Winkler v. Meister
| Decision Date | 30 April 1866 |
| Citation | 40 Ill. 349,1866 WL 4488 |
| Parties | GEORGE WINKLERv.MARY MEISTER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR, to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.
The opinion of the court contains a statement of the case.
Messrs. CLARK & CHRISTIAN, for the plaintiff in error.
Messrs. INGERSOLL, PUTERBAUGH & CASSELL, for the defendants in error. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:
This was an action of trespass quare clausum fregit, brought by George Winkler, in the Woodford Circuit Court, against Mary Meister, George Meister and Adam Meister, to recover compensation for injury sustained, by digging a ditch on his land, which flowed water from their land over his. The declaration contained six counts, stating the trespass in different modes. Defendants filed the general issue; a plea of license; a plea of the statute of limitations; and a plea that George and Adam Meister were minors. Replications were filed traversing the averments of these several pleas, and issue to the country was joined. A trial was afterward had resulting in a verdict in favor of defendants. A motion for a new trial was entered and overruled, and judgment rendered on the verdict. The case is brought to this court on a writ of error, for the purpose of reversing the judgment.
It appears that plaintiff in error, and the father of defendants in error, eight or ten years before this difficulty originated, were unable to agree, so as to have a common division fence between their fields. Each, at that time, removed their respective fences a few feet back from the line, thus leaving a narrow lane or passage between them. It also appears that the ditch, for the digging of which this suit was brought, was dug in this passway, each party claiming the land on which it was dug. Several witnesses state that it was on the land of plaintiff in error, but a witness on the part of defendants in error, testified that plaintiff in error had never claimed the land until after the digging of the ditch, and a survey was subsequently made. It will be observed that plaintiff in error introduced no documentary evidence, to prove title, or even a deed in connection with his possession to show the boundary of his actual possession. Nor did he introduce the survey, field notes or plat to show that the trespass was on the land that he claimed.
Possession may be proved by inclosure when it is only coextensive with...
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