Whitham v. Ellsworth

• Decision Date: 18 June 1913
• Citation: 259 Ill. 243,102 N.E. 223
• Parties: WHITHAM et al. v. ELLSWORTH et al.
• Court: Illinois Supreme Court

259 Ill. 243

102 N.E. 223

WHITHAM et al.

v.ELLSWORTH et al.

Supreme Court of Illinois.

June 18, 1913.

Appeal from Circuit Court, Fulton County; H. M. Waggoner, Judge.

Action by Elizabeth Whitham and another against Julia A. Ellsworth and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

O. J. Boyer, of Canton, for appellants.

Chiperfield & Chiperfield, of Canton, for appellees.

VICKERS, J.

Elizabeth Whitham and Elizabeth M. Trudgen brought an action of ejectment in the circuit court of Fulton county to recover a strip of ground 2 1/2 feet wide off of the east side of lot No. 17, in N. S. Wright's addition to the city of Canton. At the close of plaintiffs' evidence the court instructed the jury to find the defendants not guilty. To reverse a judgment based upon the verdict so given, plaintiffs have prosecuted an appeal to this court.

By their declaration appellants claimed the premises in fee. Appellees filed the general issue and a special plea denying that they were in possession fo the strip of ground in controversy. Appellants filed an affidavit of common source of title, which was denied by a counter affidavit. Lot No. 17 in Wright's addition to Canton is west of lot No. 16. These lots both front on Fulton place, and, as shown by the plat, are each 50 feet wide by something over 180 feet in length. Lot No. 17 is improved with a residence, which is occupied by appellants. Appellants introduced a deed dated May 21, 1894, from Nathaniel S. Wright and wife to William Whitham for the lot in controversy. It was proved by appellants that William Whitham was the husband of Elizabeth Whitham and the father of Mrs. Trudgen; that Whitham died in 1896, leaving Elizabeth Whitham as his widow and Mrs. Trudgenas his only child. The evidence shows that from 1894 up to the time of his death William Whitham was in possession, claiming to be the owner of lot No. 17, on which he resided with his family, and that his widow and daughter, appellants herein, have continued to occupy the family residence on said lot since his death. It further appears from the evidence that, after the N. S. Wright addition was laid out, lot No. 17 was sold to Alfred Pascoe. Pascoe resided on the lot in 1891. He sold his interest to William Whitham. The deed was executed in 1894 direct from Wright to Whitham. The evidence in behalf of appellants further shows that Pascoe constructed a plank walk north and south along the line dividing lots Nos. 16 and 17. This plank walk ran from the front north along the east side of the house and was used as a means of reaching the rear of the premises. The evidence shows that this plank walk was maintained continuously as a part of the premises of appellants from the time they first moved into the house down to the 5th day of August, 1911. On that day, without any notice to any one, appellees, with their agents and employés, entered the premises and sawed the plank sidewalk in two and removed from 15 1/2 to 17 inches of the walk on the east side and set posts up against the line of the walk that had been sawed off and built a post and wire fence, 4 1/2 feet high, from the street line to the north line of the lot. When appellants discovered that appellees were removing the sidewalk, they were notified to leave the premises and to desist from interfering with the walk. Appellees disregarded the notice and continued the work of destroying the walk and erecting the fence until the work was finished. In addition to the proof of actual possession, appellants introduced the county surveyor, who had made a survey of lots Nos. 16 and 17, and who testified that the fence erected by appellees was 20 inches west of the true line between lots Nos. 16 and 17. C. R. Beam, a civil engineer, testified that he had made a survey at the request of appellees, and that by his survey the line dividing lots Nos. 16 and 17 was east of the east line of the sidewalk. His testimony agrees with that given by the county surveyor. None of this evidence was contradicted.

[1] For the purpose of determining whether the court erred in directing a verdict for appellees, it must be assumed that the evidence is true.

[2] Appellees first contend that the evidence does not make a prima facie case for appellants. In this appellees are in error. The denial by appellees of the affidavit of common source of title simply neutralized the affidavit and required appellants to make such proof as would have been required had no affidavit of common source of title been filed.

[3] Proof of prior possession alone is evidence of a fee, and although the lowest, unless rebutted by a higher and better, title, it must prevail. Barger v.Hobbs, 67 Ill. 592;Keith v. Keith, 104 Ill. 397;Coombs v. Hertig, 162 Ill. 171, 44 N. E. 392. In the case at bar appellants proved possession and claim of ownership from 1891 down to the commencement of this suit. So far as this record discloses, appellants were in the exclusive adverse possession fo the strip of ground in question for a period of more than 20 years prior to the commencement of the suit.

[4] The special plea denying possession in appellees only required appellants to prove that appellees were in possession of the premises in controversy at the time the suit was brought. This is clearly and satisfactorily established by the testimony of the surveyors, both of whom agree that the true line between lots Nos. 16 and 17 was east of the east line of the sidewalk before it was destroyed by appellees. The evidence is not disputed that appellees took possession fo all of the ground under that portion of the sidewalk that was removed, by the erection of a wire fence against the edge of the sidewalk that remained after it had been sawed in two.

[5] Appellees contend that the proof does not show that William Whitham died intestate, and that this proof is necessaryin order to establish a right of recovery in appellants. There is no proof...