Schmidt v. Brown

• Decision Date: 18 April 1907
• Parties: SCHMIDT v. BROWN et al.
• Court: Illinois Supreme Court

226 Ill. 590

80 N.E. 1071

SCHMIDT

v.BROWN et al.

Supreme Court of Illinois.

April 18, 1907.

Appeal from Circuit Court, Massac County; W. W. Duncan, Judge.

Trespass quare clausum fregit by Henry Schmidt against August Brown and others. From a judgment for defendants, plaintiff appeals. Affirmed.Courthey & Helen, for appellant.

C. L. V. Mulkey, for appellees.

This is an action of trespass quare clausum fregit. The defendants set up the claim that the locus in quo was a private way of defendants, and that they entered peaceably and without unnecessary force to remove obstructions wrongfully placed therein by the plaintiff; also, that the way was a public highway, and that the supposed trespasses were justifiable in removing obstructions from said highway so wrongfully placed there by the plaintiff. The cause was tried by the court without a jury. The court found the defendants not guilty, and rendered judgment against the plaintiff for costs, from which plaintiff appeals, and brings the record to this court for review. The errors relied on arise on certain propositions of law submitted by appellees and held as law, and the refusal of the court to hold certain propositions submitted by appellant, which are referred to in the opinion which follows. There is but little dispute as to the material facts. So far as they are necessary to a decision of the questions involved, the evidence establishes the following facts:

Appellant and appellees reside on adjoining farms. They are each in possession and control of 80 acres of land. Appellant's 80 acres is south of appellees'; that is, the north 40 of appellant adjoins the south 40 of appellees. The two tracts comprise a body of land one mile in length north and south and one-quarter of a mile east and west. The north 80 is in the possession and control of appellees and their mother, and will hereinafter be referred to as the ‘Brown farm,’ and the south 80 is owned and occupied by the appellant, and will hereafter be referred to as the ‘Smith farm.’ The Smith farm was purchased in 1851 by Peter Smith. He built a house a short distance south of the north line of his south 40 and some distance west of the east line of said 40-acre tract. He built a barn on the same 40-acre tract a short distance east of his house. At the time Peter Smith built his house and barn there was a road running north and south through his south 40, which passed between his dwelling and his barn and extended north, through his north 40, to the east and west line between the Brown and Smith farms. This road was fenced on both sides through the south 40 of the Smith farm, and the fences extended a short distance north into the north 40 of the Smith farm. As the land was cleared up in the north 40, Smith extended his fence further north, but at no time have the fences been extended to the Brown farm. There is now, and always has been, a part of the north half of this road upon open woodland. Peter Smith occupied this farm, either in person or by tenants, until his death, which occurred in September, 1893. After his death his son, Thomas Smith, succeeded to the title and possession of the Smith farm, and held the same until August, 1905, when he sold it to appellant Henry Schmidt. Appellant had resided on the Smith farm as a tenant of Thomas Smith about five years before he bought the farm.

The Brown farmhouse was on the south 40 of the Brown 80 acres, and near the division line between the Smith and Brown farms, and only a short distance from the north end of the road in question. The Brown farm was bought by Dr. Joseph Brown, father of appellees, in 1863. His widow, Charlotte Brown, testified that her father and mother resided on the Brown farm from 1843 until her husband acquired it, in 1863, and that when she first knew the place, in 1843, the road in question was located in substantially the same place where it now runs, except some slight changes have been made to straighten a curve in it, for the convenience of Thomas Smith, after the death of Peter Smith. There is not now, and never has been, any other road leading to or from the Brown farm, and all travel to and from the Brown farm was over the Smith farm along the road in question. The evidence shows that Dr. Brown was a practicing physician and did an extensive practice, and that the road was used by him in his practice and by persons coming for him, and by him and his family in going to church, to Metropolis, to the cemetery-in short, it was the only way the Brown family had to travel going away from or returning to their home. While the public used this road whenever any one had occasion to go to the Brown place, it was never worked as a public highway and was always regarded as a private country road. It was kept in repair by the Browns. In 1886 Dr. Brown died, leaving his widow and appellees, his sons, in possession of the Brown farm. In 1888 Peter Smith asked and obtained permission of the widow and Gus Brown, the eldest son, to place gates across this lane-one at the south end and one at the north line of the south 40. These gates were put up by Peter Smith so as to allow his live stock to pass and repass to water, which was furnished by a pond near the south side of the Smith farm. The gates were never locked, and it was understood between the Browns and the Smiths that he had no purpose of interfering with the continued enjoyment and use of the road in putting up the gates. The gates were only maintained for a short time, and then they were opened, and through neglect soon became out of repair. There was no interruption of the use of the road by reason of these gates. After Thomas Smith purchased the Smith farm, gates were again put up by him with the knowledge and consent of the Browns. They were never locked, and were not placed there to obstruct or interfere with the use of the road, but solely for his own convenience. They were only closed about one month in the year, and during such time the road was used as before, only the gates were opened and closed by persons passing over the road.

