Burns v. Curran

• Decision Date: 08 December 1916
• Docket Number: No. 10823.,10823.
• Citation: 275 Ill. 448,114 N.E. 166
• Parties: BURNS v. CURRAN et al.
• Court: Illinois Supreme Court

275 Ill. 448

114 N.E. 166

BURNS

v.CURRAN et al.

No. 10823.

Supreme Court of Illinois.

Oct. 24, 1916.

Rehearing Denied Dec. 8, 1916.

Appeal from Circuit Court, Peoria County; Clyde E. Stone, Judge.

Ejectment by Frank S. Burns against W. R. Curran and others. Judgment for defendants on a directed verdict, motion for a new trial overruled, and plaintiff appeals. Reversed, and cause remanded.

Keithley & Keithley, of Peoria, for appellant.

Stevens, Miller & Elliott, of Peoria, and Ralph Dempsey, of Pekin, for appellees.

CURTWRIGHT, J.

The appellant brought this action of ejectment against the appellees to recover possession of the west half of section 5, township 6, range 6, in Peoria county. The defendants jointly pleaded not guilty. One of the defendants, the Banner special drainage and levee district, filed a separate plea, alleging that by virtue of a quitclaim deed dated August 1, 1912, executed by the defendant W. R. Curran and wife, it became the owner and possessed of a strip 200 feet wide extending across said land, and became the owner of a perpetual easement in the same for the construction of its ditches, and it disclaimed all other interest in the premises. The defendant W. R. Curran filed two separate pleas, one of the 20-year and the other of the 7-year statute of limitations. The cause came to trial before a jury, and at the conclusion of the evidence offered by the appellant the defendants offered no evidence, but asked the court to direct a verdict of not guilty. The motion was sustained, the direction given, and a verdict entered accordingly. The motion of appellant for a new trial was overruled, and judgment was entered on the verdict.

The plaintiff offered, and the court admitted in evidence, three quitclaim deeds executed to him-one from Jonathan S. Purple and wife of the northwest quarter of section 5, dated February 12, 1894; one from Sarah L. Hamaker, dated February 14, 1894, of the southwest quarter of section 5; and the third from Ella H. Gleissner and husband, dated February 4, 1894, of said southwest quarter of section 5. He also proved that in April, 1894, he went upon the land and put his tenant in actual possession of a part of it. He strung two wires around about an acre in the southwest quarter, and the tenant cleared from 3 to 5 acres in the northwest quarter by clearing off the driftwood, logs, and stumps, and the tenant planted these two portions of the premises in corn. The possession was taken by virtue of the three quitclaim claim deeds. The plaintiff also offered in evidence, and the court admitted, the record of the board of supervisors of Peoria county showing the report of the committee of the judiciary of that board, to whom was referred the petition of the plaintiff for a quitclaim deed to the southwest quarter of section 58 recommending that he be given a quitclaim deed; also a resolution of the board adopting the report and instructing the chairman of the board to execute and deliver to the plaintiff a quitclaim deed for the county of Peoria for the swamp land mentioned and particularly described in the petition. The plaintiff then offered a quitclaim deed executed by the chairman of the board of supervisors, dated December 15, 1898, of the southwest quarter of section 5, reciting that it was the same land that was sold by the county of Peoria to John D. Hamaker, as would more fully appear upon page 108 of volume B of the Supervisors' Record of Peoria county. The deed also recited that it was given in pursuance of authority granted by and instructions received from the board of supervisors of Peoria county on December 13, 1898, as would more fully appear by the record of said board. The deed was objected to because there was no showing of title in or possession by the chairman of the board, or title or possession in Peoria county, and no showing that the land had been legally classed as swamp land. The court sustained the objection and excluded the deed.

It was not necessary to show that the county of Peoria had title. If that were so, it would have been necessary to show that the grantor of Peoria county, and his grantor, had title, and so on back to the government, which is never required in making a prima facie case by proof of possession under a deed. It is only where the plaintiff does not show possession in himself or a predecessor in title that he must trace his title to a common source of title, or to the government. Where there is no proof of possession, and no proof of title from a common source, the plaintiff must prove title from the government. Krause v. Nolte, 217 Ill. 298, 75 N. E. 362,3 Ann. Cas. 1061. But that rule did not apply to this case, because possession was proved. Neither was it necessary to show that the land had been classified as swamp land. The state was invested with the title to all swamp and overflowed land within its boundaries by the act of Congress of 1850, and all swamp and overflowed lands were granted to the counties within their borders by the state in 1852. Wabash, St. Louis & Pacific Railway Co. v. McDougal, 113 Ill. 603. This land was overflowed land-part land and part...