officers or persons appointed to spread the taxes. Being of this opinion, it follows that the ordinance was not invalid for the reason urged.

The next objection requiring notice is that Maybell Birket, one of the tenants in common of the property, was not notified as required by the statute, and that the interests of appellants, the other tenants in common, are injuriously affected by the omission, inasmuch as, it is said, the appellants would be compelled to pay the entire assessment on the lots to relieve their interest in them from the burden. We are of the opinion that appellants cannot raise this question. We see no reason why they may not pay their proportion of the assessment, and relieve their individual interest in the property therefrom in the same manner as may be done by part owners of lands assessed for taxes under the general revenue laws. Section 71, Act June 14, 1897 (Hurd's Rev. St. c. 120); Lawrence v. Miller, 86 Ill. 502; Le Moyne v. Harding, 132 Ill. 23, 23 N. E. 414.

It is also assigned for error that the tax upon appellants' lots, which was confirmed by the court after trial and verdict, exceeded the benefits the lots would receive by the improvement. This was a question of fact submitted to the jury upon conflicting evidence. The evidence justified the verdict, and no sufficient reason appears why we should set it aside. The judgment must be affirmed. Judgment affirmed.

1. Where, in ejectment, the defendant denied the plaintiff's claim that they derived title through a common source, the plaintiff must prove a better title in himself from a common source, or establish a paramount source of title.

2. The fact that one who made a dedication of property to a city afterwards received_a quitclaim deed for the same property from H., and gave a quitclaim deed thereto to the plaintiff, does not show that H. was the common source of the title of the plaintiff and the city, as a quitclaim deed does not show that the grantee did not have a prior title to the property.

3. Where a plat of land is filed which is sufficient as a common-law dedication of streets, future conveyances of such property made by the grantor are subject to the easement of the public in the streets.

4. Where an objection that it does not appear that the person who certified to a plat dedicating grounds to a city was a surveyor was not made in the lower court, it will not be heard on appeal.

5. A plat dedicating streets to a city is not defective, for not showing the width of streets dedicated to public uses, when they are shown to be "66" wide, and the plat and certificate show that "66 feet" was intended.

Appeal from circuit court, Peoria county; T. M. Shaw, Judge.

Ejectment by Allston Burr against the vil

lage of North Chillicothe. From a judgment in favor of the plaintiff, and from an order overruling a motion for a new trial, defendant appeals. Reversed.

Winslow Evans and Covey & Covey, for appellant. H. C. Pettett and Stevens, Horton & Abbott, for appellee.

CARTER, J. Appellee Burr brought ejectment against the appellant village to recover certain strips of land in the corporate limits of the village, and which had been designated on a plat, and had also been improved and used as streets. The plea was not guilty. Burr, the plaintiff, filed an affidavit that the defendant and he claimed title through a common source, that is, from one Samuel T. Howe,-and defendant filed an affidavit denying that it claimed title through said Howe as a common source with plaintiff, but stating that it claimed title through and from one E. B. Purcell. The case was tried by the court without a jury, and judgment was given for the plaintiff. Defendant then took this appeal.

To prove his case the plaintiff gave in evidence three deeds to the property in controversy and other property: First, a quitclaim deed, dated January 10, 1896, from Samuel T. Howe and wife to E. B. Purcell; second, a quitclaim deed, dated January 20, 1896, from Purcell and wife to Howell Jones; and, third, a quitclaim deed, dated January 20, 1896, from Jones and wife to Allston Burr, the plaintiff. He then rested his case. The defendant then offered in evidence, in proper order, two certain plats, together embracing all of the land in controversy, certified to as owner of the land described therein, and acknowledged by E. B. Purcell in November, 1887. The first plat was certified to by "C. A. Sias, Eng'r," which certificate stated that the plat was a true and correct plat of Santa Fé addition to the city of Chillicothe, as surveyed by him (Sias) on the 11th day of November, 1887, and stated also the starting point of the survey and described the boundaries. The second plat, of other lands, but embracing certain streets sued for, and purporting to be Santa Fé Third addition to the city of Chillicothe, was made in February, 1888, and certified to in substantially the same manner as the first. Each plat was, in the same month it was made and certified, filed for record in the office of recorder of deeds in Peoria county. These plats showed the subdivision of the land into lots and blocks, streets, and alleys, gave the names of the streets, and also, as we think, with sufficient certainty, their width. The lots and blocks were numbered, and their lengths and widths given, as required by the statute. It does not appear that the city of Chillicothe ever accepted the plats of these purported additions, or extended its jurisdiction of the territory platted; but in 1890 the inhabitants of this and adjacent territory established, in the

