APPEAL from the Circuit Court of Adams County; the Hon. JOHN
T. REARDON, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 28, 1960.
The plaintiff, the city of Quincy, desired to remove the parkway in the center of Twenty-fourth Street between Vermont and Broadway streets within the city and pave the street from curb to curb. The defendants, who owned property abutting the street, and the city claimed fee title to the land upon which the parkway was located. Consequently, the city filed a suit for declaratory judgment to determine the rights of the parties in the parkway. A freehold is involved and direct appeal to this court is authorized. Ill. Rev. Stat. 1957, chap. 110, par. 75.
The circuit court of Adams County entered judgment against the defendants upon plaintiff's motion for a summary judgment on the pleadings pursuant to section 57 of the Civil Practice Act. (Ill. Rev. Stat. 1957, chap. 110, par. 57.) Since defendants challenge the validity and propriety of the judgment on procedural as well as substantive grounds, we will set forth the pleadings in detail.
The complaint alleged that there existed between block 1 and block 2 of Boulevard Place, an addition to the city of Quincy, a certain strip of dedicated land, which had been used for many years as a public street and as a parkway dividing the street; that defendants, owners of the abutting lots, were all of the parties who had any interest in the lots or parcels of land on either side of said street; that the city claimed ownership of the entire strip of land and that the city council had duly resolved to pave such parkway for vehicular traffic. The complaint further asserted that defendants also claimed ownership of the street and parkway, challenged the city's right to pave the parkway and threatened to sue the city if it attempted to carry out its plan; that preparation for the paving of the parkway would involve an expenditure of public funds for engineering services and other items which might be wasted if defendants prevailed; and that a prompt determination of the rights of the parties would prevent a possible unnecessary expenditure of funds. The complaint asked that the court declare the interests of the respective parties in and to this dedicated street and plaintiff's right to pave such parkway.
Defendants filed a motion to dismiss the complaint, which was overruled, and they then filed a demand for a bill of particulars requesting information concerning the plat of Boulevard Place and whether it was claimed to be a statutory plat. In response to such demand plaintiff supplied a duly signed copy of the plat with its accompanying certificates and acknowledgments. The plat showed on its face that the owners of the land made it an addition to the city of Quincy, known as Boulevard Place; and that they dedicated the streets and alleys shown thereon to public use upon acceptance by the city.
The plat also contained the certificate of the surveyor, then city engineer, attesting its correctness and the location of block 2 in the northwest quarter of the northwest quarter of section 6 in township 2 south of range 8 west of the 4th P.M. It appeared that the plat, signed and acknowledged on September 19, 1891, was approved and accepted by the board of public works and by the city council of the city of Quincy on October 5, 1891. The exhibit showed that it was duly recorded in the office of the recorder of Adams County.
The plat contained figures showing the width and depth of all lots and dimensions of all alleys and streets. A street 66 feet wide, designated "Twenty-Fourth Street," was located between blocks 1 and 2 of the addition. The plat further showed that the centers of Broadway and of Twenty-fourth Street were both township lines and that the point at which they intersected was a township corner. No parkway was shown in the center of Twenty-fourth Street between Vermont and Broadway. In response to questions asked concerning the cost of paving the parkway, the bill of particulars alleged that the estimated cost of the project was $15,000 and that the engineering cost would be 12 per cent of that amount.
Defendant's answer denied the allegations of the complaint and in addition set up five special defenses:
1. That since the plat did not comply with the statutory requirements then in force, it was only a common-law and not a statutory dedication of the street in question and that, as a result, the ownership of the fee of the street, including the parkway, remained in the adjoining owners and their successors subject only to an easement in favor of the public to use such street.
2. That the original proprietors, who platted the addition, had paved the street and improved the parkway with shrubs, trees and a fountain at their own expense, and since that time and for over 40 years, the defendants and their predecessors in title had improved and maintained the street and parkway at their own expense with the acquiescence of the city and without any expense to it; and that by reason thereof, the city was estopped from encroaching on the land of the defendants and from paving the parkway.
3. That if there were a common-law dedication of the parkway, such dedication was never accepted by the city or the public and that the fee simple title to the parkway remained in the defendants, as adjoining owners.
4. That the city's plans to pave the parkway and to widen the street would result in the destruction of the trees ...