The Ill. v. Cobb

• Decision Date: 30 November 1879
• Citation: 1879 WL 8662,94 Ill. 55
• Parties: THE ILLINOIS AND ST. LOUIS RAILROAD AND COAL CO.v.FRANCIS H. COBB.
• Court: Illinois Supreme Court

94 Ill. 55

1879 WL 8662 (Ill.)

THE ILLINOIS AND ST. LOUIS RAILROAD AND COAL CO.

v.FRANCIS H. COBB.

Supreme Court of Illinois.

November Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court of the Fourth District; the Hon. TAZEWELL B. TANNER, presiding justice, and the Hon. JAMES C. ALLEN and Hon. DAVID J. BAKER, justices.

Messrs. G. & G. A. KŒRNER, for the appellant.

Mr. CHARLES W. THOMAS, for the appellee.

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

On the first question discussed we have adopted the language of the opinion filed before the petition for a rehearing was presented.

This appeal brings before us for review the record of a judgment of the Appellate Court of the Fourth District. The case was before us at a former term and is reported in volume 82 Ill. 183, where the facts of the case are stated. On the last trial in the circuit court appellee recovered $4379. On an appeal to the Appellate Court that judgment was affirmed, and the case is again brought to this court, and we are now to inquire simply as to the rulings on the law in the last named court, the questions of controverted fact being settled by its decision. (See Laws of 1877, p. 153, sec. 89.) From the finding of the jury and the affirmance of that finding by the judgment of the Appellate Court, we must assume that appellee was in the peaceable possession of the property in controversy and that his possession was violently invaded by appellant without lawful right; that appellee regained possession of the property in controversy, and his possession was again violently invaded by an entry by appellant without lawful right, because there is evidence tending to prove these facts, which the Appellate Court must have found was not outweighed or overborne by the opposing evidence, to have come to the conclusion it reached in affirming the judgment.

The first error of law in the ruling of the court, insisted upon, arises from the refusal of the circuit court to give this instruction: “The law is, that if plaintiff was in possession when he brought his first action, in which he recovered damages, and was wrongfully ousted by defendant, yet he must be in actual possession before he can bring another suit; and if he was not in actual possession at the time the suits in this case were brought, the jury must find for defendant; or, if he were in actual possession, which he had gained for himself, trespassing on the lawful and peaceable possession of defendant, or by fraud, the jury must find for defendant.”

When this case was here before, it was said, in discussing this doctrine, and in allusion to Reeder v. Purdy, 41 Ill. 279, and Comstock v. Henneberry, 66 Ill. 212, “The fair inference from both of these cases is, that the rules laid down there are not to apply to a peaceable re-entry by a party who has been put out by lawless force. To hold that a party who has by lawless force driven a weaker party from a peaceable possession, has thereby acquired a possession so sacred that the expelled party may not, if he can do so without a breach of the peace, re-enter, for the mere purpose of complying with a mere technical rule of law which prevents him from bringing an action of trespass until he has re-entered, would be carrying the rule to a length never contemplated, and wholly unwarranted by any provision of law, whether statutory or common law.”

If, as this instruction assumes, the plaintiff was in possession and was wrongfully ousted by defendant, the latter could not by that wrongful act acquire a possession which it would be a trespass in plaintiff to disturb, provided his entry involved no breach of the peace. The lawful possession of the defendant, on the hypothesis assumed by the instruction, is an impossibility. If the defendant acquired possession only by wrongfully ousting the plaintiff, its possession is not lawful, but is unlawful. The principle is well stated by Judge Cooley, in his recent and valuable work on Torts, page 323. He says: “But if one lawfully entitled to possession can make peaceable entry, even while another is in occupation, the entry in contemplation of law restores him to complete possession, and it is not unlawful for him to resort to such means, short of the employment of force, as will render further occupation by the other impracticable.” See, also, the case cited in the note, Stearns v. Sampson, 59 Me. 568. The instruction was properly refused.

The question discussed as to the weight of evidence in regard to the damages sustained by appellee, is beyond our domain. That was for the Appellate Court only. Whilst there may be some force in appellant's position, still the question was one of controverted fact, and belonged, therefore, exclusively to the Appellate Court to determine.

Another ground is urged, in reference to the question of damages, for a reversal. Appellant gave evidence tending to prove an outstanding title to the property in controversy in the village of Cahokia. And appellant asked, but the court refused to give, this instruction:

“If the defendant has shown that the title to the land described by the declaration, at the time when the trespass is said to have been committed, was outstanding, that is to say, not in the plaintiff, the plaintiff can not recover damages for an injury that may have been done to the freehold or to the land, soil or sand, but only such injury, if any have been shown, that was done to the possession or property of the plaintiff.”

This raises the question whether a mere trespasser may justify his wrong to all but the actual damage done to the possession, by showing a title in a third person. Or, to state the proposition differently, can he mitigate the damages so as to prevent a recovery for all damages beyond the actual injury to this mere possession.

Judge Cooley, in his work on Torts, p. 326, says: “Presumptively, a peaceful possession is always rightful, and the proof of it is sufficient evidence of the title to enable one to recover in ejectment against one subsequently found in possession and who shows no right in himself.”

Where lands are in the possession of a tenant, and a trepass is committed on the land, the law is long and well settled that the tenant may sue and recover for the injury he has suffered by reason of the loss he has sustained as a tenant, and the landlord as a reversioner may sue and recover in respect to the injury he has sustained to his reversion. In such a case, there may be two recoveries for injuries to the respective estates, of the tenant and the landlord. This was so held by the British courts at an early day, and the rule has never been disregarded by the courts of that country or by the courts of the various States of the Union, so far as our researches have led us in the investigation of the question. But no such relation exists in this case, and that rule can have no application here.

In the case of Catteris v. Cowper, 4 Taunt. 547, the plaintiff sued for trespass in entering upon land lying between premises rented by plaintiff, and the river Ouse, by the defendant, and cutting grass. The land bore grass which every one cut who chose, until two years before the action was brought, and plaintiff's only title was, that two years previously he had taken possession and twice mowed the grass, and afterwards pastured a cow on the strip.

The defendant's case was, that the plaintiff, when he first cut the grass, had boasted that he cut hay on land for which he paid neither rent nor taxes; that in a former year he had purchased the hay cut by another man on the ground, and that a few years before the trial, in repairing the boundary fence of his farm, plaintiff had excluded, by his fence, the land in question, and had frequently shown to other persons the boundaries of his farm as excluding this land; but HEATH, who tried the case, excluded this evidence offered by defendant, and the plaintiff recovered. Afterwards, on a rule to show cause why the verdict should not be set aside and a new trial granted, on a trial in the Common Pleas, the rule was discharged. The court said: “The case was decided rightly upon the merits. The defendant stands neither on any former possession of his own nor derives title under the possession of any other person. His only objection to the plaintiff's recovery is, that he has not proved the title he stood on; that this land was parcel of the farm he held; but no answer is given to the fact of his prior possession. The merits are...