Page images

loan unless $50 paid him by Carlson for legal , his clients and converted to his own use the services in preparing a contract for the Ce money intrusted to him to loan depends dar Rapids work was paid out of that loan ; largely upon the testimony of Mrs. Kozla and that he never heard of a feed store on the respondent. Counsel for respondent insists north side in connection with the loan until that under the rule announced by this court the hearing before the grievance committee in cases of this character, to justify the deof the Chicago Bar Association. He denied struction of lawyer's professional life by telling Mrs. Kozla there was an abstract in his disbarment the proof must be clear and connection with the loan or that the abstract satisfactory not only as to the act charged, was in a book in his office. He denied telling but also as to the motive, and in this case Mrs. Kozla his note was as good as money. it is claimed there is no preponderance of He further testified that, according to his evidence on the side of the relator but that it best recollection, about the time his first per- is equally balanced; the merits of the consonal note became due Mr. and Mrs. Kozla troversy depending upon the testimony of called together to see him and Kozla told Mrs. Kozla and respondent, which is conflicthim his note was due and he had not paid it.

ing. It does not necessarily follow that Respondent replied he was in no position where one party testifies to one state of then to pay it, but promised to do so. Kozla facts and another to a contradictory state of charged respondent with fooling him and his facts the evidence is equally balanced or that wife, charged that he knew where the bor- there can be no preponderance of testimony. rowers were, and if he could not get the mon. If there appears to be inherent evidences of ey from them he could borrow it from some one else. Respondent denied that he charged the truth of one statement and the contra

dictory statement is unreasonable or carries or received any compensation for the loans with it suspicion, doubt, and disbelief as to made for the Kozlas. He testified he never its sincerity and truth, it would be entitled examined the records to ascertain if there to little or no credit and weight. Respondwere any chattel mortgages or liens against ent is a lawyer of 16 years' experience. Mrs. the property he took the bill of sale for; Kozla is a Bohemian. She came to this counthat it was intended the property should re-try when 2 years of age and attended a Bomain in the possession of the owners, and hemian school a short time when very young. that he never recorded the bill of sale because she can read English a little and write her he knew the property was to be taken out own name, but her · understanding of the of the county, and that he explained the mat- English language is limited, and it is apparent ter to Mrs. Kozla.

that she and her husband are quite unfamilThe agent of the owner of the building iar with such business transactions as loanwhere respondent's office was testified that ing money on real estate security. The exproperty, including a desk and papers, was tent of Mrs. Kozla's knowledge appears to taken out of the office of respondent on a bill have been that she considered a first mortof sale or distress warrant for the rent gage on real estate good security, but she apwhich was unpaid and was stored in a base- pears to have been entirely ignorant of the ment, and it was not very well preserved or nature and form of a mortgage or of an abprotected, and he thought some of the things stract of title to real estate. She only knew taken decayed or were destroyed.

that she was willing to loan the little monIn rebuttal, Mrs. Kozla denied all conver- ey they had on the security of a first mortsation or statements respondent testified he gage on real estate, and it is apparent she had with or made to her concerning Carlson depended upon respondent to attend to get& Schultz and the machinery. She testified ting the mortgage on property owned by the the first she ever heard of a chattel mortgage borrower and accepted his statement upon or bill of sale was at the hearing before the this subject. It is inconceivable that regrievance committee of the bar association. spondent was not aware of her lack of knowl. She denied respondent ever talked to her edge of such business transactions and of her about hunting for Schultz & Carlson, and it dependence upon him. About the time the was admitted she would deny all conversa- $1,000 loan was supposed to have been made tions testified to by respondent except as tes respondent was, according to his own testified to, in substance, by her when previous- timony, financially embarrassed. His explaly on the witness stand.

nation of the loan and the security he took Eugene Shubart testified he knew a man is not satisfactory. His description of the by the name of Carlson; that Carlson owed men to whom he claims to have loaned the him some money but disappeared and he was money, at first without any security, and the unable to locate him; that while he was security he afterwards took, according to his trying to find his whereabouts he communi- own story, shows such lack of care and incated with the respondent, who said he was terest in protecting his clients as to deprive also looking for Carlson, and they agreed his statements of any credit. He claimed the if either located him the other should be $1,000 was first loaned to Schultz on his pernotified.