manner provided by law, the village of North Chillicothe, which then became duly incorporated and organized. Several of the streets as platted were thereafter improved and used as such by the public, and in 1895 the streets and parts of streets now in controversy were opened by the village authorities and plowed, preparatory to grading. This was all done before any of the deeds given in evidence by the plaintiff were made. There was some evidence that some of the land was in cultivation by somebody, and that one of the attorneys who appeared for plaintiff in the trial below objected to the opening of the streets, and threatened to enjoin the village; but the plaintiff did not then have any interest in the land. Previous surveys of the streets had been made according to the plats and to the stakes set by the original survey. The evidence shows that the village authorities were in possession of these streets before the execution of any of the deeds in plaintiff's chain of title. The plaintiff objected to the admission in evidence of the plats-First, because it did not appear that Purcell was the owner of the property when they were made; second, because they were not certified or acknowledged according to law; third, because the widths of the streets and alleys were not shown by the plats; fourth, because it was not shown that the city of Chillicothe accepted the offer of dedication; and, fifth, because the distances, courses, and other marks on the plat were not explained by the certificate of the surveyor. The court admitted the plats subject to the objections, but later in the trial sustained the objections and excluded the plats.

Before considering these objections, it is proper to consider the case as it stood when the plaintiff rested, as shown by the pleadings and proof. The defendant having denied on oath that it claimed title through a common source with plaintiff, and having stated that it claimed title through E. B. Purcell, it was incumbent on plaintiff to prove title in himself as at common law. This he could have done in one of two ways: First, by showing such title derived from a paramount source of title, as from the government; or, second, by proving that he and the defendant did claim through a common source, and that his was the better title. Smith v. Laatsch, 114 Ill. 271, 2 N. E. 59. But plaintiff made no attempt to trace his title back of Howe, nor to prove that Howe had any title, or was in possession claiming title, when he conveyed. Nor did he prove that Howe was the common source of title of himself and the defendant. The mere quitclaim deed from Howe to Purcell, considered in connection with the other two deeds, at most only tended to prove that that deed was the origin of the only title the plaintiff had. But these deeds, in connection with defendant's allegations and proof, did show that they both claimed title through a common source, and that that common source was Purcell. Neither party, under these cir57 N.E.-3

cumstances, did or could deny that Purcell had had title, and as the plaintiff was bound to recover, if at all, upon the strength of his own title and not on the weakness of the defendant's, it devolved on him to prove that his right was superior to the defendant's. But did he do this? As before shown, the plaintiff made no attempt to do so, except to give in evidence the quitclaim deed from Howe to Purcell. This was one step to prove his allegation that Howe was the commor source of title; but, as no proof was offered that defendant also claimed through Howe, this deed was ineffectual to prove a common source, and, as before said, it was, standing alone, no proof of title in Purcell. There was no proof that Purcell was in possession under that deed, to raise the presumption that that was the title under which he held, and, consequently, the title under which both parties claimed. As we said in Littler v. City of Lincoln, 106 Ill. 353 (on page 365): “Quitclaim deeds, and even warranty deeds, do not prove that the grantee had no prior title. It is within every day's experience that persons, out of abundance of caution, take deeds from different parties for the same real estate." The three deeds were made upon a nominal consideration, near the same time, in the state of Kansas, where Purcell, in his deed to Jones, described himself as residing, and they certainly contained nothing in themselves showing how Purcell derived the title under which both parties claimed as a common source. If plaintiff's chain of title from Howe had run through another than Purcell it would be incontrovertible that he failed to show a right of recovery, however weak the defendant's right may have been. But the alleged chain passing through Purcell, thereby, in connection with the defendant's claim, making him the common source of title of both parties, the plaintiff could at most recover only by sustaining the burden he had assumed, of showing that his title from Purcell was better than the defendant's from the same source. We say at most, for it is not necessary to consider whether, having alleged one common source, he could in the proof rely upon another. It is sufficient to sustain the error assigned that the plaintiff did not prove superior title in himself from Purcell.

In Smith v. Laatsch, 114 Ill. 271, 276, 2 N E. 59, 60, this court said: "Prior to the adoption of the present statute regulating the practice in this class of cases, the plaintif in order to relieve himself from the burde or danger, as the case might be, of deducing title from the government of the United States, or some other independent source of title, was bound to show, not only his own claim of title back to the common source, but that of the defendant also, and if, upon this showing, the plaintiff appeared to have the better title he would be entitled to recover, but not otherwise." And on page 279, 114 Ill., and page 62, 2 N. E.: “We are of the opinion that the object, and sole object, of the

legislature in its adoption was to relieve the plaintiff, in cases of this kind, from the burden of proving the defendant's chain of title as well as his own, unless the defendant would deny, by counter affidavit, that he claimed from the alleged common source of title, in which event the burden still remained upon the plaintiff, just as it did before, of proving both chains of title, running back to a common source." But even if it were held that when the plaintiff rested he had established prima facie a right to recover, the plats offered in evidence were sufficient to overcome any presumption raised in his favor. Even if the plats as made and certified were not, under the statute, sufficient to prove a statutory dedication, or a grant by Purcell, the common source of title, of the fee in the streets to the village, they were, with the other evidence, sufficient to establish a common-law dedication to the use of the public, and if the fee passed from Purcell by his deed to Jones, and from Jones by his deed to the plaintiff, it was burdened with the easement in favor of the public, and the village could not be deprived of possession. Maywood Co. v. Village of Maywood, 118 Ill. 61, 6 N. E. 866. These plats were made, certined to, and acknowledged by Purcell, describing himself as owner, and by the surveyor, describing himself as "C. A. Sias, Eng'r," eight years before plaintiff's quitclaim deeds were executed. Inasmuch as both parties claimed through Purcell, the first objection urged, without proof to support it, that he was not the owner when he caused the survey and plats to be made, certified and recorded, should not have prevailed.

Under the second objection urged, that they were not properly certified, it is argued here that the survey could, under the statute, have been made only by a competent surveyor, and that "Eng'r" does not necessarily mean "surveyor." It is a sufficient answer to say that this objection was not made when the plats were offered in evidence, and that, if it had been, the defendant might have been able to give explanatory proof of the technical significance of the term, which would have obviated the objection. Nor do we think the objection should have prevailed that the width of the streets was not stated on or by the plat. The name of each street, and figures denoting its width, are given. But it is said that it is not shown whether the figures "66" denote feet, inches, or chains. The certificates of the engineer and the owner, and the plat itself, taken as a whole, show that the distances, and the lengths and widths of the streets, blocks, lots and alleys, are given in feet. Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269.

The next objection made to the plat is that the offer of dedication was made to the city of Chillicothe, and as an addition thereto, and not to the appellant village, nor, presumptively, to any village to be created or organized after the plat was made and recorded. It is

urged that the owner might wish to have his said lands incorporated within the city of Chillicothe, to which they were adjacent, but not within a separate village to be thereafter organized. We have held in several cases that dedication as a statutory one will not fail because the plat is made and recorded before the incorporation, but that the fee will remain in abeyance until the corporation comes into existence. Village of Brooklyn v. Smith, 104 Ill. 429; Marsh v. Village of Fairbury, 163 Ill. 401, 45 N. E. 236. These plats were made and recorded in 1888, and the village embracing this territory was organized in 1890, and soon after some of the streets were resurveyed and improved, and afterwards, in 1896, those here in controversy; yet it does not appear that the owner vacated the plat or took any steps to revoke the dedication. It is to be borne in mind that the dedication of the use of the streets was to the public, and that the municipality, upon acceptance, became merely the trustee for the public, and held (if a statutory dedication) the fee in trust. In Rhodes v. Town of Brightwood, 145 Ind. 21, 43 N. E. 942, a similar dedication of a park had been made by the subdivision of a tract of land and the making and recording in 1872 of a plat of the Oak Hill addition to the city of Indianapolis. The city did not accept the proposed addition, and in 1876 the town of Brightwood was incorporated, and in 1880 annexed the Oak Park addition to its own corporate territory. The court said: "Another contention made by counsel is that the addition in which Morris Park is situated was made to the city of Indianapolis, and not to the town of Brightwood, and that the town, therefore, had no claim upon the park so dedicated. Counsel forget that the dedication was made for the use of the public, and particularly the property owners and residents in the addition itself. The appellee town is but a trustee for the public. Any individual having a particular interest in the park might have taken the proper steps to maintain the dedication, if the town, as trustee, had failed to do so,"-citing Elliott, Roads & S. 88, and other authorities. We agree with the view there taken, and it disposes of the same question in this case. If the owner had intended that there should be no dedication unless accepted by the city of Chillicothe he could have vacated his plat as provided by law. But this he did not do. While the plat cannot be set up as a model to be followed, we are of the opinion that there was a substantial compliance with the statute, and that it is good as a statutory dedication, and under the statute operated as a grant with warranty of title in fee, by which Purcell and his subsequent grantees are bound and estopped. But, as before said, if the plat and other evidence established only a common-law dedication, the village could not be ousted of its possession by one who has not shown a superior right. Another fact tending to prove a completed dedication, appearing in the evidence but not

referred to by counsel, is that, in 1888, after making and recording the plats, Purcell and wife, by their deed of general warranty, conveyed to others certain of the lots described in the two additions, in which deed the subdivision of the tract into lots, blocks, and streets, and the recording of the plats, are recited.

We are of the opinion that the court below erred in excluding the plats, and in rendering judgment for the plaintiff, and that judgment should have been rendered for the defendant. The judgment will be reversed, and the cause remanded, for further proceedings in accordance with this opinion. Reversed and remanded.

(185 III, 87)

RAWSON et al. v. CITY OF CHICAGO. (Supreme Court of Illinois. April 17, 1900.) MUNICIPAL CORPORATIONS-STREET IMPROVEMENT-VALIDITY OF ORDINANCE-PETITION FOR PARTICULAR KIND OF PAVEMENT.

1. Under Act June 14, 1897, § 7, providing that the board of local improvements in cities having a population of more than 25,000 shall have power to originate a scheme for any local improvement to be paid for by special assessment or special tax, either with or without a petition, the validity of a special assessment for paving in a city of over 25,000 is not affected by the fact that a different kind of pavement was laid from that petitioned for by the property owners.

2. An ordinance for street paving describing the roadway to be paved as that portion of a named street extending from the south line of the "street-railway right of way" on a named street to the north line of the "street-railway right of way" on another street, is not void for indefiniteness, in that, as street railways have no "right of way," no boundary line is fixed in the ordinance, where the railway tracks are already laid, and the railway companies are required by ordinance to keep in repair 8 feet in width where a single track is laid and 16 feet in width where a double track is laid.

Appeal from Cook county court; M. W. Thompson, Judge.

Action by the city of Chicago against Stephen W. Rawson and others for the collection of a special assessment for street improve ments. From a judgment for plaintiff, defendants appeal. Affirmed.

Holden & Buzzell, for appellants. Charles M. Walker, Corp. Counsel, and Armand F. Teefy, Asst. Corp. Counsel, for appellee.

MAGRUDER, J. This is an appeal from a judgment of the county court of Cook county, overruling objections to the confirmation of a special assessment, and confirming said special assessment. The appellants objected to the confirmation of the special assessment upon two grounds.

The first ground is that the board of local improvements, by resolution adopted by them and by the terms of the ordinance recommended by them, provided for the making of a brick pavement, instead of a cedar-block pavement, as petitioned for by the property owners. The contention of the appellants is

that, inasmuch as the property owners presented to the board a petition for a cedarblock pavement, the board had no right to ignore their wishes and substitute a brick pavement for the one petitioned for. The improvement for which the special assessment in this case was levied is the improvement of a street in the city of Chicago. The city of Chicago is a city of more than 25,000 inhabitants. Under section 7 of the act of June 14, 1897, "concerning local improvements," the board of local improvements in cities having a population of more than 25,000 have the power to originate a scheme for any local improvement to be paid for by special assessment or special tax, either with or without a petition. In City of Bloomington v. Reeves, 177 Ill. 161, 167, 52 N. E. 278, 280, this court said: "We find no provision of the act which requires a petition signed by the owners of a majority of the property to be presented before the council can pass an ordinance for a local improvement in cities of a population of 25,000 or more. The requirement applies only to smaller cities. That clause of section 7, supra, which says the board may originate a scheme for any local improvement, either with or without a petition, evidently means that the board may originate a local improvement with a petition where one is required by the act, and without a petition where none is required." In the case at bar, as we understand the record, the board of local improvements adopted a resolution describing the proposed improvement as being a pavement to be made with brick, and caused an assessment of the cost of the improvement to be made upon the basis of the construction of a brick pavement. Inasmuch as the board had the power to originate a scheme for the improvement, either with or without a petition, it was immaterial that a petition was presented to the board requesting the pavement to be made of cedar blocks. Under the terms of section 7, the board seems to have the power to determine the character of the improvement, irrespective of any petition which may be presented to it by the property owners. It is only in cities having a population of less than 25,000 where the ordinance is required to be preceded by a petition of a majority of the property owners, etc. In Whaples v. City of Waukegan, 179 Ill. 310, 53 N. E. 618, we said (page 313, 179 Ill., and page 619, 53 N. E.): "The provision of section 7, to the effect the board shall have the power, with or without a petition, 'to originate a scheme for any local improvement,' has no potency to authorize the boards in cities and villages having a population of less than 25,000 to act in the absence of a petition, but only in such cities to originate a scheme for an improvement which it has by petition been asked to recommend to the city council." Even in cases where such a petition is required to be filed, the petition need only indicate in general terms the im provement desired to be secured by the pe

titioners. The description of the improvement must be incorporated in the resolution adopted by the board, but it is only necessary that the petition should indicate in a general way the nature and locality of the improvement. Patterson v. City of Macomb, 179 Ill. 163, 53 N. E. 617; Whaples v. City of Waukegan, supra. If it be true that the board can originate a scheme for a local improvement, either with or without a petition, in cities having a greater population than 25,000, and that that petition need only indicate in general terms the nature of the improvement, it necessarily follows that the board of local improvements may themselves select the character of the pavement to be laid down; and if, in their judgment, a brick pavement would better subserve the interests of the public and the property owners, they would have the right to recommend an ordinance providing for a brick pavement, instead of a cedar-block pavement. We are, therefore, of the opinion that the objection to the confirmation of the assessment upon the first ground insisted upon by the objectors was not tenable.

In the second place, the confirmation of the assessment was objected to upon the alleged ground that the ordinance providing for the improvement was void on account of indefiniteness in not prescribing the nature, character, locality, and description of the improvement. The ordinance in question describes the improvement as follows: "That the roadway of South Western avenue, from the south line of the street-railway right of way on West Harrison street to the north line of the street-railway right of way on West Twelfth street, said roadway being forty-four feet in width, and also the roadways of all intersecting streets and alleys, extending from the curb line to the street line produced on each side of South Western avenue between said points, be, and the same are hereby, ordered improved as follows," etc. The indefiniteness in description is alleged to consist in the bounding of the termini of the improvement by a "right of way" of the street railroad, when no right of way was granted to the street-railroad company. It is claimed by appellants that the street-railroad company only had a license to lay and operate upon the streets railroad tracks, subject to the duty to keep a strip of the street, defined in width, but located, in repair. In other words, it is said that the alleged "right of way" of a street railroad in the public highway is not a boundary of the local improvement. It is conceded that the railroad company is required to keep in repair a certain strip of the street, which is definite in width. It was stipulated and agreed by the parties to this proceeding that the street-railroad tracks were laid and in use both upon West Harrison street and West Twelfth street. The ordinance pertaining to street railways in those streets granted permission "to lay down, maintain, and operate a single or double track

street railroad," and provided that the company "shall keep eight feet in width where a single track shall be laid, and sixteen feet in width where a double track shall be laid, in good condition and repair." The West Harrison street and the West Twelfth street ordinances were introduced in evidence by the objectors. It may be true that a street railroad has no absolute right of way in a street in the strict technical meaning of the term "right of way." But it is unnecessary to apply to the words "right of way," as here used, the exact legal definition of a right of way. The limits to the right of passage by a streetrailroad company are the corporeal tracks laid in and upon the streets, upon which the cars of the company go and come. It would seem to follow, therefore, that the limits of this proposed improvement were fixed with sufficient definiteness in the ordinance by the use of the words, "from the south line of the street-railway right of way on West Harrison street to the north line of the street-railway right of way on West Twelfth street." Counsel for the appellants say that the north line of the street-railroad right of way may be the north rail, or the north line covered by the cars as they pass along, or the north line of the strip of land to be kept in repair by the company, and that, inasmuch as it may be either one of these three, the description is indefinite. We think it sufficiently appears that the portion of the street to be paved is to begin on the south line of the strip of land in use by the street-railway company on West Harrison street which is to be kept in repair by the company, and is to extend to the north line of the strip of land used by the company and to be kept in repair by it on West Twelfth street. As the street-railway tracks are conceded to be already laid in the street, they constitute fixed boundaries, which could be easily seen and acted upon by the contractors making bids for the work of paving the roadway. We are, therefore, of the opinion that the ordinance in question is not void for indefiniteness, as is contended by the appellants, and that, therefore, the county court committed no error in overruling the objection based upon that ground. Accordingly, the judgment of the county court is affirmed. Judgment affirmed.

(185 III. 101)

HOLLENBECK v. HOLLENBECK. (Supreme Court of Illinois. April 17. 1900.) DEEDS-DELIVERY-POSSESSION-INTENTIONPROOF.

In 1875 a stepfather deeded each of his three stepsons a piece of land. Two of the deeds he never delivered, and the third was in the hands of plaintiff, the grantee, only a few months, when the stepfather got it, and kept it in his possession till his death, in 1897. Plaintiff lived on the land conveyed to him in the deed three years, or till 1878, and collected the rent the two succeeding years, and paid a part of it to his stepfather, in accordance with a contract between them. From 1881 till