105 Ill. 144 | Ill. | 1882
delivered the opinion of the Court:
The bill in this case sets forth, that since 1871 William Bryan has been the owner in fee of lots 79 and 80, in block 36, of the platted town of Illinois City, and since that time occupied such premises as a homestead, and has had possession of such lots during all that time, except that part of lot 79 occupied by the plank road of the Collinsville Plank Boad Company, and that in the year 1879 the plank road company abandoned its road, and since then he has had both lots inclosed, and paid all taxes assessed against such property; that in March, 1881, the city of East St. Louis, by its officers, tore down complainant’s fences, and by force and violence prevented him from reerecting the same, under the pretense the land in question was and is a public street, and that it was never attempted by any one to divest complain- • ant of his title to the premises by any proceeding at law. The answer of defendant admits the forcible acts complained of, and attempts to justify by averring there had been a public highway over the premises, and which had been “used continuously for more than forty years. ” A replication was filed to the answer, and on the hearing of the case the circuit court dismissed the bill, and complainant brings the case directly to this court on appeal.
A motion has been made to dismiss the appeal on the ground this court has no jurisdiction in the first instance to hear the appeal, which motion must be allowed to prevail. It is obvious no question is involved that will give this court jurisdiction of the appeal. Admitting, as is alleged, that complainant is the owner of the premises, and was in the actual possession of the same, and that no one had ever instituted any proceeding at law to dispossess him of his title, the utmost that can be insisted upon is, that defendant has, by force and violence, interrupted his possession, and threatens to continue such trespasses. In the controversy, as stated by complainant in his bill, no freehold is involved, nor indeed any other question that would give this court jurisdiction to hear the appeal in the first instance. The appeal should have been taken to the Appellate Court of the proper district.
The appeal must be dismissed, which is done, with leave to appellant to withdraw record, abstracts and briefs, for the purpose of filing the same in the Appellate Court, if he shall wish to do so.
Appeal dismissed.