author: Mr. Justice Craig

text:
    The Chicago and Northwestern Railway Company et al. v. Mary A. Snyder, Admx.

      Filed at Ottawa June 12, 1886.

    1. Negligence—contributory negligence to defeat recovery—as, where a conductor fails to bring his train to a stop on approaching a crossing— or fails to await a signal. Where a conductor of a railway train fails to have the same brought to a stop not less than two hundred feet before reaching a crossing of another railroad, as required by the statute, and such failure contributes to a collision with a train on the other road, causing the death of the conductor so neglecting his duty, no recovery can be had by his personal representative. If the injury might have been avoided by his bringing his train to a full stop the proper distance, before reaching the crossing, no recovery can be had, although the agent of both roads at the crossing may have been guilty of negligence in signaling the several trains when to pass.
    2. And where, it was the duty of the conductor killed, to hold his train until the proper signal was given for him to make the crossing, and the signal was given for the train on the other road to cross, and while it was in the act of crossing, such conductor negligently failed to observe the signal, and undertook to make the crossing in disregard of such signal, which was well understood, whereby a collision occurred resulting in the conductor’s death, it was held, that no recovery could be had in an action by his personal representative against either of the railway companies whose .trains collided.
    3. Same—fellow-sérvants—injury from neg ligence of a fellow-servant— as exempting common master from liability—and who are fellow-servants. Where a conductor of a train is killed by a collision of two trains at the intersection of two railroads, in consequence of the negligence of the station agent in giving signals when the several trains might pass with safety, no recovery can be had by his personal representative, if his co-employes in charge of the train under him were guilty of negligence which contributed to his death.

      4. In order to exempt a master from liability on account of injuries sustained by one of his servants or employes, resulting from the negligence of another one of his servants, the two servants must be co-employes directly operating with each other in a particular business, in the same line of employment, or their usual duties must bring them habitually together, so that they may exercise a mutual influence upon each other promotive of proper caution.
    5. Instbuctions—assuming there was negligence—and whether an instruction does so assume. In an action against a railway company to recover for an injury alleged to have been caused by the negligence of the defendant’s servant in the discharge of his duty, an instruction assuming as true the negligence of such servant, would be erroneous. In such case it is for the jury to find, from the evidence, whether such servant was guilty of the imputed negligence, as a question of fact; and it is not within the province of the court to direct the jury that any person was negligent, or assujne the negligence of any one alleged to be responsible for the injury.
    6. In such case, when the injury is charged to be the result of negligence of an agent of the defendant companies in operating a semaphore, or signal, at the intersection of the two roads, a clause in an instruction for the plaintiff, that “if the jury find, from the evidence," that said collision occurred solely by reason of gross negligence of one N. E. T. (the agent) in operating the semaphore,” was held not open to the objection that it assumed as true the negligence of such agent.
    7. Same —giving undue prominence to particular facts—and, whether an instruction is liable to such objection. Where the evidence is conflicting, it is improper to select isolated portions of the evidence, and give them prominence, by calling the attention of the jury especially to them. But an instruction which in substance informs the jury that if they find, from the evidence, the facts alleged- in the declaration, and relied upon as- proved, (reciting them,) their verdict should be for the plaintiff, is not liable to the objection of selecting and giving undue prominence to isolated parts of the evidence.
    8. The court should always instruct the jury, that if they find the facts involved in the issue are proved, (reciting them,) then they should find for the party in whose favor they shall find the facts. This is not giving undue prominence to any particular fact.
    9. Same—omitting to require a finding as to a material allegation in issue. In an action against two railway companies to recover for the death of a conductor caused by a collision of trains at the intersection of the two roads, the declaration alleged that the deceased conductor, and those engaged with him under his supervision in the management of the train, were in the exercise of due care at the time of the injury. The court instructed the jury, that if they found, from the evidence, that the collision occurred solely by reason of the gross negligence of the station agent, whose duty it was to give signals, and that the deceased was exercising due and proper care and diligence, then the plaintiff might recover: Held, that the instruction was erroneous, in omitting to require the jury to find, from the evidence, whether the engineer and others engaged in operating the train were free from negligence, or were exercising due care at the time.
    10. Same—one explaining all the others. Where the court, in its first instruction, told the jury that they should not regard anything contained in any of the instructions as intimating, in the slightest degree, any opinion of the court as to what any of the facts were, but they should determine from the evidence, and from that alone", what were the facts, it was held, a qualification of every instruction in the case, and in such plain words that no jury of ordinary intelligence could be misled.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. W. C. Goudy, for the appellant the Chicago and Northwestern Railway Company:
    While the definition of fellow-servant is a question of law, whether they were so operating or consociating is a question of fact for the jury. Railroad Co. v. Morgenstern, 106 Ill. 220; Railway Co. v. Morando, 108 id. 581.
    The master is not liable for the injury of a servant -produced by the neglect of a fellow-servant in the same line of employment. Railway Co. v. Morando, 03 Ill. 302; 108 id. 582; Abend v. Railroad Co. Ill id. 210; Ryan v. Railway Co. 60 id. 171; Railroad Co. v. Ross, 112 U. S. 377.
    The declaration alleges that Snyder, and those engaged with him in the management of the said engine and ear, were exercising due care and diligence, ,and this was necessary to make a good declaration. Then, if Snyder was injured by the gross neglect of the men under his immediate control, he could, not recover, although there might have been mismanagement of the semaphore by Torrence. The court ignored this element in the case. In the third instruction the jury were informed that if Snyder alone was in the exercise of due and proper care, caution and diligence, as such conductor, in and about the control and management of said way ear and engine, he was within the rule of law requiring the plaintiff to be free from neglect contributing to the injury. The engineer and brakeman should have been included in this instruction.
    Mr. E. Walker, for the appellant the Chicago; Milwaukee and St. Paul Railway Company:
    If we are right as to the plaintiff’s evidence that the negligence of Snyder and his co-employes materially contributed to the injury, the court should have excluded all the evidence and directed the jury to find for the defendant. Abend v. Railroad Co. 111 Ill. 202.
    The failure of Snyder and his co-employes to stop their train three hundred feet west of the crossing, as required by the rules of the company, or two hundred feet, as required by the statute, is prima facie negligence. Railroad Co. v. Loomis, 13 Ill. 548; Railroad Co. v. Geddes, 33 id. 305; Railroad Co. v. Elmore, 67 id. 176; Railroad Co. v. Railroad Co. 72 id. 34.
    Appellee’s third instruction is erroneous. It assumes as true the most important fact in controversy,—the negligence of Torrence, charging him even with gross negligence. It also sums up all the facts on which the plaintiff seeks to recover, giving them undue and unfair prominence before the jury, and omits to state the facts in defence. Pennsylvania Co. v. Stoelke, 104 Ill. 201; Moore v. Wright, 90 id. 470; Railroad Co. v. Sykes, 96 id. 162; Village of Warren v. Wright, 103 id. 298; Logg v. People, 60 id. 602.
    The court erred in refusing defendant’s second and fourth instructions, based upon the negligence of the deceased con-contributing to the injury.
    Mr. Mason B. Loomis, and Mr. Louis Munson, for the appellee :
    The appellee’s third instruction does not assume the negligence of Torrence, or that of any one. (Mullen v. Spangenberg, 112 Ill. 143.) If there were any doubt on this point, it is removed by the disclaimer of the court in the first instruction. (Kennedy v. People, 40 Ill. 488.) It does not single out certain facts into unfair prominence. Trask v. People, 104 Ill. 569; Frame v. Badger, 79 id. 441.
    Instructions should be taken as a series. One defective instruction can be cured by another which states the principle correctly. Town of Vinegar Hill v. Busson, 42 Ill. 45; Stowell v. Beagle, 79 id. 525; Railroad Co. v. Ingraham, 77 id. 309; Warren v. Dickson, 27 id. 115.

