Opinion of the Court.

upon to survey the northwest quarter of the northeast quarter, containing forty acres, more or less, he would ascertain the southern line of the quarter by measuring the west line of the quarter section and dividing it in the middle, then measuring the east line of the quarter section and dividing it in the middle, and run a line through from one point to the other, so that if the west line of the quarter section was 26224 feet long he would make the west line of the quarter quarter one-half of that, and make the south line of the quarter quarter that many feet south of the north line. That is the correct principle in surveying."

The witness McLennan, a surveyor of thirty years, testified that "if this northeast quarter of section 3 be subdivided into four quarters by dividing the quarter section by equally distant lines, such a survey would locate 41st Street in exactly the position where it is now occupied by the village, and in that case the true line between the northwest quarter and the southwest quarter of this northeast quarter of the quarter section would be in the centre of 41st Street as now laid out and occupied." Defendant's other witnesses testified to the same effect. Several exceptions were taken to rulings of the court below during the progress of the trial, and also to the general charge to the jury. The jury returned a verdict in favor of the defendant upon which judgment was rendered. The plaintiff then sued out this writ of error.

The first assignment of error, which we think necessary to consider, relates to the following charge of the court:

"If you believe from the evidence that the centre of the street is the centre east and west line of the quarter section, then you are also instructed that it was and still is the true boundary line, and that the plaintiff is not entitled to the land described in the declaration on the theory that the Greeley survey was correct.”

He preceded this charge by the following statement:

"In 1873 the village of Hyde Park laid out and opened 41st Street sixty-six feet wide from Grand Boulevard to Vincennes Avenue, the centre of which was a line equidistant from the north and south lines of the quarter section, on the theory that

Opinion of the Court.

this line was the true east and west boundary between the four quarters of the quarter section and the true southern boundary of the McKey tract."

In our opinion that instruction was erroneous. It in effect directed the jury to find that the centre of the street, which is a line equidistant from the north and south lines of the quarter section, is the true southern boundary of the McKey tract, and that the plaintiff was not entitled to recover the premises described in the declaration. The question in this branch of the case is, whether, as is contended by the plaintiff, the line designated in the plat of partition, adopted by the decree of the Chancery Court of Cook County, and approved by the president and board of trustees of the village of Hyde Park, is the true southern boundary of the McKey tract, or whether, as insisted by the defendant, the centre line of 41st Street is that boundary.

The facts adduced by the plaintiff in support of his contention are, that the whole of the northeast quarter of section 3 was owned by the canal commissioners; that it contained, as shown by the plat of the governmental survey, 157, acres; that there was never any official subdivisional survey of that quarter; that the canal commissioners, by six different deeds, conveyed to different parties and in different quantities the whole quarter section, 80 acres in the north part of the quarter and four times 1936 or 77236 acres in the south part; that S. S. Greeley, a surveyor of forty years' experience, employed by the court commissioners in the partition suit, with those deeds before him, proceeded to survey the property into subdivisions, and, as he testified, by tracing the lines of the various subdivisions just as the canal commissioners seemed to have placed them by their deeds, and, locating it "exactly as it was originally subdivided," he fixed the boundary line twenty-three feet south of that indicated by the centre of the street; and that the line thus certified to by him, adopted by the court, and approved by the president and board of trustees of the village of Hyde Park, coincided exactly with an ancient dividing fence between the McKey tract north and the Bowen tract south, running across the western half of the quarter section,

Opinion of the Court.

which, by its rotted condition, furnished a strong presumption that it had been built there by the original purchasers in accordance with a survey made upon the same principle as the one on which the partition plat was prepared.

The evidence as to the true southern boundary is at least conflicting; and its weight and value was a question to be determined by the jury.

Assuming that the rule laid down by the court is the usual one prescribed by the government for the direction of surveying officers in subdividing sections of the public lands for disposal under the public land law, it does not necessarily relate to the subdivision of private lands by the owners after they have been granted by the government without official subdivisions having been made. If the northeast quarter of section 3 had been subdivided by the surveying officers of the United States and recorded on the plat prior to the grant to the State, such general description as that contained in the deed from the canal company to Peck might properly be presumed to convey only an official quarter of the quarter section. But in the absence of such official subdivisional survey the intention of the parties, as to the amount of land conveyed, must, when ascertainable, be recognized and carried out. think, therefore, the court erred when in its charge it withdrew from the consideration of the jury the evidence which had been submitted, very properly, we think, tending to prove, both by the location of the old fence, and by the deeds of adjoining lands executed by the canal commissioners, the southern boundary line of the premises in dispute.

