APPEAL from the Circuit Court of Bond County; the Hon. FOSS
MEYER, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
This appeal is from a decree of the Circuit Court of Bond County, which permanently enjoined the Defendant-Appellant, Warren File, from interfering with the flow of traffic and the peaceable public possession of the tract of land in question. Plaintiff-Appellee is the City of Greenville.
The strip of land in question (hereinafter referred to as "the Tract") is a portion of Asbury Street in the City of Greenville, and was on August 26, 1947, conveyed by Jesse and Jane White to Waldemar Doll (hereinafter referred to as "Doll") who, in turn conveyed the premises to defendant Warren File on March 30, 1965. The White deed contained the following reservations:
"(Grantors herein reserve the right to operate and maintain a water line under and along the west side of said above described fifty (50) feet. Said line in operation at present time. Also the above described fifty (50) feet is sold for road purposes only and therefore building on same is prohibited.)"
and the deed from Doll to defendant contained the same reservations.
On August 11, 1967, the defendant File, placed a fence upon the Tract, which extended the entire width of Asbury Street, so as to entirely block vehicular traffic on the street. The obstruction remained until August 14, 1967, at which time the defendant, under the threat of the issuance of a temporary injunction, removed the obstruction and agreed not to restore the same pending hearing on the City's request for permanent injunction.
The injunction was primarily bottomed upon two legal conclusions which the Court found to be established by the facts:
1) That the plaintiff, City of Greenville, had proved a common law dedication and acceptance of the Tract in question; and
2) That the public had acquired a prescriptive right to use the Tract as a street, pursuant to the provisions of ch. 121, par. 2-202, Illinois Revised Statutes, 1967.
The establishment of either proposition would, of course, support the decree.
It may be said, at the outset, that there is no substantial disagreement between the parties as to the facts. The trial court filed in this cause, prior to the entry of the decree, an excellent memorandum opinion containing findings of fact and incorporated the same into his decree. Neither party here questions the findings of fact; defendant disputes only the legal conclusions reached by the trial court.
The evidence surrounding the purchase and use of the Tract discloses: that at the time of the White deed the real estate adjoining the Tract on the south was owned by Doll, his brother Vernon, and his parents, and was staked out into building lots, the middle two of which had no ingress or egress except over the Tract. That early in the 1950's, Vernon Doll became the sole owner of the twenty-five acres adjoining the Tract on the south and offered lots for sale to the public. In 1948 Doll filled in a part of the Tract with rock making it useable for vehicular traffic and from that time on, the public used it, and no one had interrupted the traffic in any way until the time that defendant barricaded the street in 1967.
One Paul Shea, beginning in September 1948, drove over the Tract and had done so about fifty times prior to 1954 and other vehicles were using the Tract. Shea purchased a lot from Vernon Doll in 1954, built a house thereon and moved into it that year, and testified that in 1954 the Tract appeared to be a street.
From 1954 to 1960 other lots were sold by Vernon Doll and residences built thereon; in 1962 two more residences were constructed on the north side of the Tract which has been used by these residents as well as other members of the public. Doll saw people driving over the Tract and testified that the public did use this street from 1948 up until the time of the hearing; that anyone who wanted to drive over it did so; that he never publicly objected to any of the people using it, and that he never specifically objected to the public driving through that area. He testified that he bought it as a "private street"; also that he did not want the public to use the Tract but expected them to.
In 1958 the City began using Motor Fuel Tax funds in the maintenance of Asbury Street, including the Tract. The City has oiled, sanded and maintained the Tract as part of Asbury Street since 1954. In 1955 the City built a sewer line through the Tract servicing the houses along and near the Tract; in 1956 the City built a sidewalk from east to west on the Tract which has been used by the public since that time. There are no other streets or alleys servicing the lots along the street; in 1956 the high school was opened east of the Tract and school buses, teachers and students have used the Tract ever since. At least since 1948 the Tract has not been assessed for tax purposes. Doll was aware of the activities of the City, and of the sales of lots and the construction of residences.
• 1, 2 This brings us to consideration of the trial court's holding that a common law dedication and acceptance is established by ...