Fuller v. Dauphin

• Citation: 16 N.E. 917,124 Ill. 542
• Parties: FULLER v. DAUPHIN.
• Decision Date: 09 May 1888
• Court: Supreme Court of Illinois

124 Ill. 542

16 N.E. 917

FULLER

v.DAUPHIN.

Supreme Court of Illinois.

May 9, 1888.

Appeal from circuit court, Carroll county; WILLIAM BROWN, Judge.

Trespass by J. Victor Dauphin against John Fuller for cutting timber upon an island in a navigable slough. Plaintiff based his claim, in part, upon the statute of limitations; and in respect of his possession he testified that be lived five and one-half miles from the island; that there was nothing done on the island that he knew of; that no timber was cut there to his knowledge, except that cut by defendant; that one Turpie at one time had a shanty on the island, but plaintiff saw no fence there; that trappers had a shanty there, and asked plaintiff if they might stay, and plaintiff said they might if they did no damage; that he owned a timber lot across the slough on the big island, west and some distance south of the land in controversy. Plaintiff had judgment, and defendant appealed.

James Shaw, for appellant.

J. M. Hunter, for appellee.

SHELDON, C. J.

This was an action of trespass, by Dauphin against Fuller, for cutting timber, resulting in a verdict and judgment for the plaintiff for $100 damages. The land upon which the timber is alleged to have been cut, is described in the declaration as the island in Plum River slough, being part of the S. W. 1/4 section 10, and a part of the N. W. 1/4 section 15, township 24 N., range 3 E. fourth P. M. The pleas were not guilty, and a plea of liberum tenementum. The chief question in this case seems to be one of boundary merely. The locus in quo is an island of five acres in what is called ‘Plum River Slough,’ a large running slough or arm of the Mississippi river, marked a ‘Navigable, Plum River, Slough,’ on the original government plat and survey, and being immediately below the town of Savanna, in Carroll county, in this state. The plaintiff's claim of title is under the swamp-land acts of congress and the state of Illinois, and a conveyance of the land in 1854 by the county of Carroll as swamp land, and also under the limitation statutes of the state. Defendant's claim of title is under a patent from the United States to Luther Bowen of the date of May 1, 1845, conveying as follows: ‘The west fraction of the south-west fractional quarter (West of Plum river) of section ten, in township twenty-four, of range three east, in the district of lands subject to sale at Dixon, Ill., containing twenty-three acres and ten hundredths of an acre according to the official plat of the survey of said lands returned to the general land-office by the surveyor general. The question is whether this description embraces this island. The land is described in the declaration as parts of two fractional quarter sections in sections 10 and 15, but the proof only showed the cutting of timber on the north end of the island, located entirely on section 10. The land conveyed by this patent is described as ‘west of Plum river.’ Plum river appears to be on the east and north of it, and this Plum-River slough west of it. On the west of Plum-River slough, and between it and the main Mississippi river, is a large island, surveyed and platted and sold by the government by patents. The land in controversy was never surveyed or platted by the general government, but in surveying the S. W. fractional 1/4 of section 10, township 24, range 3, a meander line was run along the east bank of this navigable slough until it came down to this low piece of land, where the meander went to the east, along a bank, to the higher table-land. The meander line was not marked on the government plat of the section, but was run simply as a meander and not as a boundary line.

Appellant insists that the patent for this west fraction of the S. W. fractional 1/4 of section 10 conveyed all land up to the middle thread of this navigable Plum-River slough, and which would include this island. The case of ...