the word "lands," as used in the fifth clause, or to construe it as meaning proceeds from the sale of lands. The decree of the circuit court, sustaining the demurrer and dismissing the bill for want of equity, is affirmed. Decree affirmed. (262 III. 101) DOSS, State's Atty., v. BUNYAN et al. (Supreme Court of Illinois. Feb. 21, 1914.) 1. DEDICATION (§ 15*)-INTENT-NECESSITY. In order to constitute a dedication of lands for a public street, the grant must unequivocally show that the landowner intended to donate his property to public use. [Ed. Note.-For other cases, see Dedication, Cent. Dig. § 13; Dec. Dig. § 15.*] 2. DEDICATION (§ 31*)-ACCEPTANCE-NEJES SITY. An acceptance of an offer of dedication must be shown before land can be held to have been dedicated to the public. [Ed. Note. For other cases, see Dedication, Cent. Dig. §§ 64, 65; Dec. Dig. § 31.*] 8. DEDICATION (§ 29*)-OFFER-WITHDRAWAL. The conveyance of land offered for dedication is a withdrawal of the offer, and the public cannot thereafter accept it. [Ed. Note. For other cases, see Dedication, Cent. Dig. § 79; Dec. Dig. § 29.*] 4. HIGHWAYS (§ 2*)-ACQUISITION BY PRESCRIPTION-STATUTES. Road and Bridge Act, § 1, enacted in 1872 (Laws 1871-72, p. 675), declaring that all roads used by the public as highways for ten years should be public highways, which was changed by the revision of 1883 (Laws 1883, p. 137) and amendment of 1887 (Laws 1887, p. 263) so as to declare that all roads which had been used by the public as highways for 15 years should be public highways, did not change the common-law requirements for the acquisition of a road by prescriptive title or by adverse user. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 3; Dec. Dig. § 2.*] 5. HIGHWAYS MENTS. (§ 1*)-PRESCRIPTION-ELE To establish a highway by prescription, the user must be adverse, open, notorious, exclusive, continuous, and uninterrupted for the statutory period. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*] 6. HIGHWAYS (8 17*)-ESTABLISHMENT BY PRESCRIPTION-EVIDENCE. In a suit to enjoin the use of an alleged public road, evidence held insufficient to show that the public had acquired the road by prescription but that the user had been permissive. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 24; Dec. Dig. § 17.*], Appeal from Circuit Court, Piatt County; W. G. Cochran, Judge. Bill by W. A. Doss, as State's Attorney, against Charles A. Bunyan and another. From a judgment for complainant, defendants appeal. Reversed and remanded, with directions. DUNN, J. The controversy in this case is about the existence of a public highway in the village of Hammond. The circuit court of Piatt county entered a decree enjoining the appellants from continuing the erection of a building on certain land alleged to be a public street and requiring them to remove the foundation already laid. Since the decree, in our judgment, is not supported by the evidence, we have not considered the other ques tions which have been argued. On June 23, 1872, the Bloomington & Ohio Railroad Company acquired title to a strip of land 100 feet wide across the west half of section 36, town 16 north, range 5 east of the Third principal meridian, being 50 feet on each side of the center line of its railroad. This title through mesne conveyances became vested in 1889 in the Wabash Railroad Company. In July, 1873, John K. Warren and Orlando Powers caused a part of the southwest quarter of said section 36 to be surveyed and a plat thereof to be made, which was filed and recorded in the recorder's office of Piatt county as a plat of the town of Hammond on July 22, 1873. The following is a substantial copy of a part of that plat, omitting the subdivision of the blocks into lots: Hugh Crea, Hugh W. Housum, and McMil- On October 22, 1875, John K. Warren and len & McMillen, all of Decatur, and Carl S. Orlando Powers and their wives conveyed to Reed, of Monticello, for appellants. Le For- the Chicago & Paducah Railroad Company a gee, Vail & Miller, of Decatur, and Herrick strip of land, lying along the east side of the & Herrick, of Farmer City, for appellee. I right of way of the railroad company, 30 For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes feet wide and extending from the south side, tending still further east. Further north, between Third and First streets, were a lumber shed, a coal shed, and a grain office, with scales, on the east side; the latter being just south of First street. These structures were occupied by tenants of the railroad company under leases from the latter for parts of the right of way, including parts of the ground in controversy, though the buildings themselves, with the exception of the elevator, were west of the east 30 feet of the right of way. First street, Third street, and Fifth street crossed the railroad but Second street and Fourth street did not. The right of way of the railroad company was not fenced there, and the portion of it which is now in controversy was the only means of access from any of these streets to the elevator and lumber and coal sheds for persons having occasion to transact business with the railroad company's tenants there, or to haul grain, lumber, or coal to or from those places. It was constantly used for those purposes. No business or dwelling houses were built facing this strip. A row of half a dozen maple trees was set out many years ago south of First street and about four feet west of the east line of the strip in question. Between these trees and the lot line was a footpath made of cinders and ashes, with some loose boards laid down to walk on. Who set out the trees or first made the cinder walk the evidence does not disclose. A dwelling was built in 1883 fronting south on Second street, and the front part of it was used as a store. The dwelling was afterward moved away and the store building moved