86 Ill. 35 | Ill. | 1877
delivered the opinion of the Court:
The only controverted question presented by the pleadings and evidence in this case is in regard to the location of the division line between lot 13 in block 24, canal trustees’’ subdivision of south fractional section 29, township 39 north, range 14 east, now owned by the appellee, Marcus C. Stearns, and lot 14 in the same block, owned by appellant, May Hubbard. Both lots were originally owned by the canal trustees, and before they were platted or sold they were divided by a line fence which had been erected long prior to 1848. In the year 1848 a plat of the property was made and recorded, and Henry G. Hubbard, appellant’s father, purchased lot 14, September 5, 1848, and -Davis, under whom appellee claims, purchased lot 13, September 4, 1848. When Davis purchased lot 13, he immediately went into the possession of the property, claiming title to the old fence which had been erected between the two lots, and he- and his grantees have continuously occupied up to this fence, claiming the absolute title, down to the commencement of this suit. It is but a reasonable inference from the testimony that it was the intent of the canal trustees, when they platted the property, to adopt the old fence as the true dividing line of the two lots in question, but we do not, however, place the decision of the case upon that ground. Whether the old fence was on the true line or not, in the view we take of the case, is immaterial.
The 4th section of the Limitation Act of 1827 provides : “ No person who now hath or hereafter may have any right of entry into any lands, tenements, or hereditaments, shall make any entry therein but within twenty years next after such right shall have accrued, and such person shall be barred from any entry afterwards.” The 7th section of the same act declares: “ Every real, possessory, ancestral or mixed action or writ of right, brought for the recovery of any lands, tenements, or hereditaments, shall be' brought within twenty years next after the right or title thereto or cause of such action accrued, and not after.” Gross’ Stat. 1869, p. 429. Under this statute adverse possession under a claim of ownership for the period provided by the act will bar the owner of a recovery. As has been held in Turney v. Chamberlain, 15 Ill. 273, and subsequent cases, it is not essential, under the statute, that the party who takes possession and holds adversely should enter under a deed or muniment of title; possession under a claim of ownership taken and held for a period of twenty years is sufficient to complete the bar. Weber v. Anderson, 73 Ill. 439. In this case appellee and his grantees have had the possession of the land in dispute for a period exceeding twenty years. Conceding appellant’s theory correct as to the location of the line, still the undisputed fact remains that the strip of land now claimed by appellant has been occupied, under a claim of ownership, for over twenty years, which constitutes a complete bar to a recovery, unless the obvious meaning of the statute should arbitrarily be construed to mean something different from what the plain language used would import. It may, however, be said, as this controversy grew out of a dispute as to a line between adjoining owners, a different construction should be given the statute. That point is, however, fully met by the decision in Bauer v.Gottmanhausen, 65 Ill. 499, where, as here, the controversy was in regard to the line dividing adjoining lots. In that case it was said: ‘‘ The, landlord of appellee, and those under whom he claimed, are shown to have been in open, visible, and actual possession for more than twenty years continuously, by themselves or their tenants. This, under the statute of limitations, is amply sufficient to fix, indisputably, the boundaries of an actual possession, and to bar all entries where there is no one within the savings in favor of persons under disabilities.”
There is another ground upon which appellee may be regarded as concluded from a recovery. The doctrine may be considered as well settled, that where adjoining land-owners agree upon a line dividing their lands, and enter into possession and occupy according to this line, they are concluded from afterwards claiming that the line agreed upon is not the true one. Crowell v. Maughs, 2 Gilm. 419 ; Yates v. Shaw, 24 Ill. 367 ; Smith v. Hamilton, 20 Mich. 433. Here, Hubbard, under whom appellant derives title, when he purchased in 1848, went into possession of his lot. Davis, under whom appellee claimed, purchased about the same time, and went into possession of the other lot. The old fence which is now relied upon as the line was then standing, and the parties occupied their respective lots according to that line. It was recognized and acquiesced in by Hubbard while he lived, and those claiming under him since, as the true line. Now, although these parties may not have established a line by an express agreement, yet, when they have acquiesced in and recognized a line as the true one for a period of twenty years, they should be bound and concluded by their acts.
These statutes of limitations are statutes of repose. They were doubtless enacted for the purpose of cutting off stale claims, and their salutary effect, under a liberal construction, can not well be doubted. Appellant has not established a right of recovery, and the decree of the circuit court will be affirmed.
Decree affirmed.
