Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:

1

On the 30th of November, 1835, one John F. Wight, being the owner of the premises, platted and recorded that part of the east half of the south-east quarter of section 5, township 39, north, range 14, east of the third principal meridian, south of the north branch of the Chicago river, as "Wight's addition to Chicago," the plat being as follows:

On January 3, 1898, W. N. Eisendrath & Co., a corporation, filed its petition in the court below under the Burnt Records act, claiming title to lots 12 and 13 in block 3 and the south-easterly part of lot 1 in block 6, and the strip of land sixty-seven feet wide between lot 13

in block 3 and lot 1 in block 6, as shown upon said plat, and asking to have its title confirmed to all of said property. The city of Chicago and the Paepcke-Leicht Lumber Company, with others, were made defendants. The petitioner claimed title to said lots 12 and 13 by mesne conveyances from John F. Wight, and to the strip between blocks 3 and 6 and to the part of lot 1 by prescription, alleging that it and its grantors had been in the actual possession thereof, adversely to all the world, for more than twenty years prior to filing its petition. It also claimed title to said sixty-seven feet as abutting owner of lot 13 and the south-easterly part of lot 1. The city of Chicago by its answer denied petitioner's title to the sixty-seven feet and claimed the same as a public street. The lumber company also answered the petition, denying petitioner's ownership to any part of lot 1, and setting up title to that lot in itself by mesne conveyances from John F. Wight. This company also filed its crosspetition, asking to have its title to lot 1 confirmed, and claiming the north-westerly half of the sixty-seven feet as abutting owner of lot 1. The original petitioner and the city of Chicago answered the cross-petition, the former setting up the same claim it had made in its original petition, and the city claiming as in its answer to that petition. On a hearing the court found and decreed the sixty-seven feet to be a public street by a common law dedication made by John F. Wight and accepted by the city of Chicago, and that original and cross-petitioners each owned the fee to the center of the street as abutting owners, but subject to an easement in the public. To reverse that decree petitioner and cross-petitioner appeal.

It

The original petitioner has abandoned its claim to any part of lot 1 in block 6, and hence to the north-westerly half of the sixty-seven feet as an abutting owner. still insists, however, that it owns the whole of that strip by prescription; and also that, in any event, it is the owner of the south-easterly half of it as abutting owner

of lot 13. The cross-petitioner joins the city of Chicago in its denial of the original petitioner's title by limitation, but claims, with the latter, that there is no easement over any part of the sixty-seven feet in favor of the public as a street, and it claims the north-westerly half thereof in fee as abutting owner of lot 1.

All parties agree that the plat made and recorded by John F. Wight is not a good statutory dedication of the streets to the public, but it is alleged in the original petition that the sixty-seven feet in controversy "was intended by said John F. Wight to be dedicated as a street for the use of the public, and was offered by the said John F. Wight to the city of Chicago as a street." This allegation was admitted by the city of Chicago, and the master to whom the case was referred to take the proofs, found and reported that "the aforesaid strip of land sixtyseven feet in width between the aforesaid lot 1 in said block 6 and lot 13 in said block 3, in said Wight's addition, was intended by John F. Wight to be dedicated as a street for the use of the public, and was offered by the said John F. Wight to the city of Chicago as a street." No objection or exception was filed by any of the parties to that report. It is, however, averred in the petition that neither the city of Chicago nor the public had accepted said offer, which allegation is denied by the city of Chicago, and, as above stated, the circuit court found that the offer had been accepted by the city.

It is conceded that lots in said Wight's addition to Chicago have been sold and conveyed with reference to the streets as shown by said plat, and it is clear from the allegations of the petition, cross-petition and proofs that lot 1 in block 6 and lot 13 in block 3 were conveyed as fronting on the strip sixty-seven feet wide as a street. We regard it as perfectly clear from the plat that the proprietor, John F. Wight, intended the strip to be an extension of Fifth street, (now called Sangamon street,) and this fact, as we conceive, cannot be made clearer by

argument. All the parties to this suit, as shown by the uncontradicted testimony of all the witnesses, knew and understood that it was a part of that street. From the making and recording of the plat in November, 1835, to the filing of the petition, no assessment for general taxes and no special assessment has ever been levied upon the said strip. It is admitted that at the time of filing its petition W. N. Eisendrath & Co. occupied the same with a tannery establishment, and it and those from whom it purchased the tannery had been in such occupancy since about the year 1874. It clearly appears, however, and without denial, that during all that period such occupancy was by and with the consent of the city of Chicago, much of the time under written leases from it, W. N. Eisendrath & Co. even holding such a lease at the time of filing its petition, and continued to pay rent therefor nearly three months after the petition was filed.

There appears in the record a lease from the city of Chicago to William N. Eisendrath, dated May 1, 1892, conveying all the right, title and interest of the city of Chicago in and to so much of the land covered by Sangamon street as lies between the east line of Dix street and the west dock line of the north branch of the Chicago river, together with the wharfing privilege at the end of said Sangamon street, excepting and reserving (to be always kept free from obstruction for the use by the public) a space twenty feet in width in and adjoining the center of said Sangamon street through said premises to said river, and a space five feet in width entirely across the end of said Sangamon street; expires May 1, 1893; consideration, $750; option to renew the lease. Also a similar lease made in 1894, to expire April 1, 1896, in consideration of $750 per annum, and another dated August 15, 1896, to expire March 31, 1899, in consideration of $500 per annum. These leases, except the last, also contain the stipulation: "And it is further agreed by the parties hereto that this lease shall be terminated at any

time said city may require the use of said leased premises for the purpose of any public improvement."

William N. Eisendrath, the president of the company, himself testified on his cross-examination: "From 1876 on we paid the rent to the city for the use of Sangamon street from Dix to the river,-that is, my father paid it and we re-paid the same to him, and between 1886 and 1891 we paid it ourselves, directly. I don't think we took a lease from the city until five or six years ago, but we paid rent right along, directly and through my father, from 1876 to 1891,-$300 during 1881, up to 1888; and 1889 down to 1891 at the rate of $300 a year. * * * We paid rent in advance up to the 30th day of April, 1898, for this so-called Sangamon street, from Dix street to the river." (The petition was filed January 3, 1898.) The evidence clearly shows that this witness frequently admitted that he had no claim to the street but was only a tenant, and that the city could compel him to remove his buildings at any time; that he procured Paepcke, the owner of lot 1, who had demanded of the city that the street be cleared of the obstruction in 1885, to go with him to the city comptroller's office and withdraw his demand, and that he then asked the comptroller to permit him to remain in the street, and he did not claim in any part of his testimony, upon the hearing, that his company at any time occupied the street adversely to the city. Notwithstanding these facts it is now insisted on behalf of petitioner, W. N. Eisendrath & Co., that its possession of the street has been hostile to or adverse to the city of Chicago so as to ripen into an absolute title in fee simple. This position rests upon the alleged ground that the city had no power to lease the street to it or consent to its occupancy of the same.

Conceding that the city abused its power in attempting to give its consent or to authorize the complainant to obstruct the street, it is impossible to see upon what principle the complainant can be heard to say that its