#### Henry Schmitz v. Village of Germantown.

Municipal Corporations—A dditions—Streets—Statutory Dedication— Failure to Accept—Estoppel—Instructions.

1. An acceptance- is as necessary to complete a statutory dedication as one at common law.

2. In the case presented, this court holds that the failure.of the municipality to accept the statutory dedication of the street in question estops it to open the same to the injury of a person having had undisturbed possession of a portion thereof for thirty-two years.

[Opinion filed March 1, 1889.]

*285In error to the County Court of Clinton County;. the Hon Jesse Jones, Judge, presiding.

Messrs. Van Hoorebeke & Ford, for plaintiff in error.

Mr. M. P. Murray, for defendant in error.

Green, P. J.

This suit was brought by Henry Schmitz before a justice; a trial there resulted in a verdict and a judgment for plaintiff. The village appealed to the County Court, where the verdict and judgment were against Schmitz, and he sued out this writ of error.

So far as the evidence is concerned, we perceive no essentia] difference between this case and Schmitz v. Kitterholtz, 20 Ill. App. 614, where the. facts and the law applicable thereto are so fully stated in the "opinion as to much abridge our labor in this case. The locus in quo is claimed by defendants in error to be one of its streets in Schwake’s addition to Germantown, the plat of which was acknowledged and filed for record by Schwake March 8, 1853. In the fall of 1852 plaintiff, claiming as owner under a contract of purchase with Schwake, entered into possession of an acre of land embraced in the territory so platted, received and filed for record his deed therefor, March 2, 1853, erected the fence and building on the said premises at the time he took possession, which were torn down by defendant’s street commissioner, and from the fall of 1852, during all the time up to December, 1885, when the alleged trespass was committed, plaintiff remained in the undisturbed peaceable possession of said land, including the locus in quo, maintained and from time to time repaired the said fence and building thereon, and no acceptance by the village of said addition is shown or evidenced by any action of the board of trustees, or by any use, or by opening, repairing, or assuming control over the streets by said village, during a period of more than thirty-two years after said plat was acknowledged and recorded.

We think the doctrine of estoppel in pais applies here, and the village, by non-acceptance of the offer of dedication, *286and its acquiescence for so long a period after its organization in plaintiff’s continued possession and open exercise of dominion over the locus in quo, whereby he was induced to arrange the improvements thereon for a residence and make expenditures and place himself in a position he would not otherwise have occupied, is estopped to now set up its right to open said street as a defense to this action. C. & F. R. W. Co. v. People ex rel. City of Elgin, 91 Ill. 251; C. R. I. & P. R. R. Co. v. Joliet, 79 Ill. 25.

We are also of opinion that an acceptance by the village was necessary to complete the dedication offered by Schwake in 1853, and that an acceptance is as necessary to complete a statutory dedication as it is to complete a common law dedication. Littler v. City of Lincoln, 106 Ill. 353; Hamilton et al. v. C., B. & Q. R. R. et al., reported in Ad. Sheets No. 2, Vol. 124, Ill. Rep., page 235. In the latter case, in the opinion, it is said: “An acceptance is necessary to make a complete dedication under the statute; until acceptance the fee does not vest in the municipality, but remains in the original proprietor; hence, a conveyance of the lots before acceptance carries the title to the center of the street; the fee in the street passed to the grantee by the conveyance; not the fee absolutely, but the fee burdened with the offer of dedication, which had been made, but not accepted. Gebhardt v. Reeves, 75 Ill. 301, went upon the assumption that there had been a complete dedication before the conveyances there were made; no question of acceptance arose in that case. And the court also say, .referring to cases in 11th and 13th and 75th Ill. (cited in the brief of defendant in error in this case), reliance is placed upon a literal reading of the statute that such plat shall be deemed in law and equity a sufficient conveyance to vest the fee simple * * * in trust to and for the purposes sot forth and expressed, and upon expressions which are found in (said cases cited), that, £ in the recording of the plat the fee in the streets eo instanti passes to the corporation.’ ”

“ The acknowledgment and recording of a town plat vests the legal title to the ground embraced by the streets and *287alleys in the corporation of the town; but in these cases there was no question raised or considered as to acceptance of the dedication by the municipality.” It is also further there said: “It is well settled at common law, to make a complete dedication there must be acceptance—not any formal act of acceptance, but there must be user, or some other act indicating acceptance by the authorities, in order to complete the dedication; and this principle applies to statutory dedications, by the making, acknowledging and recording of a town plat, as well as a common law dedication, as has been expressly decided by this court;” citing several cases. We apprehend there can be no doubt as to the meaning of this decision, or that by it the Supreme Court announces the doctrine that an acceptance by the municipality of a statutory dedication, is as necessary to complete it as it is to complete a common law dedication; and it would seem entirely logical if it be conceded the municipality could not open, improve and take control of streets platted in an addition dedicated under the provisions of the statute until the dedication was accepted; that the municipality could not insist upon aright to exercise such control, and direct its officer to tear down a fence and building erected on the space left for a street on the plat of said addition, without acceptance of the dedication, under the pretext such structures were obstructions in a street of the corporation. However this may bej we regard the cases we cite as decisive of the point that an acceptance of the dedication offered by Sc-liwake was necessary to make it complete and vest the fee of the street in the village of Germantown, and such acceptance not having been shown, the defense based on a dedication fails. It follows that the instructions stating the law differently and in conflict with the views herein expressed are, in our opinion, erroneous; that the motion for a new trial ought to have been sustained, and it was error to overrule it and enter judgment on the verdict. The judgment is reversed and cause remanded.

Reversed and remanded.