Madison County IL Archives Court.....Company, City Of Alton V Illinois Transportation 1850
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Source: Reports Of Cases
Written: 1850

The City of Alton, plaintiff in error, v. The Illinois Transportation Company, 
defendants in error.

Error to Madison.

A construction which requires that an entire clause of a deed should be 
rejected, will not be adopted, except from unavoidable necessity. (a)

When a deed refers to a plat, which has upon its face that to which the 
expressions of the deed can apply the court will connect the two, rather than 
reject the words of the deed.

If a deed will admit of two constructions. It should be construed against the 
grantor. (b)

Public rights are not barred by our statute of limitations, which requires 
certain real actions to be brought within seven years after possession taken 
by a defendant. (c) 

When lots are dedicated to the public for particular purposes, they may be 
improved and controlled for such purposes but they  cannot be aliened or sold, 
nor has a city the exclusive use thereof. (d)

This is an action of ejectment to recover possession of an easement in a lot 
in the city of Alton, brought by the city to try the right of the public to 
the same as a public highway, landing or common, dedicated to the public use—
described as that lot which is embraced within the following boundaries, to 
wit: "Beginning at a point on the south side of Front Street, in said city, 
120 feet west of the west side of Easton street, in said city; thence on the 
said south line of Front street, westwardly, 120 feet; thence southwardly, 
along the east line of Alby street, extended to the Mississippi river; thence 
down the line of said river, 120 feet; thence northwardly, to the place 
ofbeginning." The defendants filed the plea of not guilty, etc.; and thereupon 
a statement of facts in the case, agreed upon by the parties, was filed, and 
the same was submitted to the court for its decision. The facts thus agreed 
upon are substantially as follows, to wit:

1st. That fr. secs. 11 and 14, T. 5 N., R. 10 W., were patented to Rufus 
Easton, on the 16th Of June, 1850.

2d. That on the first of June, 1818, Rufus Easton, claiming to be sole owner 
of said land situated in Madison county, Illinois, made a plat of the same by 
the name of "The town of Alton," which is made a part of the record, as 
Exhibit (A); which plat, together with the memorandums of the same, was duly 
recorded on the fourth day of April, 1818, in the recorder’s office for said 
county.

3d. That subsequent to the recording of the plat, William B. Whitesides, James 
Reynolds, and others, claiming an interest, in these lands, commenced a suit 
against Easton, concerning the same; and it was compromised by the parties, by 
Easton’s executing and delivering to said Whitesides and Reynolds, February 
25, 1821, a deed of conveyance, which was duly recorded on the eleventh of 
December, 1821, for certain lands and lots in and at said Alton, and in said 
fractional section 14.

By said deed, Easton sold and conveyed to Reynolds and Whitesides, in fee, 
eighty acres adjoining said town, and in said section fourteen, expressly 
referring to said  plat of the town of Alton, thereto laid out by him, and 
recorded as aforesaid; also 107 lots laid doWn on said plat and embraced in 
the limits of said town, among which lots are lots 3, 4 and 5, in block 4; 
lots 5 and 6 in block 6; lots 3, 4 and 14, in block 7; lots 1, 3 and 13, in 
block 8; lots 3, 6 and 7, in block 13, etc., and "all things of right thereto 
appertaining." In this deed, Easton reserves to himself,  his heirs and 
assigns, the exclusive right of ferrying across the Mississippi river	to and 
from said lands; and therein said Easton expressly "covenants and agrees, that 
all the lots for public, scholastic and religious purposes, for a public 
landing, Or any reservations of common, east of the Fountain creek, as 
designated on the plat aforesaid of said town; and, particularly, the land 
that lies between Front street and the river Mississippi as designated in said 
plat, fronting on the river between the said Fountain creek and Henry street, 
shall be and forever remain a pubic landing place, and shall be and remain for 
the use of the public as designated on said plat, excepting and reserving to 
said Rufus Easton and his heirs, forever, the exclusive	right of a ferry or 
ferries, on and from said land so made common." Said deed contains covenants 
of warranty against the title and claims of Easton or his heirs, and others 
claiming under him or them - and states, that “It is explicitly understood and 
expressly agreed, by and between the parties aforesaid, that they had 
conflicting claims or titles to said lands and lots, and that for the purpose 
of compromise, they, the said parties, agreed to mutually relinquish one to 
the other, the part allowed to him or them, in the compromise; and that said 
deed is the relinquishment of the said Easton, on his part, to the said 
Whitesides and Reynolds, their heirs and assigns, to the whole of the lands 
thereby conveyed," etc.

And as part of said compromise, by said Whitesides and Reynolds, and their 
respective wives, on the said twenty¬sixth day of February, 1821, executing 
and delivering to said Easton, their joint deed of conveyance of the date last 
named, wherein, in consideration of one dollar, and also "For and in 
consideration that the said Rufus Easton had, by his deed of that date, 
conveyed and released and relinquished, to the said Whitesides and Reynolds, 
certain lots and parcels of land in that" (Easton’s) deed mentioned and 
described, they sold and conveyed, etc., to said Easton, and to his heirs and 
assigns, forever, the following described lands, in said county of Madison, to 
wit: Describing that part of fr. sec. 14, lying east of Henry street, and part 
of the S. E. qr. of sec. 11, containing 200 acres, more or less; and the whole 
of the S. W. qr. of sec. 12; all in town 5 N., R. 10 W., containing 100 acres, 
With the appurtenances, etc., with "The license and right of ferrying to and 
from the same, obtained by said Whitesides and Reynolds and one Robert 
Sinclair, or that of all or either of them," with covenants of warranty that 
they had not granted away the land thus conveyed; providing, however, and 
excepting from the operation of said deed of them, all or any of the lots in 
the town of Alton, mentioned and contained in the deed above referred to from 
said Easton to said Reynolds and Whitesides, specifying them as they are 
specified and described in said Easton's deed to them, according to the plat 
of said town of Alton, made by said Easton, and recorded as aforesaid; which 
plat as recorded, the said Whitesides and Reynolds, for themselves, their 
heirs and assigns, do thereby ratify and confirm in every particular; but said 
presents, it was expressly declared therein and thereby, were "not to be 
construed to convey to, or vest in, said Easton any  exclusive interest in any 
of the streets, lots for public or scholastic or religious purposes, for a 
public landing, or any reservations of commons to the east of Fountain creek, 
in said town of Alton, as designated on the plat of said town; but that all 
the ground from the public landing inclusive, as designated on said plat, to 
Henry street, and that lies between Front street and the river Mississippi, 
should forever be and remain a public landing, for all persons whatsoever, 
except for a ferry landing; which right of a ferry landing was to be and 
remain in the said Rufus Easton, his heirs and assigns exclusively, forever." 