      The stopping and the place of stopping the train was a matter entirely within the engineer’s control. Even if the engineer’s negligence contributed to the injury, it would be no defence. Railway Co. v. Cummings, 106 U. S. 700; Chicago v. Sheehan, 113 Ill. 661.
    Torrence was not a fellow-servant in the samé line of duty as Snyder. Railroad Co. v. Moranda, 93 Ill. 302; Rolling Mill Co. v. Johnson, 114 id. 64; Railroad Co. v. McLallen, 84 id. 109; Railroad Co. v. May, 108 id. 288; Railroad Co. v. Stevens, 20 Ohio, 415; Railway Co. v. Keary, 3 Ohio St. 201; Railroad Co. v. Ross, 112 U. S. 377. See, also, 45 Ill. 197; 74 id. 341; 61 id. 102; 77 id. 391.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by Mary A. Snyder, administratrix of the estate of John H. Snyder, deceased, against the Chicago and Northwestern Bailway Company, and Chicago, Milwaukee and St. Paul Bailroad Company, to recover damages caused by the death of her husband, who was killed on the 7th day of October, 1882, by a collision of two trains of said defendants, at a crossing near Western avenue, in Chicago.

It is averred, in substance, in the declaration, that the two defendants are corporations owning and operating lines of railroads, that cross and intersect each other at grade in the city of Chicago; that said companies maintained at such crossing a joint agent, who was in the joint employment of both companies, whose duty it was to regulate, direct and control the passing of all locomotive engines and cars over s.aid crossing, so as to prevent accidents, by means of certain signals well understood by and known to all the agents and employes of the said companies, and that it was the duty of such employes to observe the signals; that John H. Snyder was a conductor in the employ of the Chicago and Northwestern company, having the charge of a certain locomotive engine, and car thereto attached, belonging to said last named company; that at the time of the alleged injury, Snyder was in charge of and upon a certain train of ears and engine, and that he, and those engaged with him in the management of said train, were in the exercise of due care and diligence, observing the proper signals made by the joint agent or employe at said crossing, directing the said Snyder, as such conductor, to approach and pas.s over the said crossing with his said train of cars, and that after Snyder had approached within so short a distance of said crossing that it was impossible to stop his engine, the saidi joint agent, without due care, reversed or changed his signal, thereby directing a locomotive engine, and train of cars thereto attached, belonging to the said Chicago, Milwaukee and. St. Paul company, to pass over s.aid crossing, and that in consequence of such signal said trains collided at said crossing, causing the injury to and death of said Snyder. In the second count it is averred that Torrence, the joint agent of the defendants, so carelessly, negligently and improperly operated and controlled the semaphore, and the engine and. ear of the Northwestern company, and the train of the St. Paul company, that, without the fault or negligence of Snyder, or those under his direction, there was a collision, by which Snyder was killed. To the declaration the defendants pleaded the general issue, and on a trial of the cause in the Superior Court of Cook county, the plaintiff recovered a judgment for $5000, which, on appeal, was affirmed in the Appellate Court.

