Bitter v. Saathoff

• Decision Date: 21 March 1881
• Citation: 98 Ill. 266,1881 WL 10474
• Parties: JOHN BITTERv.THOMAS W. SAATHOFF.
• Court: Illinois Supreme Court

98 Ill. 266

1881 WL 10474 (Ill.)

JOHN BITTER

v.THOMAS W. SAATHOFF.

Supreme Court of Illinois.

Filed at Springfield Mar. 21, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Montgomery county; the Hon. JESSE J. PHILLIPS, Judge, presiding.

Mr. ROBERT MCWILLIAMS, and Mr. GEORGE W. PAISLEY, for the appellant:

Edward Scott, being the owner of two eighty acre tracts of land, sold and conveyed the east forty acres of each tract to appellee, Saathoff, in May, 1875. When Scott sold the west forties to Bitter, the appellant, there was and now is a fence on what they both recognized and treated as a boundary line between them. The location of this line is the question involved in this suit.

John Bitter, Jr., testified that Scott kept up the north half of the fence, and appellant the south half. The acts and declarations of Scott all go to show that he did make an agreement with the appellant that the fence should be the line between them. Such an agreement when made will be sustained. Cutler v. Callison, 72 Ill. 113; Yates v. Shaw, 24 Id. 368; Hubbard v. Stearns, 86 Id. 38; Crowell v. Maughs, 2 Gilm. 423.

In instructions 1, 2 and 5, for the appellee, and in instructing the jury that the defendant must establish his case by “a clear preponderance” of proof, there was error. Crabtree v. Reed, 50 Ill. 206; McDeed v. McDeed, 67 Id. 550; Peake v. People, 76 Id. 289.

Mr. BEN. E. JOHNSON, for the appellee:

The plaintiff below claimed to recover the strip of land as belonging to his two forty acre tracts, as shown by the boundary line established by the survey of Mr. Fish.

The burden of proof was on the defendant to show whether there was a parol agreement that the fence should be the boundary line between the lands bought by defendant and those owned by Scott, and whether defendant took possession of the land to the fence by virtue of that agreement, and the question now arises, were the instructions requiring the defendant to show by a clear preponderance of evidence, error to his prejudice. Under the evidence we think not. Yates v. Shaw, 24 Ill. 368; Enos v. Hunter, 4 Gilm. 211.

For other cases where this court has held it necessary to establish a right, etc., by clear and entirely satisfactory proof, see Myers v. Park, 95 Ill. 408; Palmer v. Converse, 60 Id. 313; Peck v. Aubart, 95 Id. 113; McNamara v. Seaton, 82 Id. 498.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This was an action of ejectment, by appellee, to recover from appellant a small parcel of land, alleged to be about eleven acres, on the west side and constituting a part of the south-east quarter of the south-west quarter of section 6, and the north-east quarter of the north-west quarter of sec. 7, town 8, north range 5 west, being a narrow strip of the full length of the two forties, and of sufficient width to make the quantity of land above mentioned, but separated from the main portion of these forties by a division fence which had previously been supposed to be upon the line dividing them and the two forties owned by appellant lying immediately west of them. The controversy in this case, as will readily be perceived, grows out of a difference of opinion between the parties as to the true location of the line dividing their respective premises.

The plaintiff recovered in the court below, and the defendant brings the record to ...