| Ill. | Jun 16, 1909
delivered the opinion of the court:
Appellees have entered a motion to dismiss the appeal on the ground that no freehold is involved. If this were true, it would not require a dismissal of the appeal but would necessitate the case being transferred to the Appellate Court. Complainant in his bill claimed a freehold interest in land, and the decision denying his right thereto under his bill, and dismissing the same, was a denial of the right asserted by him in his said bill, and we think involved a freehold. The motion will therefore be denied.
It will be observed from the substance of the bill set out in the statement preceding this opinion that there is no averment of the time when the structure complained of was first erected and how long it has been continuously maintained and operated. Neither is there any averment that complainant was at the time of filing the bill in possession of the property. The chancellor held the bill to be defective in both these respects and sustained special demurrers specifying these grounds of objection.
Appellant insists that the allegations of the bill show, and must be held to be, in effect, averments that complainant was in possession. We do not so understand the language of the bill. It avers that complainant and others were-in December, 1868, the owners and in possession of the property of which the private streets and alleys are a part; that subsequently the property was platted into three additions, reserving the private streets and alley in controversey; that afterwards complainant became the owner of five-sixths of said property, and that, except for the easements of travel granted to other persons, complainant and his co-owners are entitled to the possession of said private streets and alley. It is true, the bill avers that complainant had reserved the right to grant easements of passage to other persons, and that defendants without any license or permission from complainant, and without any authority or pretense thereof, so far as complainant is informed, had erected the structure complained of on the property in controvers. We do not consider this an allegation, or the equivalent of an allegation, that complainant is in possession. Such an allegation is essential, in cases of this character, to the right to maintain the bill. The rule is, that courts of equity will not assume jurisdiction to determine disputes as to mere legal titles or the right to possession of real property. The owner of land has a complete and adequate remedy at law to determine his title and his right to possession, and he cannot invoke the aid of a court of equity, ordinarily, to restore him to possession of property he is the owner of where that possession has been invaded by another, but must resort to his action at law. It is only in cases where the power of a court of equity has been called into action for some legitimate purpose of its jurisdiction, incidental to the main object of the bill, that the court will determine the right to possession between a party claiming that right and one holding adversely. (Green v. Spring, 43 Ill. 280" date_filed="1867-01-15" court="Ill." case_name="Green v. Spring">43 Ill. 280; Daniel v. Green, 42 id. 472; Story’s Eq. Pl. sec. 476; Pomeroy’s Eq. Jur. sec. 177; 16 Cyc. 52.) What is sought by complainant here is, in principle, analogous in this respect to a bill to remove cloud from title, and an allegation of complainant’s possession is necessary to give a court of equity jurisdiction to entertain the bill. Gage v. Abbott, 99 Ill. 366" date_filed="1881-06-20" court="Ill." case_name="Gage v. Abbott">99 Ill. 366; Gage v. Ewing, 114 id. 15; Clay v. Hammond, 199 id. 370; Delaney v. O’Donnell, 234 id. 109; Lister v. Glos, 236 id. 95.
Appellant contends that the allegations of the bill show he has the same character of possession that the complainants had in Burrall v. American Telephone Co. 224 Ill. 266" date_filed="1906-12-22" court="Ill." case_name="Burrall v. American Telephone & Telegraph Co.">224 Ill. 266, Spalding v. Macomb and Western Illinois Railway Co. 225 id. 585, and Carpenter v. Capital Electric Co. 178 id. 29. In the Spalding case the bill was filed by an abutting property owner for a mandatory injunction to compel the removal of a railroad from a street which the complainant alleged he owned the fee in, subject to the easement in the public for a street; and in the Burrall case the bill was filed by one who claimed to own the fee in land over which the public had an easement for a highway in which the defendant had erected telephone poles, with cross-arms, and strung wires thereon, without having first acquired the right to do so, by consent or otherwise. In these cases the possession of the complainants was not raised or discussed. But it is clear physical possession in such cases was impossible while the public easement existed, a'nd in such cases courts of equity have jurisdiction to interfere at the suit of the owmer of the fee, not to restore him to possession, but to prevent subjecting his fee to an additional servitude by one who acts without authority. In the Carpenter case the property in which an obstruction was placed was a private alley. The fee belonged to the complainant, an abutting property owner, and the alley was created for his use and the use of owners of adjoining property. It only extended part of the way through the block. The case was tried on its merits, and no question appears to have been raised as to the possession of the complainant or the sufficiency of the allegations of the bill with respect to that question. In the case now under consideration the property is alleged to be the property, in fee, of complainant. It is true, the bill alleges that complainant has granted to certain persons the right of passage over said property; but this would not, in law, divest him of possession if he was in possession of it. He would still retain such possession as was consistent with the rights of passage granted to others. It may well be that the proof would not be required, in such cases, to show that no one else had any right of possession in connection with and subject to complainant’s rights, but this would not obviate the necessity of an averment of possession. We do not understand appellant to contend that no averment of possession is necessary, but it is contended that, taking all the averments of the bill together, they sufficiently allege possession when the character and situation of the property are considered. It may be observed that it does not appear from the allegations of the bill that the two lots which the bill alleges appellant owns and is in possession of, abut upon the private ways in controversy, so that no question of the rights of an abutting property owner is presented. In our opinion it was vital that the bill should have alleged possession in appellant in order to give a court of equity jurisdiction to entertain it.
