Chicago & Nw. Ry. Co. v. Shultz

• Decision Date: 30 September 1870
• Citation: 1870 WL 6443,55 Ill. 421
• Court: Illinois Supreme Court
• Parties: CHICAGO & NORTHWESTERN RAILWAY COMPANYv.JOSEPH SHULTZ.

55 Ill. 421

1870 WL 6443 (Ill.)

CHICAGO & NORTHWESTERN RAILWAY COMPANY

v.JOSEPH SHULTZ.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Lee County; the Hon. W. W. HEATON, Judge, presiding.

The opinion states the case.

Messrs. GOODWIN & WILLIAMS, for the appellants.

Mr. JAMES K. EDSALL, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action brought by appellee before the county judge of Lee county, acting as a justice of the peace, against appellants, to recover the value of a colt injured by a passing train. The case was appealed to and tried in the circuit court.

It appears from the evidence that appellee had, about eight months before the colt was injured, taken it up as an estray, and had attempted to post it as such under the law; that he had held it in his possession during that time; that the colt was running in a pasture adjoining the appellants' railroad, and was only separated by a fence, which the company were bound to keep in repair; that the colt got through the fence and upon the road, and was so badly injured by a passing train in the night time, that it became worthless, and was finally killed. In the court below appellee recovered judgment, and the record is brought here on appeal.

On the sufficiency of the fence, the evidence was not entirely harmonious, but the jury have found it was insufficient, and we shall so regard it in considering the case.

It appears the county judge of Lee county, when acting as a justice of the peace, had, under a special act, jurisdiction to a larger sum than the judgment in this case, and no question of jurisdiction is raised on the record.

But it is urged, that appellee had failed to comply with all the requirements of the estray law in posting this animal, and, for that reason, he could not maintain this action. It is conceded, that had he posted the animal as the statute requires, he then could have recovered. It is manifest, that had he omitted no requirement of the estray law, he would thereby become vested with such a right, or lien upon the property, as would have entitled him to its possession against all persons, even the owner, until he should have paid to him such charges as the law would allow. As a general proposition, subject, it may be, to some exceptions, the person in the peaceable possession of property, may sue and recover for any wrongful damage it may sustain, against any person but the true owner, and even against him, if his possession is rightful and coupled with an interest, or he has a qualified property. Appellee being in possession, he, prima facie, had the right to recover.

Did, then, the fact, that in posting the required number of notices, a part of them were in an adjoining township, and had failed to have registered the marks, brands and color of the animal with the town clerk, overcome or rebut his prima facie right of recovery? He seems, in good faith, to have attempted to comply with the law, but failed. As far as intention may be considered, he does not occupy the position of a willful wrong doer. Being in possession under a right derived by taking up the animal as an estray, although he omitted some of the requirements which are prescribed by law, we are aware of no rule of law which will authorize a wrong doer to question the regularity of the proceeding. It, of course, can not bind the true owner, but must mere...