Haley v. Johnson

• Citation: 127 N.E. 139,292 Ill. 525
• Decision Date: 21 April 1920
• Docket Number: No. 12417.,12417.
• Parties: HALEY et al. v. JOHNSON.
• Court: Supreme Court of Illinois

292 Ill. 525

127 N.E. 139

HALEY et al.

v.JOHNSON.

No. 12417.

Supreme Court of Illinois.

April 21, 1920.

Trespass by P. C. Haley and others against Fred S. Johnson. From a judgment for plaintiffs, defendant appeals.

Reversed.

Appeal from Circuit Court, Will County; Frank L. Hooper, judge.

Garnsey, Wood & Lennon, of Joliet, for appellant.

Robert E. Haley and J. W. Downey, both of Joliet (P. C. Haley, of Joliet, of counsel), for appellees.

FARMER, J.

Appellees sued appellant in an action of trespass quare clausum fregit. The declaration alleged appellant forcibly broke and entered the close of appellees (three city lots described), and broke down and destroyed 15 rods of fence of the appellees belonging to said close. Appellant pleaded the general issue and a special plea of liberum tenementum. Replication was filed to and issue joined on the special plea. A jury was waived by agreement and the cause tried by the court, resulting in a judgment for appellees against appellant for $84 and costs.

Appellees acquired by purchase from Lydia Talbot, a widown, in April, 1917, lots 13, 14, and 15 in Blanchard's subdivision of block 32, School Section addition to Joliet, Ill. In May, 1915, the appellant acquired by purchase from the same grantor lot 6 in Commissioner's subdivision of block 33, School Section addition. Lots 13, 14, and 15 faced east on Illinois street, and extended back west to the line between blocks 32 and 33. Marion street ran east and west along the north side of lot 13, and the other two lots, 14 and 15, lay south of lot 13. Lot 6 in block 33 faced north on Marion street, and extended back south almost to the south line of lot 15 in block 32. Its east line was the west line of appellees' lots. There was an old picket fence separating appellants's and appellees' property. Appellant claimed the fence was wholly on his lot, and, over appellees' protest and order forbidding him to do so, he tore down and appropriated the fence, whereupon this suit was brought; and from the judgment in favor of appellees, appellant has prosecuted this appeal.

Many years ago the appellees' lots were owned by Ann Smith, who, with her husband, Andrew Smith, lived upon and occupied them as a homestead. Andrew Smith, the husband, owned the property adjoining his wife's on the west, although, as we understand derstand it, his property was not during his lifetime subdivided into blocks and lots. When it was subdivided, lot 6 of the subdivision adjoined appellees' lots on the west. Smith died in 1886, and his widow, Ann Smith, died in 1905. Lydia Talbot is their daughter, and through her father and mother acquired title to the property now owned by both appellant and appellees. As we have said, in May, 1915, she conveyed lot 6 to appellant, and in April, 1917, she conveyed lots 13, 14, and 15 to appellees. The fence was built by Smith more than 30 years ago, while he and his wife were living on the property now owned by appellees. Both parties to this suit insist the fence was not a partition fence. Appellees say that, when Smith built the fence, he did it do inclose the west end of lots 13, 14, and 15, and not as a partition fence between those lots and his property, which is now lot 6, and that the owners of the lots have had adverse possession of the fence, and all the land east of it, more than 30 years, whereby their title has become absolute by limitation, even if the fence was on lot 6.

Accepting the contention of the parties themselves that the fence never was a partition fence, two questions are left for determmation: (1) Was the fence built on lot 6? And (2) did appellees acquire title to it by the 20-year statute of limitations?

As to the first question, we have carefully read the entire evidence, and, while it is conflicting, we cannot escape the conclusion that the decided weight of it is that the fence at the north end was from a foot to a foot and a half west of the line between appellees' lots...