Hardin v. Shedd

• Decision Date: 21 December 1898
• Citation: 52 N.E. 380,177 Ill. 123
• Parties: HARDIN et al. v. SHEDD. CLEAVELAND et al. v. SAME.
• Court: Illinois Supreme Court

177 Ill. 123

52 N.E. 380

HARDIN et al.

v.SHEDD.

CLEAVELAND et al.

v.SAME.

Supreme Court of Illinois.

Dec. 21, 1898.

Appeals from circuit court, Cook county; M. F. Tuley, Judge.

Separate bills in equity by Charles B. Shedd under the burnt records act against Gertrude H. Hardin and others and Franklin A. Cleaveland and others. From a decree an appeal was prosecuted, and the cause was reversed (44 N. E. 286), and from a decree on a second trial Gertrude H. Hardin, Franklin A. Cleaveland, and Chester B. Rushmore appeal. Affirmed.

Dent & Whitman and Moran, Kraus & Mayer, for appellants.

William Prescott and H. S. Mecartney, for appellee.

WILKIN, J.

This is a consolidation of several bills in equity under the burnt records act, filed in the circuit court of Cook county. From a decree rendered in that court an appeal was prosecuted to this, and the decree below in part affirmed and in part reversed, the cause being remanded for further proceedings in conformity with the opinion filed therein. For a statement of the pleadings and evidence in the case and the opinion then rendered, see Fuller v. Shedd, 161 Ill. 462, 44 N. E. 286. Upon the cause coming on to be heard after the remandment to the circuit court, defendant and cross complainant Gertrude H. Hardin filed her motion in writing for leave to introduce further testimony. This motion set up that since the entry of the original decree a trial had been had in a suit in ejectment by her against one Conrad N. Jordan in the United States circuit court for the Northern district of Illinois, in which it was found by that court that she was seised in fee simple of certain lands claimed by her in her cross petition in this cause, and was entitled to recover such lands to the center of Wolf lake. The motion also suggested that the testimony taken at the original hearing, before appeal to this court, had not been directed especially to the question of the extent of accretions or relictions, but more especially pertained to the question raised by persons claiming under the survey of 1874, which this court held to be void, and offered to show by surveys and field notes the nature of the accretions and relictions, and that the lake or lakes have but little likelihood of permanence unless artificially sustained or protected. Appellants Cleaveland and Rushmore at the same time filed a petition asking leave to file a supplemental answer. The petition recited that since the trial of the cause which resulted in the decree of August 10, 1892, the waters of Hyde Lake had, because of the deepening and widening of the Calumet river, all disappeared, and the land formerly covered by that lake was now dry ground. The chancellor denied the motion of Gertrude H. Hardin and also the petition of Cleaveland and Rushmore. Thereupon a decree was entered, which, among other things, recited that ‘the recession was such that between the meandered lines and the water there was uncovered, and the greater part of the year was dry land around the lake, a strip twenty to twenty-five rods wide, and the marshy depression between the two ridges of land above described has become permanent dry land, the width thereof at the date of the former decree varying from at least thirty-six rods to seventy rods; that said permanent land thus accruing became attached to the said ridges of land as accretions and by reason of such recessions of the waters.’ Thereupon it was ‘decreed that said Charles B. Shedd should have and recover from each, all, and every person and persons in possession of or claiming any right, title, or interest in or to the same, or to any part thereof, the possession of the fractional southwest quarter of fractional section 20, and the fractional section 29, all in township 37 north, of range 15 east of the third principal meridian, and the lands particularly described as follows, to wit: Beginning at the northeast corner of said fractional southwest quarter of said fractional section 20, township 37 north, range 15 east of the third principal meridian; running thence south along the east line of said southwest fractional quarter of said fractional section 20 (and the extension thereof to the south) to the open waters of Wolf Lake; thence along the open waters of Wolf Lake in a southerly or southwesterly direction to the south line (extended to the east) of the said fractional section 29; thence west along said line as extended, and said south line of said section 29, to the north and south section line between sections 29 and 30 of said township and range; thence north along the line between said sections 29 and 30, and its extension to the north to a point identical with the northwest corner of the southwest quarter of said section 29, if said section were fully squared out, and all its lines extended; thence from said point northwesterly to the waters of Hyde Lake, along a line drawn at an angle of 40 degrees with a line drawn due east and west through or at said point; thence along with the waters of Hyde Lake in a northerly or...