sonal note, and that all he knew about Whether the charge in the information Schultz was he was a contractor and had that respondent betrayed the confidence of some machinery for use in that work. He


[ocr errors]



thought Schultz was a nice fellow and that he or it may be implied, either from the assumpwould pay the note, which he claims he did, tion of control over the land dedicated by the whereupon he reloaned it to Schultz & Carl- for the purpose for which the land was donated.

public authorities, or from user by the public son. The only thing Carlson appears to have

[Ed. Note.-For other cases, see Dedication, had was a contract for excavation work at Cent. Dig. 88 69, 71, 73, 74; Dec. Dig. Cedar Rapids, Iowa. Respondent testified 35(1), 37.) the only security given for the loan at the 5. DEDICATION 35(1)-ACCEPTANCE-IMPLItime it was made was the personal note of CATION. Schultz & Carlson. When he later took a bill When a dedication is very beneficial or of sale on the Schultz excavating machinery implied from slight circumstances.

to the public, acceptance will be he did not record it. It was understood be

(Ed. Note.-For other cases, see Dedication, tween him and Schultz & Carlson that the Cent. Dig. 88 69, 71; Dec. Dig. Om 35(1).] property was to remain in their possession, 6. DEDICATION Ew37 ACCEPTANCE ACTS and that they would take it out of the state. SHOWING. He claims all this was explained to Mrs. Where land is donated for a public street, Kozla, and she denies any such explanation mere travel by the public does not, of itself, conwas ever made to her. He explains his giv- tion with other circumstances, it may be re

stitute an acceptance, though, taken in connecing the Kozlas his own personal note on the garded as tending to show acceptance. ground that he felt that he had been negli (Ed. Note.--For other cases, see Dedication, gent in the transaction and was under some Cent. Dig. $8 73, 74; Dec. Dig. Ow37.] moral obligation to them.

7. DEDICATION O19(5)-PLAT-EFFECT OF. Upon a consideration of the testimony of The filing of a conmon-law plat showing the parties we are unable to say it does not streets, and sale of lots with reference thereto, warrant the conclusion that Mrs. Kozla told constitutes an offer to dedicate. the truth, and that the respondent betrayed Cent. Dig. $$ 35, 46; Dec. Dig. Eww19(5).]

[Ed. Note.--For other cases, see Dedication, the confidence of his clients and converted the proceeds of the Schultz loan to his own 8. DEDICATION Om 29, 38—-OFFERS REVOCA

Until acceptance of an offer to dedicate land The rule will be made absolute, and re- to the public, the owner or his grantee may respondent's name stricken from the roll of at- voke the offer, but after acceptance it is irtorneys.

revocable. Rule made absolute.

(Ed. Note.-For other cases, see Dedication, Cent. Dig. 88 77, 78, 79; Dec. Dig. On 29, 38.)


Proof of acceptance by the public must be

unequivocal, clear, and satisfactory. et al. (No. 10800.)

[Ed. Note.-For other cases, see Dedication, (Supreme Court of Illinois. Oct. 24, 1916.)

Cent. Dig. 88 85-87; Dec. Dig. 44.) 1. INJUNCTION 49 — SUBJECTS OF PROTEC


Acceptance of an offer of dedication need Where a municipality undertakes to take within a reasonable time, and before with

not immediately follow the offer, but must be possession of a street to which it has no right, drawal. the proper remedy is a bill for injunction.

[Ed. Note.-For other cases, see Dedication, [Ed. Note.-For other cases, see Injunction, Cent. Dig. $ 67; Dec. Dig. Om34.] Cent. Dig. $ 102; Dec. Dig. 49.]


What constitutes a revocation of an offer To show a common-law dedication of land to dedicate depends largely upon the circumfor a street, the proof must be clear and con- stances of the particular case, and is usually vincing that the owner intended to donate the a question of fact, though revocation may be land to public use, and that the public accept- shown by the donor's acts before acceptance, ed it.

which are inconsistent with public use for [Ed. Note.-For other cases, see Dedication, which the land was offered. Cent. Dig. $8 85-87; Dec. Dig. Om44.]