No question has been raised in regard to the decision of the court in the admission or exclusion of evidence, but it is claimed that the court erred in giving plaintiff’s third instruction, and in refusing instructions Nos. 2, 4 and 5, asked in, behalf of the St. Paul company, and instruction No. 6, asked by the Northwestern' company.

The third instruction given for the plaintiff was as follows:

“The jury are instructed that if they find, from the evidence, that John H. Snyder, the deceased, was injured by a colli-, sion of the cars of the Chicago, Milwaukee and St. Paul Bail-road Company, and the Chicago and Northwestern Bailway Company, the defendants in this ease, at the crossing of the railroad tracks of the said companies, in the city of Chicago, on or about the 7th day of October, A. D. 1882, and that by reason of such injuries, he, the said John H. Snyder, after-wards, on the same day, died; and if the jury further find, from the evidence, that said collision occurred solely by reason of the gross negligence of0one H. E.-Torrence, in and about the management and operating of the semaphore or signal light, at or near said crossing, and that at the time of such collision and injury, he, the said H. E. Torrence, was in the joint employment of the two defendant companies in and about the management and operation of said semaphore or signal light;"and if the jury further find, from the evidence, that at the time of such collision and injury the said John H. Snyder was a conductor in the employ of the Chicago and Northwestern Bailway Company, one of the defendants, having the control and management of the way car and engine of said last named company in question, and was, at the time aforesaid, exercising due and proper care, caution and diligence, as such conductor, in and about the control and management of said way car and engine, and for his own personal safety, and that at and before the time of said collision and injury, the said John H. Snyder and H. E. Torrence were employed in different departments of labor, wholly disconnected with each other, and were not associated with each other in the performance of their respective employment, and could have no control over or influence upon the conduct of each other; and if the jury further find, from the evidence, that the said John H. Snyder left surviving him a widow, who is still living, and that such widow was pecuniarily injured by' reason of the death of the said John H. Snyder, as aforesaid, and that such widow is the plaintiff herein, and was, at the time of the commencement of this suit, the administratrix of the estate of the said John H. Snyder, deceased,—then the jury should find both of the defendants guilty, and should give to the plaintiff such damages as, from the evidence, the jury shall deem a fair and just compensation for the pecuniary injury, if any, resulting from such death to the said widow, not exceeding the sum of $5000.”

Several objections have been made to this instruction,— first, that it assumes as true the negligence of Torrence. If the instruction was liable to the objection urged, it would certainly be erroneous, because it was for the jury to determine, from the evidence, who had been guilty of negligence, and it was not within the province of the court to direct the jury, in the instructions, that any person was negligent, or assume as a fact, in the instructions, the negligence of Torrence or any of the parties alleged to 'be responsible for the accident. That the collision of the trains, resulting in the death of Snyder, occurred through the negligence of some one, was a fact over which there was no controversy. It Avas for the jury to determine, from the evidence, who had been guilty of the negligent act. The language of the instruction complained of is: “If the jury find, from the evidence, that said collision occurred solely by reason of gross negligence of one H. E. Torrence in operating the semaphore, ” etc. No reasonable construction of this language could convey the idea to the minds of the jury that any one was negligent; but on the other hand, the jury was in' plain terms informed that such fact must be found by them, from the evidence. But if there was any doubt in regard to the construction of the language used, the jury could not be misled, as the court, in the first instruction given, informed the jury that they should not regard anything contained in any of the instructions as intimating, in the slightest degree, any opinion of the court as to what any of the facts are, but they should determine from the evidence, and from that alone, what are the facts. This was a qualification of every instruction on that branch of the case, and in such plain words that no jury of ordinary intelligence could be misled.

The second objection to the instruction is, that it sums up all the facts on which plaintiff sought to recover, giving them undue and unfair prominence, and omits to state the facts in the defence. The instruction is somewhat lengthy, and may he liable to criticism for that reason; but that is not the point, —the question is, whether it is erroneous. This court has held, in several cases, that where the evidence is conflicting, it is improper to select isolated portions of the evidence and give them prominence, by calling the attention of the jury especially to them, in an instruction. . But we do not regard this instruction liable to this objection. The instruction, in substance, informed the jury that if they should find, from the evidence, the facts alleged in the declaration and relied upon, as proven, reciting them, then the verdict should be for plaintiff. Such an instruction was approved in Frame v. Badger, 79 Ill. 442, where it is said: “The court should always instruct, that if the facts involved in the issue are' proved, reciting them, then they should find for the party in whose favor they shall find the facts. ” Here nó prominence is given to any particular fact in the case, hut the jury are merely directed that if they find, from the evidence, the facts relied upon by the plaintiff have been proven, reciting them, •then the plaintiff may recover. We perceive no valid objection to an instruction of this character.

