« ForrigeFortsett »
(144 N.E.) 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 having been recorded more than 80 years as “The Commons” and was used for pastur- previous to the hearing, without any eviing cows, and there was no special exercise dence to show revocation or opposition by of authority over the public square by any any one, the same was dedicated for the official. In 1860 school district No. 3, which public use prior to 1860; that the erection then included the land covered by the plat of the building in that year was for a purand other territory, erected a two-story pose other than contemplated by the dedicaframe schoolhouse in the southwest portion tors; that the school district acquired no tiof the tract, in which a public common tle, but the right to maintain and use the school has been continuously maintained building erected on the land was permissive, since that time and has been the only school only; and that the proposed construction of in the community. The school grounds were the new building was contrary to the purfenced off from the rest of the tract, the pose of the dedicators. He concluded that fence was repaired, renewed, and kept up, the public has the right to prevent the conthe schoolhouse was repaired from time to struction of the building and that the equi. time, and a furnace was put in, trees were ties of the cause are with the plaintiffs in planted, and the grounds were cared for by error. The master recommended that a dethe school directors with funds of the school cree be entered enjoining the further condistrict. In 1895 the town of Andover was struction of the school building. Objections Incorporated under the laws of the state as to the report were sustained, and the court a village. In renumbering the school dis- decreed a dissolution of the injunction, die tricts of the county, school district No. 3 recting that the bill be dismissed for want became school district No. 76, and in 1919, of equity. 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 au. trict 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. 510. A dedi.
the square. On September 12, 1921, and be- cation of the kind here in question can be · fore the contract was made to erect the established in any way by which the inten.
school 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 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 capaci. action 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 appurteconstitutes about 242 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
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 bas 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 Boseley v. Oak Park District, 275 III. 92, 113 the school district is by reason of the alleged N. E. 984. If the school district (either No. abandonment or estoppel. An acceptance of a 3 or No. 76) did not originally have the right dedication may be implied from user by the to enter into a contract with the community public for the purpose for which the land was high school district to permit the use of a donated, and, where beneficial to the public, certain part of the public square for the only slight circumstances are necessary to erection of a schoolhouse it did not acquire indicate such acceptance. Rose V. Village that right through estoppel, where no subof Elizabethtown, 275 Ill. 167, 114 N. E. 14; stantial rights have been acquired, solely beAlden Coal Co. v. Challis, 200 Ill. 222, 65 N. cause it may have built and used another E. 665.
building, the right to which had never been The bill alleges that
questioned by the public. We find no au. “The public, for whose use and benefit the thority anywhere for the erection of school said public square was dedicated, as aforesaid, buildings in public squares or parks under did 70 years ago or more from time to time the laws of Illinois, and certainly that right beautify and ornament said public square by should not be extended, by implication, on planting trees therein, many of which have the ground of estoppel. Leeper v. Hersman, grown and become large and of considerable
58 Ill. 218. value and are still standing in the public square."
(11-13] A municipal corporation, when act
ing in its private, as contradistinguished The answer admits the tract has trees on from its governmental, capacity, may be esit, but avers that
topped. City of Chicago v. Sexton, 115 Ill. The trees "do not ornament or beautify to 230, 2 N. E. 263. Cases may arise of such a any great extent, because for many years weeds character that right and justice will require have been permitted to grow to great height that equitable estoppel may be asserted even on said tract, which destroyed the beauty and against the state when acting in its governuse of that part of said tract not used and mental capacity. State v. Illinois Central occupied for school purposes."
Railroad Co., supra; Logan County v. City The testimony shows there were soft of Lincoln, 81 Ill. 156. But before the docmaple trees planted on the public square, trine of estoppel can be invoked there must some more than 50 years ago and others have been some positive acts by the munici. later. The testimony does not show much pal officers (or the state) which may have effort at beautifying the park or otherwise induced the action of the adverse party and making it attractive for park purposes be- where it would be inequitable to permit the yond the planting of the trees, but the uses corporation to stultify itself by retracting heretofore shown indicated that it could be what its officers had done. Mere nonaction used and was used by the public for many of its officers is not sufficient to work an different public purposes.
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 Lin. circumstances 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 de. 97 111. 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. ( which a public square might be put, alShirk v. City of Chicago, 195 Ill. 298, 63 N. though at various times application has been E. 193; City of Chicago v. Sawyer, 166 ill. made to the school directors for permission 290, 46 N. E. 759. See, also, People v. City to use the inclosure for other than school of Rock Island, 215 Ill. 488, 74 N. E. 437, purposes. 106 Am. St. Rep. 179.
