Quinn v. Eagleston

• Decision Date: 20 November 1883
• Citation: 1883 WL 10376,108 Ill. 248
• Parties: JAMES QUINN et al.v.THOMAS C. EAGLESTON.
• Court: Illinois Supreme Court

108 Ill. 248

1883 WL 10376 (Ill.)

JAMES QUINN et al.

v.THOMAS C. EAGLESTON.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Stark county; the Hon. DAVID MCCULLOCH, Judge, presiding.

This was an action of ejectment, commenced February 21, 1883, and brought by Thomas C. Eagleston, against James Quinn and John Gustafson, to recover possession of a strip of land about one rod in width, across the north end of the west half of the north-west quarter of section 14, town 13 north, range 7 east, in Stark county, in this State, lying north of the line of a hedge running across said tract of land, containing about one-half acre. It appears from the evidence that in the year 1851 John T. Eagleston, the father of the plaintiff, and under whose title plaintiff claims, purchased the said north-west quarter of section 14, which at that time was in the open prairie, at a distance from any improvement. The county surveyor, after much difficulty, succeeded in finding what was considered the original mound of the government survey, at the north-west corner of section 14, and established it as such corner. A stone was placed in the mound, which has remained there ever since. Soon after purchasing the land, John T. Eagleston built a cabin, and moved on the land in the fall of 1851, and in 1852 he inclosed it with a rail fence according to the survey of the county surveyor, running his fence directly east from the corner stone set as on the north line of his quarter. Some years after that he planted a hedge upon the north and west sides of his land, setting the hedge in upon his own land one rod from his supposed line. After the hedge was grown, the old rail fence was permitted to decay and fall down, except some twenty-five or thirty rods on the north, where the hedge failed to grow, in a pond or flat piece of ground. Across this flat ground the rail fence has always been kept up upon the line, making the offset one rod wide and about twenty-five or thirty rods long between the hedge line and the line of the rail fence, there being connecting fences with these lines on the east and west ends of the offset, which has always remained within Eagleston's inclosure until December, 1882, when defendant Quinn entered and erected a fence on the line of the hedges nearly across the flat ground, claiming the hedge to be the boundary of Eagleston's land, and that the strip one rod wide between the hedge and the line of the old rail fence belonged to him. Defendant Quinn claims to own the west half of the south-west quarter of section 11, in the same township and range, and derives his title from one William Luce, who fenced it about 1861, joining the fences on the east and west lines to Eagleston's fence on the south. Neither Luce, nor Quinn, who bought from Luce in 1867, ever built any fence across the south end of their tract. Quinn claims the hedge to be the north boundary of Eagleston's land, and that the strip one rod wide between the hedge and the line of the old rail fence belongs to him, Quinn. The other defendant is his tenant. The plaintiff recovered in the court below, and the defendants appealed.

Mr. FRED. S. POTTER, for the appellants:

There was error in admitting the three deeds not properly acknowledged, as ancient deeds. There is no presumption that a deed is thirty years old that arises from anything on the paper. It must be shown to be that old at the time it is offered in evidence, by evidence aliunde, and it should appear that the party claimed under such deed. Smith v. Rankin, 20 Ill. 14; Whitman et al. v. Henneberry, 73 Id. 109.

These deeds and their genuineness were questions for the jury, under all of the evidence. Plaintiff's first instruction told the jury that “the plaintiff has produced in evidence deeds showing a complete chain of title from the United States to himself.” The deeds complained of were in the “chain.” The permitting them to be read does not decide on the final influence of the evidence as to its reality--that is for the jury. 2 Phillips on Evidence, (4th Am. ed. C. & H.'s notes,) 477, also pp. 475-480.

The court improperly admitted proof of the declarations of the plaintiff's father after he had fenced out the strip in question. Such declarations are admissible only as a part of the res gestæ, and they must be a part of the thing done. Had they been made while the fence was being set, or before he lost possession, it might have been within the rule.

Ejectment will not lie in favor of one in possession. Reed et al. v. Taylor et al. 56 Ill. 291.

If plaintiff's father's declarations were proper evidence, certainly those of Luce, made at the time he built his fence and joined it to the Eagleston hedge, in regard to the ownership of the land down to the hedge, were.

Plaintiff's first instruction, that the plaintiff had shown title, is bad, as taking the finding of important facts from the jury. The court has no right to tell them what facts are proved. Van Duzor v. Allen, 90 Ill. 504; Hubner v. Feige, Id. 212.

Mr. MILES A. FULLER, for the appellee:

The proof made in respect to the deeds, with no evidence of fraud or suspicious circumstances, was sufficient to show they had been in existence thirty years, and entitled them to be read in evidence. Whitman v. Henneberry, 73 Ill. 113; Fell v. Young, 63 Id. 106.

We understand the rule to be well established that the declarations of a party in possession, explanatory of his acts or of his possession, are admissible in evidence as a part of the res gestæ, and in this case were competent to show that by placing his hedge inside of the line he did not thereby intend to surrender possession, or his claim, to the land outside of the hedge. 1 Greenleaf on Evidence, secs. 108-111; Proctor v. Town of Lewiston, 25 Ill. 153; Buchanan v. Curtis, 25 Wis. 107; Irwin v. Dixon, 9 How. (U. S.) 10; Fyffe v. Fyffe, 106 Ill. 646.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

It is assigned for error that the verdict of the jury is not supported by the evidence.

There seems to be no question as to the plaintiff's ownership of the north-west quarter of section 14, and the principal point of controversy is as to the location of the boundary line between the parties, though it is also contended by the defendants that the strip of land in question has been occupied by them under a claim of ownership for over twenty years, which constitutes a bar to a recovery. Without attempting a review of the evidence, we will say that after a full examination of it we are satisfied with the finding of the jury in favor of the plaintiff on both the above named points of contest, and find no reason for disturbing the verdict on the ground of its not being warranted by the evidence.

It is insisted that at least as to that part of the land in the slough, or what is called the “offset,” defendants are not guilty, on plaintiff's own testimony that “no fence has been on the line of the hedge across the space; the strip in the jog has been in my field, and has never been...