There is, however, one serious objection to the instruction. It will he observed that it is averred, in both counts of the declaration, that Snyder and those engaged with him in the management of the train were in the exercise of due care, but by the instruction the jury were directed • that if. they find, from the evidence, that the collision occurred solely by reason of gross negligence of Torrence, the plaintiff might recover, if the jury further find, from the evidence, that Snyder was exercising 'due and proper care, caution and diligence as conductor of the train. Under this part of1 the charge to the jury, the engineer and brakeman in charge of the train, under Snyder, may have been guilty of" gross negligence in the discharge of their respective duties, which may have contributed to Snyder’s death, and yet the plaintiff could recover. We do not understand this to be a sound proposition of law. If Snyder’s co-employes in charge of the train under him were guilty of negligence which contributed to his death, he is chargeable with such negligence, and the negligence of those under Snyder would defeat a recovery. Suppose the brakeman had notified the engineer that they were signaled not" to cross, in ample time to enable him to stop the train, but he refused to regard the notice and recklessly ran into the other train, it will scarcely be pretended that Snyder’s representatives could recover.

The court refused an instruction asked by the defendant the Chicago, Milwaukee and St. Paul company, as follows:

“The court further instructs the jury, that the law requires all trains upon any railroad in this State which crosses or intersects, or is crossed by any other railroad, upon the same level, shall be brought to a full stop at a distance not less than two hundred feet nor more than eight hundred feet from the point of intersection or crossing of such road. And if the jury find, from the evidence, that the train of the Chicago and Northwestern Railway Company, under the charge of the deceased, as conductor of said train, was not brought to a full stop at a distance of more than two hundred feet from the crossing of the' tracks of the Chicago, Milwaukee and St. Paul Railway Company, and if you further believe, from the evidence, that the failure to stop said train at said distance from said crossing contributed to the injury complained of, or if you believe, from the evidence, that had said train been brought to a full stop at said distance from said crossing the collision would have been avoided, then you must find for the defendant 'the Chicago, Milwaukee and' St. Paul Bailway Company. ”

At the place-where the collision occurred, resulting in the death of Snyder, the Chicago and -Northwestern railway runs east and west. The Chicago, Milwaukee and St. Paul railroad runs south-easterly, crossing the Northwestern tracks at an angle. Ninety feet -west of the crossing is a signal box, where a semaphore is operated, as is shown by a plat in the record. Torrence had charge of the semaphore, whose duty it was to direct the crossing of all trains on both railroads. When he threw the green light of the semaphore on the track, trains on that road had the right of way, while the red light on the track was a signal for trains not to move. At the time of the accident, which occurred about four o’clock in the morning of October 7, 1882, there were three trains at the crossing: one on the St. Paul road, going west; one on the Northwestern, going west, and the train under the control of Snyder, as conductor, going east. This latter train was last at the crossing, and consisted of an engine, and a way car pushed in front of the engine. There is a conflict in the evidence in regard to the point where Snyder’s train was stopped before undertaking to make the crossing. The fireman on the engine thinks that when the stop was made the way car was about even with the. semaphore, which would make the stop only ninety feet from the crossing. There was other evidence that the stop was made sooner, and there was also evidence tending to show that the train made no stop before reaching the crossing. But however the fact may be, the evidence was such that the defendants had the right to go to the jury on that question, with proper instructions from the court. There was ample evidence upon which to predicate an instruction like the one in question,' and if it contained a correct proposition of law, which it did, it was error to refuse it. The statute imposed the duty on Snyder, who had charge of the train, to bring his- train to a stop not less than two hundred' feet from the crossing. If he failed to comply with this requirement of the law, and such failure contributed to the injury, it is plain that the plaintiff could not recover, for the obvious reason that the deceased was guilty of negligence which contributed to the injury. In refusing the instruction, the court in effect held that the defendants were liable, although the jury might find, from the evidence, that if Snyder had observed the duty enjoined by the statute the collision might have been avoided. We do not understand this to be the law.

