St. Louis. A.&T.H.R. Co. v. Nugent

• Decision Date: 19 June 1894
• Court: Illinois Supreme Court
• Parties: ST. LOUIS. A. & T. H. R. CO. v. NUGENT.

152 Ill. 119

39 N.E. 263

ST. LOUIS. A. & T. H. R. CO.

v.NUGENT.¹

Supreme Court of Illinois.

June 19, 1894.²

Appeal from city court of East St. Louis; B. H. Canby, Judge.

Ejectment by Mary Nugent against the St. Louis, Alton & Terre Haute Rilroad Company. Plaintiff obtained judgment. Defendant appeals. Reversed.

Turner & Holder, for appellant.

M. Millard, for appellee.

SHOPE, J.

This case was before us at a former term, and will be found reported as Railway Co. v. Nugent, 147 Ill. 254, 35 N. E. 464. The plaintiff, in the declaration upon which this cause was tried, claimed title in fee to a part of lot 6 in block 29 of the platted town of Illinois, now part of the city of East St. Louis, commencing at a point on the southern line of said lot, 24 feet 3 inches from the most southern corner thereof, thence along said line of said lot 35 feet 9 inches, to the westernmost corner thereof, thence along the western line of said lot 130 feet, thence in a straight line to the place of beginning. The peculiarity of description will be understood when it is stated that the side lines of the lot are run north, 47 degrees east; that is, the lot is so platted that the lines run at practically an angle of 45 degrees from north and south and east and west courses. The lot, at what is practically its southwest end, fronts on Brady street, which is laid out practically from northwest to southeast, as shown in the accompanying plat.

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The plaintiff, to maintain the issues on her part, introduced in evidence a deed from Jane E. Lewis and others to plaintiff, conveying lots 6 and 7 in block 29 of the town of Illinois, county of St. Clair, etc., dated October 3, 1862; and also a deed from the master in chancery of St. Clair county to the grantors in the foregoing deed, dated June 30, 1850. Plaintiff then proved that the lots were, at the time she acquired title, vacant, and that she took possession and built a house on the lots, as owner, in 1866, and built a fence inclosing all of lot 7 and part of lot 6. A portion of lot 6 was not included within the inclosure, the fence having been built originally where it now stands. This evidence, when considered in the light of the facts now shown, shows that the fence was built practically 25 feet, or 24 feet 3 inches, in from the south corner of the lot, and ran on a straight line, striking the northwest side of the lot at a point 130 feet from the west, or most westerly, corner of the lot. The house built in 1866 was burned, and the plaintiff, about 1868, erected a house upon each of said lots. It appears that she entered into possession, made the improvements mentioned, and has continued in the occupancy of lot 7 and a part of lot 6, embraced within her inclosure, as owner of the lots under the deeds before mentioned. Lot 6 is 60 feet wide and 140 feet long, and it will be observed that a triangular piece or part of lot 6, described as commencing at a point 35 feet 9 inches southeast from the west, or most westerly, corner of said lot, and running thence northwest to said corner, thence northeast on the side line of said lot, and thence in a straight line to the place of beginning, has at no time been in the actual possession of the plaintiff. And it is sought to extend her possession, taken in 1866, of part of said lot 6, to all of the lot. ‘It is,’ says Mr. Justice Scholfield, in Lancey v. Brock, 110 Ill. 609, ‘familiar doctrine that the visible and exclusive appropriation of a part of a tract of land, claiming the whole under color of title, is, in law, an actual possession of the entire tract, except so far as there may be adverse possession.’ See, also, Brooks v. Bruyn, 18 Ill. 539;Davis v. Easley, 13 Ill. 192;Prettyman v. Wilkey, 19 Ill. 241;Coleman v. Billings, 89 Ill. 183. And he who is in the actual possession of land, claiming in fee, is, until the contrary appears, presumed to be the owner, and may maintain an action for the invasion of his possession against any one not seised of a paramount title. Cases supra. It would therefore seem clear that the plaintiff must be presumed, from the time of her entry upon the lot, to have been in possession thereof to the extent and according to the purport of her deed, unless the circumstances show that her claim of title did not extend to the portion of the lot in controversy, or that there was adverse possession; and, in the absence of such showing, that she would be entitled to recover the possession against an intruder, not possessed of the fee, unless her right of entry has been tolled by laches in asserting it.

The defendant offered in evidence conveyances showing that it had succeeded to all the right, title, and interest, property, lands, and right of way of the Belleville & Illinoistown Railroad Company. And thereupon offered in evidence proceedings in condemnation by the latter company, determined November 24, 1855, for the condemnation, etc., of said lot 6, and other lots, which was, on objection by the plaintiff, excluded. The defendant also offered a deed conveying the right of way, etc., of the Belleville & Illinoistown Railroad Company to the defendant, which was likewise excluded. In the view we take, it will be unnecessary to consider the errors assigned questioning the rulings of the court in excluding such evidence, for the rason that, independently of whether the defendant was shown to have been seised in fee, or the deed offered was color of title, we are of the opinion that the plaintiff, upon the facts proved, cannot recover. It appears, and is not controverted, that as early as 1863,-three years at least before the plaintiff took possession,-the track of the Belleville & Illinoistown...