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claimed title by mesne conveyances from Cowell, lots 4, 5, 23, 24, 25, and 26 in Cowell's subdivision of the south half of block 3 in Lower Peoria.

The allegation of complainants' bill that Liberty street was kept open and constantly used by the public from the time of its platting until the filing of said bill is supported by the testimony of numerous witnesses introduced by complainants. Appellant, however, contends that no part of Liberty street was ever opened and traveled as a public highway. On this point the chancellor found "that said Liberty street, from the time the same was platted as aforesaid, has been constantly used by the public as a public street," and we are inclined to think the proof supports such finding. There is evidence to the effect that as early as 1867 there was a row of maple trees of considerable size along the westerly boundary of blocks 4 and 5 in Lower Peoria (being the easterly line of Liberty street), its entire length, and coinciIdent with such row of trees was a fence; that at the same time there extended a fence along the easterly boundary of blocks 3 and 6 (being the westerly boundary of Liberty street), except at street intersections, so that the street was fenced in its entire length. Complainant Tuefel testified that he and his family, at certain seasons, had traveled said Liberty street almost every day from 1875 to the filing of the bill in this case. One Meidroth testified he had lived in the vicinity of Lower Peoria for 44 years, and is familiar with the streets and alleys as platted by Aquilla Moffat; that said Liberty street has been much used and traveled by wagons and other vehicles, and by foot passengers; that complainant Tuefel used said street constantly in passing from his homestead to the tract of land owned by him south of said Liberty street; that there has been a great deal of hauling along said street, and that the closing or obstructing of said street will, because of the location of their said properties, redound greatly to the injury of complainants. Quite a number of other witnesses testified equally as strong as the one just cited, in favor of complainants, and in support of the allegations of their bill; but we deem it unnecessary to dwell upon the testimony, as we have previously stated that it is of such character as to amply support the chancellor's decree.

In June, 1883, William R. Bush and Delos S. Brown, who claimed to have then become the owners, by mesne conveyances from Moffat, of all the lands on both sides of Liberty street, and abutting thereon, undertook to vacate Liberty street by executing a deed of vacation thereof; their position being that the dedication proffered by the plat of Aquilla Moffat had never been accepted by the proper public officials, or as a matter of fact, by the public, and, such being the case, that the lot owners having lots abutting thereon owned the fee of the street, burdened

only with the offer of dedication; that, they having acquired all the lots abutting on said street, the fee thereof was in them, burdened as aforesaid, but by such renunciation and deed of vacation such burden was removed. While, under the view we entertain, and as will be expressed herein, such contention is untenable in any event, yet we may add, in passing, that such contention as to the acquirement of the fee of the street by Bush and Brown is inaccurate, for the deeds of conveyance to Bush and Brown of a considerable part of the property abutting on Liberty street described such property by metes and bounds, and under such descriptions the area of the street was not included. So in no event are they in a position to lay claim to the fee of said street.

On July 7, 1900, Delos S. Brown and the legal representatives of Bush made a deed to appellant, Corning & Co., by metes and bounds, of certain property, which included Liberty street throughout its entire length, and all property owned by them contiguous to the west side of said street. Shortly before the filing of the bill in this case, said Corning & Co. began the erection of a large distillery upon that portion of the property conveyed to it which is situated in block 6; extending the building over and onto Liberty street, so that travel thereon would be obstructed. The location of this building was afterwards changed so that the obstruction caused by it was removed, but appellant still maintained and contended that it had the right to obstruct said street; and it caused a petition to be filed with the city council of the city of Peoria by the Peoria Terminal Railway Company for permission to lay side tracks in Liberty street, connecting with appellant's distillery buildings. The petition

was granted, with the understanding that there should be left an open space of 32 feet for the use of the public on said street. After the beginning of this suit, appellant notified its grantors of Liberty street to appear and defend their title to the same. The said grantors and their representatives then presented a petition to the chancellor requesting that an order might be entered permitting them to appear and defend said suit, but said petition was denied.

Appellant's contentions are, first, that the plat of Aquilla Moffat, notwithstanding certain patent deficiencies therein, should be regarded as a good statutory plat; second, that the conveyances to Bush and Brown of the property abutting on Liberty street were made before any portion of the territory included in the Moffat plat had been included within the corporate limits of any city, village, or town, and before Liberty street had been opened or accepted by any public authorities, and that by reason thereof they took the title to said Liberty street by virtue of the conveyances to them of the adjoining property, burdened only with the offer of dedication; third, that, by reason of the deed of vacation of said Bush

and Brown, the offer to dedicate was withdrawn, and said parties thereafter held the fee to said street free from any claim of a public highway therein; fourth, that, in any event, Liberty street having remained unopened and unaccepted by any public authorities, the right to now open the same has been waived; fifth, that the evidence does not support, or the bill allege, a highway by prescription; and, sixth, that the chancellor erroneously denied the petition of the appellant's grantors to appear and defend appellant's title in this suit.

