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(144 N.E.)

(312 Ill. 376)

NITY CONSOL. SCHOOL DIST. NO. 76 et al. (No. 15578.)

(Supreme Court of Illinois. April 14, 1924. Rehearing Denied June 10, 1924.)

1. Dedication 44-Evidence of title to land platted need not be produced.

To establish a dedication by platting of land, evidence of title to the land platted is not required to be produced. 2. Dedication

19(1)-May be made by sur

vey and plat alone.

A dedication may be made by a survey and a plat alone, since the words on the plat indicate the intention of the dedicators.

purposes as provided for in its articles of incorporation, then said endowment fund MELIN, State's Atty., et al. v. COMMUhereby granted shall revert to and vest in the party of the first part," etc. In Tarr v. Stearman, 264 Ill. 110, 105 N. E. 957, the complainant filed a bill to restrain the defendant from managing, controlling, and retaining possession of a dental business, from retaining possession of personal property used in the business, and from engaging in the practice of dentistry within 25 miles of the city of Springfield without the written consent of the complainant. The complainant based his right to relief upon a certain contract, wherein, by reason of promises on the part of the defendant, the complainant had transferred his dental business in the city of Springfield to him. The contract was a contract of conditional sale, and the complainant claimed a right of forfeiture thereof under its terms. It was there held that equity will not interpose to enforce or carry into effect a forfeiture. Numerous cases are there reviewed and cited holding this doctrine. It is well settled in this state that a court of equity will not lend its aid to enforce a forfeiture because of the breach of a condition subsequent in a deed or contract conveying property. Golconda Northern Railway v. Gulf Lines Railroad, 265 Ill. 194, 106 N. E. 818, Ann. Cas. 1916A, 833; Moore v. Martin, 233 Ill. 512, 84 N. E. 630; Toledo, St. Louis & New Orleans Railroad Co. v. St. Louis & Ohio River Railroad Co., 208 Ill. 623, 70 N. E. 715; Dunne v. Minsor (No. 15883) 143 N. E. 842.

There being no mortgage to foreclose, a court of equity cannot take jurisdiction of the subject-matter of this lawsuit for the purpose of foreclosing a mortgage.

[3] Appellants contend that a court of equity has jurisdiction of this matter because it involves a trust, and, having jurisdiction for that purpose, it will proceed to determine the questions involved in the case. A court of equity has plenary jurisdiction in the administration of trust estates in the hands of trustees. Frackelton v. Masters, 249 Ill. 30, 94 N. E. 124; Sherman v. Leman, 137 Ill. 94, 27 N. E. 57. The purpose of this bill, however, is not to administer a trust. Appellants are not seeking to compel the academy to carry out the terms of the trust, but are seeking to terminate the trust by the enforcement of the forfeiture clause of the deed and contract by reason of a breach of a condition subsequent therein. We are of the opinion, therefore, that the court of equity had no jurisdiction in this case, and the chancellor did not err in dismissing the bill.

It does not become necessary to consider other questions raised on the record. For the reasons indicated, the decree will be affirmed.

Decree affirmed.

3. Dedication 44-Can be established in any way by which intention to dedicate may be evinced.

square can be established in any way by which A dedication of land to a village as a public the intention to dedicate may be evinced.

4. Dedication 44-Exhibition of power of attorney defining powers of trustees for whom survey was made not necessary to establishment of dedication.

acres out of 640 acres platted for sale, as a Where plat set aside a public square of 10 public square, it was immaterial in proving the dedication that the persons for whom the survey was made were designated as trustees for an association and no power of attorney defining their powers was exhibited.

5. Dedication 37, 44-Acceptance may be implied from user by public for purpose for which granted, and where beneficial to public is established by slight circumstances.

An acceptance of a dedication may be implied from user by the public for the purpose for which the land was donated, and where beneficial to the public only slight circumstances are necessary to indicate such accept

ance.

6. Estoppel 62(4)-Municipalities not es-
topped except under special circumstances
making it inequitable or oppressive to en-
force public rights involved.

courts do not interpose to hold the municipal-
In matters involving strictly public rights,
ity estopped except under special circumstanc-
es which would make it highly inequitable or
oppressive to enforce such public rights.
7. Schools and school districts 21-School
districts are "quasi municipal corporations."

