claims were subsequently withdrawn by the claimants before the hearing.

The rule established in this State is that where a contract to convey land is relied upon, the burden is on the complainant to prove a contract that is clear, definite and unequivocal in its terms and provisions. While such a contract may be proven by the declarations of the parties made not in the presence of each other, together with other acts and conduct of the parties which show such an agreement was made, it cannot be proven by the declarations or acts of only one party to the alleged contract not binding upon the other. (Kane v. Hudson, 273 Ill. 350.) In the instant case the declarations proven wholly fail to establish any contract binding upon any of the parties, and amount to no more than the mere expression of a present intention and desire that Wrestler and wife should have the property at Leonard's death. They were of a character from which the Wrestlers might well expect to be made favored beneficiaries under his will but are lacking in all of the essential requirements of a definite present contract to give or convey his property to them in the future in consideration of their caring for him until his death. The act of Wrestler and his wife, also, in filing claims against his estate for labor and services of a character which would have been included. in the alleged contract of the deceased is so inconsistent with the making of any definite and clear contract of the character sued on as to detract very materially from the weight to be given to the casual remarks made by the deceased to his neighbors and friends expressive of his intention to give his property to the Wrestlers.

As we are of the opinion that the evidence fails to show a contract as charged in the bill of complaint, it is unnecessary to consider the other questions raised.

The decree of the circuit court will be affirmed.

Decree affirmed.

(No. 11514.-Reversed and remanded.)

PATRICK H. GILLESPIE, Appellee, vs. CHARLES N. Stoll,

Appellant.

Opinion filed October 23, 1917.

1. CLOUD ON TITLE-complainant in bill to remove tax deed as cloud on title must prove possession or that property is unoccupied. To authorize a party to maintain a bill to set aside a tax deed as a cloud on his title it is necessary for him to prove his possession of the property or that it is vacant and unoccupied, as his remedy is at law where the defendant is in possession.

2. SAME when presumption of possession in favor of holder of legal title will not be given effect. In a bill to set aside a deed as a cloud on title the presumption of possession in favor of the holder of the legal title as against the holder of color of title will not be given effect against the undisputed testimony of the defendant claiming to be in possession.

APPEAL from the Circuit Court of Will county; the Hon. ARTHUR W. DESELM, Judge, presiding.

D, R. ANDERSON, for appellant.

CORLETT & CLARE, for appellee.

Mr. JUSTICE FARMER delivered the opinion of the court: On November 6, 1914, Patrick Gillespie, who is appellee in this court, filed his bill in the circuit court of Will county praying that a tax deed issued to defendant, Charles N. Stoll, who is appellant here, be set aside as a cloud on the title to a certain lot described, which complainant alleged he owned and was and had been in the actual and exclusive possession of since June 4, 1907. An amended bill was filed January 2, 1915. The amended bill alleged numerous reasons why the tax deed issued to defendant was invalid and conveyed no title. The amended bill alleged complainant had tendered defendant the amount paid by him at the tax sale, with interest thereon, other legal charges and penalties provided by law, and interest thereon, which

the defendant refused to accept, and complainant renewed the tender in his bill. Defendant answered the amended. bill May 3, 1915, claiming to own the lot by virtue of the tax deed issued to him and denying the allegations of the amended bill as to its invalidity. The answer denied complainant was in possession, denied he had made the tender to defendant as alleged in the bill, and denied complainant was entitled to the relief prayed. The cause was heard by the chancellor and a decree entered finding the tax deed invalid and a cloud upon complainant's title, and ordering that it be set aside upon the payment to defendant of $93.88 to reimburse him the amount paid at the tax sale and for subsequent taxes and assessments paid and interest thereon. Defendant has prosecuted this appeal from that decree.

