Opinion of the Court.

and it is ordered that the originals now here in court be recorded in the recorder's office of said Cook County, as required by law. And it is further ordered that the clerk of this court certify, under his hand and [the] seal of this court, on each of said original maps or plats a minute of the order of this court approving the same, in words and figures as follows, to wit:

"This plat approved in all particulars by the court; and it is ordered that the same be recorded in the recorder's office of the County of Cook aforesaid. This certificate is made in pursuance of a decree of the Circuit Court of Cook County, in the State of Illinois, entered on the 6th day of October, 1882, in case number 39,801, in which William D. McKey and others are complainants and Richard M. McKey and others are defendants."

The plat shows that the lots embraced 23 feet of the street, and that the stakes of the lots were set 23 feet south of the north line of the street, leaving a strip 23 feet wide south of the lots to be thereby dedicated for use as a public street. The plaintiff for the purpose of showing that the line thus indicated by the plat as the southern boundary of the McKey tract was intended by the canal trustees to be the southern line of the N. W. 1 of the N. E. of section 3, offered in evidence, in addition to their conveyance to Peck, the purchaser from them of that tract, all the other conveyances made by them of the said northeast quarter of said section 3, as follows: (1) A deed to Robert S. Wilson, dated April 1, 1857, for the north half of the southwest quarter of that quarter section which was stated in the deed to contain 19 31 acres, more or less, in consideration of $965; (2) a deed to John C. Dodge, dated October 6, 1855, for the south half of the southwest quarter of that quarter section, stated in the deed to contain 20 acres, at the rate of $50 per acre, amounting to the sum of $1000; (3) a deed to Isaac Cook, dated August 16, 1852, conveying the northeast quarter of that

Opinion of the Court.

quarter section, containing 40 acres, more or less, at the rate of $15 per acre, amounting to the sum of $600; (4) a deed to William B. Egan, dated January 28, 1856, conveying the north half of the southeast quarter of that quarter section, containing 19 acres; and, (5) a deed to Margaret Johnson, dated July 1, 1859, conveying the south half of the southeast quarter of that quarter section, containing 1931 acres.

100

It was admitted, as stated above, that the canal trustees had held title to the whole of the said northeast quarter, and that the above deeds placed all the titles to said quarter section in the grantees aforesaid.

The plaintiff then introduced one Henry J. Goodrich, who testified "to his signature upon the plat, and that he was one of the commissioners appointed by the court to make the partition, and was at the same time president of the board of trustees of the village of Hyde Park; that he knew where the stakes were driven by the surveyors who made the plat, and he knew that the land as staked took 23 feet off the street; that at the time the board approved the plat they knew it was taking more land than what 'was intended to be given;' that they wanted to change the street; they wanted to leave that question in court and approve of the plat as it then stood; that the board was then in favor of changing the location of that street. The witness further testified that he had known that land ever since 1865 or 1866, and that it was then enclosed with a fence; that the fence was an old fence; that the fence was south of the centre line of the street as opened by the authorities of Hyde Park; and that he remembered the circumstance of a street being run through there. It was admitted by stipulation of counsel that 41st Street was opened through the property in question in 1873."

Alexander Taylor, a witness for the plaintiff, testified that he resided very near this property for eighteen years, and had known it ever since 1869; and at one time lived on part of it. That "it was always fenced in until the time it was opened as a street, in 1873. There was a fence on the south line of it in 1869, which was quite an old fence then and which the gardener made into a reed fence to give shelter to his

Opinion of the Court.

garden from the north winds, and on the south side of it was the Bowen lot, cultivated as a vegetable garden; on the north side it was also enclosed. There was no fence on the north side of the ten-acre lot deeded to the McKeys, but the whole piece up to the railroad, including Mr. Hill's and Mrs. Smith's land, was all fenced in together. One-half of it belonged to the McKey estate and one-half belonged to Mrs. Smith and Mr. Hill, but it was enclosed on all sides and was used for a pasture by the witness. The fence on the south line between the McKey land and the Bowen land was an old fence which used to blow down; the pressure of the wind would break it down, and he had to patch it up. It was an old fence in 1869, made on cedar posts, a straight fence running through from Vincennes Avenue to Grand Boulevard. The wind would blow it down sometimes three or four lengths at a time. When the street was put through and the fence was moved south they turned the tops of the fence into the ground; they were so rotten they could not use them again. When the street was put through, the fence was moved south into Mr. De Lat's garden."

