The daily Argus. (Rock Island, Ill.) 1873-1877, 1875-12-09

amounting 10 QeQlcatl00.
Here, under certain circumstances, it is
not necessary 10 case of an express dedi-
cation that any special time should trans
pire. In the case of an implied dedication
the law usually, and in this state unequiv-
ocally, requires that the possession should
continue by the public for at least twenty
years; and it takes that time for the pre-
sumption to arise or to be created that a
grant has been made, or matured inten-
ton has been arrived at by the owner
But where an express dedication has been
made it is not necessary that so much time
should transpire. For illustration: If a
man gives out, through his land, what was
obviously intended as highway, and
| fenced it on each side, or otherwise indi-
Gates that it is intended as highway, and
| the public accept it as such and enter upon
| its possession and work it, and if he from
time to time makes conveyances bounded by
such highway, showing an intention to
treat it, on his part, as highway, then it
is not necessary that the grant should run
twenty years in order to raise the pre-
sumption of dedication. But if the pub
lie should, without the consent of the
owner, enter into the possession of his
land, and he simply acquiesces in it, and
there is no overt or affirmative act on his
part, then the possession must continue
| for twenty years.
Here, it is not claimed that there is any
such noting or marking on the plat as
amounts to q dedication of the square in
controversy, under the statute. But while
this plat is not of itself, under the law, to
be considered as grant or conveyance to
the public, there are certain indices upon
the face which you have right to consider
as circumstances tending to show an inten-
ton to dedicate. For instance, the square
is not numbered as the other squares in
this plat are numbered; it lies numbered
between seven ~ and nine (9). The lots
in the blocks facing the square are made to
front upon il and in different manner
from what the lots in the other blocks
front. as you will see by examining the
square, and the squares surrounding this
block. The alleys separate those squares
different from what they do the squares
which do not front upon this block, show.
ing an evident intention that the lots
should front upon this square.
1t may, Iqhink, be pertinently asked if
these owners intended to retain this square
as private property, why did they not mum
Der it in consecutive order with the other
blocks contained in the said square? And
so, too, it may be asked, why did they
make this change in the frontage in the
other lots? These are circumstances, how
ever, solely for your consideration, and upon
which the court does presume to pass.
So, 100, the fact that this block has never
been returned by either Case. Spencer or
Mckay for assessment and taxation, and
has never been SO assessed or taxed, is a
circumstance of much significance as tend
ing to show, not that they 10 longer con-
sidered themselves as owners, but that the
public authorities deemed the square to
be public property, and, as such, not liable
to taxation. The mere fact that the own
err of land fails or neglects to return it or
\ taxation could not very we'll be deemed, OF
itself, au abandonment of ownership, be-
cause many owners of property fail to list
it for taxation, leaving the Assessor tC
make up the lists. But when we find a
given parcel of land, situated as this was
running through long series OF years
without being burdened by taxation, the
, circumstance may be deemed quite signi
ficant and worthy Of consideration as tend
, ing to show that it was not deemed prop
or subject Of taxation, and that it escaped
this common burden By reason of its being
understood at least, to be public property
t The Defendant has also offered proofs OF
divers statements made by Mr., Case, il
' his lifetime, of an intention to dedicate this
: square TO. public use, as public square
with no reservations for any special use t
: which it was TO be applied by the public
t 1t appears that, prior to the great fire o
[ 1871, the deposition Of Mr. Powars, an ole
= resident OF Rock Island, had been taker
ana used in former trial Of this case, il
] this court This deposition was burned il
f that fire. with other records OF this court
y and Mr. Powars having died, evidence ha
e has been taken to show the contents o
r this deposition. This class of proof is ad
i missable, under the circumstances, becaus
e it is the best that can be obtained. YGr
are to receive it with some degree of eau
n ton, however, from the fact that the wit
u nesses are repeating only their rccolectio
e of what the witness has testified to,
o in this instance the witness, Connolly
t. swears that he has notes and memorand
n Of the deposition of Mr. Powars, taken q
, the former trial. and by which his reco
l. LEGION is aided and refreshed. This wi
"A ness, Mr.. Powars. it would appear frol
Or the evidence of his former testimony, acte
b as an auctioueer at public sale of lots
D. the addition made by Case and spence
Ut soon after the addition was laid out, aud
or said sale both Spencer and Case repr
lg sented that said square was a publ
r. square, or assented to such Representa-
nc tons made by Powars as their agent, an
Re it is claimed that these lots were sold vii
the express understanding that the 10
en- fronting on this square were frontir
e. on public square which was
a. be public square for all time T. come al
ne it is claimed to be shown that those lots
On fronting on this public square brought
We larger price in consequence of these repr
all sentatiOnS in regard to the character
D. this public square.
OF There is also the testimony of sever
other witnesses tending to corrobora
be this testimony of Mr.. Powars.
er All this testimony of witnesses, as
er MIR. Cases declarations on or about the tin
It. he was putting the lots in this addition u
:e on the market. are significant, to me.
nc tending to show the actual intention
nc dedicate, and an actual intention. so far
Sc he could make one, by verbal expression
al and by his conduct in the premises.
Oh And so also is the testimony tending
IS show that, from about the year 1855, Il
a city of Rock Island took possession of til
square and made improvements thereo
a treating it as one ofthe public squares of So
to city, without objection by Mr.. Case, {
OF though he lived for about ten years afte
n, wards and in the immediate vicinity of Il
as city at the time. This acquiesence, on h
IS part, in the assertion by the Defendant
!c- a right to control their square, like all Il