It is, however, said, that whatever fault there may have been in regard to the failure to stop the train, is to be attributed to the engineer, and that his negligence would be no defence to an injury received by Snyder. The evidence shows that Snyder was the conductor in charge of the train, and that the conductor controlled the movement of the train, which, as we understand it, is always the case. It was therefore his duty to see that the train was stopped at such places as the law required, and if he failed or neglected to perform that duty, it is right that the consequences resulting from such neglect should rest upon him. |

The court refused defendants’ fourth instruction, as follows:

“If the jury find, from the evidence, that the semaphore signal was first given to the train of the Chicago and Northwestern Railway Company going west, to make such crossing, and that after such train had made the crossing, the semaphore signal was then given to the train of the Chicago, Milwaukee and St. Paul Railway Company to proceed and make the crossing, and was not given to the train of the Chicago and Northwestern Railway Company going east, you will find for the defendant the Chicago, Milwaukee and St.- Paul Railway Company. ”

The west-bound train on the Northwestern road was first at the crossing, and hence had the priority of right to make the crossing over other trains which arrived at a later time, and there is no dispute in regard to the fact that the proper signal was given this train to make the crossing, which it did. As respects the train going east, upon which Snyder was conductor, it was contended, on the one hand, .that Torrence had given the proper signal for this train to cross, and that it was attempting to make the crossing, under the signal given, when Torrence changed the signal, but too late for Snyder to1 stop his train and avoid the collision; while on the other hand it was contended, that after the west-bound train had gone over the crossing, Torrence at once gave the proper signal to the train on the St. Paul road to cross, which was obeyed by the St. Paul train, and that Snyder negligently failed to observe such signal, and undertook to make the crossing'in disregard of such signal. There was evidence introduced on the trial tending to prove that after the west-bound train on the Northwestern road had crossed, the semaphore signal was then given to the St. Paul train to proceed, and that the train under the control of Snyder had no right then to move, and under the pleadings and evidence we see no reason why the instruction was not proper. It may be true, as suggested in the argument, that the semaphore signal to a Northwestern train to cross, might be an invitation to trains to cross going east on' the Northwestern road as well as west. But if that be true, such fact does not militate against'the instruction, as it is based upon the theory that the Northwestern train going west had crossed, and the signal was changed in favor of the St. Paul road before Snyder’s train started to make the crossing.

The refusal of the court to give defendants’ sixth instruction is assigned for error. Without entering upon a discussion of this instruction, it is sufficient to say, that a similar instruction was. before us in a late ease (Rolling Mill Go. v. Johnson, 114 111. 57,) and it was there said: “The.ruling of this court requires that the servants of the same master, to be co-employes so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, shall be directly cooperating with each other in a particular business in the same line of employment, or that their usual duties shall bring them habitually together, so that they may exercise a mutual influence upon each other promotive of proper caution.” We do not regard the instruction as conforming to the ruling indicated, and it was properly refused.

For the error indicated the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: 'Mr. Justice Magruder

license: Public Domain

text:
    Ada Alicia Safford et al. v. Eliza Victoria Stubbs et al.

      Filed at Mt. Vernon June 12, 1886.

    1. Limitation—color of title—deed from tenant for life. A quitclaim deed from a tenant for life, of all the grantor’s right, title, interest, estate, claim and demand, both in law and in equity, to one having no actual notice that his grantor’s interest was only a tenancy for life, is good color of title, and the payment of all taxes on the land for seven successive years, under such color of title, made in good faith, will constitute a bar to the assertion of the title of the remainder-man.
    2. Same—possession under life estate, when adverse to title of reversioner. .A person having but a life estate in land, conveyed all his right, title and estate to one, who conveyed, by quitclaim, the same to another, neither of the grantees having notice that the original grantor had only an estate for life, and the second grantee entered into possession under his deed: Held, that after the life estate terminated, his grantee in possession could not be regarded ás a tenant at sufferance of the reversioners, but his possession was adverse to the reversioners, and not in subordination to them.
    3. Same—as against an infant not suing after coming of age. Where the bar of the statute, by the possession and payment of taxes under color of title, is completed before the owner attains majority, the fact of his infancy during the running of the statute will not avail him or her, unless he or she brings suit for the premises within three years after becoming of age.

