plaintiff in error. Mrs. Abigail Wilcoxon, upon learning that the father of the parties hereto had conveyed the property covered by the lease to the defendants in error, conveyed the farm, subject to her life estate, to the plaintiff in error. If plaintiff in error desired to retain the benefit of the property received from Mrs. Abigail Wilcoxon, and to insist that the articles of copartnership should be deemed to have been nullified by the conveyance of the Opera-House and PostOffice Blocks to his copartners, and that he thereby became entitled to be released from all obligations under the agreement of copartnership, and entitled to refuse to accept compensation for his services rendered under the agreement at the sum fixed thereby, and to demand compensation quantum meruit for his services, and to recover damages sustained by reason of the alleged fraud upon him, or if he intended to retain all he had received from his aunt, and to claim that he was entitled to be regarded and accepted as though he were a grantee with said defendants in error in said deed from his father, and entitled to share, as one of such grantees, in the rents, issues, and profits in the premises conveyed by the deed, he should not have delayed to assert his rights for a period of 12 years after he had knowledge that his father had added the codicil to his will, and conveyed the Opera-House Block and the PostOffice Block to the defendants in error, in fraud, as he alleges, of his rights as one of the lessees of that property.

The chancellor did not err in dismissing the bill on the ground that plaintiff in error was guilty of laches, and the decree is affirmed. Decree affirmed.

1. As against a bill by the heirs of B. for an accounting for coal removed by defendants from under streets and lots, alleging that B. platted the land, and conveyed most of the lots, but died seised of two of them, it will be presumed, in the absence of a statement to the contrary. that the coal was removed after B. conveyed the lots sold.

2. As, where one plats land without making a statutory dedication of the streets, so that the title thereto remains in him, his title thereto to the middle of the street passes by a deed of lots, unless an intent to exclude the streets appears from the deed either in express terms or by its language, as explained by surrounding circumstances, a bill alleging that B., after making the plats, sold and conveyed lots designated thereon, making and conveying title to the lots to the purchasers in fee simple, shows, in the absence of allegation of language in the deeds excluding the streets, a conveyance of the grantor's interest therein, though it is alleged that the remainder of the estate in the parcels of land designated on the plats as streets remained vested in B. as his estate, with the title thereto remaining in him undisturbed by reason of anyRehearing denied December 4, 1902.

thing in the dedication; this being but a mere conclusion of the pleader.

3. The venue not having been changed when the court was asked to pass on the motion to reopen the case before the master and allow defendants, who had relied on the insufficiency of complainant's evidence, to introduce evidence, it was not error to grant the motion, though before it was made defendants were notified that a motion for change of venue would be made.

Error to La Salle county court.

Suit by Margaret Brewster and others against John D. Cahill and others. Decree for defendants, and complainants bring erAffirmed.

ror.

Fred T. Beers, for plaintiffs in error. Thos. N. Haskins, for defendants in error.

HAND, J. This is a bill in chancery, filed by the plaintiffs in error in the circuit court of La Salle county to enjoin the defendants in error from mining and removing the coal underlying certain streets and lots of which plaintiffs in error claim to be the owners, located in the city of Peru, in said county, and for an accounting for the value of coal underlying said streets and lots, which it was claimed had been mined and removed by the defendants in error. The defendants in error filed a demurrer to so much of the bill as charged them with mining and removing coal underlying the streets of said city, and answered so much of the bill as charged them with mining and removing coal underlying the lots owned by plaintiffs in error and the land lying between said lots and the The center line of the adjoining street. court sustained the demurrer, and, a replication having been filed to the answer, the cause was referred to the master, who reported that the plaintiffs in error were entitled to recover from the defendants in error the sum of $3,046.80 for coal underlying the lots belonging to plaintiffs in error and the land lying between said lots and the center line of the adjoining street, mined and removed by the defendants in error; and, the court having sustained exceptions to the master's report, a decree was entered dismissing the bill for want of equity, and a writ of error has been sued out from this court to reverse said decree.