School districts are quasi municipal corporations, being involuntary political or civil divisions of the state created purely as auxiliaries of the state to aid in the general administration of the government.

[Ed. Note.-For other definitions, see Words and Phrases, Quasi Municipal Corporation.] 8. Schools and school districts

21-School

district's powers limited to those expressly granted or necessarily implied.

A school district has no powers other than those expressly granted, or except as a re

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sult by necessary implication from those | evidence that that portion of the public square granted.

9. Municipal corporations 721 (1) -Municipality cannot appropriate public park to erection of buildings.

A municipality cannot without statutory authority appropriate any part of a public park to the erection of buildings for administrative purposes as for town or city halls, courthouses, schoolhouses, etc.

10. Schools and school districts 68-School district not empowered to construct school building in public park.

A school district had no right to appropri

ate a part of a public park for the erection of a school building, even though the school might be beneficial to the public.

11. Estoppel 62(4)-Municipal corporation may be estopped when acting in private capacity.

A municipal corporation, when acting in its private, as contradistinguished from its governmental, capacity, may be estopped.

12. Estoppel 62(5)—Rule as to estoppel of municipal corporations by acts of officers stated.

Before the doctrine of estoppel can be invoked as against a municipal corporation acting in its governmental capacity, there must have been some positive acts by the municipal officers which may have induced the action of the adverse party under circumstances making it inequitable to permit the corporation to stultify itself by retracting what its officers have done, mere nonaction by officers or adverse possession being insufficient.

13. Estoppel 62(1)—When doctrine of estoppel in pais applicable to public stated.

The doctrine of estoppel in pais applies to the public only to the extent that it leaves the courts to decide the question from all the circumstances of the case, and to hold the public estopped or not, as right and justice may require; the doctrine being applicable only as a means of preventing injustice or fraudulent results.

inclosed for school purposes had at the same time been used for the general purposes to which a public square might be put, and had a bandstand and a speaker's stand thereon. Dunn, J., dissenting.

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There is no controversy about the material facts. A plat of the village of Andover was filed in the recorder's office of Henry county on March 7, 1842, which was annexed to a certificate of Arba M. Seymour, county surveyor of Henry county, dated May 17, 1838, that the town of Andover was laid off on the north half of section 17 and the south half of section 8, in town 15 north, range 2 62(8)-Town may be estop-east of the fourth principal meridian, for ped to deny school district's right to use public square for school purposes.

14. Estoppel

A town may, by permitting a school district to use a public square as a site for a school building, be estopped to deny the school district's right to use the land for such purpose; but in such case there must be clearly an abandonment by the town or public, and an adverse holding by the school district.

15. Estoppel 62(8)-Town held not estopped to deny school district's right to use public square for school purposes.

The continued occupancy and use of part of a public square by a school district for school purposes for more than 60 years did not estop the town from denying the school district's right to use the public square for school purposes and to construct new building thereon, in the absence of a showing that the school district's use of the land was adverse to the claims of the public, and in view of

Ithamar Pillsbury, Eben Townsend, and Edward A. Mix, trustees for the New York Association, and that the annexed map and the references contained in the certificate were a copy of the town of Andover, in Henry county, state of Illinois. The document also bore the certificate of two of the county commissioners of Henry county that the plat was a true and correct plat of the town of Andover, together with their ac knowledgments and the signatures and acknowledgments of the trustees named in the surveyor's certificate. The land platted was divided into 49 blocks of 10 acres each, each block being subdivided into 4 lots, which were numbered, except the center block of the plat, which was marked "Public Square." Two lots north of the public square were marked "Public Buildings," and 4 other lots

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

.

