Hammond v. Shepard

• Decision Date: 21 June 1900
• Citation: 57 N.E. 867,186 Ill. 235
• Parties: HAMMOND et al. v. SHEPARD.
• Court: Illinois Supreme Court

186 Ill. 235

57 N.E. 867

HAMMOND et al.

v.SHEPARD.

Supreme Court of Illinois.

June 21, 1900.

Appeal from circuit court, Carroll county; James Shaw, Judge.

Ejectment by Martin Shepard against Robert Hammond and others. From a judgment in favor of the plaintiff, defendants appeal. Reversed.

J. M. Hunter and A. F. Wingert, for appellants.

D. S. Berry, for appellee.

WILKIN, J.

In an action of ejectment in the circuit court of Carroll county, Martin Shepard, appellee, recovered a judgment against appellants for the E. 1/2 of the N. W. 1/4 of section 21, township 24 N., range 4 E. of the fourth principal meridian, Carroll county, in fee. To reverse that judgment this appeal is prosecuted. The declaration is of three counts, the first describing and claiming the whole of the east half, etc., and each of the others describing and claiming one of the 40-acre tracts of the 80. The plea was not guilty, and a trial was had before the court without a jury.

Plaintiff sought to establish his title to the premises as a whole by color of title, possession and payment of taxes for seven years, and also by 20 years' adverse possession to a fraction of 3.39 acres in the southeast corner of the tract, claiming that he became the owner in fee of the remaining 76.61 acres as accretions to, or relictions from, said fraction; also that, at the time his grantor obtained a patent from the government to the fraction, all the remainder of the 80-acre tract was between the meandered line of the fraction and the true water line of the lake on which it bounded, and therefore the whole tract passed by such patent; and, further, that he had been in the open, exclusive possession of all of the 80-acre tract for more than 20 years prior to the entry upon the same by the defendants. He also set up title to a small part of the north 40 of the tract by deed from one Edwin Doty. The defendants introduced in evidence a patent from the United States to Elhanan Fisher, dated July 10, 1873, to the west fractional half of the N. W. 1/4 of this section, containing 44 acres, and deraigning title to that fraction from said Fisher. The only theory upon which they could claim title to the land in controversy in this suit would be that by accretion or reliction it had become added to the fractional 44 acres. It is clear such a claim could not be maintained upon the proofs in this record, and it is not insisted upon by appellants. Their contention is that the plaintiff failed to establish title in himself to any part of the land described in his declaration, much less to the whole of it, and therefore the judgment of the trial court is erroneous.

The 3.39 acres is a part of an island in Sunfish Lake, the lake extending over portions of Mt. Carroll and York townships, in Carroll county. This lake at one time covered 738.70 acres in sections 30, 31, and 32, township 24, etc., in Mt. Carroll township, extending about one and a half miles north and south, and one mile east and west, most of it being in section 31. In the year 1839 the island of which the 3.39 acres is a part (known as ‘Shepard's Island’) and the lake were meandered by government surveyors and duly platted. The evidence all shows that prior to 1871 the bed of the lake, to substantially the meandered line, was covered with water to a depth of several feet. North of the head of the lake is Plum river, and in the fall of 1871, for some reason not appearing from the evidence, the county caused a ditch to be dug from the lake to this river. This drained most, if not all, of the water of the lake from the lands in controversy, in which condition they remained for several years. The ditch became filled up, and in 1880 or 1881 the lake had again become filed with water to substantially its former depth. No material change took place until the spring of 1890, when the water began to again disappear, which the plaintiff contends continued until the land in suit became dry.

The law of this state, as repeatedly announced, is that shore owners on meandered lakes, whether navigable or nonnavigable, take title only to the water's edge, the bed of the lake being in the state. It is not claimed that the 76.61 acres became dry land after the lake filled in 1880 or 1881, until after the year 1890, and, as no statute of limitations could run against the state, plaintiff wholly failed to prove a preseciptive title to that part of the tract. The title to the 3.39 acres remained in the government of the United States until July 10, 1873, when a patent was issued by it to one Elijah Funk, for the use of Carroll county. Afterwards, April 20, 1875, Funk and wife deeded the same to plaintiff, the deed reciting: ‘It being the same land that I, as drainage commissioner, located for the use of Carroll county.’ Under this deed plaintiff claims title to the 3.39 acres by color of title, possession, and payment of taxes for the statutory period of seven years. The payment of taxes is not denied, but the defendants insist that the requisite proof of possession is wanting, and especially that the land was held by the county of Carroll as a public trust, and that no limitation could run against it under sections 6 and 7 of the statute of limitations. Starr & C. Ann. St. c. 83, § 8. While the proof of plaintiff's possession under the Funk deed is not entirely satisfactory, we are inclined to think it sufficient to justify the court below in finding that fact in his favor. In Piatt Co. v. Goodell, 97 Ill. 84, one of the questions being, ‘Does the statute of limitations run against a county in favor of a party holding color of title for swamp lands acquired in good faith, and showing payment of taxes and possession for eight years?’ we said, ‘The tax deed was color of title under the limitation act of 1839,’-holding that such land was not held by the county for any public purpose, and the exception in section 8, supra, did not apply; that a county, being the owner of land which...