271 Ill. 178 | Ill. | 1915
delivered the opinion of the court:
John McNeil filed a petition in the circuit court of Whiteside county against Sarah Allen under the act of the General Assembly entitled “An act to provide for the permanent survey of lands./’ approved May io, 1901, (Hurd’s Stat. 1913, p. 2417,) for the purpose of establishing the boundary line between their lands. Surveyors were appointed, who made a report, which was approved by the court and ordered to be recorded, and the costs were divided equally between the parties. Sarah Allen has appealed to this court.
This appeal should have been taken to the Appellate Court. No freehold is involved and there is no other ground of jurisdiction in this court. The title is not involved in the pleadings and neither party gains or loses a freehold by the decree. The petition states that the appellee is the owner in fee simple of that part of the east half of the northwest quarter of a certain section lying north of a certain road, and that the appellant is the owner of that part of the west half of the same quarter section lying north of the same road. The decree does not affect the title and such is not the object of the proceeding. Its purpose is only to locate the true boundary line between the appellant’s and the appellee’s land. The effect of the decree is only to establish the corners and fix the line. As to these matters it is conclusive, (Ellis v. Whan, 91 Ill. 77,) but as to all actions and defenses which affect the titles of the respective parties it is of no effect. Where the only controversy is as to the location of the line and not as to the title a freehold is not involved. Posey v. Commissioners of Highways, 264 Ill. 19.
The cause will be transferred to the Appellate Court for the Second District.
, , Cause transferred.