(144 N.E.)

having been recorded more than 80 years previous to the hearing, without any evidence to show revocation or opposition by any one, the same was dedicated for the public use prior to 1860; that the erection of the building in that year was for a purpose other than contemplated by the dedicators; that the school district acquired no title, but the right to maintain and use the building erected on the land was permissive, only; and that the proposed construction of the new building was contrary to the purpose of the dedicators. He concluded that the public has the right to prevent the construction of the building and that the equities of the cause are with the plaintiffs in error. The master recommended that a decree be entered enjoining the further construction of the school building. Objections to the report were sustained, and the court decreed a dissolution of the injunction, directing that the bill be dismissed for want of equity.

farther north in the tract were marked, inclosed and the uninclosed parts of the pub"Appropriated to the Literary Institute." lic square were used for public gatherings. One lot in the east end of the plat and one The master in chancery, to whom the matin the west end were marked "Burying ter was referred, concluded, as a matter of Ground." For some years after the record- law, from the facts shown, that the plat ing of the plat the public square was known as "The Commons" and was used for pasturing cows, and there was no special exercise of authority over the public square by any official. In 1860 school district No. 3, which then included the land covered by the plat and other territory, erected a two-story frame schoolhouse in the southwest portion of the tract, in which a public common school has been continuously maintained since that time and has been the only school in the community. The school grounds were fenced off from the rest of the tract, the fence was repaired, renewed, and kept up, the schoolhouse was repaired from time to time, and a furnace was put in, trees were planted, and the grounds were cared for by the school directors with funds of the school district. In 1895 the town of Andover was incorporated under the laws of the state as a village. In renumbering the school districts of the county, school district No. 3 became school district No. 76, and in 1919, by consolidation with other school districts, [1-5] It is first contended that the trustees became Community Consolidated School Dis- for the New York Association had no autrict No. 76, and since its organization has thority to dedicate the tract marked "Pubmaintained the school in Andover. In 1920 lic Square," and that there could be no Community High School District No. 195, al- acceptance by the public such as would conso including the village of Andover, with stitute the land a public square by dedicaother territory, but not coextensive with the tion. Evidence of title to the land platted boundaries of the existing district, was or- is not required to be produced. Waugh v. ganized. The ordinary course was pursued Leech, 28 Ill. 488. A dedication may be in the calling of an election, selection of a made by a survey and a plat alone. Guttery schoolhouse site, authorizing the issuance of v. Glenn, 201 Ill. 275, 66 N. E. 305. The bonds, and entering into a contract for the words on the plat indicate the intention of erection of a building on grounds 358 by 338 the dedicators. City of Jacksonville v. Jackfeet in dimensions in the southwest corner of sonville Railway Co., 67 Ill. 540. A dedithe square. On September 12, 1921, and be- cation of the kind here in question can be Ifore the contract was made to erect the established in any way by which the intenschool building and before the bill herein tion to dedicate may be evinced. Godfrey v. was filed, a notice was served by property City of Alton, 12 Ill. 29, 52 Am. Rep. 476. owners of the village on Community Con- Since evidence of title was not required to be solidated School District No. 76 and on Com- produced, we think it is immaterial that the munity High School District No. 195 and its three persons for whom the survey was officers, and on the contractor whose bid had made were designated as trustees for the been accepted, that district No. 195 had no New York Association without a power of right on the square, and that the proposed attorney being exhibited defining their powattempt to build a school thereon was in ers. Several named individuals designated violation of the terms of the grant of said as members of the New York Association as land to the inhabitants of the village. This such members and in their individual capaciaction is to enjoin the construction of the ties, quit-claimed all their interests in and schoolhouse, and there is also a prayer for to the land in Henry county recited to have a mandatory order directing the restoration been purchased in that county by three nam- • of the grounds to their condition, as nearly ed persons for the association, to Elihu L. as possible, prior to the beginning of the Mix, and the latter conveyed the land to the work mentioned. The portion of the public three named trustees, to "hold, use and emsquare fenced and used for school purposes ploy the said premises, with the appurte constitutes about 21⁄2 acres, and the remain-nances, for such time and in such manner as der of the tract has continued to be em- in their judgment, or a majority of them, ployed for other purposes. A lockup was shall be most advantageous for the said New built outside the school inclosure. Both the York Association and shall most conduce to