It was averred in the bill that Theron D. Brewster, in the year 1837, was the owner in fee of certain lands located in La Salle county; that in the month of August of that year one Henry L. Kinney, as agent of Brewster, platted and subdivided a portion of said lands as the "Town of Ninewa," which plat and subdivision were afterwards ratified and recorded in the office of the recorder of deeds of said county by Brewster; that in the year 1857 Brewster platted and subdivided other of said lands adjoining said town of Ninewa as "Brewster's addition to Ninewa," which plat was filed for record in the office of the recorder of deeds in said county, that afterwards said Brewster sold and conveyed in fee simple to various persons sub

stantially all of the lots and blocks designated upon said plats; that said Brewster died 'intestate on the 10th day of March, 1897, seised of lots 1 and 2 of block 57, in Ninewa, leaving, him surviving, Margaret Brewster, his widow, and Sylvia A., Jessie, Benjamin D., Theron D., Margaret, and Frank, as his children and sole heirs at law; that Frank has conveyed his interest in the property in question to his brothers and sisters; that during the life of Brewster both of said subdivisions became a part of the city of Peru; that in the year 1879 the city council of the city of Peru attempted to grant to one James Cahill the perpetual right to mine and remove the coal underlying all of the streets east of the west line of Putnam and Marion streets, as shown on said plats; that Cahill died testate in the year 1895, leaving, him surviving, John D., Cornelius J., and Kate Cahill as his children and sole heirs at law; that he appointed John D. Cahill, Cornelius J. Cahill, and Michael Flaherty executors and trustees under his will; that in the year 1896 the city council of the city of Peru attempted to grant to said trustees, their successors and assigns, the right to mine and remove coal in certain other of the streets shown upon said plats; and that said James Cahill in his lifetime, and said trustees since his death, have wrongfully mined and removed large quantities of coal from under said streets and said lots 1 and 2 in block 57 and the land lying between said lots and the center line of the adjoining street.

It is conceded that the plat of the town of Ninewa was not a good statutory plat, as the provisions of the statute providing for the recording of town plats were not complied with, and that the title of the streets shown upon the plat did not vest in the municipality, but remained in Brewster, the original proprietor. There is a controversy as to whether the plat of Brewster's addition to Ninewa was a good statutory plat. Without specifically passing upon that question, for the purposes of this decision the contention of the plaintiffs in error that said plat was not a good statutory plat, and that the title to the street shown thereon did not pass to the municipality, but remained in Brewster, the original proprietor, may be conceded.

The first question arising upon this record is, did the court err in sustaining a demurrer to so much of the bill as charged the defendants in error with mining and removing coal underlying the streets of the town of Ninewa and Brewster's addition to Ninewa? There is no averment in the bill that James Cahill or the defendants in error mined and removed coal underlying any of said streets other than that adjoining lots 1 and 2, block 57, prior to the time that Brewster sold and conveyed the lots and blocks adjoining thereto. The intendments being against the pleader, it must be presumed that all the coal mined and removed underlying said streets, except the street adjoining lots 1 and 2, block 57, was mined

and removed subsequent to the time that Brewster had parted with title to the land adjoining said streets. The law is well settled that a conveyance of premises abutting upon a street, in case of a common-law dedication, by operation of law carries with it the fee of the land underlying the street to the center of the street, subject to the public easement; and this is true although the conveyance describe the premises conveyed by the lot or block number only, unless the title to the street is expressly reserved to the grantor, or specifically excluded from the grant, and the intent to exclude the street must appear from the language of the deed, as explained by surrounding circumstances. Hamilton v. Railroad Co., 124 Ill. 235, 15 N. E. 854; Thomsen v. McCormick, 136 Ill. 135, 26 N. E. 373; Henderson v. Hatterman, 146 Ill. 555, 34 N. E. 1041; Clark v. McCormick, 174 Ill. 164, 51 N. E. 215; Railway Co. v. Johnson, 188 Ill. 472, 59 N. E. 497; Eisendrath & Co. v. City of Chicago, 192 Ill. 320, 61 N. E. 419; Huff v. Express Co., 195 Ill. 257, 63 N. E. 105.

