58 Ill. 506 | Ill. | 1871
delivered the opinion of the Court :
This Avas an action of ejectment brought by appellee, in the McLean Circuit Court, against appellant, for the recovery of a strip of land on the boundary between íavo tracts, owned by different persons seA'erally.
It appears from the evidence, that the town of Hudson was surveyed into lots in the year 1836. It embraced a part of two quarter sections, referred to in the plat, made and certified to by the surveyor. It seems, that in making the survey and platting the town, the most suitable ground Avas selected, Avitliout reference to the lines of the government surveys, and that a stone Avas planted as a starting point, and from which the survey Avas made. The lots are designated, with their Avidth and length, on the plat.
The out lots seem to have been subsequently surveyed and platted in May, 1837, and are described as fractional parts of the íavo quarter sections Avhich remained outside of the original town plat. It is conceded appellant oavus out lots 20 and 21, but the Avhole controversy is, as to Avhere the east line of these lots is to be found. Appellee claims, that the eastern boundary is the line between sections 27 and 28, Avliile appellant claims the line is several rods east of the section line.
The legislature passed an act, at the session of 1867, authorizing a bill to be filed by any number of the citizens of the toAvnship, against the others, to have commissioners appointed to resurvey the toAvnship, and establish corners and lines in place of those made by the government surveyors, Avhich had been obliterated, if they ever existed, and thus settle disputes and doubts as to the boundaries of lands OAvned in the toAArnship. A suit Avas commenced, a decree rendered appointing commissioners, Avho surveyed and platted the toAvnship, Avhich was returned to and approved by the court. By that survey, the section line Avas established between sections 27 and 28, and appellee contends it is the true boundary line betAveen his land and appellant’s lots; but appellant insists it is not the true line.
Appellant was a party to the decree rendered in that case, and until it is reversed he must be bound by it. The section lines then established must be taken and held to be the true and correct lines, as between parties and privies to the decree. And if, Avhen he purchased these out lots, the plat called for the section line as the boundary on their eastern side, then Avhen it was established it became the line for that side of the lots. If, on the other hand, the plat called for stakes or other monuments, and the person laying out the out lots to the toAvn OAvned the land platted, and the land eastward of the section line, then appellant acquired title, as against the proprietor of the toAvn, to the monuments designated by the plat. In Avhicli mode Avere these lots described ? The surveyor, in his certificate annexed to the plat, says he “surveyed into out lots and streets the fractional parts of the southeast quarter of section 21, and the northeast quarter of section 28,toAvnship 25 north, range 2 east, being a part of each quarter left fractional around the town plat of Hudson.”
From this certificate, it will be seen that it Avas the portion of each quarter section that remained unplatted that he had divdded into out lots. There is nothing in the certificate Avhich indicates that anything Avas embraced in these out lots but land Avithin the íavo quarter sections named, but on the contrary, these lots are expressly limited to the remaining portion of these tAvo quarters. It Avould do violence to the language of the certificate to hold othenvise ;• and when the plat itself is examined, Ave find no reference to distance, either as to length or breadth of these or other out lots, nor is there anything to indicate the quantity of ground they contain ; neither do they call for monuments on the east. We must therefore assume, that the section line is the eastern boundary of these lots, and that the survey by the commissioners has established that boundary.
¡Ñor does the proof show continued actual possession of these lots by appellant, and those under whom he claims, for twenty years before this suit was brought. Adverse possession, sufficient to defeat the legal title, must be hostile in its inception, and continue uninterruptedly for twenty years. Turney v. Chamberlain, 15 Ill. 271. And such possession must be proved, and not left to mere conjecture; and it must be open, and of such a character as to clearly show that the occupant claims the land as his own, exclusively. McClellan v. Kellogg, 17 Ill. 498. Does the evidence in this case establish these facts? We think not. There is no evidence in the record that there had been open, visible, adverse possession' of these lots continuously for twenty years. Improvements had been made on them, but they were removed, and the lots permitted to lie vacant and unoccupied by any one for a considerable portion of the preceding twenty years. The possess! on, whatever its character, lacked continuity, and was wholly insufficient to create the bar of the statute. On neither ground, then, has appellant succeeded in establishing title to the strip of ground between the section line and the point east thereof, where he claims the line was run when the plat was made; and failing to establish title, the judgment of the court below is right, and it must be affirmed.
Judgment affirmed.
Mr. Justice Scott took no part in the decision of this case.