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the welfare and prosperity of the said vil- They are involuntary political or civil divilage of Andover, to let or lease or sions of the state, created purely as auxilabsolutely to sell or dispose of the same or iaries of the state to aid in the general adany portion thereof," and to execute and de- ministration of the government. They are liver good and sufficient deed or deeds for limited to those powers expressly granted, the same. The surrounding lots were sold or such as result, by necessary implication, with reference to the plat. It could very from those granted. People v. Board of well be considered as conducing to the wel- Education, 255 Ill. 568, 99 N. E. 659. A fare and prosperity of the village of Andover municipality cannot, without statutory auto set aside a public square of 10 acres out thority, appropriate any part of a public of the 640 acres platted for sale. The plat, park to the erection of buildings, for adas well as the public square, we think has ministrative purposes, as, for town or city been sufficiently recognized to excuse further halls, courthouses, schoolhouses, etc. 3 Dilproof than that which has been furnished. lon on Mun. Corp. (5th Ed.) § 1096, p. 1750. None of the original owners, nor any suc- The fact that the school might be beneficial ceeding grantees or devisees, are claiming to the public cannot avail as an argument any right here or asserting that the dedica- against the lack of power in the school distion was not effective for the purpose intend-trict to do the thing sought to be done. ed. The only interest asserted upon the part of the school district is by reason of the alleged abandonment or estoppel. An acceptance of a dedication may be implied from user by the public for the purpose for which the land was donated, and, where beneficial to the public, only slight circumstances are necessary to indicate such acceptance. Rose v. Village of Elizabethtown, 275 Ill. 167, 114 N. E. 14; Alden Coal Co. v. Challis, 200 Ill. 222, 65 N. E. 665.

The bill alleges that

"The public, for whose use and benefit the said public square was dedicated, as aforesaid, did 70 years ago or more from time to time beautify and ornament said public square by planting trees therein, many of which have grown and become large and of considerable value and are still standing in the public square."

Boseley v. Oak Park District, 275 Ill. 92, 113 N. E. 984. If the school district (either No. 3 or No. 76) did not originally have the right to enter into a contract with the community high school district to permit the use of a certain part of the public square for the erection of a schoolhouse it did not acquire that right through estoppel, where no substantial rights have been acquired, solely because it may have built and used another building, the right to which had never been questioned by the public. We find no authority anywhere for the erection of school buildings in public squares or parks under the laws of Illinois, and certainly that right should not be extended, by implication, on the ground of estoppel. Leeper v. Hersman,

58 III. 218.

[11-13] A municipal corporation, when acting in its private, as contradistinguished The answer admits the tract has trees on from its governmental, capacity, may be esit, but avers that

The trees "do not ornament or beautify to any great extent, because for many years weeds have been permitted to grow to great height on said tract, which destroyed the beauty and use of that part of said tract not used and occupied for school purposes."

The testimony shows there were soft maple trees planted on the public square, some more than 50 years ago and others later. The testimony does not show much effort at beautifying the park or otherwise making it attractive for park purposes beyond the planting of the trees, but the uses heretofore shown indicated that it could be used and was used by the public for many different public purposes.

topped. City of Chicago v. Sexton, 115 Ill. 230, 2 N. E. 263. Cases may arise of such a character that right and justice will require that equitable estoppel may be asserted even against the state when acting in its governmental capacity. State v. Illinois Central Railroad Co., supra; Logan County v. City of Lincoln, 81 Ill. 156. But before the doctrine of estoppel can be invoked there must have been some positive acts by the municipal officers (or the state) which may have induced the action of the adverse party and where it would be inequitable to permit the corporation to stultify itself by retracting what its officers had done. Mere nonaction of its officers is not sufficient to work an estoppel as against a municipal corporation. [6-10] In matters involving strictly public Logan County v. City of Lincoln, supra. rights the courts do not interpose to hold the Neither will adverse possession, alone, avail municipality estopped, except under special against the public. Russell v. City of Lincircumstances which would make it highly coln, 200 Ill. 511, 65 N. E. 1088. The doctrine inequitable or oppressive to enforce such of estoppel in pais applies to the public only public rights. County of Piatt v. Goodell, to the extent that it leaves the courts to de97 Ill. 84; State v. Illinois Central Railroad cide the question from all the circumstances Co., 246 IH. 188, 92 N. E. 814; Phillips v. of the case, and to hold the public estopped Leininger, 280 III. 132, 117 N. E. 497. School or not, as right and justice may require. The districts are quasi municipal corporations. doctrine is applicable only as a means of

(144 N.E.)

preventing injustice or fraudulent results. Shirk v. City of Chicago, 195 Ill. 298, 63 N. E. 193; City of Chicago v. Sawyer, 166 Ill. 290, 46 N. E. 759. See, also, People v. City of Rock Island, 215 Ill. 488, 74 N. E. 437, 106 Am. St. Rep. 179.

