Illinois Cent. R. Co. v. Noyes

• Court: Illinois Supreme Court
• Writing for the Court: CARTWRIGHT
• Citation: Illinois Cent. R. Co. v. Noyes, 252 Ill. 178, 96 N.E. 830 (Ill. 1911)
• Decision Date: 21 December 1911
• Parties: ILLINOIS CENT. R. CO. v. NOYES.

252 Ill. 178

96 N.E. 830

ILLINOIS CENT. R. CO.

v.NOYES.

Supreme Court of Illinois.

Dec. 21, 1911.

Appeal from Circuit Court, Coles County; M. W. Thompson, Judge.

Action by the Illinois Central Railroad Company against E. Noyes. From a judgment for plaintiff, defendant appeals. Affirmed.James Vause, Jr., for appellant.

James W. & Edward C. Craig (John G. Drennan, of counsel), for appellee.

CARTWRIGHT, J.

The appellee, the Illinois Central Railroad Company, brought this suit in ejectment against appellant, E. Noyes, in the circuit court of Coles county, to recover the possession of a strip of land 8 feet wide, the south line of the strip being 25 feet north of and parallel with the center line of the railroad track, and the north line [252 Ill. 180]33 feet north of said center line, and extending across the E. 1/2 of the N. W. 1/4 of section 24, town 12, range 7, in said county, claiming title in fee. The appellant pleaded not guilty as to lots 5, 6, 9, and 10 in Noyes' Fifth addition to the city of Mattoon, a part of said strip which lies east of a street of the city of Mattoon running north and south through the 80-acre tract, and denying that he was in possession of the remainder or claimed any interest therein. A jury having been waived, there was a trial by the court, and a judgment in favor of the appellee.

The plaintiff is the owner of the railroad originally constructed by the Grayville & Mattoon Railroad Company, which filed its petition in the county court of Coles county on May 4, 1877, for the condemnation of the right of way 66 feet wide across said E. 1/2 of the N. W. 1/4 of section 24, containing 2.46 acres. A plat of the land to be taken was filed with the petition, but it was not found when this case was tried. Francis V. Noyes was the owner of the land, and lived in Massachusetts; and Thomas P. C. Lane, who lived at Mattoon, was his attorney in fact. A trial by jury resulted in a verdict fixing the compensation for the land taken, and the damages, at $1,100. Soon afterward the railroad company went into the hands of a receiver, who took possession of the right of way upon his appointment. The receiver settled the judgment for $660, and paid that amount on March 2, 1878, in full payment and satisfaction thereof. The receipt stated that the receiver was authorized to vary the line of the road as established and condemned, not exceeding 66 feet either way. The receiver constructed the road, but the right of way was not fenced at that time. The 80-acre tract was rented by Francis V. Noyes, through Lane, his agent, to William H. Stover in 1882. Stover used the land north of the right of way for a cow pasture, and, needing a fence, asked Lane to build one. Lane said that he did not feel like putting in a fence, and that it was up to the railroad company to build one. The Peoria, Decatur & Evansville Railroad Company then owned the road, and Stover applied to the agent of that company to build a fence. The agent said the company did not have to build a fence inside of the corporation, but it was agreed that the company should furnish the material and Stover should build the fence. The material was furnished and delivered on the ground by the railroad company, and a fence of posts and barbed wire was built, which remained until 1905, although it was in poor condition at that time, and was then torn down by the defendant, E. Noyes, who had a deed of the land north of the north line of the right of way.

The disputed question of fact in the case related to the location of that fence. The evidence for the plaintiff was that it was built 33 feet from the center line of the railroad, measured with a tape line at right angles from said center line by Stover and the section boss, and there was evidence for the defendant that the fence was only 25 feet north of said center line. After the defendant tore down the fence a row of right of way posts were set 33 feet from the center of the track, and defendant pulled them up, after which this suit was begun. Three or four years before the trial the defendant set out a row of trees 25 feet from the center line of the railroad track. There was a row of telegraph poles about 20 or 21 feet from the center of the track, and there was testimony for the defendant that the fence was 2 or 3 feet north of that line; but one witness, at least, was evidently mistaken. He made a plat of the land for the agent, Lane, in 1893, with the expectation of subdividing and selling, and he testified that there was a board fence 25 feet from the line, and that it was a solid plank fence, and probably one-third or one-quarter of it was still left at that time. For the plaintiff there was testimony that there was a roadway between the telegraph poles and the fence, and it is certain that the fence was a barbed wire fence. Judging from the record, there was a clear preponderance of the evidence for the plaintiff as to the location of the fence, and it would be strange if a railroad company, which had bought and paid for a right of way 66 feet wide, should locate its fence 25 feet from the center line, instead of 33 feet. The plaintiff returned to the state board of equalization its right of way 66 feet wide at this place for assessment and paid the taxes on it from the year 1881 to 1910, inclusive.

[1][2] After the fence was built Stover farmed the right of way during the three years of his tenancy by consent of the section boss; but that fact had no influence on the rights of the parties, because the possession...