Milligan v. Miller
| Decision Date | 03 April 1912 |
| Citation | 97 N.E. 1054,253 Ill. 511 |
| Parties | MILLIGAN v. MILLER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Shelby County; Thomas M. Jett, Judge.
Action by David A. Milligan against Jesse Miller, Jr., and others. From a judgment for defendants, plaintiff appealed to the Appellate Court. Cause transferred. Affirmed.William H. Ragan and George B. Rhoads, for appellant.
Richardson & Whitaker, for appellees.
The appellant sued the appellees in trespass, and appealed from a judgment in their favor to the Appellate Court, which transferred the cause here, because a freehold was involved.
The appellees are commissioners of highways of four townships in Shelby county which meet at one corner. A petition was presented to them in September, 1905, for the laying out of a highway on the dividing line between two of the townships on the north and two on the south, and such proceedings were had that upon an appeal to three supervisors a final order was made for the laying out of the highway, and was filed in the several township clerks' offices. Proceedings were taken for the assessment of damages, the amounts assessed were tendered, notice to remove fences was served, and on June 25, 1907, the fence on the south side of the southeast 40 acres of Shelbyville township was removed by the appellees. The suit was for damages, caused by the removal of that fence. The defendants justified as commissioners under the order establishing the road.
[1] David A. Milligan, the appellant, is a lawyer, living at Shelbyville. David Y. Milligan, his father, is a farmer, who owned the 40 acres mentioned, and lived near. In 1902, he conveyed that 40 to his son, reserving a life estate. The deed was not put on record until after this suit was begun, and the father and son succeeded in deceiving the commissioners as to the title, so that no notice was ever served upon the appellant, or damages allowed to him, or attempt made to settle with him; but his father was, throughout the proceedings, treated as the owner of the land. Soon after this deed was made, the father gave the plaintiff the possession of the land, and says that he verbally released the life estate reserved in the deed. This intended release was ineffectual, and the father continued to be the owner of a life estate in the premises. He was therefore properly made a party to the proceeding to lay out the road and assess the damages. The appellant, who owned the remainder, was not named in the petition for the road, or any of the proceedings to lay it out and assess damages to the owners, as an owner of land. For the purpose of this case, we think it must be held that there was no lack of jurisdiction in the commissioners and supervisors, and no such irregularity as would authorize a recovery by appellant upon the ground that the proceeding to lay out the road was invalid in any other respect than that he was not made a party and his damages assessed. His right to recover on that ground is denied by appellees, because, it is alleged, he is estopped by his own conduct, together with that of his father, who, it is claimed represented appellant in looking after the land. The land has been, during all the time it was owned by appellant and his father, in the possession of tenants. Appellant and his father testified the father turned his possession over to appellant in the spring of 1903. This change of possession was not manifested by any changed appearances, as the land continued in the occupancy of tenants; but after that time, it is claimed, they were the tenants of appellant, instead of his father, and the leases were made by appellant and rent accounted for to him.
[2] For the purpose of ascertaining who were owners of the lands over which the proposed road was to be laid out and making them parties to the proceedings, the records in the recorder's office were examined. The title of record was in David Y. Milligan, appellant's father. David Y. Milligan testified he had acted as landlord, under appellant's directions, from the time the deed was made to the time he testified on the trial; that sometimes appellant paid him for his services, and sometimes rendered services for the witness which offset services the witness rendered, as agent for appellant, in looking after the land. Several of the commissioners of highways testified that when they met to examine the route of the proposed road David Y. Milliganwas present; that he spoke of the land as his, and claimed the proposed road, if laid out, would damage him $1,200.
When the supervisors summoned to hear the appeal had decided to grant the road, they called on David Y. Milligan to talk with him about the damages on account of taking a part of the 40 acres for the road, and endeavored to agree with him upon the amount. They told him they had agreed with the other landowners who were damaged, and had come to try to agree with him. Milligan declined to do business with them, and asked them to show their credentials. One of them showed him a copy of the summons that had been served upon them, and he then wanted them to prove they were the men they represented themselves to be. The supervisors told him if they could not agree on the damages they would have to call a jury to assess the amount. Milligan replied, ‘Squire Johnson told me Saturday that you fellows were coming to give me $40 an acre for my land,’ and said he did not want to do any business with the supervisors. Appellant was not present on any of these occasions, and had no talk with the commissioners about the road prior to the final order establishing it, and the assessment of damages to his father, by jury, for taking a part of the land which appellant owned in fee, subject to a life estate in his father.
On the 17th of April, 1907, a notice, signed by all but one of the commissioners of highways of the four townships, was served upon David Y. Milligan to remove his fences from the road as laid out by order of the three supervisors. Said notice also informed Milligan that $400 damages, assessed in his favor, was in the hands of Justice of the Peace W. E. Lowe. On the same day that notice was served, as we understand it-at all events, before the alleged trespasses were...
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...June 10, 1940. Management and Investment Co. v. Zmunt, 59 F. 2d 663; C. & A.R.R. Co. v. Langer, 288 Ill. 16, 123 N.E. 61; Milligan v. Miller, 253 Ill. 511, 97 N.E. 1054; Mayer v. McCracken, 245 Ill. 551, 92 N.E. 355; Rodemeier v. Brown, 169 Ill. 347, 48 N.E. 468; 31 C.J.S. 314; 3 Pomeroy's ......
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