Frank McLeane testified to the same effect as to the existence of the old fence which ran straight through from Vincennes Avenue to Grand Boulevard, immediately south of which was Bowen's land, used as a garden.

The plaintiff then called S. S. Greeley, who testified that he was the surveyor who made the plat pursuant to the order of the court; that he staked the south line of the lots and the north line of the street; and that the stakes were all driven in the grade of the street. He stated that when he made the survey of McKey's addition he was informed of how the canal trustees had conveyed the whole of the quarter section by the certificates and conveyances above mentioned; that the United States plat of section 3 showed that the N. E. 1 was a fractional quarter section-not full 160 acres, but 157 acres; and that, before making the survey, it was necessary to know how the canal trustees had conveyed the land.

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He further stated: "I found then there were six con

Opinion of the Court.

veyances by the canal trustees to six different parties in the northwest quarter of section 3; two of the pieces were conveyed as the northwest quarter of the northeast quarter and the northeast quarter of the northeast quarter, each being 40 acres, more or less; then there were four conveyances one conveying the north half of the southwest quarter of the northeast quarter of section 3, containing 19 acres, more or

less; one the south half of the southwest quarter of the northeast quarter, containing 19 acres, and one the north half of the southeast quarter of the northeast quarter, containing 19 acres, and one the south half of the southeast quarter of the northeast quarter, containing 19 acres. The south half of the southwest quarter of the northeast quarter was marked in two ways; it was marked 19 acres with a pencil mark through it. I then found that the line between what

is technically called the north half and the south half of the northwest quarter was not really the middle line of the quarter section, but was a line far enough south of that to give the proportion of 80 acres in the north half and 77% acres in the south half. I then divided it upon that basis, giving the north half of the width north and south, and giving the south half 77 and a fractional of the width north and south; that made the north part of the quarter section 1334 feet long on the west line, and the south part 1288 feet, and the true dividing line between the northwest quarter and the southwest quarter of the quarter section, which is properly the south line of the McKey property."

In reply to a question by the judge, he stated that he put the dividing line "just where the canal trustees seem to have done in their deeds." Witness further testified "that he had made surveys in the northwest quarter of this quarter section, and that he had surveyed the property immediately south of the McKey ten acres, which is in dispute, and that he had located the fence along the north line of said property and the south line of 41st Street as laid out by the village; that he had located this fence running east and west an equal distance between the north and south boundary lines of the quarter section, but that he had done this simply by retrac

Opinion of the Court.

ing the subdivision which had been made before, and that he made the north line of the southwest quarter of the quarter section at the midway point, because he discovered that it was the way it had been made before."

The defendant to maintain the issues on its part introduced Henry McKey, son of Edward McKey, to show that the village of Hyde Park in 1873 opened 41st Street through the land in question, in pursuance of a deed from his father who was the original owner of an undivided half of the McKey tract; that the plaintiff, though a minor at the time, became of age in the year 1874, and did not commence this suit until 1887; that in the meantime the village of Hyde Park proceeded to open and improve the street, to lay sidewalks and to put in sewers without objection or interruption from the plaintiff; that witness was the only agent the McKeys had in the management of their property, and was present at the time the street was laid out; that he saw that the fence had been moved; that more of the street had been taken from the McKey tract than from the land adjoining it on the south; that he thought the location of the fence might have been wrong, and therefore made no objection; and that the location was not questioned until Mr. Greeley informed him of the alleged error of said location, and that the southern line of the lots extended 56 feet below the north line of the street. He also testified that in selling lots in their addition the McKeys followed the description in the plat thereof, but inserted in the deed a condition that they did not warrant the title to any portion of the lots claimed by the village as a part of the street.

In support of its contention that the 23-feet strip involved in this suit was rightfully included within the limits of the street, and that the same is located where it ought to be, the defendant introduced as witnesses McLennan, Rossiter, Lee and Foster, all surveyors of experience. Each of those witnesses testified that the centre line of 41st Street, as laid out by the village of Hyde Park, is the true southern boundary of the McKey tract.

Jacob T. Foster, county surveyor, said: "If he were called