In the spring of 1883 a man by the name of Kennedy, who owned land south of the Smith farm, and over which Smith and Brown had enjoyed a road or passway out south, threatened to close up the way. Peter Smith and Kennedy were not on friendly terms, but Brown and Kennedy appear to have been good friends. Smith was anxious about the Kennedy road, and did not want Kennedy to close him out. The evidence shows that Peter Smith called on Dr. Brown to negotiate with Kennedy to buy a roadway over the Kennedy land. Brown said, ‘What about my road over your land?’ Smith told him, if he would go to Kennedy and help buy a road over his land, that Brown should always have a way over the Smith land. Smith assured Brown that he should never be closed up over his land. Dr. Brown went to Kennedy and secured the road, and appellees hauled rails and built fence for Kennedy in pursuance of the contract their father had made with Kennedy. The evidence shows that Dr. Brown complied literally with Peter Smith's proposition with regard to the Kennedy road. The evidence further shows that Peter Smith and his son, Thomas, respected the promise to Dr. Brown, and never sought to interfere in any way with the full use of the road in question so long as they had control of the farm.

After appellant obtained the title to the Smith farm, in 1905, he asked permission of Gus Brown to close the gates while he removed and changed his pasture fence. This permission was granted. The gates were put up and closed, but not locked. After the change in the fence had been made, appellant refused to open the gates. They were locked by appellant, and notices posted up forbidding any one from going through, and threatening a prosecution for trespass. Gus Brown went to appellant and requested him to open the gates. Appellant refused, and Gus Brown told him that, if he did not open the gates, he (Gus Brown) would open them. After waiting a day or two, the gates still being closed and locked, appellees lifted the gates off their hinges, and turned them around out of the road, and pulled up a post which had been set in the roadway. Appellant put the gates up again, and appellees again took them down. This was repeated three times, and this suit was brought for the alleged trespass in taking down the gates. There is no claim that the appellees went upon any part of the premises, other than the roadway, or that there was any unnecessary damage done in removing the gates.

VICKERS, J. (after stating the facts).

By appellant's second and appellees' fourth propositions of law submitted, the trial court was asked to declare the legal effect of the contract between Peter Smith and Dr. Brown of 1883, set out in the foregoing statement. Appellant asked the court to hold that the effect of such agreement was merely to give Brown a parol license, which was revocable. The court refused to so hold, but held, as requested by appellees' fourth proposition, that the way in question had been used as a private way for more than 20 years under an agreement with the owner of the land, Peter Smith, made in 1883 by the father of appellees, and that it had been used under a claim of right with the knowledge and acquiescence of Peter Smith and Thomas Smith, his successor in title. These rulings are assigned as error, and relied on by appellant to reverse the judgment below. The alleged agreement, not being in writing, was void under the statute of frauds and could not operate as a grant or a conveyance; but the parties to it treated it as giving Dr. Brown some sort of right to the roadway, and under this supposed agreement he claimed the right to use the road in question, and his claim thereto was known to Peter Smith and his son, both of whom recognized the claim of right in the Browns to the use of the roadway.

Appellant contends that, since the alleged agreement between Peter Smith and Dr. Brown...