      4. Same—as against a married woman. Since the passage of the Married Woman’s act of 1861, the saving clause in the Limitation act of 1839, in favor of married women, has no force, and since that time that limitation law applies against a married woman equally as against an unmarried woman.
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Messrs. Happy & Travous, for the appellants:
    The deed under which Berkey entered did not purport to convey anything but a life tenancy, during the life of Weiser, and hence is not color of title. Bush v. Huston, 75 Ill. 343; Bride v. Watt, 23 id. 507; Perry v. Burton, 111 id. 138; Sedgwick & Waite on Trial, sec. 768.
    Having entered into possession during the life of Weiser, as tenant pur autre vie, on the death of the cestui que vie he became and remained a tenant at sufferance. 1 Washburn on Real Prop. 406, 407; Cook v. Norton, 48 Ill. 20; Brown v. Smith, 83 id. 291.
    Having entered under a title not in hostility, but in submission, to the real owner, nothing but a clear, unequivocal and notorious disclaimer and disavowal of the title of such owner will render the possession, however long continued, •adverse. Williamson v. Watkins, 3 Pet. 43; Ziller v. Eckert, 4 How. 289; Jackson v. Burton, 1 Wend. 341; Peyton v. Steth, 5 How. 486; Rigg v. Cook, 4 Gilm. 351.
    Unless the possession be adverse, it can not give title, and it can not be adverse unless it is hostile to the true owner. Tyler on Ejectment, 875; Kirk v. Smith, 9 Wheat. 241.
    If the possession was taken under a title not originally hostile to the true owner, it will be intended that his possession was not adverse. Tyler on Ejectment, 878; Jackson v. Thomas, 16 Johns. 292; Smith v. Burtis, 9 id. 180; Jackson v. Johnson, 5 Cow. 74.
    To make Berkey’s possession adverse, he should have made an explicit denial and disavowal of holding under the title of the true owner. He should have asserted title in himself, and this should have heen brought home to the true owner. Tyler on Ejectment, 876, 877; Floyd v. Mintsey, 7 Rich. 181.
    The purchaser of an estate for 'life holds in subordination to the reversioner, and an adverse possession against the reversioner can not be predicated on it. Tyler on Ejectment, 919, 920; Jackson v. Graham, 3 Caines, 188; Jackson v. Town, 4 Cow. 599; Jackson v. Parker, 9 id. 73. And this, although he supposed his deed gave him the fee. Learned v. Tallmadge, 26 Barb. 443.
    Messrs. Metcalfe & Metcalfe, for the appellees:
    The will under which Weiser held, or a copy thereof, not having been recorded in the county where the land lay, was no notice of the extent of his éstate, or the estate conveyed by his deed to Reiner. Dugan v. Follett, 100 Ill. 581.
    Every estate in lands which shall be granted, conveyed or devised, shall be deemed a fee simple estate, if a less one be not limited by express words, etc. Rev. Stat. 1874, p. 275, sec. 13.
    The quitclaim deed from Reiner to Berkey, with possession, ever since its date, (October 18, 1856,) and payment of taxes for more than seven successive years, claiming to be the owner in fee, constitutes a complete bar to this suit. Irving v. Browning, 11 Ill. 402; Dickenson v. Breeden, 30 id. 279; Yoakum v. Harrison, 85 id. 202; Bride v. Watts, 23 id. 507; Coleman v. Billings, 83 id. 183; Foster v. Letz, 86 id. 412.
    . Quitclaim deed is color of title. McClellan v. Kellogg, 17 111. 498; Holloway v. Clark, 27 id. 483; Winslow v. Cooper, 104 id. 365.
    Any instrument declaring intention to pass title to specific lands, gives description, from grantor to grantee, gives color of title to such lands. McCagg v. Heacock, 34 Ill. 476; Elston v. Kennicott, 46 id. 187; Morrison v. Norman, 47 id. 477.

      A deed which, on its face, purports to convey title, constitutes claim and color of "title. Hinckley v. Green, 52 Ill. 223.
    A deed regular on its face, by one having no title or authority to convey, may give color of title. Fagan v. Rozier, 68 Ill. 84; Hardin v. Governor, 68 id. 140.
    The claimant or holder of color of title is not required to trace the title through the chain; Rawson v. Fox, 65 Ill. 200.
    Good faith of the holder of the color of title is presumed in the absence of evidence. Morrison v. Norman, 47 Ill. 477; McConnell v. Street, 17 id. 253; Davis v. Hall, 92 id. 85.
    The" quitclaim deed would as effectually pass the title as a warranty with full covenants. Butterfield v. Smith, 11 Ill. 485; Brady v. Spurck, 27 id. 478; Morgan v. Clayton, 61 id. 35; Grant v. Bennett, 96 id. 525.
    Since the passage of the act of 1861, concerning married women, the statutes run from the time they are eighteen years of age, or to the time allowed to bring suit. Davis v. Hall, 92 Ill. 85.
    Under twenty-one years of age means under minority, or eighteen years. Kilgow v. Gockley, 83 Ill. 109.
   'Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill for the partition of 131t|q acres of land, in Madison county, filed by appellants against appellees. Appellant, Ada A. Safford, claims to be the owner of an undivided two-thirds part of the tract, and appellee, Eliza V. Stubbs, claims to own an undivided one-third part thereof. The appellee, Jonathan Berkey, is in possession, and claims to have acquired title by possession and payment of taxes for seven successive years, under claim and color of title, made in good faith, "under the sixth section of the Limitation act. The question is, whether Berkey has brought himself within the provisions of the Statute of Limitations, and whether the bar of the statute can be successfully invoked under the circumstances of this case.

By a quitclaim deed, dated October 18, 1856, and recorded November 12, 1856, one Joel IL Reiner and his wife conveyed to Jonathan Berkey.all their "right, .title, interest, claim and demand in and to” the premises in question. The proof shows, that Berkey went into possession of the land under this quitclaim deed, as color of title, and continued in such possession, and paid all the taxes, assessed upon the premises, for a period of more than twenty years before July 14, 1883, the date of the filing of the bill in this cause. He has complied with the requirements of the statute and is entitled to its benefits, unless he is estopped from setting it up, upon one or the other of the grounds, hereinafter indicated.

