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C. & W.i.r.r. Co. v. Alquist

OPINION FILED SEPTEMBER 24, 1953.

CHICAGO AND WESTERN INDIANA RAILROAD COMPANY, APPELLEE,

v.

ERIC ALQUIST ET AL. — (THE CITY OF CHICAGO, APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. DENIS J. NORMOYLE, Judge, presiding.

MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

This is a direct appeal from a judgment of the circuit court of Cook County finding that neither the city of Chicago nor the public had any rights or interest in a certain tract of land which appellee sought to condemn for railroad purposes. This court has jurisdiction because a freehold is involved.

On June 17, 1949, appellee filed its petition to condemn certain properties in the city of Chicago for railroad purposes. Only one tract, designated in the petition as tract 3, is involved in this appeal. Tract 3 is a strip of land approximately 66 feet wide running from the south line of Forty-seventh Street in the city of Chicago south to the north line of appellee's right of way. It is a part of a tract included in an attempted subdivision made by one William H.W. Cushman in 1871 commonly called South Side Homestead Association Addition and appears on the plat of such attempted subdivision as a small part of Bissell Street. The name was later changed to Butler Street and more recently called Normal Avenue.

The plat of this attempted subdivision was recorded January 19, 1871. In 1877 Connecticut Mutual Life Insurance Company filed its complaint in the United States Circuit Court to foreclose a mortgage on certain lands including this subdivision. The complaint alleged that the purported subdivision was not binding upon the mortgagee. The city of Chicago was made a party to the suit. On July 14, 1879, a decree of foreclosure and sale of the mortgaged premises was entered and the court found that the mortgaged premises were subdivided after the execution of the mortgage and such subdivision being unauthorized by the mortgagee was not binding on the mortgagee. The subdivision was also found to be defective because of a failure to conform to the statute. Prior to the commencement of the foreclosure proceeding the mortgagor had conveyed certain of the lots in the purported subdivision.

The decree of foreclosure and sale provided that the lots in the purported subdivision be sold first and that in case of a deficiency the streets and alleys be sold last. The sale of the lots by the master failed to realize the amount of the remaining indebtedness, interest and costs and at a later date the street and alleys, including tract 3, were sold. The mortgagee purchased the streets and alleys, they were not redeemed and the mortgagee received a master's deed therefor on October 22, 1891.

On June 19, 1900, Connecticut Mutual Life Insurance Company filed its original petition in chancery in the superior court of Cook County against the city of Chicago and other defendants seeking to confirm its title in fee simple absolute to certain lands including the tract herein referred to as tract 3. The city of Chicago filed its answer and cross petition in said suit contesting the title of the petitioner to the portions of land described in the petition shown as streets and alleys on the purported subdivision of South Side Homestead Association Addition. The city contended the streets and alleys were public property, while petitioner contended they were private property.

Prior to the rendition of the final decree in said cause, the Connecticut Mutual Life Insurance Company conveyed the property to one Walter Mills who filed his supplemental and intervening petition in said cause. The conveyance by the insurance company to Mills was effected by two deeds dated December 10, 1906, one of which included the land referred to herein as tract 3.

A special master found against the city of Chicago as to the streets and alleys including tract 3. The chancellor approved the master's report in its entirety.

At a later date the city council of Chicago authorized its corporation counsel to enter into and file a stipulation in said cause by which it was stipulated and agreed that upon the payment of the sum of $6000 to the city of Chicago, the city would not appeal from the final decree entered in said cause, nor sue out a writ of error thereto, nor file a bill of review concerning the matters therein decided and that it would waive and release all errors that might exist or intervene in said proceedings including the entry of the final decree. This stipulation was incorporated into the final decree of the court, and on June 21, 1907, the city of Chicago was paid the $6000 pursuant to the stipulation.

In its final decree the court found that Connecticut Mutual Life Insurance Company became the owner of the streets and alleys by virtue of the master's deed and that the insurance company did convey to Walter Mills all of the premises so owned by it by its two deeds of December 10, 1906, and it further found "that the city of Chicago and the public have no right, title or interest by way of easement or otherwise in and to the portion of the premises so owned by the petitioner, Walter Mills, shown as streets or alleys upon said pretended map of subdivision, so made by William H. Cushman * * *, and that neither the petitioner, Walter Mills, nor said Insurance Company are estopped by reason of any acts or doings of said Insurance Company, or said Mills, to deny that said portions are public streets or alleys, and that said plat did not constitute a conveyance or dedication of the said streets and alleys in any wise binding upon the said insurance company, or the said Mills; * * * that the city of Chicago has failed to prove the allegations of its said cross petition herein and that the same is without equity."

In the legal description of the land decreed to be the property of Mills the eastern boundary of the tract was recited as running along the west line of Bissell Street instead of the east line. The effect of this was to omit Bissell Street from the legal description in the decree although it was included as one of the streets and alleys on the plat of the pretended subdivision and was specifically included in the description contained in the master's report, and was included in one of the two deeds made to Walter Mills and specifically referred to by the court.

After the entry of the final decree in said cause Walter Mills and his wife conveyed tract 3 and other lands to appellee and appellee bases its title on such conveyance.

Appellant seeks a reversal of the judgment from which this appeal is taken on the ground that filing of the plat of the defective subdivision and subsequent acceptance by the city of the streets and ...


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