Grim v. Murphy

• Decision Date: 13 June 1884
• Citation: 110 Ill. 271,1884 WL 9881
• Parties: JOHN GRIM et al.v.CORNELIUS MURPHY.
• Court: Illinois Supreme Court

110 Ill. 271

1884 WL 9881 (Ill.)

JOHN GRIM et al.

v.CORNELIUS MURPHY.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 13, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jasper county; the Hon. WILLIAM C. JONES, Judge, presiding.

Mr. JOHN H. HALLEY, and Mr. W. H. MCDONALD, for the appellants:

The testimony of the witnesses upon the question of the parol agreement to fix the boundaries, as well as the adverse possession, is not controverted, and we insist that the law is with the appellants on both points. Cutler v. Callison, 72 Ill. 113; Kerr v. Hitt, 75 Id. 51; Hubbard v. Stearns, 86 Id. 35; McNamara v. Seaton, 82 Id. 498; Tyler's Law of Boundaries, Fences, etc. 254-256.

As to the question of adverse possession under the plea of the Statute of Limitations, see Huntington v. Whaley, 29 Conn. 391; Tyler's Law of Boundaries, Fences, etc. 335; Libeau v. Bergeson, 14 La. 489.

We insist that the law is, that original monuments afford the best evidence as to the line run by the government surveyors. McClintock v. Rodgers, 11 Ill. 279; Yates v. Shaw, 24 Id. 367.

Mr. J. M. HOENY, and Mr. P. A. BRADY, for the appellee:

We insist that the evidence does not establish the agreement respecting the boundary line with that certainty and clearness required by law. The evidence does not bring the case within the rule in McNamara v. Seaton, 82 Ill. 500.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, for the recovery of a strip of ground sixty-three feet and nine inches wide at the west end, and fifty-nine feet wide at the east end. It is claimed to be a part of the north-west quarter of the north-west quarter of section 4, town 8, range 10 east. The controversy grows out of a dispute as to the true line between the land of Grim and appellee, and as to whether the occupancy of the strip in controversy by Grim for more than twenty years, under an agreement between him and a former owner of appellee's land under the claim of ownership, is a bar to controverting the question as to where the line was really located by the government surveyors.

In the case of Cutler v. Callison, 72 Ill. 113, it was held that the owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line thus agreed upon, is binding and conclusive, not only upon them, but upon their grantees. It is upon the principle, not that title passes by the parol agreement, but that the extent of the ownership of the land of each has been agreed upon, settled and determined, and that when acted upon, the parties and privies are estopped to question the executed agreement. The same doctrine is announced in the cases of Crowell v. Maughs, 2 Gilm. 419, Kerr v. Hitt, 75 Ill. 51, Hubbard v. Stearns, 86 Id. 35, McNamara v. Seaton, 82 Id. 498, Yates v. Shaw, 24 Id. 367, and Bauer v. Gottmanhausen, 65 Id. 499. We, after such repeated and uniform decisions of this court, especially when it has become a rule of property, must regard the doctrine as settled.

It was held in some of these cases, that when the boundary line was thus agreed upon, and possession taken and held for twenty years or more, a recovery was barred by the Statute of Limitations. Here, Black, the agent for the land appellee now owns, testifies that as early as in 1852 he had the land surveyed, and the corners and monuments placed by the government surveyors were found, and the line established by them; that he showed Grim that line, and it was adopted by them as the line; that both tracts were improved by them to conform to that line; that Black first fenced, and Grim afterwards, in 1858 or 1859; that he placed his fence where it now stands; that he set his orchard and built his house on the land now claimed by appellee, and Grim has had it in actual occupancy ever since, more than twenty years before this suit was brought. Grim testified to substantially the same as Black,--nor do we find that this evidence is contradicted by any witness testifying in the case. But it is attempted to break the force of this evidence by proof of admissions made by Grim. There are witnesses who testify, (and appellee of that number,) that Grim, within the twenty years, had proposed to buy the strip in controversy, or stated he would purchase it if the line was established different from his claim. Appellee first stated that Grim proposed to purchase, but on cross-examination he says Grim only proposed to purchase in case the line was established otherwise than he claimed, and adverse to him. There is no evidence that he ever, after the expiration of his twenty years' possession, unconditionally proposed to or said he would buy. Grim testified that he had no recollection of such an offer, but may have said he would purchase to avoid suit. There are a number of witnesses who testify that the line was always regarded by the neighbors as being twenty feet south of Grim's fence, and they all fenced their lands to conform to it as the line. It appears that several recent surveys were made, all running from one to four rods north of what had been regarded previously as the line. It appears that no two of these later surveys correspond, but vary from one to three rods from each other.

Under this evidence it was essential that the jury should have been accurately instructed, which was not done. The third of plaintiff's instructions is manifestly incorrect as a legal proposition. It is this:

“That adverse possession sufficient to defeat a legal title, when defendants have no paper title, can not be made out by inference, but must be established by clear and positive proof, and the possession must be continuous and...