*

In Thomsen v. McCormick (on page 145, 136 Ill., and page 375, 26 N. E.) it is said: "The dedication of Snider street was not a statutory dedication, and the fee of the land did not vest in the city of Chicago. * There was, however, a good common-law dedication of Snider street, and, such being the case, the fee remained in Smith, the original proprietor, burdened with an easement in favor of the public; and when, on November 27, 1863, the heirs and devisees of Smith sold and conveyed blocks 12 and 13, and comprising the lands on both sides of the street, to Samuel J. Walker, the grant and conveyance of the abutting premises carried, by operation of law, the fee of the street, or title to the land on which it was located, subject, however, to the public easement, to said Walker; and the fee or title continued to pass, as part and parcel of each respective grant, with the several grants of the abutting premises, until it finally vested in Henry H. Walker, but still burdened with the easement. * * A claim is made by appellants that the description in the deed of 1863 and in the subsequent conveyances in the same chain of title was merely by the lot and block numbers, and that this excluded the street. But in the Hamilton Case, supra, the descriptions were of like character, and it was held that the fee in the streets, burdened with the offer of dedication, passed by the conveyances to the grantees of the adjoining lots, and it was there said: "The doctrine is that a conveyance of a lot abutting on a highway or street, where there has been no statutory dedication, conveys the grantor's interest in the street to the center.'

*

In Clark v. McCormick (on page 171, 174 Ill., and page 218, 51 N. E.) the court say: "The dedication was, however, good as a common-law dedication, and the legal title in the grounds so set apart as for streets remained in the original owner. The

title thus remaining in a proprietor of such a plat is not an absolute fee, but is a fee burdened with the offer of dedication, and it is retained only so long as the proprietor goes no further than to hold out an offer to dedicate. If he shall sell lots or blocks laid out and shown upon the plat according to their descriptions or numbers given by the plat, the title resting in him in fee to onehalf the street next adjoining the lot or block so sold passes, by operation of law, to the purchaser of such lot or block."

* * *

In Railway Co. v. Johnson, supra, which was a bill to enjoin the railroad company from laying its tracks in the street in front of Johnson's property, who was a remote grantee of the original proprietor, it was held that Johnson was the owner of the fee of the street burdened by the public easement, and that the railroad company could not appropriate the street, with the consent of the city, without having first extinguished, by condemnation or otherwise, the title of Johnson therein. On page 477, 188 Ill., and page 498, 59 N. E., the court say: "If there was a failure to observe the requirements of the statute, and the plat operated as a commonlaw dedication, a conveyance of complainants' lots bounded by the street would operate as a conveyance of the fee to the center of such boundary. In such case they would own to the center of the street burdened with the easement." In Henderson v. Hatterman (on page 564, 146 Ill., and page 1043, 34 N. E.) it was held: "It is well settled, as a general rule, that ‘a grant of land bounded upon a highway carries the fee in the highway to the center of it, provided the grantor at the time owned to the center, and there be no words or specific description to show a contrary intent.' 3 Kent, Comm. marg. p. 434; Elliott, Roads & S. p. 549, and cases in note 2. When a deed bounds an estate by or on a public way, the presumption is, if nothing else appears, that the center of the way is the boundary line. Dean v. City of Lowell, 135 Mass. 55. It will not be supposed that a man would care to keep title to the highway in himself when he had parted with the land bordering thereon. Salter v. Jonas, 39 N. J. Law, 469, 23 Am. Rep. 229; 3 Washb. Real Prop. marg. p. 635. The presumption that the owner of the adjoining land intended to convey his interest in the highway may be overcome either by the use of express terms excluding it. or by such facts and circumstances as show an intention to exclude it. The intent to exclude the highway must appear from the language of the deed, as explained by surrounding circumstances. Mott v. Mott, 68 N. Y. 246: Elliott, Roads & S. p. 550. It makes no difference, in the application of the rule, whether the land abutting upon the highway is a lot which bears a certain number, or is a farm called 'Black Acre,' or otherwise. Kimball v. City of Kenosha, 4 Wis. 321; Berridge v. Ward, 10 C. B. (N. S.) 400.