back and used for a tool house. On the opposite corner was a building fronting north on Second street, which was built in 1878, and five or six years later began to be occupied as the post office and continued to be so occupied for eight or ten years. There were some hitch racks on Second street sufficient to ac Appellee insists that the evidence estab-commodate three or four teams, and there lishes a highway by prescription and shows user by the public as a highway for 15 years, which he insists, without more, constitutes the place a highway by virtue of section 1 of the Road and Bridge Law. The railroad was built soon after the conveyance of the right of way, and the railroad company built an elevator about 30 feet square on the east side of the track, between Third and Fourth streets. When the town was first laid out the side track was on the west side of the main track and that side was used for loading, but when the elevator was built a side track was built on the east side and it was used more than the other. This elevator remained there for a number of years and was finally sold and removed and another was built a little further north, between Third and Fourth streets. This was afterward sold and torn down and another was built further south, between Fourth and Fifth streets. All these elevators were east were other hitch racks on B street and on Second street east of B street, but not on the strip in question. First street was the main entrance to the village for people coming from the west, and they have always used, without objection, this strip, which gave the most convenient access to the hitch racks on Second street west of B street, and to the post office so long as it was located on Second street. Occasionally the street commissioner of the village has had the tract dragged and leveled, and this work has been paid for by the village. One commissioner stated that he did this 20 years ago, but the other testimony of this character does not go back of 1900. Another commissioner testified that he plowed two furrows on the east side of the tract. There is no testimony that any work was ever done by the authorities of the village amounting to an improvement of the strip as a highway. Whatever was done was merely for the temporary convenience of these various amendments was to change the time within which a highway might be established by prescription but not to do away with any of the other requirements for that purpose. There is no difference between the use of a road as a public highway for 15 years now required to establish a highway, and the use for 20 years required under the common law, except the difference in time. controversy had been used principally to accommodate the lumber, coal, and grain business of the tenants of the railroad company. The appellant Bunyan testified that he had paid draymen to drag and level it and had paid for hauling in a good many loads of dirt, ashes, and cinders. About eight years before the hearing, Suffern & Hunt, who were operating the elevator, and the railroad company, put on the strip several car loads of gravel, distributed along its whole length down to Fifth street. They also put in a five-inch tile to drain the strip. In 1911 an ordinance was passed by the village trustees for the construction of a sidewalk on the south side of First street from the northwest corner of block 5 west to the east side of the Wabash railroad tracks, to be paid for by special taxation of lots touching upon the sidewalk. This walk extended only from the east side of the 80-foot strip east of the railroad track to the track, and no lot adjoined the sidewalk except that strip. In 1912 the appellants, having obtained from the railroad company a lease of all the tract east of the railroad from First street to Third street, were preparing to erect a building covering the tract so as to exclude the public from any use thereof, when the bill in this case was filed and a preliminary injunction was issued restraining them from proceeding with the building. In the lease it was stated that it was "subject to whatever rights the public may have, if any, through the above-not refer to the statutes specifically, but the described premises." This clause was inserted, as the officer of the railroad company under whose direction the lease was prepared and Mr. Bunyan testified, because the claims which are now made in regard to the public rights became known to such officer after appellants' intention to erect the building was announced. [5] The question of prescription has frequently been before this court since the adoption of these statutes, and the decisions have uniformly been that to establish a highway by prescription the user must be adverse, open and notorious, exclusive, continuous, and uninterrupted for the period required by the statute. Town of Brushy Mound v. McClintock, 150 Ill. 129, 36 N. E. 976; Township of Madison v. Gallagher, 159 Ill. 105, 42 N. E. 316; O'Connell v. Chicago Terminal Transfer Railroad Co., 184 Ill. 308, 56 N. E. 355; Rose v. City of Farmington, 196 Ill. 226, 63 N. E. 631; Road District v. Beebe, 231 Ill. 147, 83 N. E. 131; City of Princeton v. Gustavson, 241 Ill. 566, 89 N. E. 653; Palmer v. City of Chicago, 248 Ill. 201, 93 N. E. 765. This was the law in regard to prescription before the passage of any of the statutes referred to, and there is no reason to suppose that such statutes referred to any different use as a public highway from that which had before been necessary to the creation of the public rights. It is true the cases cited do statute has been in force for many years, and it is not to be supposed that court and counsel in all these cases would have failed to have it in mind. In some the court evidently did have the statute in mind. The cases of Township of Madison v. Gallagher and Road District v. Beebe, supra, and