School Lands. The act of Congress of 1822, authorizing the State of Illinois to survey through the public lands belonging to the general government, the route of a canal to connect the Illinois river with Lake Michigan, and reserving forever from sale a strip of land ninety feet wide on each side of the canal, such reservation does not apply to Sections 16, because these sections were not public lands at the time of the passage of the canal act but had been granted to the State for school purposes, prior to the passage of the canal act.80

By an Act of Congress, passed March 30, 1822, the State of Illinois was authorized to survey and mark through the public lands of the United States the route of the canal connecting the Illinois river with the southern bend of Lake Michigan. Said act granted the State of Illinois ninety feet on each side of the canal, subject to certain conditions in the act specified. The Act of 1822, reserved every section of land through which the canal should pass from future sale until further directed by law, and the State of Illinois was authorized to use any materials on the public lands adjacent to the canal that might be necessary for its construction. By a subsequent act, passed March 2, 1827, for the purpose of aiding the State of Illinois in opening a canal to unite the waters of the Illinois river, with those of Lake Michigan, the United States granted to the State of Illinois a quantity of land equal to one-half of five sections in width on each side of the canal, reserving each alternate section to the United States to be selected by the commissioner of the land office under the direction of the President of the United States, from one end of said canal to the other. Said lands were subject to the disposal of the legislature of the State for the purpose aforesaid, and for no other.

The act of Congress provided that as soon as the route

80-Trustees of I. & M. Canal v.

Haven, 10 Ill. 548.

of said canal shall be located and agreed upon by the State of Illinois, the Governor, or the person authorized to superintend the construction of said canal, should examine and ascertain the particular sections to which the State was entitled under the grant and report the same to the Secretary of the Treasury of the United States. Section 3 of the act provided that the State of Illinois, under the authority of the legislature thereof, after the selection shall have been made, shall have power to sell and convey the whole or any part of said lands, and to give title in fee simple therefor to whomsoever should purchase the whole or any part thereof. By an act of the Illinois legislature the State conveyed to the trustees of the Illinois and Michigan canal "all the remaining lands and lots belonging to said canal fund, or which may hereafter be given, granted or donated by the general government to the State to aid in the construction of said canal."

There is no description in any of the acts of the legislature of the particular sections which passed to the state by the act of Congress above referred to. Under the act of Congress the state was granted each alternate section in a strip five sections wide on each side of the canal, to be designated or selected by the Governor of the State, or the person authorized to superintend the construction of said canal, which ascertainment and selection were to be reported to the Secretary of the Treasury, and the power of sale by the state was only given "after the selection shall have been made."

Until the selection was made by the state and reported to the Secretary of the Treasury of the United States there could be no certainty as to the particular section of land falling within the grant, nor could the title to any particular section vest in the state.

It has been held that a grant of land to a state by the United States, in aid of the construction of a railroad, of every alternate section designated by odd numbers, for six

sections in width on each side of the railroad, was a mere floating grant, and did not vest title to any particular section on the line of the road until the road was permanently located. In the case of the grant to the State of Illinois to aid in the construction of the Illinois and Michigan canal the grant was each alternate section to be selected in the manner already pointed out. Until such selection was made the state had no power to convey. So where the abstract submitted failed to show what lands had been selected by the state under the grant there is a failure to show title out of the United States.81

The court will presume, after a long lapse of time, under peculiar circumstances, that a certificate of sale of land by the county was duly given, and that the consideration for such certificate has been paid by the party to whom it was issued.82

The statutes in regard to the sale of school lands and the method of making title thereto is well stated in the case of People v. Auditor, 3 Ill. 567.