In said deed it is also recited that, at some time theretofore, said Easton 
had, by a power of attorney, authorized Lewis Beck to sell all the lots of 
ground in the deed enumerated, as also some others mentioned and situate in 
said town of Alton, as platted by said Easton and recorded as aforesaid; and 
said Reynolds  and Whitesides covenant to confirm and ratify the sales then 
made, or which may be made by the first day of April next following, by said 
Beck, under said authority. Reynolds and Whitesides also covenant against all 
claims or titles derived through or under them or either of them. The deed 
last named has also this clause, to wit: "And it is further explicitly 
understood and expressly agreed by and between the parties, that they had 
conflicting claims or titles to the land and lots therein expressed; and that 
for the purpose of compromise, the parties had agreed to mutually relinquish 
to the other of them the part allowed to him in the compromise, and that the 
said deed is the relinquishment, on the part of said Whitesides and Reynolds, 
to the said Easton, to the whole of the lands thereby conveyed by said 
Reynolds and Whitesides to said Easton;" provided, however, they were to be 
subject to the damages provided for in said deed in case they did not purchase 
back whatever of the lots and land therein mentioned and which they might have 
sold, etc., as before duly recorded April 10, 1821. Subjoined to the last 
mentioned deed is the written assent under seal of Nathaniel Pope, John 
Reynolds, Joseph Conway, John D. Cook, and Ninian Edwards, and their surrender 
to Easton, "all claims and pretensions, which they might or could assert to 
the premises" in said deed "granted and conveyed."

That the grantOrs and grantees of said deeds together held all and every claim 
or title to said lands, except the rights thereto vested in the public by the 
making and recording of the plat of the town of Alton, within mentioned, and 
expressly recognized by the parties to said deeds, whateVer they may be; but 
the defendants contend that the land in plaintiff’s declaration described is 
not so recognized, while the plaintiffs contend it is so recognized, and that 
by the execution and recording of the same plat and deed a perdect title to 
the lands respectively therein described was vested in the several grantees 
therein mentioned.

4th. That on the twentieth of September, 1821, the bank of St. Louis recovered 
judgment against said Easton for $1,149 debt, and $91.92 damages and costs. 
That on the same day Wm. Russell obtained a judgment against said Easton for 
$957.18 debt, and $26.51 damages and costs, both in the Madison Circuit Court, 
and executions were issued thereon, and the lands first within described, with 
other lands, were levied on; and that by virtue of the two executions thus 
issued—one on each of said judgments—Wm. B. Whitesides, then sheriff of said 
county, advertised on the eighth of February, 1822, that he should expose to 
public sale, at, etc., on the second of March then next, all the right, title 
and interest of said Easton to the following property, to wit: fr secs. 14, 
11, 12 and 13, T. 5 N., R. 10; also, fr sec. 18, T. 5, R. 9 W.; on which lands 
and a horse ferry boat at Fountain Ferry on the Mississippi, the sheriff 
certifies that he levied on the fourth of January, 1822; that the lands were 
appraised as therein stated and the sale advertised and postponed three 
several times; that the ferry boat was sold on the eighteenth of January, 
1822, the time fixed for the sale, to Archibald Gamble, for $110, and the 
whole of the lands on the second of March, 1822, were sold to said Gamble, for 
$1,415.46, he being the highest bidder; and,

5th. Thereupon the sheriff executed to said Gamble a deed of conveyance for 
the lands last above described, except a part of fr. sec. 13, only 98-72/100 
acres of which were conveyed; the remainder of said section being claimed by 
Charles W. Hunter; which last deed is dated on the day and year aforesaid; and 
is, as are the other deeds, copied at length into the record, and was recorded 
January 14, 1823.

6th. That on the sixth of January, 1825, Rufus Easton executed a deed of 
conveyance  of that date to said William Russell, whereby said Easton, for the 
consideration of $3,451 paid by Russell to Easton, conveyed to Russell, in 
fee, all his estate, right, title, interest, property and demand in and to 
said fr. secs. 14, 11, 13, the N. half of 12, T. 5 N., R. 10 W., with the 
houses, buildings and other improvements thereon, containing 1,331 15/100 
acres; also, the whole of fr. sec. 18, the N. fr. half of sec. 19, and the N. 
W. qr. sec. 20, all in T. 5 N., R. 10 W., containing 972 29/100 acres, without 
any recourse whatsoever on said Easton for any damage or demand, should the 
title to said lands fail, etc.; which deed was duly recorded November 10, 1829.

7th. That on the sixth of July, 1826, Archibald Gamble and his wife executed 
to said Russell his deed of assignment, as it is called, whereby, in 
consideration of $2,075, at the entire risk and hazard of the said Russell, 
and without recourse on Gamble for any damages, demand or claim whatsoever, 
should the title to the land therein described prove defective or wholly fail, 
said Gamble and wife conveyed to Russell, in fee, all their estate, right, 
title, interest, claim, property and demand in and to the lands described in 
the deed last above of Easton to Russell, excepting, however, from the said 
conveyance and sale, the east half of block number eighteen (18), in the town 
of Alton, laid out on said fr. sec. 14; all being the same lands which were 
conveyed by the sheriff of Madison county to said Gamble, by the deed of March 
second, 1822, above referred to. This deed was acknowledged the twenty—fifth 
of March, 1828, and recorded June sixth, 1828.