Under our view of the law applicable to this case, it is unnecessary for us to discuss the various contentions of appellant, or to determine whether the plat of Aquilla Moffat to Lower Peoria can be held to be a compliance with the statute. As we regard it, the vital point to be determined in this case, and those of similar import, is whether the alleged street which is sought to be vacated or obstructed was by the original owner designated upon the plat with reference to which subsequent lots and tracts have been sold. If so, where private rights may be affected, and as between the author of such plat, or his privies in estate, and those buying lots upon the faith of such plat, or with reference thereto, there is an implied covenant that such designated street or public way shall be forever open for such purposes, and free from any claim or interference by the original owner and author of the plat, and those claiming under him. Whether the plat of Aquilla Moffat, in this case, could be held to be a good statutory plat, or not, it was, at least, sufficient to constitute a common-law plat, and to manifest an intention of the author to dedicate to public use the designated streets thereon, which is sufficient to estop such original owner and author of the plat, and those claiming under him, from deaying or rescinding such dedication, whether it was so accepted by the public authorities of the village or municipality or not. In Marsh v. Village of Fairbury, 163 Ill. 401, 45 N. E. 236, we said (page 407, 163 Ill., page 238, 45 N. E.): "But in connection with these public rights, those who purchased lots fronting on this park took with reference to the plat, and had an appurtenant right therein, which was their own property, as a right appurtenant, and that was to have the streets and block 10 remain open for public use. The vendor, or those privy to his title, would, by his acts in platting and selling lots by this plat, be estopped from inclosing block 10 as private grounds. Such being the case, the question as to whether or not the village authorities accepted the dedication of that block would not defeat the right of individual purchasers from asserting their rights to have the same open forever for the use of the public." In this case each of the appellees is the owner of one or more lots in Cowell's subdivision of the south half of block 3 in Lower Peoria, on the east and west of which subdivision extend Center and Seneca streets, and an alley

through the middle, all of which open into Liberty street. It seems but natural that the closing of Liberty street would work manifest inconvenience and injury to property so situated.

The several lots and tracts of land purchased by appellee Tuefel were purchased before the pretended vacation of said Liberty street, and, according to the undisputed testimony, the 12-acre tract was purchased under and on the faith of the express representation that Liberty street extended to it, and by means of it the purchaser gains access to his land. While the purchase of this tract, because of its location outside of the platted territory, might not vest in the purchaser any appurtenant right to have the integrity of the plat preserved, yet it is proper to take into consideration its location with reference to Tuefel's homestead site, which is within the platted district, and was purchased long anterior to the attempted vacation of Liberty street; and because of such relative locations it is apparent that the preservation of Liberty street, as designated on the plat of Aquilla Moffat, is of especial interest and value to Tuefel, and this interest arose before the execution of the deed of vacation referred to, as Tuefel was before that time the owner of both these tracts, and then, as now, by their management, they were intimately connected.

Thus it will be seen, both from the surrounding circumstances and the testimony of the witnesses, that the proposed closing up of Liberty street will work inconvenience and pecuniary loss to parties purchasing with reference to and on the faith of the plat of Aquilla Moffat, showing the existence of Liberty street. But even if no especial inconvenience or loss were shown, the complainants, who are shown to have purchased with reference to said plat, are entitled, under the law, to demand that, as between themselves and Aquilla Moffat, and those claiming under him, the representations made by said plat as to the public streets thereon, constituting, as they did, inducements to purchasers of property in the territory platted, shall not now, after such purchases have been made, be impugned or held for naught, but that the good faith and verity thereof shall be preserved. As said in Clark v. McCormick, 174 Ill. 164, 51 N. E. 215 (on page 174, 174 Ill., page 219, 51 N. E.): "The arrangement of streets and ways formed a part of the consideration of the purchase of each block, or part thereof, not only as between the original proprietor of the plat and those who purchase from him, but also as between all subsequent vendors and vendees. The original proprietor sold to his vendee the rights and privileges of the streets, and each subsequent vendor passed such rights to his vendee. The law implies mutual agreements between all such parties that the streets shall always remain open for use as platted. It was not, therefore, within the power of the petitioners, as owners of the blocks along the

