature intended that the estates of insolvent debtors, when assigned for the benefit of creditors, should be administered by the county courts, and not other-tribunals. As already remarked, this is conceded as a general proposition, but it is claimed the rule does not apply where the assignment is fraudulent. The trouble with this theory is, that it involves an interference with the administration of the insolvent’s effects by the county court, before that fact has been judicially ascertained. It is an error to suppose that the jurisdiction of the county court depends upon the validity of the deed of assignment. For the purposes of jurisdiction, it is sufficient that there has been an assignment, in fact, for the benefit of creditors. This is conclusively shown by the well recognized doctrine that a fraudulent assignment is voidable at the election of the creditors, only; hence, if the latter do not object, the court may nevertheless go on and administer the assets. This, of course, the court could not do if its jurisdiction depended upon the absence of fraud in making the assignment. In such case, any creditor not desiring to submit to the fraudulent instrument is not bound to do so, and he has the right, at least as to himself, to have it set aside; but he is not, for reasons already stated, permitted to go into some other tribunal to have this done. The county court having already full power and jurisdiction over the entire subject of the assignment, and the assets being in custodia legis, that is the proper forum in which to raise and settle the question. If the decision of that court, when made, is not satisfactory, the right of appeal lies as in other cases. There can be no possible hardship in this.

The view here taken was first indicated in the ease of Freydendall v. Baldwin, 103 Ill. 330. In Hanchett v. Waterbury, 115 Ill. 220, it was sustained, by a majority of the court, to the full extent here stated, after a most elaborate argument and thorough consideration of the subject. This last case was followed in Field et al. v. Ridgely et al. 116 Ill. 424.

The various provisions of our Assignment act are elaborately considered in Hanchett v. Waterbury, supra, yet the case is not even so much as referred to by counsel for appellant, notwithstanding it is conclusive of the question here raised. This is probably to be accounted for on the ground that the brief of appellant’s counsel was prepared before the 115th volume of our Reports, in which it appears, was issued.

The case of Zimmerman v. Willard et al. 114 Ill. 364, is pressed upon our attention as expressive of a contrary view. Assuming this to be so, it could only be regarded as overruled by the subsequent cases. We do not think, however, there is any necessary conflict between that case and the view we have taken in this, or between it and the later .cases just cited. In that case, Zimmerman had sued an attachment out of the circuit court of Jackson county, against Willard, and summoned certain debtors of the latter as garnishees. Previous to this, Willard had made a general assignment in Union county, his former residence, for the benefit of his creditors. His assignees appeared in the attachment suit in Jackson county, and instead of questioning the jurisdiction of that court, simply submitted, by way of interpleader, their right, under the assignment, to the fund sought to be reached by garnishment, and upon the issues and proofs it was held that they were entitled to it, and this court sustained the judgment. It was also held, however, that the court below ruled improperly in holding a plea to the interpleader bad, which alleged that the deed of assignment was executed by Willard of his fraud and covin, with intent to delay, hinder and defraud his creditors; but inasmuch as there was already an issue under which that fact might have been proved, it was held, the plaintiff could not have been injured by the erroneous ruling. As no question respecting the right and jurisdiction of the Jackson county circuit court to adjudicate upon the rights of the parties was raised or determined in that case, either in the trial court or in this court, it is not perceived how the decision in that case can be regarded as in conflict with the view taken in this. Although the question is not before us, we have no doubt that, inasmuch as no plea was interposed to the jurisdiction of the Jackson circuit court, it had, in virtue of its general powers and jurisdiction in matters of attachment, a perfect right to go on and hear and determine the case as it did. This, so far as we can perceive, is in perfect harmony with the construction we have placed on the statute.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Magruder,

dissenting:

I can not concur with the majority of the court in the views, entertained by them in regard to the Voluntary Assignment act, as embodied in this opinion and in several other opinions of a similar character. The constitution of this State (art. 6, sec. 12) provides, that “the circuit courts shall have original jurisdiction of all cases in law and equity.” The legislature can not deprive them of such original jurisdiction by any act that it may pass. Section 18 of article.6 of the constitution, after specifying certain matters, in which county courts shall have original jurisdiction, provides that they shall have “such other jurisdiction as may be provided for by general law. ”

Under section 18, the legislature might, by a general law, confer upon county courts jurisdiction in all cases in law and equity. But even if this be admitted, the legislature could only confer upon county courts a jurisdiction in such cases, which should be concurrent with that of the circuit courts. It could not give them exclusive jurisdiction in law and equity cases. Any act, that should attempt to do so, would violate section 12 of article 6, as above quoted.

This point was expressly decided by this court in Myers v. The People, 67 Ill. 503, where it is said: “The last clause of section 18 of article 6, above quoted, is broad enough to warrant the legislature in conferring upon the county courts of the State concurrent jurisdiction with the circuit courts; but that clause must be construed in connection with other provisions of the same instrument. * * * The legislature, therefore, has no power to abridge the original jurisdiction of the circuit court. This it has attempted to do * * * by providing that county courts shall have exclusive jurisdiction in all criminal cases etc.”

The léth section of the “Act concerning voluntary assignments” etc. provides, that “full authority and jurisdiction is hereby conferred upon county courts, and the judges thereof, to execute and carry out the provisions of this act, ” etc. By the decisions here dissented from, the language of this 14th section is, in effect, construed to mean, that whatever powers of a court of chancery or of a court of common law are necessary to be exercised in executing and carrying out the Voluntary Assignment act, shall be exclusively vested in county courts. If the act in question involves and necessitates any such construction as this, it is unconstitutional.

The legislature has never passed any general law, conferring upon county courts even concurrent jurisdiction with circuit courts in all common law and equity matters pertaining to voluntary assignments and the property conveyed by them, unless the act in question is such general law. If the act confers any such jurisdiction, it is only by implication, If the legislature intended, by the passage of the act, to proceed under the last clause of section 18 of article 6 of the constitution and to confer upon county courts any such concurrent jurisdiction, as is there contemplated, it is natural to suppose, that they would have conferred it in express terms and not by such general language, as is used in section 14, above quoted.

Jurisdiction is exclusive as well when it is limited to a particular class of subjects, or a particular kind of property, as when it is limited to a particular amount. If the legislature should pass an act, giving to county courts exclusive jurisdiction in all law and equity cases, where the amount involved does not exceed $1000, it would be conceded at once, that such act was unconstitutional, as depriving circuit courts of a part of the jurisdiction, conferred upon them by the organic law. What difference is there between such an act, and an act, which is construed to mean, that circuit courts shall have no jurisdiction whatever in any case at law or in equity, which has reference to a voluntary assignment, or, in any way, concerns any property, either real or personal, embraced in a voluntary assignment?

