Hubbard v. Stearns

• Decision Date: 30 September 1877
• Citation: 1877 WL 9654,86 Ill. 35
• Parties: MAY HUBBARDv.MARCUS C. STEARNS.
• Court: Illinois Supreme Court

86 Ill. 35

1877 WL 9654 (Ill.)

MAY HUBBARD

v.MARCUS C. STEARNS.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Superior Court of Cook County; the Hon. SAMUEL M. MOORE, Judge, presiding.

This was a bill in chancery by May Hubbard against Marcus C. Stearns, to settle a disputed boundary line. The bill shows that Stearns had claimed a part of the lot owned by the complainant, being a small strip, and had built a fence inclosing the same, and as a consequence thereof her grantees threaten to sue her, and that Stearns' pretended claim is a cloud upon the unsold portion of said lot, and prevents a sale by her. The prayer was that the original line be established and the cloud removed.

The defendant answered, setting up that the fence built by him was where the division fence had been for more than twenty years prior to the filing of the bill, and showing occupancy and claim of title to such division fence for over twenty years.

On the hearing the court dismissed the bill for want of equity. Messrs. E. H. & N. E. GARY, for the appellant.

Messrs. FULLER & SMITH, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

The only controverted question presented by the pleadings and evidence in this case is in regard to the location of the division line between lot 13 in block 24, canal trustees' subdivision of south fractional section 29, township 39 north, range 14 east, now owned by the appellee, Marcus C. Stearns, and lot 14 in the same block, owned by appellant, May Hubbard. Both lots were originally owned by the canal trustees, and before they were platted or sold they were divided by a line fence which had been erected long prior to 1848. In the year 1848 a plat of the property was made and recorded, and Henry G. Hubbard, appellant's father, purchased lot 14, September 5, 1848, and _____ Davis, under whom appellee claims, purchased lot 13, September 4, 1848. When Davis purchased lot 13, he immediately went into the possession of the property, claiming title to the old fence which had been erected between the two lots, and he and his grantees have continuously occupied up to this fence, claiming the absolute title, down to the commencement of this suit. It is but a reasonable inference from the testimony that it was the intent of the canal trustees, when they platted the property, to adopt the old fence as the true dividing line of the two lots in question, but we do not, however, place the decision of the case upon that ground. Whether the old fence was on the true line or not, in the view we take of the case, is immaterial.

The 4th section of the Limitation Act of 1827 provides: “No person who now hath or hereafter may have any right of entry into any lands, tenements, or hereditaments, shall make any entry therein but within twenty years next after such right shall have accrued, and such person shall be barred from any entry afterwards.” The 7th section of the same act declares: “Every real, possessory, ancestral or mixed action or writ of right, brought for the recovery of any lands, tenements, or hereditaments, shall be brought within twenty years next after the right or title thereto or cause of such action accrued, and not after.” Gross' Stat. 1869, p. 429. Under this statute adverse possession under a claim of ownership for the period provided by the act will bar the...