dissenting:
A motion has been made in this cause by appellee to dismiss the appeal for an alleged want of jurisdiction in this court. This motion was reserved to the hearing of the cause.
It is alleged by appellee, that no freehold is involved, and that, therefore, this appeal should have been taken to the Appellate Court. I think that a freehold is involved, and that the appeal has been properly brought here.
A freehold is involved, not only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, but also in cases where the title to a freehold is so put in issue by the pleadings, that the decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate. (Sanford v. Kane, 127 Ill. 591; Malaer v. Hudgens, 130 id. 225). Any interest in lands in the nature of a perpetual easement, when created by grant, or by any proceeding which is in law equivalent to a grant, constitutes a freehold. (Chaplin v. Comrs. of Highways, 126 Ill. 264).
This proceeding is brought under the act of May 29, 1879, “in relation to the disconnection of territory from cities and villages,” the first section of which provides “that whenever the owners representing a majority of the area of land of any territory within any city or village, and being upon the border and within the boundary thereof, and not laid out into city or village lots or blocks, shall petition the city council of such city, or the trustees of such village, praying the disconnection of such territory therefrom; such petition shall be filed with the city clerk of such city, or the president of the trustees of such village,” etc. (Hurd’s Stat. 1899, pp. 294, 295).
The present petition for mandamus alleges that appellee is the owner in fee simple and the sole and absolute owner of the premises sought to be disconnected and of the entire area thereof. The answer denies that appellee is the owner in fee simple of the premises and the sole and absolute owner of the entire area thereof. The statute contemplates that the petition, to be filed with the city council for the disconnection of the territory, shall be presented by the “owners,” etc. The fact of ownership is thus made material by the statute itself, and, in this case, the allegation of ownership by the petitioner is denied by the answer. The title of the petitioner is thus directly put in issue by the pleadings. In addition to this, it seems that the premises soug'ht to be disconnected were originally platted into lots and streets and alleys; and that appellee introduced a deed of vacation for the purpose of showing that the portion of the plat, embracing the territory sought to be disconnected, was vacated. The determination of the question, whether or not the premises sought to be disconnected were actually laid out into city lots, depended upon the validity of the deed of vacation. If the plat was valid either as a statutory or common law dedication, and there was an acceptance by the city, then either the fee simple title to the land embraced in the streets and alleys, or an easement in such streets and alleys, was vested in the city; and if the deed of vacation was valid, then the city was divested of its interest in the streets and alleys, whether such interest was a fee simple title or a mere easement. In any view of the case, therefore, it would seem that a freehold is involved; and, this being so, the motion to dismiss the appeal ought to be overruled.