34 Ill. 195 | Ill. | 1864
delivered the opinion of the Court:
This was an action of ejectment, instituted by appellees, for the recovery of a strip of land, over which appellant’s road is located. It is stipulated, that the Peoria and Oquawka Railroad Company took possession of the land in 1854, as right of way, and constructed their road thereon. That they had the damages assessed, growing out of the appropriation of the land for that purpose. That appellees, before the commencement of this suit, brought an action for the recovery of the damages of the Peoria and Oquawka Railroad Co., and obtained a judgment, which has never been satisfied. That appellants were in possession at the commencement of the suit, as lessees of the Peoria and Oquawka road, and were using the same, and running their cars on the road. It appears that at the time this road was being constructed on the land in controversy, the engineer who had charge of the work, had frequent conversations with the president, and a portion of the trustees, who admitted that the company had a right to construct their road on this land. This is evidence of a consent on the part of the board of trustees of the college, that the lessor of appellant might build and operate their road on this land, and appellant has succeeded to their rights under the lease.
This presénts the question whether a notice to quit was necessary before this action could be maintained. After such long continued possession by a tenant, under a license to enter and occupy, whether he is to be treated as a tenant from year to year, or at will, he has the right to notice to quit, before an action can be maintained; 4 Kent, 112; Jackson v. Livingston, 1 Johns., 322. In that case it was held, that where a person entered into possession of land, with the permission of the owner, as a mere occupant, without payment of rent, and made improvements, and afterwads sold his improvements to another person, who went into possession, and the owner sold the land, and his grantee brought ejectment, the person purchasing the improvements of the mere occupant must have notice to quit, and this was after eighteen years possession. He was treated as a tenant from year to year.
In the subsequent case of Jackson v. Laughtread, 2 Johns. 75, the same rule was there announced. It was there held that a mortgagee before he brings ejectment against the mortgagor, must give six months notice to quit. This case, although it may be that thev principle would not be applied in a case between mortgagee and mortgagor, establishes the principle that a tenant or occupant, having no specific agreement for possession, if not in wrongfully, is entitled to notice. Again, in Jackson v. Wheeler, 6 Johns. 272, it was held, that where a person entered into possession, under permission from the owner, as a mere occupant without paying rent, and the owner sold the land, his grantee must give notice to the vendee of the occupant who had acquired possession, before ejectment could be maintained. And this too, where the occupant disclaimed to hold under the owner, but the disclaimer was made after suit was brought. In that case a Tecovery was defeated for the want of a notice to quit. This seems to be the English rule, and is recognized in many, if not all, of the States of the Union, in which the common law has not been repealed.
The rule is reasonable, independent of the question of emblements. When a person has entered, with a permission from the owner, he is not a wrong-doer, and cannot be until required by demand to surrender the possession, and refuses. When an entry is without consent, it is otherwise, as his possession is wrongful. But where he had license from the owner, he should not be held liable for costs, until his possession has become tortious. It may be that when the purpose of the occupancy is not agricultural, that a shorter notice will suffice, than where a question of emblements is involved. Still it would have to be reasonable, so as to afford the occupant reasonable time within which to surrender possession. If the occupant entered without right, or if his occupancy becomes wrongful by disclaiming to hold under the owner, or on a refusal to surrender in a reasonable time after demand of possession, the owner might recover.
In this case it appears that the original entry was rightful, and appellants were in possession as the lessees of the first occupants. They did not assert title in their own right, or in hostility to appellee’s title. Until they have done so, or have refused to surrender possession after reasonable notice, they are not liable to be evicted and dispossessed. The judgment of the court below must be reversed and the cause remanded.
Judgment reversed.