8th. That on the tenth of April, 1828, Abiel Easton, wife of said Rufus 
Easton, and said Rufus Easton, executed to William Russell their deed of 
conveyance, wherein is a recognition of the above mentioned deed of Easton to 
William Russell, of the sixth of January, 1825, for the lands therein 
described, and a sale by said Abiel, for the consideration of $600, of all her 
right, title, interest, etc., in and to those lands, tenements and 
appurtenances, "situate," as is said, "in and near the town of Alton, in the 
county of Madison, and state of Illinois." This, like the former deed from 
Easton alone to Russell, expresses the sale to be made "at the risk and 
hazard" of Russell; this was, on the tenth of April, 1838, acknowledged by 
said Abiel, and on the fourteenth of April, in same year, by Easton, and 
recorded June 5, 1828.

9th. That on the seventh of June, 1828, Russell executed to Gershom Flagg a 
deed of conveyance of that date, whereby, for the consideration of $400, he 
granted, bargained and sold to Flagg, in fee, the following described lots of 
ground or parcels of land, described, bounded, etc., situate in the town of 
Alton, in said Madison county, as the same is laid off from fr. sec. 14, T. 5 
N., R. 10 W., and which lots thereby conveyed were described as "the whole of 
block (or an irregular square) numbered one (1), on the plat of said town of 
Alton, street, and on the north by Second street of said town, on the east by 
Alby street, and on the southwardly and westwardly side and end by Front 
street, and by an open space of ground called 'the Public Landing,' at the 
south end of Market street, as the said block numbered one is represented on 
the plat of said town of Alton, of record in the recorder’s office of  said 
county of Madison." "Also, one other lot of ground in the said town of Alton, 
of precisely forty feet from west to east, and about sixty feet long, more or 
less, from north to south; this being the upper and westwardly end of a large 
lot in said town, marked 'Reserved,' on the aforesaid plat of said town." This 
deed contains full covenants of warranty of title in Russell, etc. This deed 
to Flagg was duly recorded on the ninth of June, 1828.

10th. That on the thirteenth of March, 1834, said Flagg and Jane, his wife, 
reconveyed to  said Russell the last described lot of ground, in said town of 
Alton, for the consideration of $170, without warranty, except liens, created 
against it while Flagg professed to own it, and at the risk in all other 
respects of said Russell, and "without any recourse whatever to said Flagg or 
his heirs, if the title should otherwise fail to be good;" which deed was 
recorded March 17, 1834.

11th. That on the seventeenth of July, 1832, Wm. Russell executed to Isaac 
Prickett a deed of conveyance of that  date, whereby, for the consideration of 
$150, he "sold and quit-claimed to Prickett, and to his heirs and assigns 
forever, a certain lot in the town of Alton, in Madison county, Ill., as the 
same had been laid off upon fr. secs. 11 and 14, T. 5 N., R. 10, a plat of 
which town is recorded in the recorder's office of said county; which lot 
thereby granted is 240 feet large from east to west, by about 140 feet large 
from north to south, more or less, and is specially bounded in said deed as 
follows, to wit: "On the north by Front street of said town, and fronts 240 
feet to the same; on the south by the Mississippi river; on the east by Easton 
street of said town; and on the west by Alby street, as the same has been 
extended by said Russell to said river, with the appurtenances," etc.

"This deed," (in the words thereof) being made with the following express and 
positive limitation, to wit: That said Prickett, being well and fully 
acquainted with the said Russell’s right and title to the above described lot 
hereby conveyed, takes the right and title of the said Russell to said lot at 
the entire risk and hazard of him, said Prickett, and without any recourse 
whatever to said Russell, or his heirs or representatives, for either 
consideration money, or costs or other damages, on account of this deed, in 
case the title to said lot should in any part, or altogether, fail, or prove 
bad, in law or equity — as evidence of all of which, the said Prickett accepts 
of and receives this deed, with this special clause, and in its present form." 
This deed was duly recorded July 17, 1832.

12th. That on the thirteenth of October, 1835, said Prickett and his wife 
executed to James Semple a deed of conveyance of that date, wherein, for the 
consideration of $600, said Prickett and Nancy, his wife, sold and quit-
claimed to said Semple a part of the lot described in the deed last above 
referred to, of Wm. Russell to said Prickett, and being 150 feet front on 
Front street, and running back to the Mississippi river; being a part of the 
land reserved by said Easton in laying off the said town of Alton, and 
immediately below and adjoining Alby street, as extended through the said 
reserve land by Wm. Russell, and bounded on the east by a lot conveyed by said 
Isaac Prickett to David Prickett, with a clause and limitation in the same 
words and to the same effect with the one above quoted from the last above 
mentioned deed from said Russell to Isaac Prickett. This deed was recorded in 
the office of the recorder of said county, on the thirty-first of October, 
1835.

13th. That on the twentieth of February, 1847, said James Semple and Mary S., 
his wife, executed their deed to George C. De Kay, of the city of New York, in 
the state of New York, whereby, for the sum (as in said deed expressed) of 
$13,000, said Semple and wife conveyed, in fee, a large number of tracts, 
parcels, and lots of land, situate in said  Alton, among which is 
conveyed "all the right, title, and interest which said Semple then had or 
possessed in and to any and every part of what is known as the 'Reserve,' in 
the city of Alton, situated between Front street and the Mississippi river, 
and between the 'Public Square,' at the mouth of the Little Piasa creek, and 
the 'Common or Promenade,' at the eastern end of the original plat of Alton," 
together with all the buildings, houses, and improvements, etc., reversions 
and remainders to the same. This is a deed without any covenants of warranty, 
and is recorded March 13, 1847.

14th. That on the twenty-second of April, 1847, said George C. De Kay, by 
Washington T. Miller, describing himself as De Kay’s "attorney in fact" (but 
no power of attorney to said Miller, or evidence to act as such attorney, is 
found in the record), executed to "The Illinois Transportation Company," his 
deed of conveyance of that date, whereby, for the consideration therein 
expressed, of $75,000, he "granted, bargained, and sold" unto the said 
company, their successors and assigns, numerous lots and tracts of land, among 
which are those contained in the last mentioned deed of said Semple to De Kay, 
and his interest, etc., in the last above described lot of 120 feet front on 
Front street, in the city of Alton. This deed was acknowledged by said Miller, 
April 22, 1847, and recorded October 30, 1847.