It is said, that Berkey can not claim the benefit of the statute, because neither his title nor his possession has ever been adverse to the title of appellants, and appellee, Stubbs. The facts, upon which this contention is based, are as follows : One Mark Darrah, being the owner of the land in question, died, testate, on August 1, 1850, in Berks county, Pénnsylvania, and, by the terms of his will, devised this land to Josiah Weiser for life, and, after his death, if he should die leaving lawful issue, gave and devised the same to his heirs, as tenants in common, in equal shares, and to their respective heirs and assigns forever. On January 31, 1856, Weiser, being then the owner of a life estate only, executed a quitclaim deed to Reiner, Berkey’s grantor, conveying all of Weiser’s “right, title, interest, estate, claim and demand, both at law . and in equity, and as well in possession as in expectancy, of in and to,” the land in controversy; on July 24, 1863, Weiser died, leaving a widow, Eliza Y. Weiser (now the appellee, Eliza Y. Stubbs,) and two daughters, Florence Weiser, who died on August 26, 1863, and Ada A. Weiser (now the appellant, Ada A. Safford.) After the death of Josiah Weiser, the said Ada and Eliza became, by the terms of Darrah’s will and by inheritance from Florence Weiser, the owners of the reversionary estate, in the proportions of two-thirds and one-third, as above stated. It is claimed, that Berkey entered under a conveyance of an estate for the life of Weiser; that his estate ceased with that life; that he, then, being lawfully in possession; beóame the tenant at sufferance of Mrs. Safford and Mrs. Stubbs, the persons entitled to the reversion, and so, could not hold adversely to them. We do not think, that this position is well taken, under the facts of this case, Berkey having been in possession and paid taxes for more than seven years after the life estate terminated and the reversionary estate had attached.

Darrah’s will, although admitted to probate in Pennsylvania, was never admitted to probate in Illinois, nor was it ever recorded in Madison county, or elsewhere in Illinois. There is no proof, that either Reiner or Berkey ever had any notice of its contents. Neither of them had any notice, so far as this record discloses, that the interest of Weiser in the premises was merely that of a life tenant. The deed from Weiser to Reiner, and the deed from Reiner to Berkey, do not show, or, in any way, indicate the nature of the estate, owned by Weiser. It may be, that Berkey, though he had been in possession and paid taxes for seven years, after the tenant for life died, would- be debarred -from, setting up the statute against the owners of the remainder, if he had had notice, that his ■ grantor’s interest was only a- tenancy pur autre vie. (Dugan et al. v. Follett et al. 100 Ill. 581.) But having had no such notice, he did not enter upon the land, knowing or believing himself to be the owner of an estate for the life of another, and could not be considered a tenant at sufferance of the reversioners after the estate for life ended. His claim was thereafter adverse to the reversioners, and not in subordination to their title. His quitclaim deed from Reiner was such a deed, as v'ould pass the title no less effectually than a warranty deed with full covenants. (Grant v. Bennett et al. 96 Ill. 513.) It can, therefore, be relied on, as color of title. Holloway et al. v. Clark, 27 Ill., 483.

It is said, that Berkey can not plead the Statute of Limitations, because of the infancy of Mrs. Safford, and the coverture of both Mrs. Safford and Mrs. Stubbs. , Appellant, Ada Alicia Safford, was born on March 18, 1860, and was, therefore, of age on March 18, 1878. She became the owner in fee of two-thirds of the property in question on August 26, 1863. Berkey being in possession under the quitclaim from Reiner, continued in possession and paid all the taxes after the estate of the reversioners attached, for a period-of twenty years from 1863 to 1883. The bar of the statute, by possession and payment of taxes under color of title, was thus complete, before Mrs. Safford reached her majority. Under the eighth section of the Limitation law, (Starr & Curtiss’ Stat. chap. 83, see. 8,) she should have brought suit within three years, after she became eighteen years of age, (Davis v. Hall et al. 92 Ill. 85,) or, on or before March 18,1881. As already stated, this proceeding was not instituted until July 14, 1883, consequently, the fact of her infancy, during the running of the statute, can avail her nothing.

The interest of Mrs. Stubbs in one-third of the property as well as that of her daughter in two-thirds of it, accrued on August 26, 1863. We have held, that, since, the passage of the Married Woman’s act of 1861, the saving clause, in favor of married women, in this limitation law, has no force, and that the statute, since that time, applies against a marrieS woman equally as against an unmarried woman. (Enos et al. v. Buckley, 94 Ill. 458.) Hence, the fact of coverture, during the running of the statute, cuts no figure in this case.

The decree of the circuit court, dismissing the bill, is affirmed.

Decree affirmed.

Mr. Justice Sheldon does not concur.


author: Mr. Chief Justice Scott

text:
    Joseph Hemphill et al. v. Lorin C. Collins.

      Filed at Ottawa June 12, 1886.

