APPEAL from the Superior Court of Cook County; the Hon. JOHN
J. LUPE, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
This is an equity proceeding instituted by certain residents, citizens and taxpayers of the village of Lansing, each of whom is the owner of property in a subdivision in that village, known as Schultz Park Subdivision. The plaintiffs seek to compel the record owners of lot 342 in that subdivision to convey the same to the defendant LanOak Park District, to be used as a public park, and, at the same time, seek to enjoin the defendant park district from proceeding with a condemnation case now pending in Cook County, wherein the lot in question is sought to be taken for use as a public park.
The plaintiffs further seek injunctive relief necessary to keep the record owners of the lot in question from filing with the village or with the defendant Registrar of Titles a plat of lot 342 resubdividing the area for residential purposes.
The case was referred to the master who heard extensive evidence in connection with the history and development of Schultz Park Subdivision. The master recommended that the defendant owners be compelled to convey the premises in question to the defendant park district or, in the alternative, that the defendant village be decreed to be the legal holder of title in trust for park purposes.
The lower court sustained exceptions to the report of the master and dismissed the complaint for want of equity. This appeal raises the question of the existence of a common-law dedication and thus involves a perpetual easement. A freehold is therefore in issue, and the appeal is properly brought to this court. Stevenson v. Lewis, 244 Ill. 147.
In order to fully comprehend the nature of the issue presented here for decision, it is necessary to rather fully state the facts relating to the development of Schultz Park Subdivision and the history and nature of the transactions relating to property in that subdivision.
In 1927 one H.F.W. Schultz and his sister were the owners of a certain 80 acres of unimproved farm land lying south of and contiguous to the village of Lansing. In May of that year, the owners executed a trust agreement, by the terms of which Schultz took title as trustee of the 80 acres.
In the following month, Schultz, as trustee, filed a plat of the 80-acre area with the recorder of deeds of Cook County, wherein the area was designated as "Schultz Park Subdivision." This plat shows the entire subdivision to be divided into 371 lots with streets and alleys indicated thereon. The lots are not unlike the usual and customary lots to be found in residential areas, varying in width from 25 or more feet and of various depths, but with a general average depth of 135 to 150 feet.
In the center of the plat there is an area of approximately five acres, bounded on all sides by streets, as platted in the subdivision, and this center area is designated as lot 342. This is the only lot in the subdivision which, by reason of its five-acre area, is not a lot ordinarily thought of as a residential lot of the type usually found in subdivisions in Cook County.
The subdivision was soon thereafter annexed to the village of Lansing, and Schultz, as trustee, began the sale of lots. The sale was by printed form of articles of agreement for warranty deed or printed form of contracts for deed, and on the back of the printed form as used was a map of the subdivision, essentially the same as the plat of the subdivision, but lot 342 was designated on the map by its lot number and the area as indicated on the map bore the additional legend of "Schultz Park."
One such contract for deed form has a printed map of the subdivision showing lot 342 as such and as "Schultz Park," and has additional drawings indicating diagonal sidewalks from the four corners of the lot to a circle in the center. The map on this particular printed form bears the additional printed reference to a proposed playground, a proposed bandstand, proposed tennis courts, as well as reference to a proposed swimming pool.
The record indicates that sales of lots in the subdivision were by Schultz, as trustee, using the printed forms above described. Some of the sales were made personally by Schultz and others were made by real-estate agents who had real-estate agreements with him for the sale of certain of the lots. The real-estate agents, in connection with the sales made by them, used the printed form of contract for deed furnished by Schultz. In 1928 Schultz had engineers prepare sewer and water-main maps based on the original plat of the subdivision. One of the engineers engaged to do the work testified that no mains were designated for lot 342 because Schultz stated to him that "he was going to donate or deed it to the village for a playground if they would accept it and take care of it, and if they would establish it as an official playground or recreation center so that it could be used by the public."
The sewer system as platted was put in by means of a special assessment against lots in the subdivision, although no part of the assessment was made applicable to lot 342. However, in 1949, when one of the streets bordering lot 342 was to be paved, Schultz, as trustee, paid for one-half of the paving.
The sale of some lots in the subdivision was shown to have been based upon representations that lot 342, or Schultz Park, was an area designated for public park purposes. The evidence is that the price of lots near the park area, ...