15th. That the town of Alton was incorporated May 14, 1832.

16th. That the city of Alton was incorporated July 21, 1837, and reference is 
made to the act of incorporation.

17th. That immediately after the deed from Prickett to Semple, he, Semple, 
went upon the premises described in plaintiff's declaration, and erected 
thereon a two story frame house, which was finished in 1837, and so soon as 
the house was built, Semple rented the lot or piece of ground upon which it  
stood, and said Semple and his grantees have continued to rent same house and 
lot and collect the rents until the present time. That the tenants have had 
uninterrupted possession of the house as a residence; but the lot has never 
been enclosed or occupied by such tenants exclusively, and during the whole 
time of such tenancy, steamboats, flat boats, rafts,etc., have from time to 
time landed upon the river side of the same, and the materials, freights and 
loading, etc., have been and carried across said lot by persons generally, and 
freight and lumber and loading have been continually carried from below up and 
from above down across the rear end of said lot, without obstruction or 
interruption, in the same manner as freights and loading, etc., etc., have 
been landed upon the river side of the land marked on the plat of Alton 
as "Common or Promenade," and hauled across said commons, as also across 
vacant lots in Alton, and such use of the public, since 1835, has been with 
the knowledge that James Semple, and those claiming under him, claimed said 
property as private, and insisted that it Was not public property, and said 
Semple or his assigns have never given any assent to their rights so to do.

18th. That the town authorities of Alton, during the existence of the 
incorporation of the town of Alton, and the authorities of the city of Alton, 
since its incorporation as a city, have ever claimed an easement in and the 
enjoyment of the land described in the plaintiff's declaration as a part of 
the public landing, or public grounds, and have ever refused to tax the same; 
but have never improved the same.

19th. That, up to the years 1834 and 1835, there Were but few inhabitants in 
said Alton, and it has not hitherto been necessary to improve the said lot for 
a public landing, to supply the business wants of the city and of the public; 
but its situation is such as to render it susceptible of improvement for that 
purpose.

20th. That said Wm. Russell holds among his title papers the aforesaid deed of 
Wm. B. Whitesides and others, to Rufus Easton, within named.

21st. That one Thomas G. Hawley would testify that said Rufus Easton, during 
the year 1821, told him that he wished to sell him lots in block 1, on the 
plat within named, and spoke of them as lots fronting on the "Public Landing." 
They were lots fronting on the upper part of the upper lot, marked on the plat 
of said town of Alton, "Reserve." (This evidence is to be rejected, if the 
court consider it illegal.)

22d. That said Gershom Flagg would testify, that after said Wm. Russell sold 
him the lots named in the deed of said Russell to said Flagg within named, he 
said Russell stated he owned the whole of the property (meaning lots marked on 
the plat "Reserved"), and that he, Russell, did not know that there was any 
question of his title, at the time he sold to Flagg, and for some time after; 
but having heard there was a question as to his title, he wished to retake the 
property, and he did, by deed of Flagg to Russell, he, Russell, paying the 
original consideration, $70, to Flagg. (This evidence is to be rejected, if 
the court consider it illegal.)

23d. That from 1818 to 1835,  when Semple built, the property was unoccupied, 
like other vacant property, and there were no inhabitants upon it.

24th. The land described in the plaintiff's declaration is a part of the land 
marked "Reserved," on the plat above named, and is in the possession of the 
defendants.

It was further agreed that the defendants should waive process, and enter 
their appearance herein, and plead the general issue, and submit this cause to 
the court upon the above agreed statements of facts; stipulating with each 
other that the original plat and deeds within named, or certified copies of 
the record of the same, or the original records, might be introduced by either 
party subject to comparison of the original with the record; and that, if from 
the whole of said agreed statement and the law arising thereon, the court is 
of opinion that the city of Alton aforesaid is entitled to enjoy and exercise 
jurisdiction over said land in plaintiff's declaration mentioned as part of 
the public landing place, or for public purposes, then the judgment is to be 
for the plaintiff; otherwise for the defendants; that no objection should be 
made to the form of motion or the form of pleading; and either an appeal or 
writ of error should lie from the decision of the Circuit Court to the Supreme 
Court; and that the defendants in such appeal or writ of error should appear 
without, the service of any summons—and that the decision of the Supreme Court 
should be upon the points of law arising upon the within statement of facts, 
waiving any objection which might arise to the form of action, as to the legal 
title in fee not being in the plaintiffs, if they or the public are entitled 
to enjoy the easement in the locus in quo, as a public landing place or as 
public grounds; and at the Circuit or Supreme Court the defendants might 
raise, any questions of law (except as to the fee in the lands as above) 
arising from the above agreed statement of facts, the same as if especially 
pleaded.

The case was heard and decided at the August term of the Madison Circuit Court 
in the year 1850, Underwood, Judge, presiding, in favor of the defendants; and 
the plaintiffs have brought the case into this court, and the plaintiffs make 
the following points:

D. J. Baker and E. Keating, for plaintiffs in error:

The law prescribes no particular form or manner for the dedication of land to 
public uses, provided the intention of the owner of the land to dedicate it to 
such uses be satisfactorily established by evidence, and no particular 
description of evidence is required to prove such intention. Dedications of 
land for public purposes have frequently come under the consideration of the 
courts of this country; in the case of The City of Cincinnati v. The Lessee of 
White, 6 Peters, 431, 504, the question is fully discussed: 3 Kent, 450; Town 
of Pawlet v. Clark, 3 Con. R., 408 and seq.; City of Cincinnati v. White, 6 
Peters, 431; Brown v. Manning, 6 Ohio, 303; Watertown v. Cowen, 4 Paige, 410; 
Hobbs v. Lowell, 19 Pick., 405; 7 Ohio, 217; 9 Ohio, 80; 3 and 4 Dev., 242; 1 
Strange, 95; 3 Kent, 450; 19 Wend., 128j 1 Hill, 189, 191; 17 Pick., 309. In 
order to dedicate property for public use, it is not essential that the right 
to use the same shall be vested in a corporate body. It may exist in the 
public, and have no other limitation than the wants of the community at large: 
The City of New Orleans v. United States, 10 Peters, 662; 2 Peters, 250. In 
the case of Barclay et al. v. Howell's Lessee, 6 Pet., 504, the court held, 
that the "declarations of the surveyor, who was authorized by the owner of the 
land to fix upon the plan of the town and survey it, made at the time of 
surveying and completing the plan of the same, became a part of the res gesta; 
they were explanatory of the act then being done, and as such, were competent 
evidence to charge his principal." In the case of Hunter v. The Trustees of 
Sandy Hill, 6 Hill, 411, the court say: "The law which governs the dedication 
of property to the public use is anomalous; under it rights are parted with 
and acquired in modes and by means unusual and peculiar. Ordinarily, some 
conveyance or written instrument is required to transmit a right to real 
property; but the law applicable to dedications is different. A dedication may 
be made without writing; by act in pais, as well as by deed." 2 Smith's 
Leading Cases, 180, and cases cited. The act of throwing open the property to 
the public use, without any other formality, is sufficient to establish the 
fact of a dedication to the public. Dedication may be presumed from length of 
time; and the period required by the statute of limitations to bar a right, 
would, from analogy to that statute, be sufficient, though so long a time 
would not always be requisite: Hunter v. Trustees of Sandy Hill, 6 Hill, 413; 
3 Kent, 450-1, and note a. In the case of Trustees of Watertown v. Cowen, 4 
Paige, 510, it was held, that "a public square is dedicated in the same manner 
as a street; that the legal title did not pass from the original owner;" the 
court considered "the corporation as the proper representative of the 
equitable rights of the inhabitants of the village, to the use of the public 
square, so as to authorize the filing of a bill in chancery by the corporation 
to protect those equitable rights against the erection of a nuisance." The 
case of Howard v. Rogers, 4 Harris and Johnson, 278, turned upon the 
construction of a deed, which was held not to have been intended to pass 
anything more than the grantor's interest in the lot. Had there been a 
covenant, express or implied, to leave the lot open, the points would have 
been the same as in Trustees of Watertown v. Cowen, referred to in 2d Smith's 
Leading Cases, 191; 19 Wendell, 128; Wright's Rep., 750; 1 Sup. U. S. Dig., 
534, s. 348; 4 Devereux, 272.

Deed should be so construed as to carry into effect the intention of the 
parties, 2 Bacon's Ab., 576; effect of recital in deed construed against 
grantor, 4 Bacon's Ab., 526; parties and privies bound by recitals, 1 
Greenleaf's Ev., 823; admissions binding on privies, 1 Greenleaf's Ev., 189, 
211; 4 Peters, 1; 3 Johnson's Cases, 174; 8 East, 487; 4 Cruise, 293; 4 Scam., 
561; 3 Pick., 262.

Easements and incorporeal interests are not within the statutes of 
limitations: Angel on Adverse Enjoyment, 62, 76, etc.; R. S. 1845, and 
Limitations. Our statutes of limitations, so far as they pertain to real 
property, were taken in all, except as to the length of time, from the English 
Statutes, i. e., 32 Henry 8, c. 2; 21 James 1, c. 16; and 3 and 4 William 4, 
c. 27. The English courts never considered those statutes applicable to 
easements and incorporeal interests: 1 Chitty's Prac. 7146, 759; Gale & 
Whately on Easements, 98.

Where a right to the use and enjoyment of the easement or incorporeal interest 
has once become vested in the public, by grant or dedication, a non-user of 
that right for no length of time can bar the public: State v. Trask, 6 
Vermont, 355; New Orleans v. United States, 10 Peters, 662; Rowan's Executors 
v. Town of Portland, 8 B. Monroe, 250, "The dedication having been made and 
proved, did not require a subsequent user to establish or prove it:" 
Cincinnati v. White's Lessee, 6 Peters; and Barclay v. Howell's Lessee, 6 
Peters; Angel on Adverse Enjoy., 36, 37, 38.

Laches are not imputed to counties: 1 Scam.. 70. In the case of State Bank v. 
Brown et al., 1 Scam., 106, per curiam, "Are the people then barred by the 
statute of limitations? This question, though not directly before the court, 
was incidentally decided in the case of Madison County v. Bartlett, the court 
there say: 'It is a well settled principle, that a state is not barred by a 
statute of limitation unless expressly named,' and we have no reason to change 
the opinion thus expressed." See also, 6 Peters, 673; Rex v. St. James, 2 
Selwyn's Nisi Prius, 1334; Vooght v. Winch, 2 B. and Ald., 667; Best on 
Presump., 137, sec. 103; Fuller v. Saunders, Cro. Jac., 446; cited in 2 
Smith's Leading Cases, 178; White, v. Crawford, 10 Mass., 189.

Deeds are to be taken most strongly against the makers thereof and in favor of 
the other party or those for whose benefit they were made.

Although to vest a fee under our statute, it is necessary that a plat should 
have been made, executed, acknowledged and recorded in accordance with the 
statute; a plat duly recorded, though informally executed, will vest a use in 
the public.

In the construction of a deed, effect should be given to every word and 
sentence, when such a construction would not contradict the manifest intention 
of the grantor, or make the instrument ridiculous or absurd, and no part will 
be rejected as surplusage which can, consistently with the general object of 
the same, be retained.

Under the recording law of 1820, it was only necessary to record within twelve 
months, and an unrecorded deed was then good as against a judgment, and a 
purchaser under an execution then purchased only what actually belonged to the 
defendant.

The court below erred in deciding that the defendant had such a title as 
protected him under the statute of limitations of 1835.

J. Semple, W. B. Scates and Wm. Martin, for defendants in error:

The defendants contend, that as the title was and is clearly vested in Easton 
and his assignees, such title cannot, and will not be divested by any strained 
construction of the acts of the owners of the land; but that before a 
dedication to the public can be made out, there must be shown a clear and 
undoubted act of such owners placing the dedication beyond dispute. If the 
case is doubtful or ambiguous, the vested rights of the patentee and his 
assigns will not be disturbed.

The only foundation of the claim of the city, rests on the covevants in two 
deeds made by and between Easton on one part, and Whitesides and Reynolds on 
the other.