Under the construction, given to this act, the county courts are clothed with greater chancery powers than are ever exercised by any ordinary court of equity. In order to get an injunction against a man, it has generally been considered necessary to file a bill and make him a party. An injunction is usually issued only against one, who is a party to a pending proceeding. But, in Hanchett v. Waterbury, where a creditor placed a replevin writ, issued by the circuit court, in the hands of the sheriff, for the purpose of replevying his own property, that happened to get into the hands of- an assignee under a voluntary assignment, the county court is permitted, upon the application of the assignee, to make an order enjoining the sheriff from levying the writ, although the sheriff was not a party to any proceeding pending before the county court.

In this case, the county court makes a. decree, enjoining certain creditors, who are outside parties and not before it as parties to any proceeding, from prosecuting a garnishee proceeding in the Superior Court of Cook county.

Fraud is a ground of equitable jurisdiction and circuit courts have equity jurisdiction; yet, under this decision, a circuit court can not entertain a bill to set aside an assignment for fraud; its jurisdiction upon that subject is taken away and vested exclusively in the county court, although even under the Assignment act, the county court has to do only with assignments “for the benefit of creditors, ” and a fraudulent assignment is not for the benefit of creditors.

The enforcement of trusts is a ground of equitable jurisdiction, such as circuit courts are accustomed to exercise; yet, under the construction given to this act, if the assignor, holding the naked legal title to a piece of land, of which a third person is the equitable owner, deeds it to his assignee in a voluntary assignment, such third person can not file a bill in the circuit court to enforce the trust and get the legal title back into himself, but he must go into the county court.

In case an assignor, having any sort of title to a piece of real estate, should include it in his deed of assignment, a third person, claiming the better legal title, could not, under the construction thus'claimed, commence an action of ejectment in the circuit court, but must begin it in the county court.

In my opinion, the legislature never intended to vest the county courts of this State with any such vast and extended jurisdiction, exclusive in its character, as is here indicated.

It is said, that the construction of the act, adopted by the majority of the court, is justified by the rule, that, in cases of concurrent jurisdiction, the court, which first obtains jurisdiction, will have precedence.

If the county court can be said to obtain jurisdiction first in the instances above recited, it is so obtained, when the inventory and valuation, specified in the third section of the act, are filed. The object of the assignment is to distribute the assignor’s assets pro rata among his creditors. A court can not have jurisdiction over a question, until the question arises. The filing of an inventory and valuation of assets with a view to their future distribution can not give jurisdiction in advance to the county court over questions of title and ownership, which have not yet arisen.

“Concurrent jurisdiction is that which is possessed over the same parties or subject matter at the same time by two or more separate tribunals.” Suppose that a man’s personal property, which happens to be in the possession of an assignor, is turned over by fraud or mistake to the assignee named in the assignment, and he commences a replevin suit in the circuit court to recover it from the assignee. The question involved is the ownership of the property. That question first arises, so far as the courts are concerned, when the replevin suit is begun. The circuit court gets jurisdiction over that question, which is the subject matter of the suit, before the county court gets any jurisdiction over it. The county court has no jurisdiction over the plaintiff in the suit, nor over the sheriff, holding the writ. It is a matter for the circuit court to decide..

It may be said, however, that the circuit court does not get jurisdiction of the subject matter by reason of the fact that the replevin suit or other proceeding to test the ownership of the property is brought in that court. On the contrary, it may be claimed that the county court obtains jurisdiction first because it has possession of the property under and by" virtue of the assignment. If this claim is correct, then the circuit and county courts can not be said to have concurrent jurisdiction, unless it is possible for the circuit court also to get possession of the property under and by virtue of the assignment. But the Assignment act confers no power whatever upon the circuit court to take any action in matters of voluntary assignments; that court has no control over the property assigned, and nothing to do with administering or distributing the assigned effects. Indeed, the ground upon which the majority base their construction of the act is, that it confers exclusive jurisdiction upon the county court. It can not be correct to say that the jurisdiction is both" exclusive and concurrent.

I think the proper views of this Assignment act are expressed on pages 220 and 221 of the 115th volume of" the Illinois Reports, in the abstract of points made by counsel for appellant in the case of Hanchett v. Waterbury, and which precede the opinion in that case.

Mr. Justice Sheldon, also dissenting..


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    Peachy Q. Harrison v. Sarah M. Ely.

      Filed at Springfield March 23, 1887.

    1. Assault and battery—in what the offence consists. If one be assaulted by another, an assault being a violent attempt, coupled with a present ability, to do a bodily injury, and a battery actually occurs, the offence of assault and battery is complete, and an action lies therefor.
    2. An instruction in an action of trespass for an assault and battery, told the jury, that if they believed, from the evidence, that the defendant wrongfully and in an angry manner assaulted the plaintiff, and pushed and threw her against a lounge, and thereby fractured one of her ribs, and bruised her, etc., they should find the defendant guilty, etc.: Held, that the instruction stated the law with substantial accuracy.
    3. Measure of damages—personal injury, willfully inflicted—exemplary damages. In case of an unprovoked assault and battery, resulting in a serious personal injury to the plaintiff, when the injury is wantonly, maliciously and willfully inflicted, the jury may award to the plaintiff exemplary damages in addition to the actual damages, by way of punishment to the wrongdoer, if they think the evidence justifies it.
    4. Same—former decision—distinguished. In the case of Wabash, St. Louis and Pacific Railway Co. v. Rector, 104 111. 296, it was held error to instruct the jury that the plaintiff was entitled to exemplary damages. In that case it is conceded that the jury might, in a proper case, have given punitive damages, while in this case the jury were not instructed to give such damages as a matter of right, but only that they might do so.
    Appeal from the Appellate Court for the Third District;—. heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Jas. A. Creíghton, Judge, presiding.
    Messrs. McGuire & Colby, and Messrs. Bradley & Bradley, for the appellant,
    contended that the facts do not show such malice, passion, ill-will, force and violence as is necessary to call for vindictive damages. Warner v. Ostrander, 44 Ill. 356.
    Punitive damages will he awarded only when the act is characterized by fraud, malice, gross negligence or oppression. (11 Bradw. 319.) They will not be given as a matter of right. Railway Co. v. Rector, 104 Ill. 296.
    Messrs. Patton & Hamilton, for the appellee:
    The jury would have been justified in rendering a much larger verdict. Ross v. Innes, 35 Ill. 487; Jones v. Jones, 71 id. 562; Drohn v. Brewer, 77 id. 280; Gillett v. Fuller, 2 Bradw. 144. •
    A verdict should not be disturbed on account of excessive damages, in cases of tort, unless it be probable, from the amount of damages assessed, that the jury acted under the influence of prejudice or passion. Schlencker v. Risley, 3 Scam. 483; City of Chicago v. Smith, 48 Ill. 107; Chapman v. Carney, 50 id. 512; Reno v. Wilson, 49 id. 95.
    The assault, in this case, was outrageous and brutal in the extreme, to say nothing of its consequences to the plaintiff, which should be considered. Jones v. Jones, 71 Ill. 562.
   Mr. Justice Shope

delivered the opinion of the Court:

This was an action of trespass vi et armis, brought by the appellee, to recover damages for injuries resulting from an alleged assault and battery. A trial resulted in a verdict for $1000, and judgment thereon by the circuit court, which, on appeal to the Appellate Court for the Third District, was affirmed. The defendant below now prosecutes this farther appeal.