Although the measurement set forth in the deed brings the line only to the side of the highway, the title will still be carried to the center of it, unless such words are used and such metes and bounds are set forth as show a contrary intention. 3 Kent, Comm. marg. p. 434, note 37; Elliott, Roads & S. p. 550; Paul v. Carver, 26 Pa. 223, 67 Am. Dec. 413; Cox v. Freedley, 33 Pa. 124, 75 Am. Dec. 584; Johnson v. Anderson, 18 Me. 76; Cottle v. Young, 59 Me. 105; Woodman v. Spencer, 54 N. H. 507. Of course, it is understood that the title to the center of the highway, which thus passes by the grant of the adjoining land, is subject to the easement of the public in the highway."

The bill avers "that, after the filing for record of the two plats aforesaid, the said Theron D. Brewster did sell and convey to divers persons many of the lots set forth and designated on the plats aforesaid, making and conveying title to such lots to the various persons purchasing the same, severally, in fee simple." This averment shows an absolute conveyance of the lots and blocks abutting upon said streets without excluding from the terms of the conveyance the streets, and the subsequent averment "that the remainder of the estate in said parts and parcels of land designated on said several plats as streets, public highways, and places remained vested in him, the said Theron D. Brewster, as his estate, with the title thereto in fee simple remaining in him undisturbed by reason of anything done in said acts of dedication, or anything contained in the several plats and certificates aforesaid, or any or either of them, at the time of the said several acts of dedication, or either of them," was but the conclusion of the pleader, and does not rebut the presumption that Brewster intended to and did convey his interest in the streets at the time he conveyed the lots abutting thereon. The intent to exclude the streets from the operation of the conveyance by which the abutting lots were transferred "must appear from the language of the deed, as explained by the surrounding circumstances." Henderson v. Hatterman, supra. The language of the deeds and the surrounding circumstances relied upon to rebut the presumption that the streets were conveyed with the abutting property should have been set forth, otherwise the averment that "said Theron D. Brewster did sell and convey to divers persons many of the lots set forth and designated on the plats aforesaid, making and conveying title to such lots to the various persons purchasing the same, severally, in fee simple," must be held to be an averment of the absolute sale of the lots abutting upon said streets, which would have the effect, by operation of law, to transfer to the several grantees, subject to the public easement, the title of the land underlying the streets to the center of the streets abutting upon their respective lots, and to devest Theron D. Brewster, and the plaintiffs

in error, as his widow, heirs, and personal representatives, of all interest therein. As it does not appear from the bill that the plaintiffs in error were the owners of or had any interest in the streets in question at the time it is claimed the underlying coal was mined and removed therefrom, the court properly sustained the demurrer.