1st. By a fair and legal construction of these covenants and conditions, 
connected with the plat, they do not make the "Reserve" public ground, or 
amount to a dedication to the public.

2d. They are merely personal covenants and conditions, do not run with the 
land, or bind the assignees of the patentee.

3d. They are void, being repugnant to the estate granted.

4th. They are void as to sales under execution.

5th. They are void as to creditors, as being voluntary and without 
consideration.

6th. They are void as to creditors, because the deed was not recorded until 
after the judgment against Easton.

7th. The seven years' statute of limitations bars the plaintiffs' claims after 
fifteen years' adverse possession.

1st. As to the covenants, etc. The covenant in the deed from Easton to 
Whitesides and Reynolds is as follows: "And the said Rufus Easton does 
covenant and agree that all the lots for public, scholastic and religious 
purposes, for a public landing, or any reservations, of common, east of the 
Fountain creek, as designated on the plat aforesaid of said town, and 
particularly the land that lies between Front street and the river 
Mississippi, as designated on said plat, fronting on the river, between the 
said Fountain creek and Henry street, shall be and forever remain a public 
landing place, and shall be and remain for the use of the public, as 
designated on said plat."

Here it is clear that the plat is made a part of the covenant, by no less than 
three references to it in one short sentence. Every word and mark on the plat, 
affecting this question, forms as much a part of the contract between the 
parties, as if they had all been inserted in the covenant itself. If instead 
of referring to the plat for an explanation of what was intended should be and 
remain public, the parties had gone on and inserted it all in the covenant, 
leaving out any reference to the plat, but inserting in lieu thereof exactly 
what the plat says, then the public square, the seminary square, the gospel 
square, the public landing, and the common, or promenade, would all have been 
described by metes and bounds, and all the private lots, strips of ground, and 
this land marked "reserved," would have been particularly described as they 
are marked on the plat. In such case, there would have been no doubt as to 
what was intended by the parties. On this point, a striking case is to be 
found in 3 Cond. Rep., 362.

Another case in 6 Peters, 510. The court say: "The deed from Ormsby called for 
a lot, designated on the town plat 183, bounded by Front street, the river 
Monongahela, and lots numbered 182 and 184."

On this same point, in 18 Ohio Rep., 94, the court say: "When the width of a 
street, marked by right lines, is given in a town plat, surplus land, between 
the street and the low water mark of a river, is not thereby dedicated to the 
use of the town."

Also, in 1 Blackford, 44, the court say: "The limit of the street as 
designated on the plat is the extent of the public ground, and if there is any 
land between that street and the river, it is not granted to the town of New 
Albany." See also 6 Mass., 435.

It is a rule of law that all the words of a deed or instrument must have their 
full operation, if possible. Now the word "reserved" is, by reference, a part 
of this covenant, and must operate, if possible.

The covenant of Easton is the only one that could make a dedication. 
Whitesides and Reynolds could not dedicate the land by their deed, for they 
had no title.

This clause is not a covenant, but a condition of non-alienation, void of 
itself, but particularly void as to creditors.

2d. These are merely personal covenants and conditions: do not run with the 
land, nor bind the assignees of the patentee: 9 Humphries, 540; 2 Blackford, 
301; 4 Cruise, 452; 10 East, 120; Coke's Reps., 135.

3d. They are void, as being repugnant to the estate granted: Sprague v. Snow, 
4 Pickering. 54; 4 Gilman, 544; 4 Kent, 131; 2 Cruise, p. 5, secs. 19, 20, 21, 
22.

4th. They are void as to sales under execution: 4 Kent, 124, 129; 2 Cruise, p. 
6, secs. 25, 28; Ibid, p. 11, secs. 46, 47, 48; 7 J. R., 534; 15 J. R., 280.

5th. They are void as to creditors, as being voluntary, and without 
consideration: 4 Kent, 461; 4 Cruise, 457.

6th. They are void as to creditors, because the deed was not recorded until 
after the judgment lien attached.

The law of 1802 (Purple's L. L., p. 298, acts 1821, p. 174) made judgment, a 
lien on all defendants' lands. This law was in force up to 1821. The act of 
1819 (p. 20, sec. 8), giving a year to record deeds, only applies in 
subsequent purchasers and mortgagees, and not to creditors. The protection to 
creditors rested in 1821 on the principles of the common law, which would give 
the judgment lien in this case priority to the subsequently recorded deed 
without notice: 4 Cruise, 482; 4 Kent, 450.

7th. The seven years' statute of limitation bars the plaintiff's claim after 
fifteen years' adverse possession: Scott v. Ratcliffe, 5 Peters, 87; 11 
Peters, 54; R. L., p. 349, secs. 8, 9, 10, 11, p. 104, sec 8; 3 Cruise, 489, 
secs. 41, 44; 3 Kent, 359.

Caton, J. In 1818, Easton, claiming to be the owner of the land, laid out the 
town of Alton, upon the recorded plat of which the two blocks lying between 
Front street and the Mississippi river are marked "reserved," and the promises 
in controversy are a portion of one of these blocks. Subsequently, Whitesides 
and Reynolds set up a claim to the land upon which the town was laid out. 
These parties settled their controversy, by executing and interchanging the 
deeds, upon the construction of which the decision of this case depends. These 
deeds recite that the parties had conflicting claims or titles to the land, 
and that for the purpose of compromise they had agreed to relinquish to each 
other the part allowed to him or them in the compromise, in pursuance of which 
the deeds were simultaneously interchanged. They are, therefore, to be 
construed together as parts of the same transaction. As to the dedications, 
the public is to be considered the grantee, and the other parties to the deeds 
the grantors. Whoever subsequently purchased lots or made improvements in the 
town, paid to the proprietors a proportionate consideration for the 
dedications of land made to the public use. Easton, by his deed, conveyed to 
Whitesides and Reynolds certain specified lots and blocks in the town, and 
then expressly "covenants and agrees that all the lots for public, scholastic 
and religious purposes, for a public landing, or any reservations of common, 
east of the Fountain creek, as designated on the plat aforesaid of said town; 
and particularly the land that lies between Front street and the river 
Mississippi, as designated in said plat, fronting on the river between the 
said Fountain creek and Henry street, shall be and forever remain a public 
landing place, and shall be and remain for the use of the public as designated 
on said plat, excepting and reserving to said Rufus Easton and his heirs 
forever the exclusive right of a ferry or ferries on and from said land so 
made common." Here are erased in the deed the words "or for any other purpose" 
between the words "common" and "east," and the words "that lies between Front 
street and the river Mississippi, as designated in said plat," are interlined.

