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, 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-'5-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, 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.
Mr. Fuller, for Ogden, defendant below and in error.
1. The first question is, whether or not Kinzie had any title remaining in him to any land east of Block 54, after making and recording the plat of Kinzie's addition, and the conveyance of 1833?