108 Ill. 248 | Ill. | 1883
delivered the opinion of the Court:
It is assigned for error that the verdict of the jury is not supported by the evidence.
There seems to be no question as to the plaintiff’s ownership of the north-west quarter of section 14, and the principal point of controversy is as to the location of the boundary line between the parties, though it is also contended by the defendants that the strip of land in question has been occupied by them under a claim of ownership for over twenty years, which constitutes a har to a recovery. Without attempting a review of the evidence, we will say that after a full examination of it we are satisfied with the finding of the jury in favor of the jilaintiff on both the above named points of contest, and find no reason for disturbing the verdict on the ground of its not being warranted by the evidence.
It is insisted that at least as to that part of the land, in the slough, or what is called the “offset,” defendants are not guilty, on plaintiff’s own testimony that “no fence has been on the line of the hedge across the space; the strip in the jog has been in my field, and has never been separated from it until last fall, when the defendants built one there, but not clear across. ” The fence not being built clear across, would not take that part out of the possession of plaintiff, it is said, and that plaintiff could not recover for land in his own possession. We can not say that the jury were not justified in finding that part was essentially separated from plaintiff’s field, although the fence did not extend entirely across the offset. The evident purpose in making the fence was to withdraw that part from Eagleston’s inclosure and include it in Quinn’s own, and extend his possession to the line of the hedge, and the jury might regard that this had been done, practically.
Various rulings of the court are excepted to. The first is as to the admission in evidence of the following deeds: Con-nor to Eoads, dated February 18, 1832, and recorded December 31, 1853; Eoads to Bixler, dated April 13, 1839, and recorded December 31, 1853; and Bixler to Drummond, dated July 31, 1839, and recorded December 23, 1839. The deeds were not acknowledged according to law, and were admitted as ancient deeds. The objection is that there was not proof that the deeds were in existence at least thirty years before they were offered. Mr. Fuller testified that as plaintiff’s attorney he made inquiry and search for these deeds, which were not in plaintiff’s possession, and found them tied up in a package, with other deeds, among the old papers of John T. Eagleston, deceased. They were shown to have been actually recorded in Stark county over twenty-nine years before the commencement of this suit, and to have been in the hands of John T. Eagleston, the party then in possession of the land, and to have remained with him until his death. The last deed of the three, (Bixler to Drummond,) which is dependent upon the other two, and would not, we may suppose, have been made had not they (the deeds from Connor to Eoads, and from Eoads to Bixler,) been previously executed, was actually recorded in Stark county more than forty years before this suit was begun. This, with no evidence of fraud or suspicious circumstances, was, we deem, satisfactory proof that these deeds had been in existence for thirty years, and entitled them to be read in evidence as ancient deeds. Fell v. Young, 63 Ill. 106 ; Whitman v. Heneberry, 73 id. 109.
Another ruling complained of is in permitting the plaintiff to prove what was said by John T. Eagleston (now deceased) ■when he was in possession of the premises, as to his reason for planting his hedge in from the line of his land, and leaving a strip of land one rod wide outside of the hedge. The planting the hedge in from the line of the land was an equivocal act. It might be interpreted as a dedication to the public, or as setting the hedge on the true line. The declarations of Eagleston when he was the owner and in possession of the land, explanatory of his intention in leaving the strip of land open, we think were properly admitted in evidence as a part of the res gestee, as accompanying the acts of throwing the land open and keeping it open. Proctor v. Town of Lewiston, 25 Ill. 153; Buchanan v. Curtis, 25 Wis. 99.
Exception is also taken to the refusal .to permit the witness Dickerson to answer the following question, put by defendants’ counsel: “What did Luce say, if anything, at the time he took possession of his eighty, and built his fence on his west line, and joined it up to the Eagleston hedge; state what he •said upon that point, if anything?” There was no objection •to the form of the question. We think it should have been allowed, for the same reason that evidence was properly received of Eagleston’s declarations. It would be evidence accompanying the act of Luce, going to show the character of the act as being hostile or otherwise to Eagleston’s title, and as bearing upon Luce’s and defendant’s possession of the strip in question, whether it was permissive on the part of Eagleston, or adverse to him, twenty years’ adverse possession being one ground of defence. Still, we are not prepared to say that the denial of this evidence was an error so material that it should 'cause a reversal of the judgment. Such .claim of ownership on such an occasion, in the absence of Eagleston, would be but slight evidence of adverse possession, and especially as all the evidence besides does not seem to show any reasonable ground of claim of an adverse possession arising before 1867, which would be less than twenty years before suit brought, when a new survey was made by another county surveyor, and a different corner was established as the north-west corner of section 14 from the one established by the former county surveyor. Until that time there does not seem to have been any question of the correctness of the corner first established, and so no reason until then for regarding defendants’ possession as adverse.
Objection is taken to the ruling on instructions. That the jury were instructed for plaintiff that he having produced in evidence deeds showing a complete chain of title from the government of the United States to himself, for ninety-three acres of the west side of the north-west quarter of section 14, etc., had proven title to himself in that part of the quarter section. There was no evidence in opposition to the deeds, and the instruction was proper. It is the duty of courts to construe writings, and to instruct juries,as to their force and effect.
Plaintiff’s fourth instruction was, in substance, if Eagles-ton permitted Luce to join on to his fence, and it was understood by them that the land was Eagleston’s, then Luce’s possession was not hostile. The objection to this instruction is, that it was not based on the evidence; that there was no evidence tending to show that Luce and Eagleston ever met or spoke to each other on this subject. Such an understanding might have existed between the parties, and the jury have been warranted in inferring that it did, from circumstances in the case, such as, that the rail fence was still standing on the line, the purpose for which plaintiff set the hedge in from the line, the fact that the county surveyor had established the north-west corner, and it had never been questioned, etc., without proof at this late day of any conversation between the parties. Such circumstances'go to show that the joining of Luce’s fences to Eagleston’s,-without permission, would have been regarded as a trespass, and it is not likely that a trespass was committed and suffered. We do not think the objection well taken. •
The sixth instruction relates only to the part within, the “offset,” and the criticism made upon that is, that it assumes that the defendants built their fence across it, when the evidence is that the fence was not built “clear across.” We have before remarked upon the circumstance of the fence not being built entirely across the strip in the offset, as warranting a recovery for that part, and according to what we have said it will be seen that we regard this variance in the instruction from the evidence as immaterial.
We perceive no error in the refusal of instructions asked by the defendants.
Finding no material error in the record, the judgment will be affirmed.
Judgment affirmed.