The bill alleges appellee was in the actual and exclusive possession of the property. The answer denied the truth. of that allegation. Appellee did not in his testimony claim or state that he was in possession. Appellant testified that at the time he bought the property it was not occupied by anyone and that he "afterwards took possession of it." Just when he took possession cannot be determined from his testimony. Under the state of the record it cannot be said appellee was in possession, for he made no statement to that effect in his testimony. We would not be justified in treating the property as vacant and unoccupied, for appellant testified that after he bought the property and received his tax deed he took possession of it. To authorize appellee to maintain a bill to set aside the tax deed as a cloud on his title it was necessary for him to prove he was in possession of the property or that it was vacant and unoccupied. (Gould v. Sternburg, 105 Ill. 488; Glos v. Goodrich, 175 id. 20; Glos v. Kemp, 192 id. 72; Bieber v. Porter, 242 id. 616.) If appellant was in possession when the bill was filed appellee's remedy was at law. Parker v. Shannon, 114 Ill. 192; Alton Marine and Fire Ins. Co. v. Buckmaster, 13 id. 201.

Appellee insists that the presumption of possession will be indulged in favor of the holder of the legal title and there is no presumption in favor of the holder of color of title. The presumption of possession cannot be given effect against the undisputed testimony of appellant claiming to be in possession.

As the decree must be reversed for the reasons stated, the other questions raised will not be referred to or discussed.

The decree is reversed and the cause remanded.

Reversed and remanded.

(No. 11531.-Reversed and remanded.)

WALTER D. PHILLIPS et al. Appellants, vs. George LeinINGER et al. Appellees.

Opinion filed October 23, 1917.

I. HIGHWAYS when freehold is involved in suit to enjoin obstruction of highway. A freehold is involved in a suit to enjoin the obstruction of a highway where the issue is whether or not there is a highway over the land in controversy.

2. SAME-a highway may be acquired over county property by prescription. A county is not exempt from the operation of the Statute of Limitations in a controversy as to whether the public has acquired a prescriptive right for a highway over property belonging to the county.

3. SAME-what is essential to a common law dedication. To constitute a common law dedication of land to a public use there must be an intention on the part of the land owner to dedicate and an acceptance of the dedication by the public, but, so far as the land owner is concerned, the dedication is complete whenever the intention to dedicate appears either by declaration or by conduct.

4. SAME when intention to dedicate a highway to public use will be implied. The law will imply an intention to dedicate a highway to a public use from any acts of the owner which indicate an intention to so appropriate his property, and where his conduct has been such as to lead an ordinarily thoughtful person to infer an intention to make a dedication, to accept the same for a public use

and to use it as a highway, the dedication becomes complete and cannot be recalled by the land owner.

5. SAME-what will constitute public highway by prescription. A road which has been open as a public highway to all the people and has been known and used as such in common for the statutory period is a public highway, the test being, not how many persons actually used the highway but how many had a free right in common to use it; and the fact that such road is recognized by the township authorities and is worked the same as the other roads strongly indicates that it is a public highway.

6. LIMITATIONS-when public property is not exempt from operation of the Statute of Limitations. The exemption in favor of counties, cities, towns and other minor municipalities from the operation of the Statute of Limitations extends only to matters affecting their public rights as distinguished from private and local rights, with respect to which such municipalities, the same as individuals, are subject to the operation of the statute.

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

LANDON & HOLT, (JOHN B. FRUCHTL, of counsel,) for appellants.

EDWARD J. BRUNDAGE, Attorney General, (EDWARD H. TAYLOR, and FRANKLIN A. DENNISON, of counsel,) for appellees.

Mr. JUSTICE CRAIG delivered the opinion of the court:

Appellants, as commissioners of highways of the town of Norwood Park, filed their bill in chancery in the circuit court of Cook county against appellees, the State Board of Administration, who are in charge of the Chicago State Hospital, to enjoin them from obstructing an alleged highway across the hospital grounds. The bill charges that in 1886 a highway was laid out across the hospital grounds, (then known as the Dunning Institution,) and ever since that time has been maintained, graded, improved, managed and controlled by the highway commissioners of the town of Norwood Park and the work done and improvements