Under the circumstances we do not find While some of the earlier decisions in ap- that the portion of the public square here inplying the principle of estoppel in pais have volved has been abandoned by the public or said that the public is estopped or not, "as that its use and occupancy by the school disright and justice may require," the very term trict have been adverse to the public. Tak"estoppel” is indicative of something preven- ing this view, we must therefore hold that tive and not something creative. It is not a the community consolidated school district principle by which to promote acts of posi. had no right to enter into an arrangement, tive justice by an act of creation; but, as the agreement or contract with the community later decisions intimate, is a principle in high school district by the terms of which voked to prevent injustice and fraud, so that the latter should be permitted to occupy while it might well be argued that the pub- and use the land for school purposes. lic should be estopped from doing any act The decree will be reversed and the cause by which the school district would suffer pe- remanded, with directions to the trial court cuniary loss, in applying the principle of es- to enjoin the further construction of the pro toppel it is unnecessary to go to the extent posed school building. of saying that because the public may not Reversed and remanded, with directions. cause the school district to suffer pecuniary loss the doctrine of estoppel may be applied DUNN, J., dissenting. to give the district a creative right to contract with another school district in order that greater positive advantage may accrue SHERMAN & ELLIS, Inc., V. INDIANto both. This is not the province of estoppel APOLIS CASTINGS CO. (No. 24682.) where the public is concerned. In all the cases which we have read where the public (Supreme Court of Indiana. May 23, 1924.) has been held to be estopped, it has been 1. Trusts en 261-Complaint by trustee of exestablished by the evidence that by not as press trust should show plaintiff acting in serting the doctrine the parties “would suf representative capacity and name cestui que
trust. fer a substantial loss." City of El Paso v. Hoagland, 224 Ill. 263, 79 N. E. 658; City of
A complaint by the trustee of an express Peoria v. Central Nat. Bank, 224 11. 43, 79 trust suing in own name under Burns' Ann. St. N. E. 296, 12 L. R. A. (N. S.) 687; Jordan v. tiff is acting in representative capacity, and
1914, 88 251, 252, must clearly disclose plainCity of Chenoa, 166 Ill. 530, 47 N. E. 191. should name cestui que trust. Where there has been no “substantial loss," the doctrine of estoppel has not been hela 2. Insurance Om 188(1)-Attorney in fact for
employers' reciprocal insurance association applicable to the municipality. City of Sul
held not entitied to sae in own name for sublivan v. Tichenor, 179 Ill. 97, 53 N. E. 561.
scriptions. A municipal corporation, no more than an
Complaint by attorney in fact for employindividual, cannot profit by its wrongful ers' reciprocal insurance association organized acts. It may be estopped by its own conduct. under Burns' Ann. St. Supp. 1921, 8020c3, City of Sullivan v. Tichenor, supra.
held not to show plaintiff's authority under ar(14, 15] The doctrine above announced ap- ticles of association to sue member for unpaid plies in this case. It applies equally as
subscriptions. much to a public square as to a street, and it applies to protect a school district equally Appeal from Superior Court, Marion Coun. as much as a private individual. But in or- ty; Lynn D. Hay, Judge. der to apply this doctrine there must clearly Action by Sherman & Ellis, Inc., against appear to be an abandonment by the munici- the Indianapolis Castings Company. From pality or public and an adverse holding by judgment for defendant, plaintiff appeals. the school district. In this case there has been Transferred from the Appellate Court, under a continued occupancy and use of the land section 1394, Burns' Ann. St. 1914 (section by the school district for more than 60 years, 10, c. 247, Acts 1901, p. 567). Affirmed. but there is no showing that this use was Superseding opinion 139 N. E. 459. adverse to the claims of the public.
J. W. Hutchinson, of Indianapolis, for apmatter of fact, the land inclosed for school
pellant. purposes has for many years also had upon
E. E. Stevenson, of Indianapolis, for appelit a bandstand and a speaker's stand, and
lee. apparently the portion of the public square used for school purposes has at the same EWBANK, O. J. A demurrer for insuffitime been used for the general purposes to ciency of facts was sustained to appellant's
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 144 N.E.-2
complaint, and upon its refusal to amend or (including this defendant executed said powplead over judgment was rendered that it er of attorney and received the policy as take nothing, and that appellee recover its hereinafter set out, it was understood and costs. Sustaining the demurrer is the only agreed between the different subscribers that error assigned.