The second question raised upon this record is, did the court err in sustaining exceptions to the master's report, wherein the master found that the plaintiffs in error were entitled to recover the sum of $3,046.86 for coal mined and removed from under lots 1 and 2, block 57, and the lands lying between said lots and the center line of the adjoining street? The master took the evidence of a number of persons, who testified that the foundations and walls of a number of buildings located in the vicinity of said lots had settled and cracked, indicating an underground disturbance. He also took the evidence of W. H. Irwin, a civil engineer, who was appointed by the court to make a survey of the mines being operated by the defendants in error, who gave it as his professional opinion that coal had been mined and removed from said premises. It appeared that some of the rooms and passageways in the mine had filled up, and that others were in a dangerous condition, and that some had been closed up by the defendants in error. On cross-examination Mr. Irwin testified: "The closest I got to lots 1 and 2 in block 57 is about 625 feet, at terminal in block 28, which is almost north of lots 1 and 2. It was about 800 feet from nearest northeast point I reach to the lots 1 and 2. In east direction it was about 2,200 feet from lots 1 and 2, and about 2,200 feet from southerly point to the lots. I could not get south of them at all. I cannot say as a matter of fact, I can only say as my opinion, the coal has been taken out from under lots 1 and 2, block 57. I cannot say this from my survey, or anything I found there. The west coal face might extend 100 feet south, and then cut off east, and not come within 100 feet of lots 1 and 2; but it is not probable. The Cahills could, if they saw fit to do so, work out the coal as indicated on the maps on file in the recorder's office. I do say, as a matter of fact, they have mined at least 100 feet further than is shown by their plats on block 28. It is 275 feet from nearest part of lots 1 and 2 to face of the coal, as shown by plat in recorder's office. This would leave a margin of 130 feet." It appeared that coal was worth $2 per ton. On this testimony the master filed a report, in which he found the .defendants in error had mined and removed from under lots 1 and 2, block 57, 1,523.4 tons of coal, of the value of $3,046.86. The defendants in error, relying upon the insufficiency of the plaintiffs' evidence, took no -evidence until after the master had filed this report. They then moved the court to reopen the case before the master, and allow them

to introduce evidence to show that no coal had been mined and removed from lots 1 and 2, block 57. A day or two before this motion was made the plaintiffs in error had notified the attorney of the defendants in error that they would make a motion for a change of venue from the chancellor before whom said motion to reopen the case before the master and take testimony was subsequently made. The court, upon what it deemed to be a sufficient showing, allowed the case to be reopened before the master, and permitted the defendants in error to introduce evidence to the effect that no coal had been mined or removed from under lots 1 and 2, block 57. Subsequently, and after the introduction of this testimony, the master filed a supplemental report, in which he adhered to his original findings, and to which exceptions were sustained by the court. The venue had not been changed at the time the court was asked to pass upon the motion to reopen the case before the master and for leave to the defendants in error to take evidence, and, in view of the showing made and the character of the evidence upon which the findings of the master were based, we do not think the chancellor erred in ordering the master to reopen the case, and to hear the evidence of the defendants in error.

Neither do we think the court erred in sustaining exceptions to the master's original and supplemental reports, as the testimony introduced by the defendants in error on the supplemental hearing before the master was well-nigh conclusive that no coal had been mined and removed from under said lots 1 and 2, block 57, or the lands lying between said lots and the center line of the adjoining street. The burden of proof was upon the plaintiffs in error to. show that the defendants in error had mined and removed coal underlying their land. This, upon the whole evidence, they failed to do, and upon that issue the court properly found for the defendants in error.

We have examined this record with care, and, finding no reversible error therein, the decree of the circuit court will be affirmed. Decree affirmed.

(199 III. 276)

THOMPSON et al. v. MALONEY et al.* (Supreme Court of Illinois. Oct. 25, 1902.) DEDICATION-PLAT-RECOGNITION BY OWNER -STREETS-RIGHT OF ABUTTING OWNER-RES JUDICATA.

1. Though a plat executed and acknowledged by an attorney in fact is ineffectual as a statutory dedication of the streets and alleys appearing therein, a sale of a lot described in the deed by reference to the plat passes the title to the center of the street in front of the lot.

2. A recorded plat, on which a tract is subdivided into lots with an unmarked strip on one side thereof, similar to unmarked strips on the other sides, which constitute one-half of the

*Rehearing denied December 4, 1902.