Upon the plat several interior lots and blocks are marked as dedicated to the 
public, one for a court house, some for religious and some for educational 
purposes, and upon the river and immediately east of Fountain creek, a 
fraction is marked for a public landing, and further east and between the 
blocks marked reserved, and Henry street, is a space marked "promenade or 
common." We are to determine what part of the town plat is, by this covenant, 
declared dedicated to the public. In the forepart of the clause quoted, are 
described in clear and unequivocal terms, all of the lands and lots which are 
marked upon the plat, as dedicated for specified purposes, and these are all, 
which, judging from the face of the plat, I should be inclined to hold Easton 
had dedicated to the public. It is insisted, that, by the subsequent part of 
the sentence the parties did not intend to make any new dedication, but only 
to confirm what had already been designated for the public use, upon the plat. 
I cannot so understand the covenant. That subsequent clause is as 
follows: "and particularly the land that lies between Front street and the 
river Mississippi, and designated in said plat, fronting on the river, between 
the said Fountain creek and Henry street, shall be and forever remain a public 
landing place," etc. If the parties meant what they expressed, then certainly 
all the land described in this clause was dedicated to the public, and the 
only question which can arise, is, are the two blocks marked "Resered" 
embraced in this description. They are as unequivocally described, as if they 
had been designated by name, and yet if that had been the case, I imagine this 
controversy would never have arisen, notwithstanding the reference which is 
made to the plat, and which, it is urged, signifies a different intention. 
Here the meets and bounds of certain premises which are designated for the 
public use, are given, and in the center of the tract included within those 
bounds are the two blocks, which it is now insisted were not dedicated to the 
public. But the covenant says, that the land that lies within those 
bounds, "shall be and forever remain a public landing place."

If these blocks were not intended to be included in this dedication, why was 
this clause inserted at all? Every other tract had been clearly and pointedly 
described in terms which admit of no doubt, and unless these two blocks were 
intended to be added to the list already dedicated, then this clause is worse 
than useless. A construction which requires us to reject an entire clause of a 
deed is not to be admitted, except from unavoidable necessity. We are not at 
liberty to reject this part of the deed, which clearly expresses a meaning 
more extended than is manifest in other parts of the instrument. We are bound 
to presume it was inserted for a purpose, and has its office to perform. The 
rule is thus laid down in Cruise's Digest, title 32, Deed, chapter 19, section 
5: "The construction ought to be made on the entire deed and not merely on any 
particular part of it. Ex antecedentibus et consequentibus fit optima 
interpretatio. Therefore every part of a deed ought if possible to take 
effect, and every word to operate."

Then we are not at liberty to suppose that the parties did not mean what they 
have so emphatically said, in this entire and distinct clause, and that they 
only meant what they had previously expressed. But there is a circumstance on 
the face of this deed, which clearly shows that the description which embraces 
these two blocks was not inadvertently or carelessly inserted. I allude to the 
interlineation after the word "land"of the following: "that lies between Front 
street and the river Mississippi as designated in said plat." The description, 
before these words were inserted, was of the land lying on the river between 
the creek and Henry street, which necessarily included the two blocks, but, as 
if to silence every doubt, they inserted the interlineation, which points 
directly to these two blocks; for by a glance at the plat, it will be seen 
that they occupy the whole space between Front street and the river so far as 
the street is extended and delineated on the maps. Really it would seem as if 
the parties had exhausted their ingenuity and command of language, in order to 
expel every doubt of their intention to dedicate these blocks to the public.

The only argument urged against this explicit declaration of the parties, is 
drawn from the expression "as designated on said plat," which it is insisted 
limits the description, to such lands as were by the plat dedicated to the 
public. These are usually, if not universally, words of description and not of 
quality. They serve to connect the deed with the plat, so that by applying the 
one to the other, the former may be rendered intelligible. They give effect to 
the expressions of the deed but they do not limit them. If there be that upon 
the face of the plat, to which the expressions of the deed can apply, then of 
course we must make the application, rather than reject the words of the deed, 
as not expressing the intentions of the parties. This reference to the maps, 
occurrs three times in the description part of the covenant. Such reference 
was indispensable, in the description of the premises, but was quite 
unnecessary for the purpose of specifying the objects or purposes of the 
dedication. It seems to me that it can admit of no doubt, that in the two 
first instances the reference is made merely for the purpose of description. 
In the last, it may have been designed to limit the words "shall be and 
forever remain a public landing place," so as to prevent them from being 
applied in such a sense as to make the court house square and other interior 
lots, a public landing, for which they were altogether inappropriate.

But conceding that these references show that no new dedication was intended, 
then it is clear that the parties construed the plat as having already 
reserved them for the public use. If the plat is made to control the extent of 
the dedication, we must construe the plat as the parties understood it, and 
that is explained by the unequivocal expressions of the covenant. The two 
blocks are certainly embraced in the description of the land dedicated, and 
the construction contended for, so far from proving that they did not intend 
to include them in the dedication, shows that they considered that they had 
already been dedicated by the plat. This construction makes the parties say 
that "these blocks shall remain reserved for a public landing, as the same are 
designated and set apart on said plat."

