Piper v. Connelly

• Decision Date: 23 January 1884
• Citation: 1884 WL 9761,108 Ill. 646
• Parties: CHARLES PIPERv.FRANCIS CONNELLY et al.
• Court: Illinois Supreme Court

108 Ill. 646

1884 WL 9761 (Ill.)

CHARLES PIPER

v.FRANCIS CONNELLY et al.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ROLLIN S. WILLIAMSON, Judge, presiding.

Messrs. C. H. & C. B. WOOD, for the appellant:

Under the issues the question of title was necessarily involved. Dean v. Comstock, 32 Ill. 179.

The owner of land may maintain trespass without actual entry, unless there is an actual exclusive adverse possession. Wilcox v. Kinzie, 3 Scam. 218; Cook v. Foster, 2 Gilm. 655; Holligan v. Chicago and Rock Island R. R. Co. 15 Ill. 558; Barber v. Trustees of Schools, 51 Id. 396.

If a grantor describes the boundary line as running along the bank of a river, as here, the grant will not extend to the center of the stream, but only to its bank. Angell on Watercourses, (7th ed.) 28. In support of this principle, see Child v. Starr, 4 Hill, 369; Starr v. Child, 5 Denio, 599; Halsey v. McCormick, 3 Kern. 297; Sizer v. Devereux, 16 Barb. 160; Babcock v. Utter, 1 Abb. Court of App. Dec. 40; Jackson v. Hathaway, 15 Johns. 447; Lapish v. Bangor Bank, 8 Me. 85; Bradford v. Crescey, 45 Id. 13; Stone v. Augusta, 46 Id. 127; Nickerson v. Crawford, 16 Id. 245; Stover v. Freeman, 6 Mass. 440; Hatch v. Dwight, 17 Id. 297; Daniels v. Cheshire R. R. Co. 20 N. H. 85; Lessee of McCulloch v. Aten, 2 Ohio, 425; Houghton v. Roscoe, 3 Hawks, (N. C.) 21; Rockwell v. Baldwin, 53 Ill. 19.

But where one is bounded on a stream generally, without words of restriction, he takes to the center of the stream. Middleton v. Pritchard, 3 Scam. 522; Braxon v. Bressler, 64 Ill. 488; City of Chicago v. Laflin, 49 Id. 176; Houck v. Yates, 82 Id. 179; Village of Brooklyn v. Smith, 104 Id. 429; Washington Ice Co. v. Shortall, 101 Id. 46.

Mr. HENRY W. LEMAN, and Mr. WILLIAM J. HYNES, for the appellees:

An action of trespass does not involve title, the gist being possession. Unless there is possession, actual or constructive, whether the plaintiff has title or not, the action will not lie. Cook v. Foster, 2 Gilm. 655.

Natural boundaries and directions, when at variance with number of feet or distance, when given in a conveyance, will govern. Davis v. Rainsford, 17 Mass. 207; Lodge v. Barnett,46 Pa. St. 484; Evansville v. Page, 23 Ind. 527; Brown v. Huger, 21 How. 305; Hall v. Davis, 36 N. H. 569; Murphy v. Campbell,4 Pa. St. 485; Commonwealth v. Roxbury, 9 Gray, 490; Coburn v. Coxeter, 51 N. H. 158.

All the cases cited as to the extent of a grant bounded on a river, depend, as a rule, upon the peculiar circumstances arising in each. State v. Gilmanton, 9 N. H. 461; Newton v. Eding, 23 Vt. 319; Cold Spring Iron Works v. Tolland, 9 Cush. 492; Newhall v. Iveson, 13 Gray, 262; Steamboat““ Magnolia” v. Marshall, 39 Miss. 109; Rhodes v. Otis, 33 Ala. 578.

Washburn on Real Prop. (3d ed.) p. 353, sec. 46, lays down the doctrine that a grant to a river, or the bank of a river, (not navigable,) unless there be something in the instrument limiting such grant, takes to the center or thread of the stream, subject, however, to the public easement for water-course or highway purposes. This doctrine is followed in this State. Middleton v. Pritchard, 3 Scam. 510; Board of Trustees v. Haven, 5 Gilm. 548; Same v. Same, 11 Ill. 554; Braxon v. Bressler, 64 Id. 490; Cobb v. Lavalle, 89 Id. 331.

The only Illinois case that can be tortured into sustaining a different doctrine, is Rockwell v. Baldwin, 53 Ill. 19. In that the description is, “to the west side of Cedar creek, thence down along the west line of said creek.” We submit that the words “west side,” and “down the west line,” do not comprehend as much as the word “bank.”

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action of trespass quare clausum fregit, for breaking and entering the close of the plaintiff and cutting and carrying away his ice. The pleas were the general issue and liberum tenementum. The jury found the defendants guilty, and assessed the plaintiff's damages at $75. Plaintiff thereupon moved the court for a new trial, but the court overruled the motion, and gave judgment upon the verdict. The plaintiff prosecutes this appeal to reverse that judgment.