[Ed. Note.-For other cases, see Dedication,

Cent. Dig. $ 79; Dec. Dig. On 29.] 3. DEDICATION 31, 44-PLATS ACCEPT

12. DEDICATION 29-ACCEPTANCE – REVOThe making of a common-law plat showing streets, and the sale of lots with reference The owner of land filed a common-law plat, thereto, is evidence of an intent to dedicate, showing streets, and sold lots with reference which, like every other offer to be made com- thereto. It did not appear that the corporate plete so as to create public rights, must be authorities in any way worked a street shown accepted and acted upon by the public.

by the plat, or asserted any dominion over it [Ed. Note.-For other cases, see Dedication, prior to the death of the original owner, though Cent. Dig. 88 64, 65, 85–87; Dec. Dig.

the original owner shortly after filing the plat 31, 44.)

inclosed the land, and after his fences were

washed down, used it for a considerable time 4. DEDICATION 35(1), 37-ACCEPTANCE

a woodyard. Thereafter the wife of the EVIDENCE.

original owner to whom the land had been Acceptance of dedication may be expressed conveyed asserted title in the portion claimed by some formal act by the public authorities, I to have been dedicated, and because of her as






sertion of title, the municipal authorities did Bill by Sarah E. Rose against the Village no work on the property, though they subse- of Elizabethtown and others. There was a quently passed an ordinance, declaring the land was part of a street. Held that, in view of the decree for complainant, and defendants bring occupation by the original owner and subse- error. Affirmed. quent grantees, the offer to dedicate was revoked before acceptance; this being particularly

R. Taylor and James E. Denton, both of true as most of the travel over the land was Elizabethtown, and James C. Courtney, of permissive.

Metropolis, for plaintiffs in error. James A. [Ed. Note.-For other cases, see Dedication, Watson, of Elizabethtown, and John W. Cent. Dig. $ 79; Dec. Dig. Om29.]

Browning, of Golconda, for defendant in 13. DEDICATION 35(4) ACCEPTANCE WHAT CONSTITUTES.

Acceptance of part of the streets shown on a common-law plat and offered for dedication does not necessarily show an acceptance of the

CARTER, J. This was a bill filed by deother streets on the plat.

fendant in error, Sarah E. Rose, in the cir[Ed. Note.-For other cases, see Dedication, cuit court of Hardin county, to restrain the Cent. Dig. § 76; Dec. Dig. Omn 35(4).]

village of Elizabethtown, its officers and 14. DEDICATION 35(1)-ACCEPTANCE,

Where the land next to a river was shown agents, from interfering with a tract of land

a common-law plat as a street, and lots which she claims is her private property, but were sold with reference thereto, some of which which said village authorities claim as a were inaccessible to any other street, an acceptance of the offer to dedicate the entire strip, public street. The court granted an injuncso as to embrace land abutting on the river tion as asked for in the bill. The cause has which was claimed by complainant to belong to been brought here by writ of error. her and not to have become part of the street, will not be implied from slight circumstances on

The land now constituting this village was

In the ground of necessity, where by reason of the originally owned by James McFarlan. topographical conditions, travel could hardly 1841 he laid out what is now called the "old pass over that portion of the land claimed by plat,” which includes most of the western complainant, and was interrupted in other places.

part of said village, and in 1850 he laid out [Ed. Note.-For other cases, see Dedication, what is now called the "new plat,” which inCent. Dig. 88 69, 71; Dec. Dig. Om 35(1).] cludes the eastern part of said village. The

Error to Circuit Court, Hardin County ; following is a copy of the two plats as found Julius C. Kern, Judge.

in the record, united for convenience:


[graphic][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors]