Another assignment of error urged by counsel for plaintiff is, that the court erred, in giving the following charge to the jury: "If you believe from the evidence that in 1874, when the plaintiff attained his majority, he knew of the action of the village of Hyde Park in laying out, opening and improving the street, and that thereafter and until the partition suit was commenced, in 1881 or later, the street was maintained and used with his knowledge and without objection by him, you are authorized to infer that he consented to a dedication to that use of so much of the McKey tract as is embraced within the present limits of the street."

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This instruction was repeated in the following more unqualified language: "The plaintiff became of age in 1874, and if the village of Hyde Park took possession of this strip of land in 1873, and he knew of that possession and the continued use and improvement of the street and made no objection; if with full knowledge of everything that was done from 1874, when he was of age, until Mr. Greeley informed him for the first time that he was the owner or part owner of the 23 feet, then he cannot recover as against the village of Hyde Park."

However correct technically, as an abstract proposition, the first part of this charge may be, we do not think the last paragraph of it, above quoted, states the law of Illinois as to what constitutes a dedication of real property in that State, as interpreted by her Supreme Court. In City of Bloomington v. Cemetery Association, 126 Illinois, 221, 227, 228, the court laid down the principle that mere "non-action will not raise an implication of an intention to dedicate private property to public use, nor will it estop the owner to deny such intention." After repeating the doctrine in the language of preceding cases, the court proceeded thus: "But it is said that he, and his grantee, the plaintiff, should be estopped to deny a dedication because of the public user of the land in question as a part of the street without objection on their part. Had the plaintiff, or its grantor, by any equivocal overt acts or declarations, given evidence of an intention to have the land in question included in the street, and thereby induced the public to use and the city to improve it as a part of the street, possibly the doctrine of estoppel might have been invoked. No such acts or declarations however are shown. All that is proved is mere non-action on their part, or, in other words, a mere omission to assert their title as against the public. Mere non-action will not raise an implication of an intention to dedicate private property to public use, nor will it estop the owner to deny such intention." See, also, Herhold v. City of Chicago, 108 Illinois, 467; Peyton v. Shaw, 15 Bradwell (Ill. App.) 192.

In Kyle v. Town of Logan, 87 Illinois, 64, 66, 67, the court states the same doctrine as follows: "In order to justify a claim that title to a tract of land has been divested by dedi

Opinion of the Court.

cation, the proof should be very satisfactory, either of an actual intention to dedicate or of such acts and declarations as should equitably estop the owner from denying such intention. The owner of the land must do some act, or suffer some act to be done, from which it can be fairly inferred he intended a dedication to the public. Acquiescence, with knowledge of the use by the public, without objection, is not, as held by the Circuit Court, conclusive evidence cf a dedication, for it may be rebutted. The second instruction for appellees, announcing this principle, was erroneous. A dedication, from an user of twenty years, and for a shorter time, may be presumed, but it is not conclusive. The owner might show any fact which would overcome the presumption."

In City of Chicago v. Johnson, 98 Illinois, 618, 624, 625, the court laid down the doctrine on this subject as follows: "A dedication of private property to public uses will not be held to be established, except upon satisfactory proof, either of an actual dedication, or of such acts or declarations as should equitably estop the owner from denying such intention. This proposition is so clearly the law, it needs the citation of no authorities in its support.".

In the still earlier case of. McIntyre v. Storey, 80 Illinois, 127, 130, the court said: "A dedication of the right of way for a highway may be variously proven. It may be established by grant or written instrument, or by the acts and declarations of the owner of the premises. It may be inferred from long and uninterrupted user by the public, with the knowledge and consent of the owner; but this court has had frequent occasion to say, there must be a clear intent shown. to make the dedication. The evidence offered for that pur pose should be clear, either of an actual intent so to do, or of such acts or declarations as will equitably estop the owner from denying such intent;" citing Marcy v. Taylor, 19 Illinois, 634; Kelly v. City of Chicago, 48 Illinois, 388; Godfrey v. City of Alton, 12 Illinois, 29.

In City of Chicago v. Stinson, 124 Illinois, 510, 513, 514, the court said: "Before title can be divested by dedication, the proof must be very satisfactory either of an actual

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