§ 1462. Deeds of Counties-Statute "The county board of any county may authorize any officer or member of its board to execute and deliver all deeds, grants, conveyances and other instruments in writing, which may become necessary in selling, transferring or conveying any real estate belonging to its county and such deed grants, conveyances and other instruments, if made without fraud or collusion, shall be obligatory upon the county to all intents and purposes.'' 83

The several records of orders and memoranda of the county commissioner's court, are a sufficient writing and signing by the party to be charged therewith, to take a case out of the statute of frauds and sufficiently mutual and certain in the description of, and as to, what property was sold, to be capable of a specific performance in a court of equity. 83-Sec. 16, Ch. 30, R. S. 84-Bourland v. Peoria County, 16 Ill. 538.

81-Koch v. Streuter, 232 Ill. 594. 82-Jefferson County v. Ferguson, 13 Ill. 33.

The state was invested with the title to all swamp and overflowed land within its boundaries by the act of Congress of 1850, and all swamp and overflowed lands were granted to the counties within their borders by the state in 1852. So where the deed is executed by the chairman of the board of supervisors, and it recites the authority given him by the board, and that the land was swamp and overflowed land situated within the county and the deed was given in execution of the power, that is all that is necessary to authorize it to be admitted in evidence. It is not necessary to show that the lands were classified as swamp and overflowed lands.85

§ 1463. Conveyance by Plats and Subdivisions The statute provides a method for platting and subdividing property, and when such plat is in accordance with the provisions of the statute, "the acknowledgment and recording of such plat shall be held in law and equity to be a conveyance in fee simple of such portions of the premises as are marked or noted on such plat as donated or granted to the public, or any person, religious society, corporation or body politic, and as a general warranty against the donor, his heirs and representatives to such donee or grantee for their use or for the use and purpose therein named or intended, and for no other use or purpose. And the premises intended for any street, alley, way, common or other public use in any city, village or town, or addition thereto, shall be held in the corporate name thereof in trust to and for the uses and purposes set forth or intended." 86

The purchaser of a lot from an owner, who has made and exhibited a plat of a subdivision, showing streets and alleys, acquires a right not only to the use of the streets and alleys, but that such streets and alleys shall remain open for the use of the public. The sale and conveyance according to the plat imply a grant or covenant to the purchasers of the lots and their grantees that the public streets included

85-Burns v. Curran, 275 Ill. 448. 86-Sec. 3, Ch. 109, R. S.

2 R. P.-21

in the plat shall forever remain open as public highways, free from all claim of the proprietor, or those claiming under him, inconsistent with their use as public highways. In such case the acceptance by the public is unimportant, for the question involved is one simply of private right. The easement which is appurtenant to each lot by reason of the existence of the plat, and the sale with reference to it, is private property. It cannot be lost merely by non-usure when there is no adverse possession. But a complete nonusure of an easement for a period of twenty years, with possession in another that is inconsistent with or adverse to the right of such easement, will bar the easement.

87

Where a deed refers to a plat or subdivision, the particulars shown on the plat or subdivision are as much a part of the deed as though they were recited in the deed.

88

Upon the survey of a platted tract, if a deficiency or a surplus is discovered, the same should be divided pro rata among the several lot owners.89

A plat made by the county clerk for purposes of taxation as provided by the Revenue Act, is void and a cloud upon the title of the owner when not certified as required by the statute in that regard, or when the names, width, course and extent of the streets thereon are not set forth as provided by the statute in regard to Plats.90

In cases where the fee in the street is in the municipality it has the right to require persons occupying a portion of the street beneath the surface thereof to pay rent therefor.91

Where the owners of several tracts of land join in a plat of the subdivision thereof into blocks, lots, streets and alleys, and the owner of one of the tracts fails to comply

87-Swedish Ev. Lu. Church V. Jackson, 229 Ill. 506..

88-Schneider v. Sulzer, 212 Ill. 87; Henderson v. Hatterman, 146 Ill. 555; Smith v. Young, 160 Ill. 163; Simpson v. Mikkelson, 196 Ill. 575.

89-Francois v. Maloney, 56 Ill.

299.

90-Ely v. Brown, 183 Ill. 575. 91-Tacoma S. D. Co. v. Chicago, 247 Ill. 192.