The argument of counsel is mainly directed to a discussion of the facts, which we are not permitted to consider, farther than may be necessary to determine whether the law was correctly given to the jury by the trial court.

There is no complaint that instructions asked by defendant were improperly modified or refused. The first instruction given at the instance of plaintiff, told the jury, that if they believed, from the evidence, that the defendant wrongfully, and in an angry manner, assaulted the plaintiff, and pushed and threw her against a lounge, and thereby fractured one of her ribs, and bruised her, etc., they should find the defendant guilty, etc. While no attempt is made in this instruction to define assault and battery, yet if one be assaulted by another, an assault being a violent attempt, coupled with a present ability, to do a bodily injury, and a battery actually occurs, the offence of assault and battery is complete. The instruction, therefore, stated the law with substantial accuracy.

The second instruction, after giving a correct definition of an assault and battery, told the jury, that if they believed, from the evidence, that, etc., they should find the defendant guilty, “unless they further believe, from the evidence, that such assault was in reasonable or apparently reasonable defence, and the force and violence used by defendant were no more than a reasonable man would have deemed reasonably necessary in such defence. ” The instruction does not correctly embody the law of self-defence, but the most careful consideration of the evidence will fail to disclose any element of the right of self-defence, and the instruction, for that reason, with others, should have been refused, but it could not have prejudiced defendant, and is not, therefore, reversible error.

The remaining instruction, criticised by appellant, said to the jury, in substance, that if they found the defendant guilty, and found that the assault and battery was unprovoked by plaintiff, and was wantonly, maliciously and willfully indicted, and plaintiff was seriously injured thereby, then, in fixing the amount of plaintiff’s damages, the jury were not confined to the actual damages proved, but they might give, in addition thereto, such exemplary damages or smart money, as, in their judgment, will be just and proper, etc., under the evidence. This instruction correctly stated the rule as to punitive damages, as-we understand it.

The case of Wabash, St. Louis and Pacific Railway Co. v. Rector, 104 Ill. 296, is cited by counsel as announcing a contrary rule, and it is said it is there held that it is prejudicial error to instruct the jury that the plaintiff teas entitled to such-(punitive) damages, above the actual damages sustained. We understand the court in that ease to have so held, the distinction being drawn between the plaintiff being “entitled to recover” and the right of the jury to give punitive damages, and not that the punitive damages, which the jury may give in a proper case, are “above or in addition” to the actual damages sustained, as seems to be supposed by counsel. It is said in that case: “Where an injury is wantonly and willfully inflicted, the jury may, in addition to the actual damages sustained, visit-upon-the wrongdoer vindictive or punitive damages, by way of punishment for such willful injury, ”— and such is the rule laid down by the authorities. But it is farther said, that while, in such a case, the jury may award punitive damages, it is error to tell them that the plaintiff is “entitled” to recover the same. Without pausing to notice the distinction thus drawn, it will be observed that the instruction complained of falls directly within the rule approved in that case.

Finding no error in this record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    The Chicago, St. Louis and Western Railroad Company v. William B. Gates.

      Filed at Springfield March 23, 1887.

    1. Amendment—malting new parties—at what stage of the proceedings. It is the duty of courts to allow amendments in a proceeding to condemn land for a right of way, where that is necessary to bring all parties before the court who may have an interest in the premises sought to be taken.
    2. But when the case is called for trial,-the court will not delay the hearing for the purpose of bringing in other parties not shown to have any interest in the premises. Amendments are not allowed, as a matter of course, on the eve of a trial, on the motion of a party, except for good cause shown.
    3. Eminent domain—right of petitioner to dismiss proceeding. The petitioner in a proceeding to condemn a strip of 'land for a railway track, even after possession wrongfully taken of the land, and after the filing of a cross-petition for damage to the part of the land not sought to be condemned, has the right to dismiss the proceeding, and it is error to deny this right.

      4. Same—right to take possession pending proceeding to condemn. A railway company has no right to the possession of land for its right of way until the damages for the taking have been assessed and paid, and if it takes possession before such assessment and payment, without the owner’s consent, it is a trespasser, and the .owner may bring ejectment or trespass, or both, and recover his property, and such damages as he may have sustained by the unlawful act.
    Appeal fróm the County Court of Cook county; the Hon. Bichabd Peendebgast, Judge, presiding.
    Mr. Charles W. Needbam, and Mr. Louis Munson, for the appellant:
    The statute (see. 5 of the Eminent Domain act) gives the right to amend when necessary to a fair trial. Kirkpatrick v. Cooper, 77 Ill. 566; Misch v. McAlpine, 78 id. 507; Drake v. Drake, 83 id. 526; Shufeldt v. Savings Bank, 93 id. 597.
    The party authorized to condemn is not compelled to institute proceedings, even when it has taken possession. Smith v. Railroad Co. 67 Ill. 191.
    Like any suitor, a railroad company desiring to condemn land may begin its suit or not, at its pleasure, and, like any suitor, may dismiss its proceeding at any time before rights have vested thereunder. Railroad Co. v. Barrows, 24 Ill. 562; Schreiber v. Railroad Co. 115 id. 340; Railroad Co. v. Nesbitt, 10 How. 395; Railroad Co. v. Lackland, 25 Mo. 515; In re Comrs. of Washington Park, 56 N. Y. 144; People ex rel. v. Common Council, 78 id. 59; In re Waverly Water Works, 16 Hun, 59; Railroad Co. v. Marshall, 11 Ohio St. 497.
    Filing a petition, is not .a taking of the land. South Park v. Dunlevy, 91 Ill. 49.