west side of the street in question (being but a portion of the blocks in the subdivision), to withdraw the dedication of the streets, as against the private rights of any other owners of blocks or parts of blocks in the subdivision." Citing Zearing v. Raber, 74 Ill. 409; Earll v. City of Chicago, 136 Ill. 277, 26 N. E. 370; Cihak v. Klekr, 117 Ill. 643, 7 N. E. 111; Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269. And further, quoting from the same case, at page 173, 174 III., page 218, 51 N. E.: "And the right thus passing to the purchasers is not the mere right that such purchasers may use these streets, or other public places, according to their appropriate purposes, but a right vesting in the purchasers, that all persons whatever, as their occasion may require or invite. may so use them. In other words, the sale and conveyance of lots in the town, and according to its plan, imply a grant or covenant to the purchasers that the streets and other public places indicated as such upon the plan shall be forever open to the use of the public, free from all claim or interference of the proprietor inconsistent with such use."

The insistence of appellant that by reason of the deed of vacation of its grantors, referred to in this case, complainants' bill is devoid of merit, is not tenable, where, as here, private rights have been acquired which would be sacrificed by such vacation. As said in Clark v. McCormick, supra, in speaking of the provision of the statute for the vacation of a statutory plat, "Such statute is framed with a view of protecting the rights of all interested;" and, as to the nature of the right to have the integrity of the plat preserved, acquired by those who purchase with reference to a particular plat, as set out in the previous quotation, it is held to be valuable and substantial. The principle here applied is only in conformity with all other transactions where one who takes a certain position, and causes others to act thereon, is estopped from afterwards denying or receding from such position, to the injury of those whom he has led to act upon the faith of his position.

As to appellant's sixth contention, viz., the denial of the petition of appellant's grantors to appear and defend in this suit, though more might be said, we regard it sufficient answer to say that this is the appeal of Corning & Co. Petitioners did not appeal, and the rejection of said petition was not a denial of any right belonging to Corning & Co.

The decree of the circuit court of Peoria county is sustained. Decree affirmed.

STANLEY v. MARSHALL. (Supreme Court of Illinois. Dec. 16, 1903.) CONVEYANCE REFORMATION-ESTOPPEL

-EVIDENCE-COSTS.

1. Evidence in a suit to reform a deed held to show that the tract of land in dispute was in

tended by all parties to be included in the deed

2. Under the rule that the facts constituting an estoppel in pais must be established by a preponderance of the evidence, evidence held insufficient to show that money refunded by a vendor of land was the price paid for the tract of land in dispute, so as to estop the purchaser from claiming it.

3. The error, if any, in a finding that a vendor paid back a sum on account of a shortage resulting from the omission of a tract from the description in a deed, and a decree that the sum be repaid to him, is not prejudicial to him, where he admits that the tract should be included.

4. In a suit to reform a deed, in which it is decreed, adversely to defendant's claim, that the deed be reformed, and also that complainant pay defendant a certain sum, there was no abuse of discretion in requiring two-thirds of the costs to be paid by defendant.

Appeal from Circuit Court, Henderson County; Geo. W. Thompson, Judge.

Bill by R. Newton Marshall against Wyatt Stanley and others to reform a deed. From

a decree in favor of complainant, defendant Wyatt Stanley appeals. Affirmed.

This appeal is from a decree of the circuit court of Henderson county ordering appellant, Wyatt Stanley, and his wife, Helen T. Stanley, to convey to appellee, R. Newton Marshall, all that part of the northwest fractional quarter of section 5, in township 8 north, range 4 west, that lies directly south of the southeast quarter of section 32, in township 9 north, range 4 west, and all of the northeast fractional quarter of section 5, township 8 north, range 4 west, all in Henderson county, and, in case of failure of said Stanley and wife to so convey said premises within thirty days from said decree, that the master in chancery, for and on their behalf, convey said premises to appellee. The decree orders appellee to pay to appellant, within 10 days, the sum of $77.93, and provides that appellee pay one-third of the costs of this proceeding, and appellant two-thirds thereof.

The original bill in this cause was filed on January 27, 1903, by appellee against Stanley and his wife, to reform a deed made by them to appellee for certain real estate, and to correct errors in the description of such real estate. The bill charged that appellant sold to appellee, and intended to convey to him, with other lands, all the northeast fractional quarter of section 5, and that part of the northwest fractional quarter of said section 5 which lies directly south of the southeast quarter of section 32, in town 9 north, range 4 west of the fourth principal meridian, in Henderson county, Ill.-said section 5 being in town 8, and in the same range and county as said section 32-but that the deed failed to convey these two tracts, and asked that it be reformed and corrected so as to convey them. The bill was afterwards amended, and J. Cecil Brook and John A. Brook were made parties defendant. Appellant answered the amended bill, denying the material allegations thereof so far as