James McFarlan, from the time the east-, in front of said lot, about on the south ern part of the village was platted until his line as platted. There is testimony to the death, in 1882, with the possible exception of effect that the original owner used this prop2 or 3 years in the early 60's, resided on lot erty in front of the picket fence for piling 4 in said new plat. In 1877 he deeded said ties and for several years as a woodyard. At lot 4 to his brother, B. P. McFarlan, who that time this space was often designated as deeded it in 1879 to Matilda McFarlan, the “McFarlan's front yard." In 1882, shortly wife of said James. The year after her hus- before his death, he built a summer house band's death she deeded the lot, with the or pavilion on the bluff fronting on the Ohio exception of a strip off the north side there- river, and since that date this tract of of, which is not included in this litigation, ground here in dispute, from where the pickto her daughter, Elizabeth Poor, reserving a et fence was located to the bluff, including life interest in herself. In March, 1890, Mrs. this pavilion, has been used by the owners Poor and her husband deeded that portion (including defendant in error) and the guests of the lot she owned to William P. Warford, of the hotel as a la wn or park in connecand he conveyed it in August of the same tion with the hotel. Defendant in error, year to James B. and Laura McFarlan. By when she first purchased the place, set out said last-named grantees it was conveyed to from 15 to 20 trees, which are still growing Jape A. Crozier, and November 19, 1891, she on this land, and has had laborers cut the conveyed it to defendant in error, Sarah E. grass and care for the property, including Rose. The deeds, starting with that to War- the repair of the pavilion, until the dispute ford, described the land as lot 4 in the new between her and the village authorities, be. plat of the village of Elizabethtown, "extend- ginning in 1913. She leased this property ing from First street to the water's edge of also for 2 years, between 1891 and 1893, for the Ohio river.” On said lot 4 is situated a piling ties. The following plat, which is aphotel, which has been conducted as such by proximately correct, will assist in understanddefendant in error since she purchased the ing the character of the property in dispute lot, and for some years before it was ap- and its surroundings: parently rented by her for the same purpose. Said lot is bounded on the west by

NORTH Main street, and on the east by an alley. Be-lis tween the southerly line of said lot 4, as shown by the plat, and the water's edge of the Ohio river, is a strip of land which at the broadest portion on the west side is about 132 feet in width, and narrows rapidly

우 toward the eastern portion of the lot. We judge from the evidence that this strip is a bluff of rock, and for most of the entire distance along the front of lot 4 is a steep or abrupt bluff. Just how high it is is not clear from the evidence. In low water from the top of this bluff to the water's edge is ordinarily about 32 feet, the beach proper from the foot of the bluff to the water being included in this distance. In high water the river sometimes comes to the top of the bluff, and in very high water runs over it. On the west side of this lot is a gulch, or ravine, coming within a few feet of the corner of the lot, and there is another gulch, or ravine, on the east side, about at the opening

"T-TRLA of the alley there located. The land is apparently lower at the edge of the bluff than

Counsel for plaintiffs in error contend that where the house is located, and we infer this property was dedicated by the original from the evidence that it slopes gradually owner, when he platted it, as a street from downward from the house, both towards the the south line of lot 4 as platted, to the wabluff and towards the gulches on either side. ter's edge, and it is also claimed that all the There is evidence tending to show that the other property similarly shown on the plats original owner had fences extending along along the river bank, both in the old and the each side of lot 4 to the water's edge, but new plats, was dedicated for the same purthat they were washed away by high was pose, and that the public authorities have ter in the early 60's. Since that time the accepted this dedication. For many yearsevidence shows these fences have only ex- doubtless from the time the village was first, tended to the south end of the lot as orig- platted—there has been a wharf boat on the inally platted, and for a long time, until river's edge, to be used by the steamers on


[ocr errors]
[ocr errors]
[ocr errors]



[ocr errors]
[ocr errors]


[ocr errors]




and putting off passengers and freight. That! that injunction is not the proper remedy. wharf boat is now located from 150 to 200 | Where a municipality, undertakes to take feet west of Main street. Many years ago, i possession of a street to which it has no at varous times, the wharf boat was located right the proper remedy is a bill for injuncat the southern end of Dunn street, some of tion. City of Peoria v. Johnston, 56 Ill. 45 : the testimony tending to show that it was McIntyre v. Storey, 80 Ill