While some of the earlier decisions in applying the principle of estoppel in pais have said that the public is estopped or not, "as right and justice may require," the very term "estoppel" is indicative of something preventive and not something creative. It is not a principle by which to promote acts of positive justice by an act of creation; but, as the later decisions intimate, is a principle in voked to prevent injustice and fraud, so that while it might well be argued that the public should be estopped from doing any act by which the school district would suffer pecuniary loss, in applying the principle of estoppel it is unnecessary to go to the extent of saying that because the public may not cause the school district to suffer pecuniary loss the doctrine of estoppel may be applied to give the district a creative right to contract with another school district in order that greater positive advantage may accrue to both. This is not the province of estoppel where the public is concerned. In all the cases which we have read where the public has been held to be estopped, it has been established by the evidence that by not asserting the doctrine the parties "would suffer a substantial loss." City of El Paso v. Hoagland, 224 Ill. 263, 79 N. E. 658; City of Peoria v. Central Nat. Bank, 224 Ill. 43, 79 N. E. 296, 12 L. R. A. (N. S.) 687; Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191. Where there has been no "substantial loss,"

the doctrine of estoppel has not been held applicable to the municipality. City of Sullivan v. Tichenor, 179 Ill. 97, 53 N. E. 561. A municipal corporation, no more than an individual, cannot profit by its wrongful acts. It may be estopped by its own conduct. City of Sullivan v. Tichenor, supra.

which a public square might be put, although at various times application has been made to the school directors for permission to use the inclosure for other than school purposes.

Under the circumstances we do not find that the portion of the public square here involved has been abandoned by the public or that its use and occupancy by the school district have been adverse to the public. Taking this view, we must therefore hold that the community consolidated school district had no right to enter into an arrangement, agreement or contract with the community high school district by the terms of which the latter should be permitted to occupy and use the land for school purposes.

The decree will be reversed and the cause remanded, with directions to the trial court to enjoin the further construction of the proposed school building.

Reversed and remanded, with directions.

DUNN, J., dissenting.

SHERMAN & ELLIS, Inc., v. INDIAN

APOLIS CASTINGS CO. (No. 24682.)

(Supreme Court of Indiana. May 23, 1924.) 1. Trusts 261-Complaint by trustee of express trust should show plaintiff acting In representative capacity and name cestui que trust.

A complaint by the trustee of an express trust suing in own name under Burns' Ann. St. 1914, §§ 251, 252, must clearly disclose plaintiff is acting in representative capacity, and should name cestui que trust.

2. Insurance 188(1)-Attorney in fact for employers' reciprocal insurance association held not entitled to sae in own name for subscriptions.

Complaint by attorney in fact for employers' reciprocal insurance association organized under Burns' Ann. St. Supp. 1921, § 8020c3, held not to show plaintiff's authority under articles of association to sue member for unpaid subscriptions.

[14, 15] The doctrine above announced applies in this case. It applies equally as much to a public square as to a street, and it applies to protect a school district equally as much as a private individual. But in order to apply this doctrine there must clearly appear to be an abandonment by the municipality or public and an adverse holding by the school district. In this case there has been a continued occupancy and use of the land by the school district for more than 60 years, but there is no showing that this use was adverse to the claims of the public. As a matter of fact, the land inclosed for school purposes has for many years also had upon it a bandstand and a speaker's stand, and apparently the portion of the public square used for school purposes has at the same time been used for the general purposes to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 144 N.E.-2

Appeal from Superior Court, Marion Coun ty; Lynn D. Hay, Judge.

Action by Sherman & Ellis, Inc., against the Indianapolis Castings Company. From judgment for defendant, plaintiff appeals. Transferred from the Appellate Court, under section 1394, Burns' Ann. St. 1914 (section 10, c. 247, Acts 1901, p. 567). Affirmed.

Superseding opinion 139 N. E. 459.

J. W. Hutchinson, of Indianapolis, for appellant.

E. E. Stevenson, of Indianapolis, for appellee.

EWBANK, C. J. A demurrer for insufficiency of facts was sustained to appellant's

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