      Under the Illinois statute, rights do not become vested until either the money is paid or the land is occupied, after the amount of compensation has been determined. City of Bloomington v. Miller, 84 Ill. 622; City of Chicago v. Barbian, 80 id. 482; Railroad Co. v. Hopkins, 90 id. 316; Schreiber v. Railroad Co. 115 id. 340; Railroad Co. v. Railroad Co. 66 id. 177; South Park v. Dunlevy, 91 id. 49.
    The alleged trespass upon the land, if committed, was an act for which the law gave a remedy. South Park v. Dunlevy, 91 Ill. 49; Railroad Co. v. Winslow, 66 id. 222; Railroad Co. v. Goodman, Ill id. 282.
    Mr. Joseph N. Barker, and Mr. Richard S. Thompson, for the appellee:
    Neither of the amendments which the petitioner asked leave of the court to make, was “necessary to a fair trial, ” or “final determination of the questiohs involved” in this proceeding; Rev. Stat. chap. 47, sec. 5.
    While the court has power to permit amendments, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment, the court may also, in the exercise of a sound discretion, deny motions to amend, when they are simply intended for delay, vexation and injustice. Rev. Stat. chap. 7, sec. 1;
    The company having filed its petition and made appellee defendant, and pending the petition having taken possession of the land, and a cross-petition having been filed by the owner, can not retain such possession and dismiss its petition. Railroad Co. v. Hopkins, 90 Ill. 316.
    The railroad company having filed its petition to condemn, and made the appellee a defendant, as an owner of the land sought to be taken, and pending such proceeding entered upon the land, can not deny the right of appellee to have his compensation awarded. Railway Co. v. Teters, 68 Ill. 144; Mount Sterling v. Givens, 17 id. 255.

      The owner can have no security for the payment of his damages, other than in the land itself. There is nothing to indicate that this particular railroad company has any financial responsibility, and an owner will not be compelled to depend upon the uncertain and doubtful change of being, able to enforce a judgment against such corporations. Hall v. People ex rel. 57 Ill. 307; Walther v. Warner, 25 Mo. 283.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a proceeding in the county court of Cook county, instituted by the Chicago, St. Louis and Western Railroad Company, to condemn certain lands for right of way. The petition was filed on the 30th day of September, 1882, and William B. .Gates, with others, was made a defendant to the petition. Among the lands sought to be condemned "was a strip sixty-six feet wide, over and across a part of the west half of the south-west quarter of section 35, township 39, range 13, in Cook county, lying north of the Illinois and Michigan Canal. This tract was owned by Gates, and he appeared, and filed a cross-petition, in which he alleged that the taking of the strip would damage the rest of the land, and he prayed that such damages might be ascertained. The damages sustained to lands belonging to other parties embraced in the petition seem to have been adjusted, and they are not involved in this record, but no action seems to have been had in regard to Gates’ land until May, 1886, when the petition was set down for trial on the 14th day of June, following. On June 14, the trial was postponed until June 29, when it was again postponed until July 6. On the day named, the petitioner appeared, and filed a motion, in writing, requesting that George H. Ward and Mary A. Ward be made parties to the proceeding. The court denied the motion, and the decision is relied upon as error.

There is no doubt but it is the duty of the court to allow amendments in a proceeding of this character, when amendments may be necessary to bring all parties before the court who may have an interest in the premises sought to be condemned. . But the petitioner did not show that' the Wards had any interest in the property, and the proof heard by the court, on the question was ample to establish the fact that they had no interest. Under such circumstances, the court very properly refused to delay a trial of the- cause to enable persons having no interest in the premises to be made parties to the proceeding. Amendments are not made, as a matter of course, on the eve of a trial, on the motion of a party. If they were, the trial of a cause might be delayed almost indefinitely. Here, the case had been pending several years, and if the Wards had an interest in the property, the petitioner had ample time, before the cause was set for trial, to ascertain that fact and bring them into court.

When the cause was called for trial, and before a jury was impaneled, the petitioner entered a motion to dismiss the entire proceeding. This motion was overruled by the court,, and petitioner excepted. In actions at law, the general rule is, that a plaintiff may, if he desires, dismiss his action at any time before a trial. We are aware of but one exception to this rule, and that is, where a plea of set-off is interposed to .an action on a contract. In such a case, section 31 of the Practice act forbids a dismissal by the plaintiff. That section of the statute, however, has no bearing on a case of this character. It appears from the record, that after the petition was filed, the petitioner, without the consent of Gates, the-owner of the premises, took possession, of the property described in the petition, and was in possession at the time the motion to dismiss was made and decided, and it is claimed that the-railroad company can not hold possession of the property, and refuse to go on with the proceeding to condemn. It is a plain proposition that the railroad company had .no right to the possession-of the property until the damages for taking had.been assessed and paid, and when it went into the possession it was a trespasser, and the owner, Gates, had a right to bring ejectment or trespass, or both, and recover his property, and such damages as he may have sustained by the unlawful act of the petitioner. But we are unable to see how the unlawful act of the petitioner would deprive it of the right to dismiss its suit to condemn, if it saw proper to pursue that course. The law affords the land owner a complete remedy to regain his property, at any time he may see proper to invoke" its aid. Importance seems to be attached to' the fact that the land owner had filed a cross-petition to recover damages to property not actually taken. But the cross-petition must fall with the petition. The statute has made no provision that a petition shall not be dismissed where a cross-petition has been filéd, and in the absence of a statute, we are aware of no authority for establishing a rule of that character. Had the rights of the parties,—the petitioner and the land owner,—become fixed by the proceedings which had been instituted, a different question might arise; but such was not the case. The filing of the petition conferred no rights in the land sought to be taken, on the railroad company, except the bare right to proceed and condemn. The taking possession conferred no rights, as that was a mere trespass; nor did the land owner acquire' any vested right in what had been done, which would entitle him to compel petitioner to proceed with the petition and assess the damages, if the petitioner saw proper to abandon the proceeding.

In Schreiber v. Chicago and Evanston Railroad Co. 115 Ill. 340, we had occasion to consider the relative rights of the parties in a proceeding of this character, and we there held, until the compensation awarded the owner of property sought to be appropriated to public use is actually paid, the petitioner has no right to enter upon the premises, and the land owner has no right to the compensation. Until this is done, the party seeking condemnation may abandon the location and select another. Until paid, the owner may do any act with his property he pleases, not materially affecting the proceeding and object sought to be accomplished thereby. If the land .owner, had no vested right in the proceeding when the motion was maele to dismiss, as it seems clear he had not, then it follows that the petitioner had the right, if he saw proper, to abandon the condemnation of the property and dismiss the .proceeding.

