Avery v. United States * * * vigore, import a condition. In Green v. O'Conner, 18 R. I. 56, 25 Atl. 692, it appeared that the owner of land conveyed a strip to the city of Providence. The conveyance was in fee, but recited that "this deed is made upon the condition that the said strip of land shall be forever kept open and used as a public highway, and for no other purpose. It was held that the clause did not create a condition subsequent. In Kilpatrick v. City of Baltimore, 81 Md. 179, 31 Atl. 805, the conveyance was of a parcel of land to the city, with an habendum clause as follows: "To have and to hold the parcel of ground above described, unto the mayor and city council of Baltimore aforesaid, and its successors, forever, as and for a street to be kept as a public highway." The land was diverted to another use, and action was brought to recover the property as for a condition broken. The court held that the words were consistent with an intent to repose a confidence in the authorities that they would carry out the purpose of the grantor so long as it was reasonable and practicable, but did not constitute a condition subsequent. In Rawson v. Inhabitants of School Dist. No. 5, cited above, the words, "for a burying ground, forever," in a deed to the town of Uxbridge, were held not to make the estate conditional. In Raley v. Umatilla Co., 15 Or. 172, 13 Pac. 890, a warranty deed to the county, "for the special use, and none other, of educational purposes, and upon which block shall be erected a college or institution of learning," etc., was held to convey an unqualified fee. In Beach v. Haynes, 12 Vt. 15, a conveyance of land in fee to the town of Westford, "for the use of a common, was held to pass an alienable fee; and in State v. Woodward, 23 Vt. 92, a deed to a town, "for the use of the town as a meeting house," was held to pass an unqualified fee. In Taylor v. Binford, 37 Ohio St. 262, it was held that the grantor could not re-enter for condition broken, where his deed was to a township board of education, "its successors and assigns, forever," "for the use of school purposes only," although the property has been sold at public sale to the highest bidder and conveyed by the board. In Watterson v. Ury, 5 Ohio Cir. Ct. R. 347, affirmed by the supreme court upon the opinion of the circuit court, the deed contained a clause, "as a burial ground for the Roman Catholics." It was held that the grantee took a fee-simple estate, and not an estate upon condition. To the same purport are the cases of Curtis v. Board, 43 Kan. 138, 23 Pac. 98; Packard v. Ames, 16 Gray, 327; Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502. If the deed of Case devested the grantor of every interest, and conveyed an unconditional fee, the title thus vested was unaffected by the subsequent city ordinance. The words, "as and for a public street of said city," are to be regarded as an expression of the grantor that the property shall be constituted and maintained as a public street, so long as it shall be reasonable and practical. The ordinance is the action of Davenport, etc., Ry. & Terminal Co. v. Johnson Such an the city carrying out this purpose of the grantor. ordinance was made necessary by the Ohio act of March 18, 1859 (56 Ohio Laws, 57), which provided that no street thereafter dedicated to public use by its owner should be deemed a public street so as to impose responsibility upon the city for its care and maintenance, "unless the same shall be accepted and confirmed by an ordinance specially passed for such purpose. The object of the ordinance is therefore palpable. Its effect was not to qualify the city's title, but to make a public street over and upon property which the city owned in fee. That the title of a city to its streets is property held publici juris for use as streets may be conceded. But if the grantor has parted with all of his title, and the street is lawfully vacated or devoted to some other public use, no right, title, or interest of the grantor is affected, and his heirs have, as such, no interest which is taken and for which compensation may be demanded. The rights of abutters may be affected by devoting a street to other purposes, and they may have such rights as will entitle them to interfere, but the grantor has no such right if, in fact, there is no reverter upon abandonment of use as a street. We cannot hold that the language of this deed so unequivocally imports a right of re-entry upon the discontinuance of this street as to make the title subject to a condition subsequent without violating the cardinal principle of real property, "that conditions subsequent, which defeat an estate, are not to be favored or raised by inference or implication." The judgment is accordingly affirmed. DAVENPORT & R. I. BRIDGE RY. & TERMINAL Co. et al. v JOHNSON. SAME V. HASS. (Supreme Court of Illinois, Dec. 20, 1900.) [59 N. E. Rep. 497.] Town Plat-Erroneous Acknowledgment-Fee in City.