Village of Peotone v. Illinois Central [4] The public has traveled over this tract Railroad Co., 224 Ill. 101, 79 N. E. 678, are at will for many years, more than the num- cited as definitely holding that the statute ber required by the statute for the establish- was intended to provide a new method of ment of a highway by prescription, without creating a highway, by use alone, without objection or interruption by the owner, and reference to the character of such use as perthe appellee insists that this fact alone con- missive or adverse. We do not so understitutes the tract a highway under the star-stand those decisions. In the first of them it ute. In this state a highway can be estab-is said that the sole claim of the appellant lished only by the method provided by stat- is that the public acquired title to the road ute for that purpose, by dedication or by as a public highway by prescription, and the prescription. A continuous user for 20 years opinion then goes on to state that the generwas necessary at common law to the crea-al rule is that to establish a public highway tion of a highway by prescription. Town of by prescription there must have been the use Lewiston v. Proctor, 27 Ill. 414; Gentleman of it by the public for 20 years, and such use v. Soule, 32 Ill. 271, 83 Am. Dec. 264. This must have been adverse, etc. It was held continued to be the law of this state until that there was a preponderance of evidence in 1872, when the Legislature, by section 1 in favor of a prescriptive right. The statute of the Road and Bridge Act, declared that is referred to, but it is not stated that the roads used for 10 years should be public "use as a public highway" need not be under Lighways. Laws of 1871-72, p. 675. In the a claim of right and adverse. It is held that revision of the Road Law in 1883 it was de- if it is adverse the objection or consent of clared that all roads used by the public as the owner is immaterial. In the case of highways for 20 years were public highways. Road District v. Beebe an instruction which Laws of 1883, p. 137. In 1887 this law was told the jury that the use of a road by the amended and the time was reduced to 15 public for a period of 20 years was sufficient years. Laws of 1887, p. 263. The effect of to establish a public highway, though the not be construed to give the son an estate in fee under the rule in Shelley's Case by construing the word "children" as equivalent to "heirs" the word "children,' as used in the will, being so used to distinguish that class from the son's heirs at law. WORDS [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. § 608.*] 2. WILLS (§ 495*)-CONSTRUCTION AND PHRASES-"CHILDREN. The word "children" ordinarily denotes immediate offspring, and will not be construed to include grandchildren, in the absence of nec road may not have been worked or otherwise recognized by the authorities as a public road, was claimed to be erroneous because it was not qualified by a statement that such use must be adverse, exclusive, continuous, and under claim of right, but it was held that, inasmuch as the jury were otherwise fully instructed as to the character of the use necessary to establish the public highway, they would understand that the use of the road by the public for 20 years mentioned in that instruction was such a use as was necessary implication to that effect; the word being used as a description of persons, and techessary, under other instructions given, to nically being a word of purchase and not a word create a highway by prescription. In Village of limitation. of Peotone v. Illinois Central Railroad Co., supra, the question of the character of user required under the statute is not discussed, but it is said that the evidence established a case of common-law prescription. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1061-1064; Dec. Dig. § 495.* vol. 2, pp. 1115-1141; vol. 8, p. 7601.] For other definitions, see Words and Phrases, 3. WILLS (8 608*)-ESTATE DEVISED-RULE IN SHELLEY'S CASE. The rule in Shelley's Case applies only to limitations in which the word "heirs" is used, unless it clearly appears that testator used some other word to mean "heirs," and the word "children" is not ordinarily equivalent to "heirs" so as to bring a devise within the rule. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. § 608.*] 4. WILLS (8 617*)-ESTATE DEVISED CHASE BY DEVISEE. PUR [6] The evidence here as to user is that it was wholly permissive. The tenants of the railroad company, and those dealing with them, used this strip as a road to the various places where the business of the tenants was transacted. It was necessary for them to do so. There was no other access. The road was made by the tenants; the track was that of their vehicles and the vehicles of those dealWhere a will, after giving testator's son ing with them. The work done by the vila life estate, provided that he should pay to lage was trifling in amount and value. There the executor a certain sum in equal installments, is nothing to indicate that the railroad com- which should be a charge upon the rents and pany or its tenants had any reason to sup- profits of the land devised, it could not be claimpose that any one claimed a right to traveled that the son took the land as a purchaser in fee, on the ground that the will imposed a perover the road. They did not fence it up and sonal liability upon him to pay such sum to the put in gates, and could not without great in- executor. .convenience. Neither did they prevent the public from passing back and forth, but in so doing the public were not using the road as a public highway but were using it by the license of the owner. It is unnecessary to cite authorities to the proposition that permissive use cannot create a prescriptive right. The decree will be reversed and the cause remanded to the circuit court, with directions to dismiss the bill. Reversed and remanded, with directions. (262 I11. 