As the court erred in denying the motion to dismiss, .the judgment will be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Magruder: I do not concur in this opinion.


author: Mr. Justice Sheldon

text:
    The Town of Lake View v. John Le Bahn.

      Filed at Ottawa November 13, 1886.

    1. Town pdat—certifying the same, under act of 1845. The statute of 1845 did not require the county commissioners to certify a town plat, except where they laid ■ out the town, or made an addition thereto. Where other persons made the plat, they, only, were required to acknowledge it.
    2. Same—certainty in surveyor’s plat—as to the meaning of figures in giving the length of lines. A surveyor’s plat of the subdivision of land into lots and streets showed the streets by .name, and gave the numbers to the lots, with the number of acres they contained, and there were figures intended to indicate the length of the lines showing the streets and the boundaries of the lots, but there was nothing to show whether the figures meant feet, inches, chains, or links: Held, that as the plat was made by a surveyor, the measurements indicated thereon should be taken as surveyor’s measurement of chains and links,—not long measure of feet and inches,—and that the plat was not void for uncertainty in that regard.
    3. Dedication—quantity in lots described by acres, which must include parts of streets, and their assessment accordingly—effect on the dedication. Where a lot or block is marked on the recorded plat as containing so many acres, which it contains only by including one-half of the street on each side thereof, and it is assessed as of that number of acres, this will not defeat a dedication of the ground marked as a street.
    4. Same—acceptance by thepublic—ofthe time allowed. The immediate opening and use, by the public, of all the streets in ground laid out and platted into lots, for their entire length, or an immediate formal acceptance by some competent public authority, is not necessary to give effect to the dedication of land to the public use, of a street, by the making of a town plat and the selling of lots with reference to the plat. The public authorities must be allowed a reasonable time for opening and improving public streets, as their resources and the public necessity may allow and require.
    5. Same—right of revocation. Where land has been dedicated to the public for streets, by the acknowledgment and recording of a proper town plat, under the statute, the dedication can not be revoked by the owner, even before acceptance by the public. The proper authorities are not bound to accept such a dedication at once.
    6. Where the owners of land laid out the same into blocks, with streets between, so that each block has an easement in the street, and the blocks are divided among the owners thereof according to such plat, this will amount to more than a mere dedication of the streets, it being based upon a valuable consideration. In such case, the dedication will not be revocable by any of the block owners.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    This was a bill in equity, brought by John LeBahn, to enjoin the town of Lake View from disturbing the complainant in his possession of the north thirty-three feet of block 5, in a subdivision of the south-west half of the north-west quarter of section 29, town 40, north, range 14, in Cook county, and from prosecuting him for alleged obstruction of said strip of land as a street. The court below, on hearing, granted the relief asked, and the defendant has appealed.
    In thp year 1870, Barbara Diversey, Catharine Weckler, Mary W. Biehl and Elizabeth Kerchoff, as the heirs-at-law of Michael Diversey, deceased, were the owners of an undivided half of the above described land, containing eighty acres, and situated in the town of Lake View, in Cook county, in this State,—the other undivided half being owned by William Lili. Barbara Diversey instituted proceedings in the Superior Court of said county, for a partition of the premises. In the spring

      The plat is properly signed by all the owners, and properly acknowledged. Alexander Wolcott, county surveyor, Certifies to the subdivision, under date February 25, 1871. The plat was recorded in the recorder’s office of Cook county, March 2, 1871. '
    The commissioners, in the partition 'suit, proceeded with their division of the property between the several owners, with reference to said subdivision as so made by said owners, and allotted to William Lili, blocks 1, 5, 7, 9,11,13 and 15 thereof; to Barbara Diversey, blocks 6 and 14; to Mrs. Kerchoff, blocks 8 and 12; to Mrs. Biehl, block 4 and the west 2t-7- L- acres of block 2; and to Mrs. Weckler, blocks 10 and 16; and the title was confirmed in the respective parties by the final decree. William Lili died in 1875, still owning block 5. The trustees under his will, with power to sell and convey his real estate, conveyed block 5, by deed dated November 1,1880, to the complainant and his brother, Charles. The language of the conveyance describing the property, is:

      1877, and the town authorities, at the time of filing this bill, were proceeding to open George street, between blocks 5 and 10, through west to Beuben street, now called Ashland avenue. On March 2,1871, at the time of recording the plat, the whole eighty acres were included in one inclosure. Soon after, the fence along the north-east side of the inclosure was removed. About two years after the recording of the plat, the owners of the ground made a new inclosure, embracing blocks 4, 5, 10 and 11. The fences coincided with the solid block lines shown on the plat. A gate was placed in this fence at George street. This inclosure has remained and been in the possession of the then owners and their grantees ever since. Complainant has sheds and a sand pile on the thirty-three feet strip in question. One Schrader had purchased block 10, shown on the map, next north of block 5, and in 1881 he built a cottage and barn on the south edge of block 10, and it is built up to the dotted line on the plat between the blocks, which would need to be removed if George street were opened through to Beuben street or Ashland avenue. As early as 1871, the streets in this subdivision began to be opened. Southport avenue was opened in that year. Perry street was opened in 1873 or 1874. George street, as before observed, as far west as Perry street, in 1877. Wolfram street in 1880.
    It appears that in 1874 or 1875, the overseer of highways in the town of Lake View built a culvert over the ditch on the east side of Ashland avenue, across George street, so as to admit of passing from one street to the other. The owners set out trees on several of the streets. Trees were planted on the north, south and east sides of block 5. Water pipes were put in several of the streets, under an ordinance of the town. They had been laid in George street, as far west as Perry street. Bepeated efforts were made, from 1881 to 1884, to get the town authorities to open George street west of Perry street, while a brother of complainant was a member of the town board, but they were without success.