*-The plat of a town, having been acknowledged before the clerk of the circuit court, does not convey the fee of the streets to the town, under Act Feb. 27, 1833, "An act providing for recording of town plats"; section 4 providing that it shall be acknowledged before a justice of the supreme court, justice of a circuit court, or a justice of the peace, and section 5 providing that the plat, when acknowledged as required by the act, shall vest the fee of the streets in the town. * * * * * Same-Duty of Commissioners to Acknowledge.-Where a town is laid out by county commissioners, they must acknowledge the plat, under Act Feb. 27, 1833, “An act providing for recording of town plats," section 4 providing that "the plat shall be certified by the surveyor and the county commissioners, and every person whose duty it shall be to comply with the foregoing requisitions shall * acknowledge the same"; the first three sections requiring certain acts of county commissioners who wish to lay out a town, and section 7 providing that where a town has been heretofore laid out, and a plat thereof * *See note to Iron Mountain R. Co. v. Bingham, 4 L. R. A. 622 ; note to Moose v. Carson, 7 L. R. A. 548. Davenport, etc., Ry. & Terminal Co. v. Johnson has not been acknowledged, it shall be the duty of the present county commissioners, or a majority of them, to acknowledge it, under penalty for failure to do so. Street Boundary. A street, with a river as one boundary, extends to the center of the river. Estoppel-Trespass by Railroad.-One is not estopped to object to trespass by one railroad by reason of having allowed other railroads to do so. Error to circuit court, Rock Island county; William H. Gest, Judge. Suits by Walter Johnson and by Frederick Hass against the Davenport & Rock Island Bridge Railway & Terminal Company and another. Decrees for complainants, and defendants bring error. Affirmed. Joseph L. Haas and Sweeney & Walker, for plaintiffs in error. J. T. Kenworthy, for defendants in error. CARTWRIGHT, J. The defendants in error, Walter Johnson and Frederick Hass, filed separate bills in equity in the circuit court of Rock Island county against plaintiffs in error, alleging that complainants were owners of lots fronting on Mississippi street (now called "First Avenue"), in the city of Rock Island, lying between their lots and the Mississippi river on the north; that they were the owners in fee of so much of said street as was situated immediately north of their respective lots to the center thereof, subject only to an easement in the public for the purposes of a street; that the defendants were about to build and maintain a railroad embankment, with railroad tracks, in said street in front of their premises, where they were so vested with the fee, without having obtained, by condemnation or otherwise, any right to appropriate said lands for railroad purposes. The bills were answered with denials of the rights claimed, and the issues were referred to the master in chancery. In each case a stipulation as to the facts was made, and testimony was also taken, and the reports of the master were in favor of complainants. Exceptions were taken by the defendants, which were overruled by the court, and there were decrees for perpetual injunctions against constructing, maintaining, or using any railroad track or tracks on the street in front of complainants' property, unless defendants should obtain the right to do so by grant or condemnation. The cases have been consolidated. The question to be decided is whether the complainants, as owners of lots fronting on Mississippi street (now First avenue), are the owners of the fee where it is proposed to locate and build the railroad tracks, subject to a public easement in the city of Rock Island for the purposes of a street, or whether the fee in the street is in the city of Rock Island, which has granted the right to so locate and build said railroad tracks. If the complainants are the owners of the fee, Davenport, etc., Ry. & Terminal Co. v. Johnson they are entitled to enjoin the defendants from appropriating the street and imposing an additional servitude upon their lands until a grant has been obtained from them or their interest has been condemned and paid for. Bond v. Pennsylvania Co., 171 Ill. 508, 49 N. E. 545. The facts upon which that question turns are as follows: On March 1, 1833, an act of the general assembly was passed appointing John Dixon and Elijah Charles, of Jo Daviess county, and John B. Gum, of Knox county, commissioners to locate a permanent seat of justice for Rock Island county, to be called Stephenson, in commemoration of Col. Benjamin Stephenson. Laws 1833, p. 17. It appears that these commissioners did not make the location, and another act was passed, in force February 12, 1835, by which William Bennett, of Jo Daviess county. Peter Butler, of Warren county, and John G. Sanburn, of Knox county, were appointed commissioners to locate such permanent seat of justice for Rock Island county, and the county seat, when selected and located, was