2. See Dedication, vol. 15, Cent. Dig. §§ 37, 42.

public streets, sufficiently shows the intention of the proprietor to dedicate such unmarked strip to the public to constitute one-half of a street.

3. An owner of land conveyed lots as subdivided by a plat made and recorded by another. Thereafter the land as a tract was sold under attachment proceedings. The purchaser thereof quitclaimed his interest in the entire tract, and the grantee conveyed lots as subdivided by the plat. The lots conveyed by the owner and by such grantee abutted on a strip marked on the plat and intended for half of a street. Held, that the purchaser at the attachment sale obtained only the interest left in the owner after sale of the lots in accordance with the plat, and was bound by such acceptance of the dediIcation of the streets, and that the grantees of lots abutting on such strip acquired title to the entire strip.

4. A decision in a proceeding under the burnt records act (Hurd's Rev. St. 1899, p. 1372) as to the ownership of a strip of land intended for a street as indicated by a plat executed and acknowledged by an attorney in fact is not binding on the owners of the lots abutting on the strip who were not parties to the proceedings.

Error to circuit court, Cook county; Henry B. Willis, Judge.

Suit by Payson Thompson and others against Patrick J. Maloney and others. From a decree dismissing the bill and a complainant's cross-bill, plaintiffs and the cross-complainant bring error. Reversed.

Stephen G. Swisher, for plaintiffs in error. Frank H. Graham and Joseph A. O'Donnell, for defendants in error.

BOGGS, J. John H. Thompson, of Cook county, Ill., died May 16, 1891, leaving as his only heirs at law Payson Thompson and Victoria C. Thompson, the plaintiff's in error, and the defendant in error Watts C. Thompson (an insane person), and Benjamin F. C. Thompson, now deceased. This is a bill in chancery, filed during the lifetime of said Benjamin F. C. Thompson by himself and the other heirs of the said John H. Thompson, deceased (except said Watts C. Thompson, who, being insane, was made defendant), against the defendant in error Patrick J. Maloney. The bill alleged that said John H. Thompson died seised of the title to lot No. 32, in block 1, in Blair's subdivision of part of the S. W. 4 of section 10, town 38 N., range 14 E. of the third P. M., in Cook county, and also of an easement in that certain strip, piece, or parcel of ground 33 feet in width adjoining said lot 32 on the north, and running westward from Indiana avenue to the alley west of Michigan avenue (describing the same by metes and bounds), for the purpose of a private street or alleyway and of furnishing light, air, and access to the said lot; that the title to the said lot and to the easement aforesaid descended to the persons hereinbefore named as the heirs of said deceased. The bill further alleged that the defendant in error Maloney had built, or partially built, a fence, and also a cement sidewalk, across the east end of said 33-foot strip, and threatens to

build said fence completely around said strip, and entirely inclose the same, and prayed for a decree enjoining and restraining the said Maloney from in any way interfering with the free and uninterrupted use and enjoyment of the said easement by said heirs of the said John H. Thompson, deceased. The defendant in error Mary D. Abel, by leave of the court, filed an answer to the bill, and also filed a cross-bill. The cross-bill and answer alleged, in substance, that said Mrs. Abel was the owner of lot No. 1, in block 1, in said Blair's subdivision, and also of a like interest in the said easement in said 33-foot strip, and asked the same relief prayed in the original bill. The defendant in error Maloney answered the bill and the cross-bill, and replication was filed thereto. The cause was heard in open court, submitted to the chancellor, and a decree was entered dismissing the bill and crossbill for want of equity, and dissolving the temporary injunction, and awarding the defendant in error Maloney a decree for damages in the sum of $300. This is a writ of error sued out to reverse the decree.

On October 14, 1859, a map or plat entitled "Blair's Subdivision of a Part of the West Half of the Southwest Quarter of Section 10, T. 38 N., R. 14 E.," was recorded in the office of the recorder of deeds of Cook county, on page 60 of Book 160 of Maps. The plat is as follows: