Where, in the chain of plaintiff's title, lands contained within the limits of a plat were conveyed according to the lot and block numbers found thereon, plaintiff is estopped to deny the existence of the plat or its legal effect. 3. MUNICIPAL CORPORATIONS

STREETS AND ALLEYS-TITLE-COMMON LAW PLAT.

Under a common law plat of a town, the fee title to the streets and alleys is in the adjoining lot owners, subject to the right of travel in the public.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1438-1440.] 4. DEDICATION-TOWN PLAT-STREETS-INTENTION-EVIDENCE.

Where a town plat shows a strip extending across an entire subdivision between a railway right of way and blocks, and marked upon its margin with the figures "138," and the surveyor certifies "all measurements are taken in feet and parts of a foot, and the several sizes of the lots and blocks and widths of streets and alleys are marked on their margins as shown by the plat," an intention to dedicate the strip as a street is shown, though the strip was not named thereon as a street, since an intention to dedicate may be established in any conceivable way in which it may be manifested.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 13, 85.] 5. SAME.

Where a municipality claims a strip of land as a street or alley by dedication, it must not only show an intent to dedicate, but also an acceptance by the public.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 64-76.]

6. ADVERSE POSSESSION-EXTENT OF POSSESSION.

In a suit involving title to a strip of land in a street adjoining defendants' lot on the west, but extending further south than such lot, defendants' possession of a small building on the north end of such strip could not give them title by limitation or otherwise to that part of the strip lying south of the south line of the lot. [Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 547-554.]

Appeal from Circuit Court, Vermilion County; James W. Craig, Judge.

Ejectment by Ira Ingraham against Ernest Brown and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

W. M. Acton, for appellants. Buckingham & Troup, for appellee.

HAND, C. J. This was an action of ejectment commenced in the circuit court of Vermilion county by the appellee against the appellants to recover the possession of a small, triangular piece of land, described as commencing at the northwest corner of lot 12, in block 2, in the original town of Bismarck; thence running south along the west line of said lot to the southwest corner thereof; thence south to the east line of the right of way of the Coal Creek branch of the Chicago & Eastern Illinois Railroad Company; thence in a northwesterly direction along the east line of said right of way to a point directly west of the place of beginning; thence east to the place of beginning-situated in the northeast quarter of the southeast quarter of section 20, in township 21 north, range 11 west, of the second principal meridian, in Vermilion county, Ill. The tract is 38 feet wide at its north line on Holloway avenue, and runs south to a point at the place where it strikes the right of way of the Coal Creek branch of the Chicago & Eastern Illinois Railroad Company. The following plat indicates the situation of the tract, and the streets, alleys, and blocks which immediately surround it:

The appellee obtained leave of the trial court to supply such omission, and by leave of this court has filed a certified copy of the amended bill of exceptions with the clerk of this court, so that the title to said premises is shown to be in the appellee, unless the appellants have shown a better title thereto in themselves. To show title in themselves the appellants rely upon a plat of the "town of Bismarck," made on November 15, 1872, by "Alex. Bowman, county surveyor," of which the plat heretofore shown in this opinion is a part, and proof of the fact that they are the owners in fee of lot 12 of block 2 in said town of Bismarck, which adjoins the north part of the premises in question immediately upon the east, it being their contention that they are the owners of the fee to the tract in question, subject to an easement therein of the public to use the tract as a part of one of the public streets of the town of Bismarck.

The plat of the town of Bismarck was not made by the owner of the lands covered by said plat. Said plat is therefore, at most, a. common law plat, and the title to the streets and alleys designated on said plat never vested in said town of Bismarck. It appears, however, that in the chain of appellee's title, lands contained within the limits of said plat were conveyed according to the lot and block numbers found in said plat, the effect of which conveyances was to estop the appellee from denying the existence of said plat and its legal effect. Gridley v. Hopkins, 84 Ill. 528; Louisville & Nashville Railroad Co. v. Koelle, 104 Ill. 455; Henderson v. Hatterman, 146 Ill. 555, 34 N. E. 1041; Smith v. Young, 160 Ill. 163, 43 N. E. 486; Thompson v. Maloney, 199 Ill. 276, 65 N. E. 236, 93 Am. St. Rep. 133. The fee title therefore to the streets and alleys in said town of Bismarck is in the adjoining lot owners, and the fee title, subject to the right of travel in the public to the premises in question, adjoining lot 12 on the west, is in the appellants, if said tract in question lies in one of the public streets of said town of Bismarck. Gosselin v. City of Chicago, 103 Ill. 623; Hamilton v. Chicago, Burlington & Quincy Railroad Co., 124 Ill. 235, 15 N. E. 854; Clark v. McCormick, 174 Ill. 164, 51 N. E. 215; Davenport & Rock Island Bridge Railway & Terminal Co. v. Johnson, 188 Ill. 472, 59 N. E. 497. The controlling question, therefore, in this case is, is the strip of land immediately east of the railroad right of way and adjoining lot 12 of block 2 of the town of Bismarck upon the west, shown upon the foregoing plat, and in which strip the tract in question is situated, one of the platted streets of said town of Bismarck?

The strip runs across the entire subdivision, and while not named upon the plat as a street, it is marked upon its margin with the figures "138," and the surveyor, in his certificate attached to said plat, certifies that

"all measurements are taken in feet and parts of a foot, and the several sizes of the lots and blocks and widths of streets and alleys are marked on their margins, as shown upon the plat." We are unable to understand why the figures "138" were placed upon the margin of said strip, as platted, if it was not the intention of the surveyor to indicate upon the plat, by such figures, the width of said strip, and that it was set apart as a public street. In order to show an intention to dedicate said strip to the use of the public as a street it was not necessary that the strip be named as a street, as such intention may be established in any conceivable way by which it may be made manifest that it was intended to set said strip aside as a public street. "A survey and plat, alone, are sufficient to establish a dedication, if it is evident from the face of the plat it was the intention of the proprietor to set apart certain grounds for public use." Thompson v. Maloney, supra. "Where a plat of a town or city is made and recorded, and lots are designated thereon, with spaces left which fairly indicate that they are set apart to the public, the spaces thus indicated are presumptively streets." Elliott on Roads and Streets (2d Ed.) § 18. From what appears upon the face of the plat of the town of Bismarck, when taken in connection with the certificate of the surveyor who made the plat, we think it apparent the premises in controversy are situated in one of the streets of said town of Bismarck, and that the appellants are the owners of so much thereof as lies west of lot 12.

The questions involved in this case are all considered and decided in the case of Thompson v. Maloney, supra. The appellee relies upon the cases of City of Chicago v. Drexel, 141 Ill. 89, 30 N. E. 774, and Birge v. City of Centralia, 218 Ill. 503, 75 N. E. 1035. Those cases were cases in which the controversy arose between the public and an individual, and not, as here, between two individuals, as was the case in Thompson v. Maloney, supra. Where a city or village claims a strip of land as a street or alley, it must show, not only an intention to dedicate the strip to the public, but an acceptance also on the part of the public.

There is evidence in the record that the owners of lot 12 in block 2 have been in possession of a small building situated on the north end of said tract for more than 20 years. The evidence of possession, however, is confined to that part of the tract occupied by the building, and that possession would not have the effect to give appellants title by limitation, or otherwise, to that portion of said tract which lies south of the south line of said lot 12 of block 2.

The judgment of the circuit court will be reversed, and the cause remanded to that court for a new trial.

Reversed and remanded.

(231 Ill. 285)

MULLOY v. MULLOY et al. (Supreme Court of Illinois. Dec. 17, 1907.) 1. PARTITION-PROCEEDINGS-SUFFICIENCY OF

EVIDENCE.

On objections to the commissioners' report in partition, evidence considered, and held sufficient to show that the value of the lots given by the commissioners to each of the owners were approximately equal in value, and that the partition was fair.

2. SAME SETTING ASIDE Report.

The fact that on the actual partition of land some of the owners would be willing to pay cash for an exchange for some other tract is not ground for setting aside the partition, or for ordering such exchange.

3. SAME-WEIGHT OF EVIDENCE.

The fact that on the actual partition of land some of the owners would be willing to pay cash for an exchange for some other tract is not conclusive evidence that the partition was unfair or unequal.

4. SAME-COSTS.

Complainant's solicitor's fees in a suit for partition of land may not be taxed as costs of the suit, where defendants employed counsel and resisted the partition in the manner reported by the commissioners, though they defaulted in the suit itself.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Partition, § 447.]

Error to Circuit Court, Iroquois County; Frank L. Hooper, Judge.

Suit for partition by Alice Mulloy against John Mulloy and others. From a decree confirming the commissioners' report, defendants bring error. Affirmed in part, and reversed in part.

Stedman & Soelke, for plaintiffs in error. James H. Carey (A. L. Granger, of counsel), for defendant in error.

FARMER, J. This was a bill for partition filed in the circuit court of Iroquois county by Alice Mulloy. The bill alleged that the complainant and her brothers and sisters John Mulloy, Edward Mulloy, Mary Mulloy, and Josephine Welch (née Mulloy), were the owners, as tenants in common, each of the undivided one-fifth part of the real estate described in the bill, and that they derived their title thereto from their deceased father. The brothers and sisters of complainant named, and Joseph Clair, a tenant, were made parties defendant to the bill. No other party or parties had any interest in or to said premises. John and Edward Mulloy appear to have answered the bill, but we have been unable to find their answer either in the abstract or the record. It is not claimed, however, that their answer set up any defense or opposition to the partition of the premises as prayed in the bill. After defaulting the defendants not answering, such proceedings were had that a decree for partition as prayed in the bill was entered, and Fred W. Tovey, J. E. Zumwalt and Charles N. King, entirely disinterested parties, were appointed as commissioners to go upon the land and assign to each of the said owners his share in the land by metes and bounds or other proper description, quantity and quality relatively

considered. They were also empowered to employ a surveyor, and, if they found that a division and partition could not be made without manifest prejudice to the parties in interest, they were authorized to fairly and impartially appraise the value of each piece and parcel of land and were instructed to report to the court. These commissioners divided the land and assigned to each party what they determined was an equal one-fifth of the whole. Plaintiffs in error filed objections to the report of the commissioners, alleging that each of them had not received an equal one-fifth share of the estate; that the commissioners had exceeded their authority in allotting to each one his or her share in the land, and failed to do their duty when they neglected to appraise each piece and parcel of land and show its valuation in their report. They also offered to allow the other heirs to make choice of tracts, and agreed to pay (or accept) in cash the difference represented and shown in their objections to the parties receiving the less valuable tracts. They offered to allow the other heirs to place a valuation on the land, and, if allowed to make choice of tracts, to take or give to the person receiving the less valuable tract the difference in cash to make said tract equal with the others. They prayed that the report of the commissioners be not approved or confirmed, but set for hearing, and, in case the offer made could not be adopted, then that a new appraisement of the estate be ordered, and for such further relief as may seem fair and equitable. The court heard testimony on the objections, and entered a decree confirming the report of the commissioners, finding the value of the property to be $35,000, and allowing a solicitor's fee of $700 to be taxed as costs of the proceeding, and decreeing that Alice, Mary, John, and Edward Mulloy and Josephine Welch each pay one-fifth of the costs of the suit. Plaintiffs in error bring the record before this court for review, and assign as error that the report of the commissioners is inequitable and unjust and should be set aside, and that they, having employed counsel in good faith, should not be required to pay solicitor's fees for defendants in error.

For convenience counsel have designated the tracts of land assigned to each of the parties by numbers, as 1, 2, 3, 4, and 5. Tract No. 1 was the north tract, and it was assigned to Edward Mulloy. Tract 2 was immediately south of tract 1, and was assigned to John Mulloy. Tract 3 was south of tract 2, and was assigned to Alice Multoy. Tract 4 was south of tract 3, and was assigned to Josephine Welch. Tract 5 was south of tract 4, and was assigned to Mary Mulloy. The proof heard by the court in support of the objections to the commissioners' report consisted of the testimony of Edward Mulloy, and a stipulation that John Mulloy would testify substantially the same as Edward Mulloy. Edward Mulloy testified

the value of each of the tracts assigned to him and his brother John was $7,400; that the value of tract 3, assigned to Alice Mulloy, was $7,900; that the value of tract 4, assigned to Josephine Welch, was $8,150, and the value of tract 5, assigned to Mary Mulloy, was $8,000. He testified the tracts assigned to himself and brother were low, wet land, not tiled, having a ditch running through them in an irregular manner, which was the outlet for drainage for a considerable quantity of other land; also, that there were no improvements on the land assigned to himself and brother; that the tracts assigned his sisters were higher and better drained lands and had some improvements upon them. Fred W. Tovey, one of the commissioners who made the partition, on behalf of defendant in error, testified that the soil of the two north tracts was of a better quality than the three south ones, and he considered the two north tracts were worth from $5 to $7.50 per acre more than the south tracts; that the relative value, considering improvements of the several tracts, was substantially the same and the division made by the report was fair and equal in values. Charles M. King, one of the commissioners, -testified that in his judgment the two north tracts were worth from $5 to $10 per acre more than the south tracts. This, we understand, refers to the value of the land without reference to any improvements on any of the tracts. It was stipulated that Zumwalt, one of the other commissioners, would testify the same as Tovey did upon the points covered by Tovey's testimony. The proof shows that the improvements on the south tracts were not of a very substantial or valuable character, and we would not be justified in holding that the chancellor erred in finding the evidence sustained the report of the commissioners and that the partition between the parties was fair and equal, quality and quantity relatively considered.

The court correctly refused to consider the offer of the plaintiffs in error to take tracts assigned to other parties and give in exchange therefor the tracts assigned to them, and pay such other parties what plaintiffs in error testified was the difference in value between the exchanged tracts. It was the duty of the commissioners, under the direction of the court, to make the partition. If the partition, when made, is fair and equal between all the parties, the quality and quantity of the premises relatively considered, it is the duty of the court to confirm it. The fact that one of the parties is dissatisfied, and would rather have the land assigned to one of the other parties than that assigned him, and would be willing to give a sum of money for an exchange, would not justify a court in ordering such exchange or setting aside the report of partition. Nor is such offer conclusive evidence that the partition was unfair or unequal.

In the decree confirming the report of the commissioners, the court, after hearing testimony as to the value of the services rendered by solicitor for complainant, allowed a fee of $700 for said services, and ordered the same to be taxed one-fifth to each of the owners of the land and to be paid as a part of costs of the proceedings. Plaintiffs in error contend this was erroneous, as they employed counsel and resisted the partition in the manner reported by the commissioners. Defendant in error contends that as the right to a partition in the manner prayed in the bill was not contested, and as counsel for plaintiffs in error rendered no services before the filing of the report of the commissioners, the court was justified in taxing the solicitor's fees as costs. A question very similar to this was before this court in Jones v. Young, 228 Ill. 374, 81 N. E. 1042, and it was there held to be erroneous to tax complainant's solicitor's fees as costs. In that case, as in this, the contest chiefly related to the property and the value of it that should be assigned to each of the parties. There, as the proof shows to be true here, the parties. had endeavored to make partition of the premises between themselves before the bill was filed, and, being unable to agree, suit was instituted. We think the opinion in Jones v. Young, supra, is conclusive of the question relating to solicitor's fees in this case, and the court therefore erred in decreeing that the fees be taxed to the parties as costs.

That part of the decree of the circuit court approving the report of the commissioners is affirmed, and that part of the decree taxing the solicitor's fees as costs is reversed and the cause remanded, with directions to enter a decree disallowing said solicitor's fees. The costs of the writ of error will be ordered to be paid one-half by plaintiffs in error and one-half by defendant in error.

Reversed in part and remanded, with dlrections.

(231 Ill. 324)

PETERSON v. CHICAGO CONSOL. TRACTION CO.

(Supreme Court of Illinois. Dec. 17, 1907.) 1. CARRIERS-STREET RAILROADS-INJURIES TO PASSENGERS-QUESTION FOR JURY.

In an action for injuries to a street car passenger alleged to have been thrown from the foot board of a car by a sudden jerk as he was preparing to alight, evidence held to require submission of the question of the carrier's negligence, and the passenger's contributory negligence in stepping on the foot board while the car was in motion, to the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9. Carriers, §§ 1322, 1402.] 2. SAME-INSTRUCTIONS.

In an action for injuries to a passenger, the court charged that plaintiff, a boy of 14, was "only" required to exercise the degree of care which boys of his age, intelligence, and experience might reasonably be expected to use under like circumstances, and if plaintiff was, just before and at the time of receiving his alleged

injuries, exercising such care, then he was exercising all the care the law required of him. Held, that the use of the word "only" was not objectionable as tending to belittle the degree of care plaintiff was required to exercise, nor was the instruction objectionable in the use of the words "just before and at the time of receiving his alleged injuries," as limiting too closely the time within which plaintiff was required to exercise ordinary care.

3. TRIAL MISCONDUCT OF COUNSEL.

Where, after objection had been sustained to a question asked plaintiff by his counsel as to whether he had not seen passengers on the car line on which he was injured use the foot board to ride on, he did not pursue the matter, he was not chargeable with misconduct in attempting to get improper testimony before or prejudice the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 271.]

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; John L. Healy, Judge.

Action by Arthur Peterson against the Chicago Consolidated Traction Company. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.

John A. Rose, Albert M. Cross, and Frank L. Kriete (W. W. Gurley, of counsel), for appellant. Adler & Lederer, for appellee.

DUNN, J. The appellee recovered a judgment for $10,000 in the superior court of Cook county for injuries alleged to have been caused by the appellant. 'The Appellate Court affirmed the judgment, and this further appeal is now prosecuted.

The appellee was riding on an open electric street car of appellant's line on Elston avenue, and wanted to get off at Central Park avenue. When the car reached a point about 300 feet from Central Park avenue, he rose from his seat in the middle of the car, at the same time raising his hand as a signal to the conductor, who was standing on the rear platform, went over to the side of the car. and stepped down on the foot board. Almost immediately he fell from the car, was run over by the trailer, there being two cars in the train, and received the injuries complained of, resulting in the amputation of one of his legs close to the body.

The appellant contends that it was error to refuse its request to instruct the jury to find it not guilty, because there is no evidence of negligence on its part and the evidence shows that the accident was caused by the appellee's own negligence. The negligence charged which the evidence tended to prove was that appellant had allowed its roadbed and tracks to become so defective and unsafe that the cars passing over said defective tracks made it dangerous for passengers riding thereon, and that the plaintiff, having signaled the conductor to stop, while preparing to get off, was thrown from the car by a jerk caused by the defective condition of said track and roadbed. The accident occurred in the afternoon. Appellee was between 14 and 15 years of age, and was familiar with this line

of street cars, having traveled over it frequently. The cars were running 10 or 12 miles an hour. There was evidence that they were rocking and swaying-running roughand that the pavement of wooden blocks between the rails was being repaired at the place of the accident and the rubbish thrown to one side. Appellee testified that, when he got down on the foot board, he had hold of the iron bars at the ends of the seats with both hands; that there was a quick jerk of the car and he fell to the ground. There was evidence to the contrary as to the jolting, uneven motion of the cars, but it was a question for the jury as to whether the swaying, jolting, and bounding of the car as described by the witnesses was attributable solely to its rapid motion over a smooth track or to the rough and defective condition of the track. The evidence fairly tends to support the allegation of the declaration in this respect.

As to the care of appellee. He left his seat in the middle of the car, where he was safe, when within about 300 feet of his destination, which the car would reach, at the rate it was traveling, within 15 or 20 seconds. Whether he gave any signal or not, his getting up from his seat and getting down on the foot board was sufficient notice to the conductor of his intention to leave the car. The car was not crowded-was not full-and the conductor saw him. The conductor did not anticipate danger or he would have warn. ed the passenger, a boy who could hardly be expected to exercise the same prudence as an older person. The conductor did not give any signal to the motorman, and there was no negligence in his failure to do so, for the car was not yet near enough to the crossing. But it is impossible to say as a matter of law that appelle was guilty of a want of ordinary care in leaving his seat and stepping down on the foot board to wait for the car to stop when so near his destination. The question of the negligence of a passenger in standing on the platform or stepping on the foot board of a street car while in motion is a question of fact for the jury. North Chicago Street Railroad Co. v. Baur, 179 Ill. 126, 53 N. E. 568, 45 L. R. A. 108; Denver Tramway Co. v. Reid, 22 Colo. 349, 45 Pac. 378; Sweeney v. Kansas City Cable Railway Co., 150 Mo. 385, 51 S. W. 682.

The appellant objects to the appellee's fifth instruction, which is as follows: "The court instructs the jury that a boy of 14 years of age is only required to exercise that degree of care and caution which boys of his age, capacity, intelligence, and experience may reasonably be expected to use under like circumstances; and if the jury believe, from the evidence, that the plaintiff was, just before and at the time of receiving his alleged injuries, exercising such care, then the plaintiff was exercising all the care the law required of him." It is said the word "only" tended to belittle the degree of care the plaintiff was required to exercise. The object of