. 127; Lowery v. only located at Dunn street at times of hig City of Pekin, 186 Ill. 387, 57 N. E. 1062, 51 water. The testimony is to the effect that L. R. A, 301; Waller v. Village of River Forwhen it was located at that point the pas-est, 259 Ill. 223, 102 N. E. 290. sengers often traveled to and from the wharf [2] Did the original owner, when he made boat across this portion of the bluff over the the new plat, including the property here in strip of property here in dispute. There is question, intend to dedicate this strip, and evidence also that tends to show that wagons that east of it, as a street for public use? and drays drove over it at such times, and Counsel for plaintiffs in error insist that unthat at various other times before defendant der the reasoning of this court in Godfrey in error took possession of this property, v. City of Alton, 12 Ill. 29, 52 Am. Dec. 476, wagons and buggies had driven over it. Village of Brooklyn v. Smith, 104 Ill. 429, There is also evidence to the effect that the 44 Am. Rep. 90, Owen v. Village of Brookoriginal owner (McFarlan) bad refused per- port, 208 III, 35, 69 N. E. 952, and other like mission to the general public to drive over it cases, the original owner, when he platted with teams and wagons, but told one of the this property on the bank of a navigable rivwitnesses that, considering who he was, he er, must be held to have intended to dedicate would allow him to drive over it for a spe- the vacant space between the front of the cific purpose.

When Mrs. Rose purchased lots and the river for public use. Counsel this property the former owner definitely told for defendant in error contend that this vaher that she owned and was deeding the cant property in front of the lots as platted land to the water's edge. Beyond question, was not marked by the word "street," or any since she purchased this property, she has al- other words to indicate it was intended to ways claimed to own to the water's edge. dedicate it to the public, and therefore, unWhile there is testimony to the effect that der the decisions of this court in City of since that time people have driven over it Chicago v. Drexel, 141 Ill. 89, 30 N. E. 774, with drays, wagons, or buggies, there is also Mason v. City of Chicago, 163 Ill. 351, 45 a great amount of testimony by many wit- N. E. 567, Birge v. City of Centralia, 218 Ill. nesses that Mrs. Rose and her daughter had 503, 75 N. E. 1035, and Poole v. City of Lake repeatedly refused permission to people to Forest, 238 Ill. 305, 87 N. E. 320, 23 L. R. drive over the strip on the bluff in dispute, A. (N. S.) 809, it cannot be said, from the and had attempted in every way to exercise plat alone, that the original owner intended jurisdiction over it, except to inclose it, and to dedicate this to public use. It may be that some 10 or 12 years before this litiga- urged, in support of plaintiffs in error's contion was instituted she extended the bound-tention, that unless this space between the ary fence on the eastern portion of the lot river and the blocks in the new plat was inby wire to the bluff. The then president of tended as a public way, it would be imposthe village board ordered the wire taken sible to have access to lot 12, and that cerdown, but it is manifest that Mrs. Rose tain other lots in the plat could otherwise still claimed the entire authority over it, for only be reached by means of a narrow alshortly thereafter she built a wall of rock ley, while, on the other hand, it is urged that a few feet west of the eastern side of the the configuration of the ground is such that disputed strip, which made it practically im- this strip between Pearl and Dunn streets possible for any team to drive across the could not be considered a street for pracbluff. There is testimony, too, that this por- tical use on account of the character of the tion of the lot was so steep, containing sev- bluff at that point. eral ledges which dropped rapidly toward the The records of Hardin county were de gully on the east, that it was almost impos-stroyed by a fire which consumed the courtsible to draw a heavy load up or down house and contents in 1884, including the two that portion of the disputed strip. Mrs. Rose, plats of the village of Elizabethtown. At as already stated, had kept in repair the the time Mrs. Rose purchased this property summer house or pavilion on the top of the there were no plats of record as to said vilbluff. In 1913 she attempted to repair this lage or its lots. The village authorities in again, and the city authorities interfered. 1894 commenced proceedings in the circuit Out of that dispute grew litigation which is court, and after taking evidence restored, by still pending. In 1914 the village authori- a decree of that court, the old and new plats, ties attempted to tear down the wall of rock as heretofore set out. The testimony taken across the eastern portion of this disputed at that time in no way referred to or desigstrip, and as a consequence of what then took nated by name the strip of property here in place several persons were arrested. This dispute, or any of the strip in front of the proceeding was immediately thereafter Insti- property as platted in both the old and new tuted.

plats. There is, however, testimony of wit[1] Counsel for plaintiffs in error argue nesses in the record that all of this property

114 N.E.-2

« PreviousContinue »