      Mr. Hervey H. Anderson, for the appellant:
    A substantial -compliance with the -statute, in platting a town or subdivision, is all that, is required to make the plat operate as a conveyance of the streets. 2 Dillon on Mun. Corp. (3d ed.) 625; Thomas v. Eckard, 88 Ill. 593.
    As to a dedication at common law, and how made and shown, see Rees v. Chicago, 38 Ill. 336; Littler v. Lincoln, 106 id. 353; Cincinnati v. White's Lessee, 6 Pet. 531; Winnetka v. Prouty, 107 Ill. 225; Waugh v. Leech, 28 id. 489; Alvord v. Ashley, 17 id. 363.
    An acceptance may be shown by user by the public, as, by travel, or by the acts of the public officers in repairing and keeping it up. Rees v. Chicago, 38 Ill. 336; Littler v. Lincoln, 106 id. 353.
    ' Acceptance of a part is of the whole. Derby v. Alling, 40 Conn. 410; Henshaw v. Hunting, 1 Gray, 203; Jersey City v. Banking Co. 1 Beas. 547.
    The courts will take judicial notice of the width of streets in general. Winnetka v. Prouty, 107 Ill. 225.
    When the memorandum is abbreviated or elliptical, so as not to be intelligible without explanation, an expert may be called to prove what the words mean. Sheldon v. Benham, 4 Hill, 129.
    More importance attaches to a black continuous line on a plat than a light dotted one. Princeton v. Templeton, 71 Ill. 70.
    The fact that the land is taxed for city and county purposes will not conclude the public from claiming the use of the land for a public street. Leman v. Hayden, 13 Wis. 159; Wyman v. State, id. 663; Chicago v. Wright, 69 Ill. 319.
    Mr. John P. Altgeld, and Messrs. Frank J. Smith & Helmer, for the appellee:
    The statute requires the plat to give the names, widths, corners, boundaries and extent of all the streets and alleys.Gross’ Stat. 1869, (3d ed.) secs. 35, 36. The-plat in this case is deficient in these respects, and therefore fails to pass the title to the streets. Winnetka v. Prouty, 107 Ill. 218.
    That in this State an acceptance of proffered dedication to public uses is necessary to impose upon the authorities the burden of the care of public property, and to vest in them any right over the property, is too well settled to require discussion. Littler v. Lincoln, 106 Ill. 353; Gentleman v. Soule, 32 id. 279; Rees v. Chicago, 38 id. 336; Trustees v. Walsh, 57 id. 371; Heiner v. Jeanport, 65 id. 430; Wragg v. Penn, 94 id. 25.
    To make a dedication, either under the statute or at common law, requires a definite and certain description of that proposed to be dedicated, and an acceptance before a withdrawal of the offer to dedicate. Winnetka v. Prouty, 107 Ill. 218; Littler v. Lincoln, 106 id. 353; Trustees v. Walsh, 57 id. 370.
    Where the city, which has exclusive jurisdiction and control over the streets and alleys therein, and represents the public in respect thereto, treats the ground as private property, and makes assessment upon it as such, this is strong, if not conclusive, evidence, that it has not been accepted by the public as a street. Marsur v. State, 60 Ind. 357.
   Mr. Justice Sheldon

delivered the opinion of the Court:

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

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

The only other objection made to the plat is, that it is indefinite and uncertain, in not giving the length and width of the streets and blocks; that there are naked figures here and there upon the plat, but nothing to show what any of the figures mean. They evidently denote lengths of lines. But then it is said, there is nothing on the plat to determine whether inches, feet, rods, chains or links are intended by the figures. Let us see if this be so. Take George street,. the one in question, and we find at each end the figures, “50” and “50,” on each side of the dotted line running through the middle of the vacant space. There is no doubt these figures represent the width of George street. We reasonably know that as a street it was not intended to be one hundred inches, one hundred rods or one hundred chains wide. It can then be only feet or links which the figures represent. We are to look upon this as a plat made by a surveyor, and from an examination of the plat it would seem apparent, to a person of ordinary intelligence, that the measurement indicated thereon is surveyor’s measurement,—chains and links,—and not long measure,—feet and inches. At least with a competent surveyor, from the data which appear upon the plat, the various figures representing lines of different lengths, the dimensions which are given of all the blocks, there could be no manner of doubt that the measurement used was chains and links, and not feet and inches. Accordingly, the witness Alvorda, surveyor, says the width of the streets as platted in the subdivision is one hundred links,—sixty-six feet wide. We consider the figures “50” and “50,” at each end of George street, denote that street to be one hundred links wide, just as unmistakably as if it had been written in words on the face of the plat, George street is one hundred links wide. And so, in our judgment, there is enough appearing upon the face of the plat to determine what is the length of all the other lines appearing thereon. We view the’plat as in substantial compliance with the provisions of the statute.

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

It is said there was no acceptance by the town prior to 1873, when the owner fenced in this particular strip of thirty-three feet, and has ever since held possession of the same, and that acceptance by town authorities is necessary prior to withdrawal of a tender of dedication. However this may be in the case of an ordinary common law dedication, we can not recognize the doctrine as applying where there has been a statutory dedication. In such case, the statute says, the plat shall be deemed a sufficient conveyance to vest the fee simple in the streets in the municipality, and we do not admit any power of withdrawing the dedication. In Waugh v. Leech, 28 Ill. 492, this court said, upon this subject: “We certainly think a more unequivocal mode of dedication of streets could not be adopted than surveying and platting the ground and selling lots abutting on the streets, even if the streets should not be used by the public. If they are not reclaimed by the original proprietor in'some mode authorized by law, they remain public, open to the use of the public, whenever they may choose to appropriate them. ” And again, page 493: “The fact that White laid out this land into lots, streets and alleys, and had them duly platted, acknowledged and recorded, was a dedication of the streets and alleys to the public as highways, * * * and they remained highways, with the width designated on the plat, until such time as they should be legally vacated. ” And see Town of Derby v. Alling, 40 Conn. 435; Mayor of Jersey City v. Morris Canal and Banking Co. 12 N. J. 553. In the latter case, in speaking upon this subject of streets, it is said: “There is a large class of cases where the acts of dedication by the owner of the fee are of such a character as to preclude the owner from-retracting the dedication, even before any act of acceptance on the part of the public, ”—citing many cases.

But were there failure, here, to show a statutory dedication, we are of opinion there was a valid common law dedication. While this eighty-acre tract of land was owned in common by all the original proprietors, they made this plat, and this arrangement of the land for future use and enjoyment, by the division of it into blocks, with streets surrounding each block. With the land thus arranged for use and enjoyment, it was partitioned and divided among the owners, each one taking certain of the blocks as his or her several share. Each block was thus burdened with the easement of a street upon a strip of land thirty-three feet wide around it, and entitled to the benefit of the easement of a street of like width upon the adjoining side of the opposite block, so far as there was a block opposite, thus making a street sixty-six feet wide around each block, excepting one or two streets, which were a little wider. The blocks were allotted and accepted with these burdens and benefits of streets attached to them as incidents. For the burden of the easement of the street which there was upon each block, there was received the benefit of a like easement in another block. In taking the several blocks of land with the arrangement of this system of streets, there were implied mutual agreements that the streets should ever remain as platted,—a dedication to public use of the ground laid out as streets, as effectual as could have been made by deed solemnly executed. (Cihak v. Klekr, 117 Ill. 643.) There was more than a mere dedication. There was a valuable consideration moving to each block owner in the making of the division, which should make withdrawal of the dedication beyond his power, further than that the street might be vacated in the mode pointed out by the statute. He took and held an estate upon the condition of its being burdened with the easement of the streets, and the public authorities, in opening and improving the streets, act as the representatives of the lot owners, with others of the public, in so doing. There is no difficulty in regard to the width of the street, as respects a common law dedication. The testimony is, that when this survey was made, stakes were placed at the corners of the blocks, exclusive of the streets, and nowhere else, and that two old surveyor’s stakes were discovered a day or two before the hearing in the court below,—one on the south-west corner, and the other on the. north-west corner, of Perry and George streets. These stakes were just sixty-six feet apart, and so fix that distance as the width of George street.

If it were necessary in this case that there should be an acceptance by the public in order to render the dedication a valid one, we would regard that as sufficiently shown here. An acceptance may be shown by user by the public, as, by travel, or by the acts of the public officers in repairing and keeping up the streets. (Rees v. City of Chicago, 38 Ill. 336.) South-port avenue was opened to public use in 1871,—the very year in which the plat and division were made,—and other streets were opened from time to time. This George street was opened in 1877, its entire length, except between the two blocks 5 and 10. Perry, Diversey, Wellington streets, and Ashland avenue, appear to have been thrown open by the people who owned the ground. In 1874 or 1875 a culvert was built by the town authorities over the ditch on the east side of Reuben street, or Ashland avenue, across the west end of this unopened portion of George street. Immediate opening and user, by the public, of all .the streets for their entire length, or immediate formal acceptance by some competent public authority, can not be necessary to give effect to a dedication of land to the public use of a street, by the making of a town plat, and the selling and conveying of lots with reference to the plat. A municipality must be permitted to wait its reasonable time for opening and improving,its public streets, as its own resources and the public need may allow and require, without thereby rendering its streets subject to appropriation for the exclusive use and enjoyment of individuals.

A point is made as against the town, in the payment of town and other taxes on this block. It is described in the assessment books, “block 5, 5y§-2g acres.” To make that number of acres, requires the block to be bounded by the dotted line appearing in the- plat, in the centre of the streets surrounding the block, and bounding the block by its solid continuous lines gives but about 3f acres. This assessor’s description is the same designation as appears upon the plat. The land of the block does extend to the dotted line in the centre of the street, but the strip of it thirty-three feet wide, between the dotted line and the continuous block line, is subject to the easement of a public street. We see no significance in this payment of taxes. There may sometimes be such circumstances in a particular case which would make it so inequitable for the public authorities to exercise their power over a public street, as to create an estoppel against their doing so. But there is nothing of that kind in the present case. The'town authorities have but suffered the fence to remain across George street until there seemed to them a need for the public use that the fence should be removed. The erections put upon the street were mere encroachments upon a public street, made by the parties - with their eyes open, and at their peril. They can remove the same. They gain no right by their encroachment on the street. '

The decree will be reversed, and the cause remanded, with directions to dismiss the bill for want of - equity.

Decree reversed.


author: Mr. Justice Scholfield

text:
    The Chicago and Northwestern Railway Company v. The People ex rel. W. C. Seip, Collector.

      Filed at Springfield March 23, 1887.

    1. Special assessments—for park or boulevard ptirposes—liability of railway property. There is no constitutional or statutory exemption from the assessing of railway property, if specially benefited, for park- or boulevard purposes.
    2. Same—confirmation—of its conclusiveness as to matters in defence. A judgment confirming special assessments upon property benefited by a proposed public improvement, is conclusive as to any and all objections and defences that might have been interposed thereto. On application for' judgment against the lands for delinquent assessments, it can not be shown that the property was exempt, or not benefited, or that the ordinance under which they were made was invalid. All such matters, after the judgment of confirmation, become res judicata.

    Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.

      Mr. W. C. Goudy, for the appellant:
    The railroad property was not subject to special assessment to make the proposed improvements. Park act, 1 Private Laws of 1869, p. 348, secs. 13, 14; South Park v. Railroad Co. 107 Ill. 105; City of Philadelphia v. Railroad Co. 33 Pa. St. 41; Railroad Co. v. City of Philadelphia, 88 id. 424; Railroad Co. v. Board of Trustees, 14 N. Y. 652; City of Bridgeport v. Railroad Co. 36 Conn. 255; Railroad Co. v. City of New Haven, 42 id. 279.
    * Without reference to the various decisions of this court, it is sufficient to say that the rule is now firmly established that a special assessment for benefits is to be determined according to the actual benefits accruing to a particular parcel of property over and above the general -benefit- in- favor of the public. Attention,- however, is called to White v. People, 94 Ill. 604, Craw v. Tolono, 60 id. 256, Greeley v. People, id. 20, Crawford v. Ramsey, 82 id. 557, and Hundley v. Commissioners, 67 id. 560.
    Messrs. Campbell, Hamilton & Custer, for the appellee:
    That the questions sought to be here raised are settled in our favor, see Le Moyne v. Park Commissioners, 116 Ill. 42; Kedzie v. Park Commissioners, 114 id. 280; Park Commissioners v. Telegraph Co. 103 id. 33.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal is from a judgment of the county court of Cook county, for the amount delinquent on a special assessment made- on behalf of the West Chicago Park.

The proceeding was instituted under section 13 of “An act to amend the charter of the city of Chicago, to create a board of park commissioners, and authorize a tax in the town of West Chicago, and for other purposes, ” approved February 27,1869. (1 Private Laws of 1869, p. 348.) Assessors were appointed, and an assessment was made, the roll of which was returned to the circuit court of Cook county, and.confirmed by that court, after proper notice to the owners of the property affected, on the 21st of January, 1884. The Chicago and Northwestern Bailway Company did not appear before the circuit court and make any objection to the confirmation of the assessment. A warrant was issued to the collector, and the railway company not having paid the several amounts assessed against its property, it was returned delinquent. Application was then made to the county court by the county collector, for judgment against the property so returned delinquent. The railway company appeared and made objections, which were overruled by the court.

Three grounds are urged for reversing the judgment of the county court: First, the railway real estate is not subject to special assessment for the opening and maintenance of the proposed boulevard; second, no special assessment was made, but the burden imposed was a tax according to the value of the property; third, the assessors did not estimate the benefits on the several lots, blocks or parcels of land. Neither of these positions is, in our opinion, tenable.

There is no constitutional or statutory exemption against assessing railway property, if specially benefited, for park or boulevard purposes; and, therefore, unless there is something in the nature of the property itself which absolutely precludes, as a matter of law, inquiry and judgment by the circuit court whether such property can be specially benefited by the opening or improving of parks or connecting boulevards, the court plainly had jurisdiction to ascertain and determine the fact and apply the law; and if the circuit court had jurisdiction to ascertain and determine the fact and apply the law, it is unimportant that it adjudged that there were special benefits, when, in fact, there were none, and, under the peculiar condition and location of the property, could have been none, for this is error, only. We are aware of nothing in the nature of such property which, in a legal sense, absolutely precludes all inquiry whether it may, in any case and under any circumstances, be specially benefited by a park or by a boulevard connecting different parks.

In Canal Trustees et al. v. City of Chicago, 12 Ill. 403, we held that the property of the trustees of the Illinois and Michigan Canal might be specially benefited by the opening of a street, and that it was therefore to be included in a special assessment for that purpose. In City of Ottawa v. Free Church et al. 20 Ill. 423, we held that church property, though not liable to ordinary taxation, was liable to special assessment. In County of McLean v. City of Bloomington, 106 id. 209, we held that the public square in the city of Bloomington, belonging to the county, was liable to be specially assessed for the improvement of the adjacent streets. And in City of Chicago v. Baptist Theological Union, 115 id. 245, we held that a clause in the charter of a college, exempting its property from special assessments, was in contravention of the constitution of 1848, which required uniformity and equality in special assessments.

The case of South Park Commissioners v. Chicago, Burlington and Quincy Railroad Co. 107 Ill. 105, cited by counsel for appellant, was an appeal from the Appellate Court in a case which had been brought into that court by writ of error to the circuit court, on a judgment of confirmation, and the question there was, whether right of way, occupancy, franchise, property and interest of the appellee in Michigan avenue are, within the meaning of the acts therein cited, contiguous property abutting upon such avenue, and it was held in the negative. But there is nothing analogous to that in the case before us.

Whatever may be said in regard to the mere track of the railway, it is impossible to see why depot grounds, and other real estate used by the company, may not be benefited by improvements of the character here contemplated, at least as much as may be the public square occupied by the county court house, the -canal lands, and the lot occupied by the church, by like improvements; and since the question of jurisdiction turns upon the right of.inquiry, and not upon the correctness of decision, it is enough that .railroad property may sometimes, under certain circumstances, be specially benefited by improvements of the general character of the present.

The report which was confirmed was, that the assessors had made the assessment “upon the property by them deemed benefited by reason of such improvement, as near as may be in proportion to the benefits resulting-thereto. ” This was not objected to, and was confirmed by the court, and is a sufficient refutation of the allegation that .a tax was levied according to the value! •

In People v. Brislin, 80 Ill. 423, .the appeal was, as it is here, from a judgment of the county court on an application for a judgment against lands for the amount of a delinquent assessment. Among other objections .urged, was one that the assessment was not on contiguous property, but it was said: “This question, and all others bringing up the levy and assessment, have been passed upon by the circuit court, and are res judicata, and can not how be made in this court. Upon these there is a judgment pronounced by a court of .competent jurisdiction, and there .they must rest.”

Lehmer v. The People ex rel. 80 Ill. 601, decided at the same term, was the same, kind of case, and one of the objections urged was, that Parker avenue, to improve which the special assessment .there in question was made, was a private and not a public way, and, therefore, there was no authority in law to assess private property for its improvement; but the court said: “It is too late now to inquire into the nature of Parker avenue,—whether public or private. That-objection should have been made when application for confirmation of the assessment was made, of which appellant had notice by publication. It is now res judicata. It must have been adjudged a public street when the order of confirmation was entered, and there is no appeal from that. ”

Andrews v. The People ex rel. 83 Ill. 529, was an appeal from a judgment of the circuit court of Cook county ordering the sale of the lands of appellant as delinquent, for the amount of certain special assessments for park purposes in the town of West Chicago, and for State, and county taxes. It was objected that it did not appear that the property was benefited to the amount assessed thereon, but it was said: “This question was settled by the judgment of the court fixing the amount of the assessment. This is a proceeding to collect the assessment. The former judgment can not be attacked collaterally. The court rendering that judgment had jurisdiction, and its judgment is final.” There was also kindred ruling in Chicago and Northwestern Railway Co. v. The People ex rel. 83 Ill. 467.

In Gage v. Parker, 103 Ill. 528, bill was filed to redeem, and to set aside certain tax deeds. It was, among other things, contended, that the sale for taxes was void, because the ordinance under which the special assessment was made did not comply with the law, and therefore conferred no power to make the special assessment; but it was held that this objection was cured by the judgment of confirmation. It was said: “If the assessment was illegal from the fact that it was based upon an insufficient ordinance, it was the duty of the complainant in the bill to appear before the county court when the application was made to confirm the assessment, and there make the objection; but ."-as he failed to do so, this judgment of the county court, when called in question collaterally, must be regarded as conclusive.”

In Schertz v. The People, 105 Ill. 27, which was, like the present ease, an application for judgment to sell real estate to pay the amount of a delinquent assessment, numerous objections were urged,' all of which, on motion, were stricken from the files, and this ruling was sustained, the court saying: “The record of the entire proceedings, including the previous judgment upon which the application is founded, was then before the court, and if it appeared, from such record, the court had jurisdiction to render the judgment of confirmation, it is clear the objections were properly stricken from the files.” And again it was said: “The real question, then, would seem to be, is the confirmation of the assessment by the county court a valid judgment, or is it a mere nullity.”

This court has held, contrary to the opinion of the writer hereof and Mr. Justice Craig, in Riverside Co. v. Howell, 113 Ill. 263, that a different rule applies to ordinary tax sales, and the principle governing this class of cases, and that difference, is there thus explained: “Such confirmations of assessments are, in our opinion, to be viewed differently from a judgment to sell real property for the taxes due thereon. In carrying out the powers given cities, etc., by section 9, of article 9, of the constitution, of making local improvements by special assessments on contiguous property, these confirmations of the assessments may be regarded like that of the valuation of property by the proper officers in ordinary cases of assessment, and if the property owner fails to make his objections in the proper place, and the assessment is confirmed, then he may well not be permitted to go behind the confirmation in urging objections when proceeding is taken for enforcing the payment of such special assessments. ”

In Kedzie v. West Chicago Park Commissioners, 114 Ill. 280, we held, upon the record then before us, that the circuit court had jurisdiction to confirm the identical report of commissioners upon which the present application for judgment is based, and that no objection to it could be heard, upon bill in chancery to enjoin the proceeding, which might have been urged in that court. In Le Moyne et al. v. West Chicago Park Commissioners, 116 Ill. 41, on the record then before us questioning the same assessment, we overruled all objections-now urged, except the first, and that was not then urged.

The judgment is affirmed.

Judgment affirmed.