each had executed said common power of atThe complaint is entitled “Sherman & El- torney"; that three different policies of inlis, Inc., a Corporation, v. The Indianapolis demnity insurance were issued by the asCastings Company,” and does not suggest sociation to defendant through plaintiff, as anything more as to the character in which attorney in fact for each of the subscribers, or the persons on behalf of whom the plain- each policy covering a different period of tiff sues. The complaint recites that time; that each policy provided for the pay
"The plaintiff complains of said defendant ment of an advance premium, and for an adand for cause of action against said defendant justment, at the end of certain periods or at says that said plaintiff is a corporation
the end of the time during which the insurauthorized to do business in the state of In- ance should be in force, of the total premi. diana, under and pursuant to its laws, and to ums, so that each subscriber should pay his get as attorney in fact to make, subscribe, is- share of the total cost of insurance and exsue, change, modify, reinsure, or cancel con- penses of the association in proportion to tracts exchanging insurance and indemnity and bis payroll; that for reasons stated and as to do all other acts as manager for reciprocal determined by action of the board of trusinsurance exchanges, together with such other business as may be incidental and necessary in tees defendant's proportion was fixed at cerconnection therewith. That the defendant is tain named sums for each of the periods cova corporation organized under the laws of the ered by its different policies respectively, but, state of Indiana, and doing a manufacturing having terminated its insurance more than a business in the city of Indianapolis." year before suit was commenced, defendant
had paid only part of such premiums, and It then alleges, in substance, that the de- had refused to pay $4,025.01 thereof, and was fendant was operating under the Workmen's indebted to plaintiff in the sum of $4,025.01, Compensation Act, and was required to keep with interest, for which plaintiff had made its liability thereunder insured; that the In- a demand upon defendant. dustrial Board, by authority of section 71 The statute referred to provides that, of said act, had fixed the conditions and re
"For the purpose of complying with strictions in conformity with which recipro- section 68, groups of employers, to form mucal insurance associations might conduct tual insurance associations
subject to their business, which are recited at length in such reasonable conditions and restrictions as the complaint, as hereinafter referred to and may be fixed by the Industrial Board, are hereset out in part; that pursuant to said act by authorized.” Section 71, c. 106, Acts 1915, and the conditions and restrictions so fixed p. 414 (section 8020c3, Burns' Supp. 1921). by the Industrial Board the Indiana Manu
The italics used in setting out the followfacturers' Reciprocal Association was
ing instruments are our own. The conditions ganized, to which defendant became a sub- and restrictions in conformity with which scriber for the purpose of insuring its said reciprocal insurance associations might conliability, and continued to be such member duct their business, alleged by the complaint from March 7, 1917, until October 1, 1918; to have been fixed by the Industrial Board, that said association was composed of em- included the following, in substance: ployers of labor (neither the number nor names of any other than defendant being giv- cal insurance association shall
, through their
Section I. The employers forming a reciproen), who "formed such association for the authorized attorney in fact, file with the Inpurpose of complying with said Workmen's dustrial Board for its approval a verified dec. Compensation Act * conformably with laration setting forth (1) the name adopted, law”; that each subscriber thereto was re- (2) the location where it will conduct business, quired to and did execute “a common power (3) a copy of the form of policy contract to be of attorney appointing the plaintiff to act used, (4) a copy of the power of attorney by for and in its stead in the exchange of in- which each member authorizes the execution surance contracts, in demanding, collecting, of such policies, (5) the number of employés
and amounts of annual pay rolls to be repreand in receiving money due any subscriber,
sented, (6) the fact that the required reserve and authorizing said plaintiff to bring and has been deposited, and (7) a list of the emprosecute in its own name, any suit or ac-ployers forming the association, with their adtion at law or in equity for or on behalf of dresses, net wealth, and amount of indemnity said subscribers,” a copy of the form in assumed by the association. which each power of attorney was executed Section II. All policy contracts shall be exbeing set out, as hereinafter stated (which ecuted by an attorney in fact authorized by does not, however, contain a grant of au- power of attorney from the employers to do so, thority nearly so broad as is here alleged); attorney in fact to file the written statement
which power of attorney must authorize the that the association was organized with a above required, and may (if desired) provide board of trustees chosen by the subscribers; for å board of trustees of not less than five, "that, at the time the different subscribers, 1 to be chosen annually by the employers from
(144 N.E.) their own number, which “shall have charge ceive all notices or proofs of loss; to adjust or of and direct the general management, super- settle all losses and claims under such convision, operation and control of the business tracts or other evidence of indemnity; to peraffairs of said association, including the collec form or waive all agreements or stipulations of tion, safekeeping and disbursement of its any such contracts; to appoint the chairman of funds," and may select a troasurer to hold the Industrial Board of the state of Indiana as and disburse its funds, who shall give bond. our agent, upon whom service of process may
Section III. Authority must be given for the be made with the same force and effect as if chairman of the Industrial Board to accept made upon ourselves, and to authorize him to service of process upon "each employer execut- enter our personal appearance in any suit ing the power of attorney” in all suits arising * upon any policy contract herewith auout of the policy contracts of the association, thorized, after having given the within attorand “to enter in any such suit the personal ney in fact five days' written notice of the appearance of each of said employers" after service of process upon him; to appear for us giring five days' notice to the attorney in in any suits, actions or proceedings, and to fact that process has been so served.
