| Ill. | Mar 21, 1881
delivered the opinion of the Court:
This was an action of ejectment, by appellee, to recover from appellant a small parcel of land, alleged to be about eleven acres, on the west side and constituting a part of the south-east quarter of the south-west quarter of section 6, and the north-east quarter of the north-west quarter of sec. 7, town 8, north range 5 west, being a narrow strip of the full length of the two forties, and of sufficient width to make the quantity of land above mentioned, but separated from the main portion of these forties by a division fence which had previously been supposed to be upon the line dividing them and the two forties owned by appellant lying immediately west of them." The controversy in this case, as will readily be perceived, grows out of a difference of opinion between the parties as to the true location of the line dividing their respective premises.
The plaintiff recovered in the court below, and the defendant brings the record to this court for review.
On the trial in the court below, evidence was introduced tending to show that prior to appellee acquiring any interest in the east forties, and while one Scott, through whom both parties claim, owned them, there was a verbal agreement between. Scott and appellant, who then owned the west forties, that the fence in question should be the dividing line between their premises, and that in pursuance of this agreement the fence was subsequently kept up at their mutual expense, Scott keeping up the north half and appellant the south half. Whether such an agreement was made and acted upon by the parties, as is claimed by appellants, was a question of fact to be determined by the jury according to the weight or preponderance of the evidence. The proof of this fact did not require any greater amount or a higher order of evidence than is usually required to establish any other ordinary fact in a civil proceeding. It was, therefore, error in the court to instruct the jury that the defendant “ must establish his claim to the laud so far as it was based upon such an agreement, by a clear preponderance of the evidence.” Crabtree v. Reed, 50 Ill. 206" date_filed="1869-01-15" court="Ill." case_name="Crabtree v. Reed">50 Ill. 206; McDeed v. McDeed, 67 id. 550; Peak v. The People, 76 id. 289.
So far as the defence was concerned it turned mainly upon whether the agreement in question had been sufficiently established, and it was therefore highly important to the defendant to have the law accurately stated with respect to the measure of proof upon that question. This not having been done, the judgment of the circuit court must be reversed, and the cause remanded for further proceedings.
Judgment reversed.