A question in limine, raised by a motion of the defendants to dismiss the appeal for want of jurisdiction in this court, is, whether a freehold is involved, within the meaning of those words as used in the Appellate Court act. (Laws of 1877, p. 70, sec. 8.) The answer must be in the affirmative, and the motion be overruled. The plea of liberum tenementum, necessarily, where, as here, it is directly put in issue by the replication, involves a freehold. Addison on Torts, (4th ed.) 282; 2 Greenleaf on Evidence, sec. 626; Cocker v. Crumpton, 1 Barn. & Cress. 491; Doe v. Wright, 10 Ad. & Ellis, 780; 37 Eng. Com. Law, 410.

The main point in contestation upon the merits is, whether the court below erred in holding that the defendants had a freehold in a part of the locus in quo, and in excluding from the jury, in consequence, all evidence relating to the cutting and taking away of ice thereon. The defendants claim title to this part of the locus in quo by virtue of a written contract of sale made between Hugh Alexander and them on the 30th of May, 1873, and possession thereunder, and also by virtue of a deed from the same party to them on the same day. The plaintiff claims, remotely, under a deed of trust made by said Hugh Alexander on the 30th of March, 1875. This deed of trust is not only junior to the deed to the defendants, but it expressly excepts from its operation the real estate thereby conveyed, including, however, all, within a described tract, not included in it nor occupied by the Illinois and Michigan Canal, and the Chicago, Alton and St. Louis Railroad Company. The question, therefore, depends upon the construction of the defendant's deed. Shall it be construed as conveying to the defendants title to the center thread of the current of the Desplaines river? If yes, the ruling below was right; if otherwise, it was erroneous.

The general doctrine that grants of land bounded upon rivers or their margins, above tide-water, carry the exclusive right and title of the grantee to the center thread of the current, unless the terms of the grant clearly denote the intention to stop at the margin of the river, has been too long established, and too firmly adhered to by this court, to be now questioned. Village of Brooklyn v. Smith, 104 Ill. 429; Cobb v. Lavalle, 89 Id. 331; Chicago and Pacific R. R. Co. v. Stein et al. 75 Id. 41; Braxon v. Bressler, 64 Id. 488; Chicago v. Laflin 49 Id. 172; Board of Trustees v. Haven, 11 Id. 554; Same v. Same, 5 Gilm. 548; Middleton v. Pritchard, 3 Scam. 510.

In Rockwell v. Baldwin et al. 53 Ill. 19, it was, however, said, that this was but a presumption, for one man may own the bed of such a stream, and another may own the banks; that where, in a deed conveying land, the boundary is limited to the bank of the stream, instead of bounding it along or on the stream, the presumption must fail, and that the party must be controlled by the terms of his deed. Counsel for appellant insist this is conclusive of the present case, for, here, defendants' boundary is limited to the banks of the Desplaines river. The question of intention must be settled by the language of the deed and all the attendant circumstances in evidence, and not merely by the letter in the descriptive part of the deed. ( Hadden v. Shoutz, 15 Ill. 582; Batavia Manf. Co. v. Newton Wagon Co. 91 Ill. 239; Louisville and Nashville R. R. Co. et al. v. Koelle et al. 104 Id. 460.) It does not clearly appear, here, whether the contract or the deed was prior in execution, but the fair presumption is that the contract was, and that the deed was executed in discharge or satisfaction of the contract; but even in that view the contract may be referred to as a circumstance showing the intention of the parties as respects the sale,--not of itself conclusive, but to be considered in connection with other circumstances. This contract, after the description of the property, had these words added: “Together with all water privileges, rights and immunities of the said party of the first part therewith connected.” This, in connection with the fact that there is no pretense that there are any water privileges, rights, etc., connected with the tract save those resulting from the river being the boundary on one side, renders it absolutely certain it was not then intended that the defendants' rights should terminate at the water's edge. The description in the deed is as follows:

“Commencing at a point of land on the east line of section 32, T. 38, N. of R. 12, east of the 3d P. M., at the intersection of the north line of the Illinois and Michigan Canal right of way; thence north along said section line 717 feet to the south bank of the Desplaines river; thence south 47 deg. west along said south bank 1360 feet; thence south 52 deg. 30 min. east 656 feet to the north line of said canal right of way; thence north 37 deg. 30 min. east along said line 500 feet; thence north 45 deg. 15 min. east 285 feet, to the place of beginning,--all said premises being situated in said section 32, T. 38, N. of R. 12, E. of the 3d P. M., according to the map drawn on back hereof.”

This makes the plat on the back of the deed as much a part of the description as if it were drawn in the description,--a descriptive part of the subject of the conveyance. Louisville and Nashville Railroad Co. et al. v. Koelle et al. supra. The map drawn on the back of the deed is as follows, as shown by the appellant's abstract:

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