86) HANES v. CENTRAL ILLINOIS UTILI- (Supreme Court of Illinois. Feb. 21, 1914.) [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1431-1435; Dec. Dig. § 617.*] Appeal from Circuit Court, Iroquois County; Frank L. Hooper, Judge. Action by Goldie Hanes against the Central Illinois Utilities Company. From a judgment, for plaintiff, defendant appeals. firmed. Af A. F. Goodyear, of Watseka, for appellant. R. C. South, of Watseka, for appellee. COOKE, C. J. Goldie Hanes, appellee, secured a judgment in ejectment against the Central Utilities Company, appellant, in the circuit court of Iroquois county, from which this appeal has been prosecuted. Samuel Keene died testate September 26, 1881. He devised the land in controversy by the fourth clause of his will, which is as folA will devised land to testator's son, "to lows: "Fourth-I, give and devise to my have and to hold the same and all the rents, son William Thomas Keene the S. W. 1⁄4 of issues, and profits thereof during his natural S. W. 4 and all that part of the S. E. 4 of life, and at his death said lands hereby devised S. W. 4 lying west of the public road as at to him shall descend to his children in fee if he shall leave any child or children surviving him, present traveled and laid out, of Sec. 5, and and if not, then said lands shall descend in fee also the N. E. 4 of N. W. 4 of Sec. 8, all to his heirs at law," and further provided that in T. 26 N. R. 12 W. of 2d P. M., with all the the devise was made upon the condition that the son or his heirs should pay a certain sum to the appurtenances thereunto belonging or apperexecutor which should be a lien on the rents, taining, to have and to hold the same, and and that the life estate thereby devised to the all the rents, issues and profits thereof, durson should be deemed to be for his personal ing his natural life, and at his death said benefit only, which he could not alienate or encumber, and which should not be liable for his lands hereby devised to him shall descend to debts. Held, that the devise to the son could his children in fee if he shall leave any child take nothing, although they were his heirs at law, as the word "children," in its ordinary significance, denotes immediate offspring, and will not be construed to mean grandchildren unless a strong case of intention or necessary implication requires it. Arnold v. Alden, 173 Ill. 229, 50 N. E. 704; Martin v. Modern Woodmen of America, 253 Ill. 400, 97 N. E. 693, Ann. Cas. 1913A, 299. [3] The word "children," in both its tech or children surviving him, and if not, then | under the will of Samuel Keene the grand- tion of persons, and in its technical sense is, On the testator's death William Thomas Keene went into possession of the real estate so devised, and in September, 1907, granted to Harry J. Frith and his assigns the right to erect and maintain poles, wires, and appliances thereon for the purpose of carrying electric current over the said land. Fourteen poles were erected under this grant, and these, with the usual wires and appliances, were maintained during the lifetime of William Thomas Keene and down to the present time. William Thomas Keene died intestate, leaving surviving his two children, the appellee and George Keene. After his death the son, George, conveyed to appellee his undivided interest in the real estate. After acquiring the whole title appellee brought this ac-devise only in case William Thomas Keene tion of ejectment against appellant, who has succeeded to the rights of Harry J. Frith. had died leaving no child or children surviving him, in which event the grant to Frith would have been binding upon his heirs. It is further urged that the rule in Shelley's Case applies if the word "descend," as used in the will, is given its ordinary meaning, and that in the devise of a life estate to William Thomas Keene, with remainder "to descend" to his children, the testator grafted onto the life estate an estate of inheritance more certainly than if he had used the word "heirs" instead of "children," and had omitted the word "descend." A consideration of this whole paragraph of the will leads to the conclusion that the word "descend" was not used in the sense of passing land by succession, as where an estate vests by operation of law in the heirs upon the death of the an [1, 2] Appellant contends that William Thomas Keene, under a proper construction of the will of Samuel Keene, took the fee to said real estate, and that judgment was erroneously entered upon the theory that he took but a life estate. Appellant concedes that if William Thomas Keene took merely a life estate under the will, the judgment was proper, and that it is entitled to a reversal only in case it should be held that he took the fee. The contention of appellant is that, as Samuel Keene devised to William Thomas Keene an estate for life, and by the same devise provided that the same property should descend to his children, if any, and if none, then to his heirs at law, William Thomas Keene took the fee under the rule in Shel-cestor, but is used to signify that his chilley's Case. This contention cannot be sustained. To apply the rule in Shelley's Case this will must be construed as devising to William Thomas Keene an estate for life, with remainder to his heirs. William Thomas Keene might have died leaving a child or children, and also grandchildren who were children of a deceased child. In that event, dren, if he leave children surviving, shall succeed immediately to the possession of the lands upon his death. [4] The further contention is made that William Thomas Keene took as a purchaser in fee, for the alleged reason that the will imposed upon him a personal liability to pay the executor the sum of $500. The payment |