I will now advert to the other deed, from which it will appear, if possible, 
with still more clearness, that it was the intention of the parties to include 
these blocks in the dedication. As before remarked, these deeds are a part of 
one transaction, and must be construed together. The corresponding clause in 
the second deed is in the form of a reservation, and is as follows: "These 
presents shall not be construed to convey to, or vest in, said Easton any 
exclusive interest in any of the streets, lots for public or scholastic or 
religious purposes, for a public landing, or any reservation of commons to the 
east of Fountain creek in said town of Alton, as designated on the plat of 
said town. But that all the ground from the public landing inclusive, as 
designated on said plat, to Henry street, and that lies between Front street 
and the river Mississippi, shall forever be and remain a public landing for 
all persons whatsoever, except for a ferry landing." In this deed we find the 
same property described in the same order, and in almost the identical 
language, except that that which points to these two blocks is, if possible, 
still more explicit than in the other. This deed says, "that all the ground 
from the public landing inclusive, as designated on said plat, to Henry 
street, and that lies between Front street and the river Mississippi, shall 
forever," etc. These two blocks occupy nearly the centre of the tract thus 
described, and if all of that tract is dedicated to the public, it is placed 
beyond cavil that these two blocks are included in that comprehensive word. 
This seems so clear that neither argument or illustration can make it more so. 
To my mind this is so manifest, both upon first impression, and after the most 
careful study of both deeds, that there is no room for construction. But as 
some understand them differently, I shall now admit that there is some 
ambiguity in the terms employed to express the meaning of the parties, and 
then we must resort to the well known rules of law for the purpose of 
construction.

When a deed is so drawn that some will read it one way and some another, it is 
a well established rule that that meaning shall be adopted which is adverse to 
the interests of the grantor. In Cruise's Digest, title 32, Deed, chapter 19, 
section 13, the rule is thus stated: "A deed is always construed most strongly 
against the grantor, verba chartarum fortuis accipiunter contra proferentem; 
et qualibet concessio fortissime contra donatorem interpretanda est. For the 
principle of self-interest will make men sufficiently careful not to prejudice 
themselves by using words of too extensive a meaning. And all manner of deceit 
is hereby avoided in deeds; for people would always affect ambiguous 
expressions, if they were afterwards at liberty to put their own construction 
on them." If there be ambiguity in this deed, in no case could this rule apply 
with more reason or justice. Here the parties have made their deeds and spread 
them upon the records of the county for the inspection of the public, whereby 
they have made certain dedications, the object and effect of which was to 
invite purchasers and improvements, and to enhance the value of the residue of 
the town property. In that way they expected to be remunerated for the 
dedications thus made, and every man who purchased a lot of them, or made 
improvements there, paid a proportion of the consideration, for the property 
donated to the public. To say the least of it, these deeds were so drawn as to 
induce a large proportion of purchasers to believe that the premises in 
controversy were dedicated, and thus they have received a consideration from 
the public for this very land, and to allow them now to say that they did not 
intend to include it, is to allow them to practice a palpable fraud upon the 
public, and to take advantage of their own wrong. This the plainest dictates 
of common honesty forbid. The law will not allow them to affect ambiguous 
expressions, and then permit them to put their own construction upon them. 
Here the words are emphatically their own, for the grantees-the public-were 
not there to dictate or suggest, and certainly the principle of self-interest 
was sufficient to make them "careful not to prejudice themselves by using 
words of too extensive a meaning." It is incredible to me, that intelligent 
parties could have used such emphatic and pointed words to include these 
blocks if it was not the intention of the parties to embrace them in the 
dedication. It may be observed that several of the lots set apart to 
Whitesides and Reynolds, are immediately in the rear of one of these blocks, 
and their value very much depended upon having the space in front of them open 
to the river, rather than have it obstructed by the individual property of 
Easton. And this may explain why even stronger expressions are used in the 
reservation contained in the deed to him, than are found in the covenant to 
Easton. Possibly other words might have been used, so as to have left less 
room for controversy in the minds of some, that the parties did intend to 
include these blocks in the dedication; yet, this is no reason for saying, we 
will not believe that they intended what they have said. This would be 
reversing the rule of the law and throwing every doubt or uncertainty in favor 
of the grantor. I cannot entertain a doubt, that by every rule of law and of 
reason, we ought to hold that the premises in question were dedicated to the 
public use.

Nor do we think the rights of the public are barred by our statute of 
limitations, which prescribes that certain real actions shall be brought 
within seven years after possession taken by the defendants. Without stopping 
to inquire whether the rule that laches are not imputable to the public, or 
that time does not run against the government, applies to inferior municipal 
corporations, such as towns, cities and counties, as well as to the state, we 
entertain no doubt that this statute has no application to the case before us. 
Whatever title to these public grounds may be vested in the city, she has not 
the unqualified control and disposition of them. They were dedicated to the 
public for particular purposes, and only for such purposes can they be 
rightfully used. For those purposes the city may improve and control them, and 
adopt all needful rules and regulations for their management and use, but she 
cannot alien or otherwise dispose of them for her own exclusive benefit, nor 
are they subject to the payment of her debts. At most she but holds them in 
trust for the benefit of the public. The right to the use of the property is 
not limited exclusively to the citizens of Alton, but the citizens of the 
state generally have an equal right with them in the appropriate enjoyment of 
the dedication. This is not like the case of property purchased by the city 
for her own exclusive use, which she could dispose of at her pleasure. Whether 
an adverse possession would run against property thus held, we do not now 
propose to inquire, but we entertain no doubt that this statute does not apply 
to this case, and that the rights of the public in this dedication have not 
been forfeited by non-user, or barred by adverse possession.

Russell's judgment against Easton, under which the defendant claims to hold 
title, was subsequent to the deeds, and as the deeds were recorded within the 
time prescribed by the statute then in force, the title conveyed by them could 
not be prejudiced by that judgment.

The judgment is reversed, and the cause remanded.

Judgment reversed.

----------------------------

(a) Followed by Riggin v. Love, 72 Ill., 553.

(b) As to the construction of a grant, see Middleton v. Pritchard, 3 Scam., 
510, note (a).

(c) Logan Co. v. City of Lincoln, 81 Ill., 156, accord. As to abandonment of 
highway by non-user for twenty years, see City of Peoria, v. Johnston, 56 
Ill., 45.

(d) City of Quincy v. Jones, 76 Ill., 231; Kreigh v. City of Chicaqo, 86 Ill., 
407, accord. The city has possession of its streets for the use of the public, 
and the right of using them is not limited exclusively to the citizens of the 
city: City of Chicago v. Wright, 69 Ill., 318.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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