BANKS V. OGDEN, 69 U. S. 57 (1864)

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U.S. Supreme Court

Banks v. Ogden, 69 U.S. 2 Wall. 57 57 (1864)

Banks v. Ogden

69 U.S. (2 Wall.) 57


1. A plat of an addition to a town, not executed, acknowledged, and recorded in conformity with the laws of Illinois, operates in that state as a dedication of the streets to public use, but not as a conveyance of the fee of the streets to the municipal corporation.

2. A conveyance, by the proprietor of such an addition, of a block or lot bounded by a street, conveys the fee of the street to its center, subject to the public use.

Page 69 U. S. 58

3. When a street of such an addition is bounded on one side by Lake Michigan, the owner of the block on the other side takes only to the center, while the fee of the half bounded by the lake remains in the proprietor, subject to the easement.

4. When the lake boundary so limits the street as to reduce it to less than half its regular width, the street so reduced must still be divided by its center line between the grantee of the lot bounded by it and the original proprietor.

5. Accretion by alluvion upon a street thus bounded will belong to the original proprietor, in whom, subject to the public easement, the fee of the half next the lake remains.

6. The limitation of the 8th section of the bankrupt act of 1841 does not apply to suits by assignees or their grantees for the recovery of real estate until after two years from the taking of adverse possession.

This was an ejectment brought to December Term 1859, in the Circuit Court for the Northern District of Illinois to recover a lot of ground, A A, formed by accretion on the western shore of Lake Michigan. The case was thus:

Kinzie, being owner in fee of a fractional section of land bounded on the east by the said lake and lying immediately north of the original Town of Chicago, made a subdivision of it in 1833, which he called Kinzie's Addition, and deposited a plat of it in the office of the county recorder, where it was recorded in February, 1834, though not in accordance with certain statutes of Illinois which, it was contended in the argument, give an effect to plats properly made, acknowledged, and recorded that changes the rule of the common law regarding the streets on which the lots are sold.

The north and south street of the subdivision nearest the lake was called Sand Street; the east and west street nearest the north line of the fraction was named Superior Street. The waters of the lake limited Sand Street on the north by an oblique line extending from a point on its eastern side, about a hundred feet below, to a point on its western side about a hundred feet above Superior Street, as indicated on the diagram opposite. The northeastern block of the subdivision, numbered 54, was bounded, on its eastern side, in part by Sand Street and in part by the lake. Sand Street therefore terminated in a small triangular piece of land,

Page 69 U. S. 59


Page 69 U. S. 60

b, c, d, between the lake and Block 54. This triangle was less than thirty-three feet wide at its lower or southern end, and diminished to a point at its northern extremity. Upon this triangle, distinctly shown by the plat, new land was formed in 1844-1845 -- the date must be observed -- by accretion, and extended eastwardly in the direction of the dotted lines more than two hundred feet. The question was to whom did this new land belong?

In 1842, Kinzie had been declared a bankrupt under the bankrupt act of 1841, and his whole property passed of course by operation of law to his assignee.

Under this title, the assignee claimed, subject to public use as a street, the eastern half of the triangle, and the newly formed land as accretion. Acting upon this claim, he sold, under petition and order of the district court, made in 1857, part of the accretion, being the land in controversy, to one Sutherland, who conveyed to Banks, plaintiff in the ejectment. Of course this newly formed land had not been included in the assignee's inventory of the bankrupt's effects.

On the other hand, Ogden, the defendant, deriving title by regular conveyance in 1833 from Kinzie, to that part of Block 54 to which the triangle was adjacent, conceived that the fee of the whole triangle, subject to the public use, passed to him with the land bounded by it. His theory was that Sand Street, which was sixty-six feet wide below its meeting with the lake, continued sixty-six feet wide to its northern termination, and that the whole triangle being everywhere less than thirty-three feet wide, was west of the middle line of the street, and therefore belonged to him as owner of the adjoining land. As the legal result of these propositions, he claimed the whole accretion as formed upon land of which he held the fee.

It is necessary here to state that the bankrupt act, under which Banks, the plaintiff, claimed, enacts, by its eighth section, that

"No suit at law or in equity shall in any case be maintained by or against the assignee of the bankrupt touching any property or rights of property of the bankrupt,

Page 69 U. S. 61

transferable to or vested in him, in any court whatever unless the same be brought within two years of the declaration of bankruptcy, or after the cause of suit shall have first accrued."

At what date Ogden, the defendant, went into possession did not appear. The bankrupt act (§ 10) also enacts that all proceedings in bankruptcy shall, if practicable, be brought to a close by the court within two years after a decree.

Upon this case, the court below instructed the jury that the law was for the defendant, and, judgment having been so entered after verdict, the case was now before the court on error.

Page 69 U. S. 67

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