that part of the northeast fractional quarter, ty to the agreement of partition, nor consultof section 5 which lies east of the public highway, containing 1.037 acres, is concerned, and admitting that in other respects the deed should be reformed and corrected as prayed. That part of said northeast quarter which lies east of the public highway is improved by a dwelling house, and is the real estate in dispute in this suit. Appellant does not question the propriety of the decree so far as it directs a conveyance of real estate other than the part of said last-mentioned quarter section which lies east of the public highway. To the answer, appellee filed a general repli- | cation. Defendants John A. Brook and J. Cecil Brook also answered said amended bill, disclaiming any interest in the land in dispute, and averring that any interest they or either of them may have formerly had in said premises had been transferred and equitably assigned by them to appellee. The cause was on March 4, 1902, referred to the master in chancery, and, in accordance with the decree of reference, he took the evidence, and reported same to the court, without findings.

The record shows that prior to March 1, 1901, appellant was the owner of the following tracts of land in Henderson county, Ill.: The northwest quarter of the southwest quarter of section 33, the south half of the southwest quarter of said section 33, and the southeast quarter of section 32, all in township 9 north, range 4 west of the fourth principal meridian; also all of section 4; the east 60 acres of the southeast quarter of section 5, the northeast fractional quarter of section 5. and that part of the northwest fractional quarter of section 5 which lies directly south of the southeast quarter of said section 32, all in township 8 north, range 4 west, as shown by the plat hereinafter set out. The record further shows that appellant went to see J. Cecil Brook in regard to selling his farm or land, and told him that he wanted to sell out. He priced the land to him at $75 per acre, but Brook, after looking the land over with appellee, told him he could not use all the land, and that the price was too high. After this a land agent from Kansas City, by the name of Waldock, with whom Stanley was dealing in Kansas real estate, carried on the negotiations for Stanley with J. Cecil Brook; the latter conducting the purchase of the land for himself, John A. Brook, and R. Newton Marshall. The evidence of the purchasers shows that Stanley stated to the three purchasers that he wanted to sell his land or his farm, and Stanley says the same thing, in substance, although he insists that he gave them the descriptions of the land he desired to sell, and did not include a description of the tract in dispute. An agreement was reached by Waldock with J. Cecil Brook, John A. Brook, and Marshall to purchase the land at $70 per acre, and a division thereof was agreed on among the purchasers; Stanley, however, not being a par

ed about the division, he having consented to deed it in any manner satisfactory to the purchasers. Separate deeds were executed and delivered on March 1, 1901, by Stanley to the purchasers; a banker named Kaiser, of Stronghurst, Ill., having prepared the deeds. The deed to Marshall described the land he was to have, under the division agreed upon among the purchasers, as follows: The southeast quarter of section 32, township 9 north, range 4 west; also the east 60 acres of the southeast quarter of section 5, and the south fractional part of the northeast quarter of section 5, containing 13 acres, more or less; ail in township 8 north, range 4 west of the fourth principal meridian; containing 233 acres, more or less. A sectional map of Henderson county, containing township 8 north, range 4 west, and township 9 north, range 4 west, was shown to the purchasers by Stanley during the negotiations, and from this map they obtained the number of acres in the farm, and agreed upon the division of the land among themselves. This map was admitted in evidence, and shows the number of acres owned by Stanley to have been 717.29. One acre of this was school land, and was occupied by a schoolhouse. This acre was excluded, leaving 716.29 acres, according to the Henderson county map. Stanley was paid for 716 acres at $70 per acre, and an agreement was entered into between him and J. Cecil Brook whereby each deposited $250 with Mr. Moir at Oquawka, with the understanding that the land should be surveyed, and the number of acres ascertained from the survey. If the land contained more than 716 acres, the excess was to be paid for out of the deposit made by Brook, and, if it contained iess than 716 acres, the shortage was to be refunded to Brook out of the deposit made by Stanley. In accordance with this agreement, a survey was made of the entire farm about eight months after the deeds were delivered, and it was therefrom ascertained that the farm contained 715.66 acres, including the school acre. While surveying, it was discovered that the part of the northwest quar ter of section 5 lying immediately south of the southeast quarter of section 32 was not included in any of the deeds, but it was included by the surveyor in the 715.66 acres. A settlement was made between Stanley and J. Cecil Brook upon the basis of the number of acres shown upon the plat made by the surveyor; Marshall, however, not being present at this settlement. From the 715.66 acres there were deducted by Brook 2.037 acres. Stanley claims that this deduction was made on account of the school acre, and that part of the northeast quarter of section 5 that lies east of the road, which is the piece of land in dispute, and which Stanley claims he never sold, while Brook testified that the deduction was made on account of the school acre, and that part of the north

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