138 Ill. 518 | Ill. | 1891
delivered the opinion of the Court:
In our view of the law applicable to this case, there is no substantial conflict in the evidence as to the controlling facts. It is admitted by all parties, that by act of the legislature George W. Babbitt became seized of a charter authorizing him to established and operate the ferry in question for a period ■of thirty years, from February 9, 1867, and that, by valid ■deeds of conveyance from him through other parties, one Peter Van Meter became the legal owner thereof in 1879, who was then exercising the privilege granted by said charter by operating said ferry. It is not claimed that Van Meter conveyed the franchise by deed to respondents, or other persons under whom they claim, nor that he even delivered to them or such other parties the original charter or title papers held by him •conveying said property. It is also conceded that possession under whatever transfer was made by Van Meter to those under ■ whom the respondents claim title, did not begin until the year 1879, and hence no prescriptive right can be maintained on that possession. Appellants are therefore driven to the position, that by proof of a verbal contract of sale by Van Meter, payment of the purchase money and delivery of possession under such contract, an equitable title to said ferry franchise passed to them, and those from whom they purchased, which will in law protect them in their present possession and use ■of said ferry privilege.
This is not, as contended by counsel, a controversy between individuals, merely. The stipulation of the parties as to the object of the proceeding, as well as the information itself, dearly shows that it is the public right which is sought to be , protected. The defendants are charged with unlawfully usurping a public franchise. They could only successfully defend against that charge by showing that they were not using a franchise, or that they had a legal right to use it. (Illinois Midland Ry. Co. v. People ex rel. 84 Ill. 427; Holden v. People ex rel. 90 id. 434.) They have attempted to do the latter by showing that they were the rightful owners of said franchise, and the burthen of proof was upon them to show a valid title. Clark v. People ex rel. 15 Ill. 217; People ex rel. v. Ridgley et al. 21 id. 65.
In Dundy v. Chambers et ad. 23 Ill. 369, this court expressly held that a ferry franchise like the one in question could only be conveyed by deed. The correctness of that decision has not, so far as we know, been questioned, but was approved in Mississippi River Bridge Co. v. Lonergan, 91 Ill. 508. It is true that it was held in the latter case, that one who had purchased such property and entered into the possession thereof could maintain an action for an injury to such property against a trespasser; but that holding does not aid the defendants on the issues in this case. Here the question is, have the defendants shown a valid title. A defective title will not do,—much less a mere equitable right to a title. It is said in People ex. rel. v. Ridgley, supra, a defective title is understood to be, and is, in contemplation of law, the same as no title whatever, and" a party exercising an office or franchise of a public nature is considered as a mere usurper unless he has a good and complete title in every respect. Giving appellants, then, the full benefit of all they claim, they have wholly failed in their defense.
What is here said disposes of the substantial objections raised to the judgment of the circuit court, and other questions discussed in the argument become unimportant.
The judgment will be affirmed.
' Judgment affirmed.
