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Schien v. City of Virden





APPEAL from the Circuit Court of Macoupin County; the Hon. L.E. WILHITE, Judge, presiding.


Rehearing denied May 16, 1955.

Plaintiff here seeks to enjoin the defendant municipal corporation from leasing a portion of a tract of land, situated in the city and dedicated to public use, to another municipal corporation, a fire protection district, for the purpose of erecting thereon a fire house. The trial court, after hearing, found the equities in favor of the defendants, dissolved a temporary injunction which had been issued, dismissed the complaint for want of equity and awarded the defendants attorney fees.

Plaintiff-appellant contends the court erred in the decree entered because (1) the village authorities have no power or authority to lease land dedicated to public use, (2) if there is such a power in the village a lease for the purpose of constructing a building thereon would be a diversion from the intended use of the tract, and (3) construction of a fire house thereon would be a diversion from its intended use.

The law as to the use of land dedicated for public use in this State is well settled. A specific or restricted dedication can be used only for the use intended while an unrestricted dedication can be used for any purpose which the municipal authorities or the legislature may determine, so long as it is a public use. City of Chicago v. Ward, 169 Ill. 392, 412; Chicago, Rock Island and Pacific Railroad Co. v. City of Joliet, 79 Ill. 25; Village of Riverside v. MacLain, 210 Ill. 308, 327.

The controversial questions usually presented in this type of case are whether the dedicated use is restricted or unrestricted, and what was the intention of the dedicator. When that intention is determined, it is controlling. Village of Princeville v. Auten, 77 Ill. 325.

In the instant case the only evidence of the dedication or of the dedicator's intention was the plat filed by the proprietors of the town of Virden in 1852. This plat laid out city blocks, divided into lots, and streets and alleys. The subject property consisted of one city block, in the approximate center of the platted town, which was not numbered or divided into lots and on which the proprietors wrote "Public Ground." The plaintiff's complaint alleged that the town, and later the city of Virden, assumed control of this block and operated it as a park. The answer denied that the property was dedicated or used as a park and alleged that this was an unrestricted dedication and, while a portion of it had been used for park purposes, other parts had been and were used for other public purposes.

The evidence showed that this property was controlled and maintained by first the town and then the city of Virden. Witnesses testified that prior to 1900, a town house and calaboose were erected thereon, were subsequently torn down and a city hall was erected. The city hall has been used for the offices of the city clerk, police magistrate, and water department of the city, the city jail and for the council meetings. Prior to the creation of the fire protection district it housed the city's fire engines, that portion now being used as a garage and workshop. The block is crisscrossed by cement walks and the city provides seats or benches thereon for the use of the public. There is a bandstand in the southwest portion of the block and the property has been used for band concerts, public and organization gatherings. The tract is variously referred to as the city park, public ground, city square, and public square. The evidence also showed that the original dedicated block had been reduced in size, portions having been taken to widen the surrounding streets.

It seems evident from the evidence that the city authorities have in the past utilized this property for whatever city or public use they deemed advisable and the public has acquiesced in that use. Use of the property for the erection of a city hall, its use for offices, the city jail, housing fire engines and a garage and workshop are all uses inconsistent with and violative of a dedication for park purposes.

In Chicago, Rock Island and Pacific Railroad Co. v. City of Joliet, 79 Ill. 25, (1875) this court held that where the only dedication is as "public ground," it is an unrestricted dedication to public use. We see no reason to overrule that holding. It would not be unreasonable to assume the proprietors of the town foresaw the necessity of public buildings and intended the use of this tract for that purpose. Nor is there any reason why they could not have specifically designated the tract as a public park or placed restrictions thereon if they had so intended. At page 36 of this opinion the court stated "The dedication was simply as `public ground,' denoting that it was for a public purpose, and the long and universal acquiescence in the use of the ground for the public purpose of a railroad, affords evidence that such use is in consistency with the design of the dedication."

In the instant case the identical dedication as "public ground" and the public acquiescence in the use of the ground for the necessary town and city buildings are sufficient to consider it a dedication for such purposes. A building to house fire-fighting equipment would be a necessary public building, the property has in fact been used for that purpose, and if the city council determined that such building was a proper public use, it would be consistent with this dedication.

The question then arises if the municipal authority which controls the dedicated property could devote it to that use, can it grant the right to another municipality?

The Virden Fire Protection District was organized in 1950 as a municipal corporation under the laws of this State and the entire city of Virden is within such district. The city has ceased to maintain fire-fighting equipment and this function has been taken over by the district which assumes the function of providing fire protection for the entire public within its boundaries. The district proposes to erect a building on the southeast corner of the block, according to plans to be approved by the city council, for the housing of the district's fire-fighting equipment. The parties stipulated that the city council has voted to lease the necessary ground to the district for this purpose, if it can legally do so.

The universal rule is that a municipality holds dedicated property in trust for the public to be used for the purposes for which it was dedicated, and it has no power or authority to convey or lease any part thereof. (63 A.L.R. 614; 26 C.J.S. page 142; City of Alton v. Illinois Transportation Co. 12 Ill. 38; City of Quincy v. Jones, 76 Ill. 231; McPike v. Illinois Terminal Railroad Co. 305 Ill. 298.) Not even the legislature can authorize the municipality to so alienate its interest in the dedicated property. (Illinois Central Railroad Co. v. Illinois, 146 U.S. 387.) But it has been held that the legislature may authorize a city to lease a part of a park where the free use by the public of the land leased is not prevented. (18 A.L.R. 1271; 63 A.L.R. 493.) And a lease by a city has been sustained ...

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