bring, prosecute, defend, compromise, settle or Section IV. The attorney in fact shall file adjust same; to perform every act not herein with the Industrial Board his bond for $50,000 specifically mentioned that we could ourselves or more, to be approved by said board.
do in relation to any contract, hereby authorSection V. Each association shall maintain ized, with power of substitution by said attora reserve fund of a designated amount to be ney, substitute selected to be approved by the provided out of the premiums collected. “Each trustees. The intent and purpose of this instruemployer shall pay in cash in advance the full ment is to clothe our said attorney with the estimated premium upon each policy contract power necessary to enable us, through it, to issued to him for a period of one year or exchange contracts of insurance and indemnity less, and shall pay cash in advance annually the with other subscribers; provided, however, that full premium for at least one year upon each said attorney shall have no power to bind us policy contract issued to him for a longer pe- jointly with any other subscriber, but it shall riod than one year."
have power only to bind us severally and for Section VI. This requires full payment of any ourselves alone. There shall be no joint funds, liability within 30 days after it is determined, capital or stock, but a separate individual acor the deposit in a bank or trust company of count shall be kept by our attorney with us funds sufficient to pay the full amount of a lia- and with each subscriber; said account to be bility payable by installments, within 30 days open our inspection. As compensation after such continuing liability is determined, * our said attorney is hereby authorized and regulates the manner of paying accruing to deduct 30 per cent. of all moneys received by installments.
it for credit to our account, except subscription Section VII. This requires full payment by a deposit. The trustees, consisting of five or member, upon his withdrawal from the asso- more subscribers, shall be selected by the subciation, of the entire amount of his liability scribers. * The trustees shall * for all injuries that have previously accrued, make such disposition of the funds of the subsuch payment to be made within 30 days after soribers, with reference to the investment therethe amount of such liability shall have been of, as may be necessary to protect the interest determined.
of subscribers. * All disbursements from Sections VIII, IX, and X. These require the funds of subscribers shall be by check signed attorney in fact to file a statement of the by our attorney and countersigned by one of the names and addresses of the members, with in- trustees, to be designated by said trustees. formation as to their wealth and the indemnity Said attorney and the countersigning trustee assumed, and annual reports of the condition shall give such bond as may be required by the of the association, the premiums collected, loss- trustees and the Industrial Board of Indiana. es paid, etc., and require the association annual. After the adjustment or compromise of any ly to obtain a certificate of authority from the loss or claims by our attorney as above proIndustrial Board, which is given power to re- vided the trustees are empowered and instructvoke or suspend such authority for cause. ed to pay our portion of such loss or claim. If,
at any time, losses should occur in an amount The power of attorney alleged to have been sufficient to require for their payment any part executed by defendant, being in the form al- of our subscription, hereinafter provided for, leged to have been executed by each sub- we will, upon demand, pay an amount adequate scriber to the Indiana Manufacturers' Recip- to defray our portion of such losses and leave
our subscription intact. *
* This power rocal Association, recited that the purpose of attorney is strictly limited to the uses and was to secure adequate protection against purposes herein expressed and to no other use liability under the Indiana Workmen's Com- or purpose, and is subject to the conditions pensation Act by the exchange of private con- and restrictions prescribed by the Industrial tracts through plaintiff as attorney in fact; Board. * The undersigned hereby make that the subscriber executing it
a subscription of one-half annual premium as
a surplus to be deposited upon demand there“hereby appoints Sherman & Ellis our attorney for with the trustees.” for us in its name as our attorney to make, subscribe, issue, change, modify, reinsure, or can
It is first objected that, even though it be cel contracts exchanging insurance and indemnity and agreements for such exchange of con- granted that a liability of defendant for un
to demand, collect, receive, and paid premiums on his insurance policies is receipt for all moneys due us for credit to our shown, the facts stated only show a liability account as a subscriber, to give, waive or re- to the association, and not to plaintiff, and