dissenting:
It seems to be conceded that prior to November 17, 1856, John P. Lusk and John E. Torrence were the owners of the strip of land now in1 controversy. It was then a part of a certain quarter section, which the -owners about that date divided into ten lots, of about ten acres each. A plat of the quarter section, showing the relative situation of the lots, was made .by a surveyor, and was duly recorded in the office of the recorder in the county where the land is situated. The lots were designated on the plat by consecutive numbers, from one to ten, both numbers included. Between these lots is a strip of land containing about six acres. This strip of land is not numbered on the plat as are the lots, nor is the length and width of it stated, as is clone in respect to the lots. The xdivision of the land into lots was.made by the owners for their convenience of making sale of it. It was timber land at the time. The plat made was not intended to be a plat of any town or village, nor was it intended to be an addition to any city, town or village. It was never acknowledged by the owners, as plats of villages or cities are required by statute to be executed and acknowledged. After the plat had been made and recorded, and perhaps on the same day it was recorded, the proprietors sold all of the lots, and executed to the several purchasers deeds conveying the lots as numbered on the plats, and by no other description. The purchasers entered into possession, and since then the several lots have been controlled by them and their assignees. A part of the narrow strip of land dividing the lots sold, is the land in controversy. No sale of any part of this strip of land was made on the day the lots were sold. One of the original owners, John T. Lusk, died December 18, 1857, and the other, John E. Torrence, died shortly thereafter, perhaps between 1860 and 1865. Neither Lusk nor Torrence ever made any conveyance of the land in controversy to any one, and Sarah Gaffeney, plaintiff in this suit, claims to own the title that was in them under quitclaim deeds from their respective heirs. That title so acquired is the one she seeks to maintain in this action. On the other hand, the defendants in possession, Charles S. Clarke and Mary W. Clarke, are the owners, through mesne conveyances from the purchasers at the sale made by Lusk and Torrence, of a number of the lots as they appear on the plat, and they insist that the strip of land intervening the lots was left by the proprietors making the plat, as a road for the use and benefit of such persons as might buy lots abutting on either side, and that by operation of law the conveyance of the lots on either side of the narrow piece of the land carried the title to the center of what they allege was a road or private way. Since then it has become unnecessary for a road, and defendants having inclosed that part next their lots to the center line, this suit was brought to recover that part of the strip of the land which defendants have in possession.
There can be no controversy that plaintiff’s title is the better title, and must prevail, unless the conveyance of the several lots abutting on the narrow strip intervening the lots, by operation of law, carried the title to the center line. No other title is insisted upon. Obviously the conveyances of the several lots could not have the effect claimed for them, unless it shall be ascertained the land on which the lots abutted was left by the proprietors for a public road, and was either granted to or dedicated to the public for a road or highway. This is the vital question in the case.
As before stated, the plat made of the quarter section was not a town or village plat, nor was-it an addition to any city or village, hence it is not a street in the sense the term street is used in the statute, where the fee vests in the corporation or municipality. Nor can it be said it is a public highway or road, in the statutory or any other sense. It was never granted to or dedicated to the public for a highway or public road. The owners, at the time the plat was made, forbade the surveyor to mark it “a road.” Nor is there the slightest evidence it was ever used or accepted by the public for a highway or public road. It is essential to every dedication of land for public use, as, for a highway or public road, there should be an acceptance and appropriation to the uses intended, and until there is such an acceptance, the owner may withdraw his offer and appropriate his land to any other purpose. It is obvious, from the evidence in this case, the public, by its officers, never contemplated appropriating this land to public uses as for a highway or public road. It was not practicable to do so, and it never was used by the public either for a highway or for any other purpose whatever. The assumption this was a highway or public road, has absolutely nothing in its support.
But was it a private way for the use and benefit of the adjoining landholders? Private ways for the use of particular persons are created only by grant, or by user for such length of time as implies a grant. No doubt a dedication of land to public uses may be made by mere verbal declaration, if accompanied by such acts as are necessary for that purpose ; but to make a valid dedication, an intention to appropriate the right to the general use of the public must exist. Where the appropriation, however, is for the use of particular persons only, and made under circumstances which exclude the presumption it was intended to be for public use, it will not amount to a dedication. (Illinois Ins. Co. v. Littlefield, 67 Ill. 368.) Applying these principles, it is plain this was never even a private way. It was never granted for that purpose by the owners, nor does such right exist by prescription, or by user for such length of time as implies a grant. The utmost that can be claimed is, that at the time of the sale the owners gave purchasers a verbal permission to pass over this strip of land when necessary, as a means of ingress and egress to and from such lots as they might buy. That is a mere license, and is revocable at any time. In Forbes v. Balenseifer, 74 Ill. 183, it was ruled a verbal agreement between the several owners of several tracts of land, by which each gives to the others a right of way over his land, amounts to a mere license, revocable at the will of either party. Verbal declarations are not admissible to prove a grant of a private way for the use and benefit of certain persons, and without a grant it is apprehended no such right exists. It was so expressly ruled in Forbes v. Balenseifer, supra.
Treating the permission given purchasers of lots to pass over this strip of land as a mere license, it is quite evident the doctrine insisted upon, the conveyance of land abutting on a highway where the grantor, at the time of such conveyance, owned the fee of the highway, gives the grantee the fee to the center line of the highway, unless where something in the contract indicates a contrary intention, can have no application to the facts of this case. That doctrine is applicable only to streets or highways where the public has acquired, by grant or condemnation, or otherwise, an easement over premises, the fee remaining in the original owner. It has never been applied where certain persons had a mere license to pass over the land of another. There is no principle on which it can be held, under the facts presented by this record, the conveyance of the lots by numbers carried the fee to the center line of another piece of land owned by the grantors. It may be, and doubtless is, true, that where an easement exists, it may pass, without express mention, as an incident to a grant of the adjacent premises; but as was said by this court in Gebhardt v. Reeves, 75 Ill. 301, “there can be no authority found, either in reason or justice, for the proposition the fee in one piece of land not mentioned in the deed passes as appurtenant to another tract granted by an accurate description, giving it a definite and limited boundary. ” In.such cases the principle is, the limits of the lot described mark the boundary," beyond which the title of the grantee does not extend. That is precisely the case here. The land, in this instance, was conveyed by a definite description, and as it abuts on no public highway, nor even upon any private way existing by grant or other lawful right, there is no principle upon which it can be held the grant carried the fee to the center line of another adjoining tract owned by the grantors. It therefore seems plain that plaintiff’s is the better title, and should prevail.