to be called Stephenson. By section 3 it was provided that when said commissioners, or a majority of them, should have agreed upon the place, they should make a report to the county commissioners, and the commissioners, at their next term, should cause the same to be entered upon the records of said court, and the place so selected should be the permanent seat of justice. If the location was on public land, the county commissioners were authorized to proceed to purchase it for the use of the county. Laws 1835, p. 159. The commissioners so appointed located the seat of justice for said county on public land on the N. W. fractional of section 35, in township 18 N., range 2 W., of the fourth principal meridian, and on July 8, 1835, made report thereof to the county commissioners, who entered and purchased said tract of land from the United States. A patent was afterwards issued, dated May 20, 1841, reciting payment by George Davenport, John W. Spencer, and John Vanata, county commissioners of Rock Island county, and conveying said tract to said county. The tract contained 61.95 acres according to government survey, and its northern boundary was the Mississippi river. The land conveyed to the county of Rock Island therefore extended to the center thread of said river. The county commissioners, under authority of "An act providing for the recording of town plats," in force February 27, 1833, laid out said town of Stephenson on said tract of land, and on July 10, 1835, the county surveyor presented a map or plat of said town to the county commissioners' court, properly certified, as required by the fourth section of said act, and the map was also certified by the county commissioners. On the same day the surveyor and county commissioners also acknowledged the plat before Joseph Conway, clerk of the circuit court for Rock Island county. The acknowledgment was not before a justice of the supreme Davenport, etc., Ry. & Terminal Co. v. Johnson court, a justice of the circuit court, or a justice of the peace of said county (the officers named in the act, and authorized to take the acknowledgment), and therefore such acknowledgment was insufficient. Village of Vermont v. Miller, 161 Ill. 210, 43 N. E. 975. If it was necessary to acknowledge the plat, it could not operate as a statutory dedication, but would only grant an easement instead of a fee in any of the streets marked upon it. The plat showed a street marked "Mississippi Street," on the north of the town, extending along the north tier of blocks and next to the Mississippi river, with four wavy, parallel lines on the north indicating the river, and with the name "Mississippi River" written there. The certificate stated with reference to streets as follows: "Each street 80 feet, except Water or Front street, the northeast end of town, is 110 feet wide. at or near the middle of the town or widest part of street 260 feet, at the southwest end of the town 90 feet wide." This street, called Water or Front street, is the one also clled Mississippi street, and is now First avenue. Complainants' lots front on the south side of that street, and on the opposite side is the Mississippi river. In the stipulated facts it was agreed that if, in law, the center of the Mississippi river is the north line of Mississippi street or First avenue, the proposed construction of defendants' railroad is on the south half of said street. The question of law whether the fee in the street has passed from the county of Rock Island to the city of Rock Island, of which the town of Stephenson is a part, depends upon whether the plat of the town was made in accordance with the act of 1833. Under that act the plat would operate as a conveyance if made in compliance with its terms, but it would so operate only in case all the conditions of the act were complied with. Section 5 of the act provided as follows: "The plat or map, when made out and certified, acknowledged and recorded, as required by this act, every donation or grant to the public, or any individual or individuals, religious society or societies, or to any corporation or bodies politic, marked or noted as such on said plat or map, shall be deemed in law and in equity a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, and shall be considered to all intents and purposes as a general warranty against such donor or donors, their heirs and representatives to the said donee or donees, grantee or grantees, for his, her, or their use, for the uses and purposes therein named, expressed or intended, and no other use or purpose whatever. And the land intended to be for streets, alleys, ways, commons, or other public uses, in any town or city, or addition thereto, shall be held in the corporate name thereof, in trust to, and for the uses and purposes set forth, and expressed or intended." If there was a failure to observe the requirements of the statute, and the plat operated as a common-law dedication, a conveyance of complainants' lots bounded by the street would |