Appellees insist that the bill was obnoxious to special demurrer for the reason that it contained no averment as to the time when the structure complained of was erected and how long it had been maintained. This contention is based upon the theory that the time is essential in determining whether appellant is barred of his right to the relief, either by laches or by the Statute of Limitations. If it appeared upon the face of the bill that the appellant was barred for either of these reasons the bill would have been bad on demurrer. (Schnell v. City of Rock Island, 232 Ill. 89" date_filed="1907-12-17" court="Ill." case_name="Schnell v. City of Rock Island">232 Ill. 89; Kerfoot v. Billings, 160 id. 563.) Here, the bill stating no time when the structure was erected, there is nothing upon the face of the pleading from which it appears appellant has been guilty of unreasonable delay in bringing his suit. In the Spalding case the precise question here involved was presented and it was contended that the complainant had been guilty of laches, and on this subject the court said, on page 592: “There is no specific allegation in this bill as to when this road was first operated. What amounts to laches will depend upon the special facts and circumstances as shown in each case. The general rule in this jurisdiction is, that the defense of laches, to be availed of, must be set up by plea or answer, so as to afford the complainant an opportunity to amend the bill by inserting allegations accounting for the delay.” The rule adopted in this State is, that where it does not appear upon the face of the bill that the complainant has unreasonably delayed the assertion of his right, the question whether it be laches or the Statute of Limitations must be raised by plea or answer. Coryell v. Klehm, 157 Ill. 462" date_filed="1895-10-11" court="Ill." case_name="Coryell v. Klehm">157 Ill. 462; Dawson v. Vickery, 150 id. 398; Darst v. Murphy, 119 id. 343.
Appellees contend that the demurrer on the ground that the bill failed to allege when the structure was placed upon the premises was properly sustained by the chancellor, not because the bill failed to show complainant was not guilty of unreasonable delay, but because the complainant was required to make such allegations as entitled him, prima facie, to the relief prayed, and to do this he was required to show by his bill that he had acted with reasonable promptness. This is, in effect, to say that a bill which does not show on its face unreasonable delay because there is no allegation of the time of the committing of the grievance complained of, stands upon the same basis as a bill 'which states the time, and shows, apparently, unreasonable delay, without giving reasons excusing it. This court has made the distinction that as to the first mentioned class of bills unreasonable delay of the complainant must be raised by plea or answer, while as to the latter class of bills the question may be raised by demurrer. In our opinion the bill in this case was not obnoxious to the special grounds of demurrer that it did not show on its face that complainant had not been guilty of unreasonable delay. That question could only properly be raised by plea or answer.
Appellees assigned numerous other grounds of special demurrer which the chancellor did not sustain, and they have now assigned cross-errors on those rulings and ask that the decree be reversed and the cause remanded, with directions to the chancellor to sustain said special causes of demurrer and again enter a decree dismissing the bill. As the decree already entered dismissed the bill and as we affirm that decree on the grounds stated herein, we do not ■deem it necessary to go into an investigation and discussion of the cross-errors assigned, for the purpose of determining whether the court was right or wrong in passing on other grounds of special demurrer.
The decree of the circuit court is affirmed.
Decree affirmed.