      1. Mandamus — to direct what the judgment shall be. Where a trial court has made a decision which finally disposes of the case, mandamus will not lie to compel the court to decide differently. The remedy, if any, is by appeal or writ of error.
    2. Appeal—what is a final judgment—of an order striking a cause from the trial calendar. To a writ of attachment in aid of an action at law, the defendant pleaded in abatement, denying the grounds of the attachment. Without replying to this plea, the plaintiff took judgment by default for the debt, after which the court entered an order that “it appearing to the court that the attachment herein has been abandoned or discontinued, by taking judgment herein on the merits, without replication to the plea to the attachment herein, it is therefore ordered that the cause be stricken from the trial calendar of this court:” Held, that this was a final disposition of the case; from which an appeal or writ of error would lie.
    Appeal from the Appellate Court for the First District.
    Messrs. Hodges & Shippen, for the appellants.
    Messrs. Floweb, Bemy & Gbegoby, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

* This was an original proceeding, commenced in the Appellate Court for the First District, by Joseph Hemphill and George E. Hamlin, petitioners, against Lorin C. Collins, respondent, and is a petition for mandamus to compel respondent, one of the judges of the circuit court of Cook county, to forthwith vacate a certain order made in a case lately pending in the circuit court over which respondent presided as judge, wherein petitioners were plaintiffs and Joanna O’Brien was defendant, striking the cause from the trial calendar of such, circuit court, and to reinstate the same, and proceed with the trial and determination of the issues pending in the attachment proceeding, in due course of law. The Appellate Court granted leave to file the petition, but on the final hearing of the cause dismissed it out of court, and ordered that petitioners pay the costs of the proceedings in that court, to be taxed. A majority of the judges of the Appellate Court being of opinion questions of law of such importance, on account of principal and collateral interests, were involved in the case it should be passed upon by the Supreme Court, thé prayer of petitioners for an appeal was callowed, which they afterwards perfected by giving bond, as required by the order of the court.

It appears from the allegations of the petition, that on the 6th day of July, 1885, petitioners brought in the circuit court of Cook county a suit in assumpsit, against one Joanna O’Brien, upon a promissory note made by her, and on the same day brought in the same court an attachment proceeding “in aid, based upon an affidavit that defendant had, within two years last past, fraudulently assigned her effects, or a part thereof, so as to hinder and delay her creditors, and had, within two years last past, fraudulently concealed or disposed of her property, so as to hinder and delay her creditors, and petitioners obtained a writ of attachment, by virtue of which the sheriff levied on sundry goods of defendant, as shown by the writ and return made a part of the petition; that on July 22, 1885, defendant filed her plea in abatement, denying the alleged grounds of attachment, concluding to the country, with general similiter added; that on October 5, 1885, petitioners recovered judgment, upon the merits, in the original action against defendant, by reason of her default of a plea-; that-on December 18, 1885, the circuit court ordered as follows : “It appearing to the court that the attachment herein has been abandoned or discontinued, by taking judgment herein.on the merits, without replication to the plea to the attachment herein' it is therefore ordered, on motion of defendant, that the case be stricken from the trial calendar of

this court, ” and that on the 19th day of December, 1885, petitioners moved the circuit court to vacate such order and reinstate the ease on its trial calendar, which mqtion was overruled.

The point made is, that the circuit court erred in holding that the attachment had been abandoned or discontinued by taking judgment in the original suit on the merits, and also erred in ordering the cause- stricken from its trial calendar, and in refusing to proceed to the trial of the issue in the attachment proceeding, and hence it is insisted petitioners are entitled to a mandamus to compel the circuit court to correct its alleged error in that respect. Whether the circuit court properly construed section 31 of the Attachment act, and decided correctly in holding the attachment proceedings had been abandoned and discontinued by taking judgment On the merits without a replication to the plea to the attachment, and in striking the cause from the trial calendar, are not questions for discussion on this proceeding. The error-in the argument lies in the assumption the order made by the circuit court was interlocutory, and not a final decision. Such is not the fact. The court did decide that the attachment proceeding had been abandoned and discontinued, and thereupon struck the cause from the trial calendar. That was a final disposition of that branch of the case, from which an appeal or writ of error would lie. But whether the circuit court' ■decided correctly or not, can not he inquired in a collateral proceeding, as this is. That could only, be done on error, or upon appeal. It is a principle so well understood, that when a court has once decided a cause, it can not be compelled, by mandamus, to decide it differently, that it need not be discussed. Petitioners’ remedy, if any existed, was by appeal, or by writ of error, to correct the alleged erroneous decision of the circuit court.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The Illinois and St. Louis Railroad and Coal Company v. Ellen C. Switzer et al.

      Filed at ML Vernon June 12, 1886.

    1. Eminent domain—measure of damages—destruction of pond supplying water to a steam mill—evidence to show other sources of supply. In a proceeding to condemn a strip of land for a railroad track, which crossed a pond supplying the land owner’s steam mill with water, on the question of damages to the mill property not taken, the defendant gave estimates on the basis that the pond would be destroyed as a source of supply of water for the mill, and there would be no other means of such supply. The petitioner then offered to show that a certain water works company would furnish the mill regularly with all the water it might require, at a less cost than that of pumping from the pond, and also that a creek flowing nearer the mill than the pond had a capacity to furnish better water, and an abundance, for the use of the mill,—which the court refused to admit: Held, that the court erred in excluding the evidence.
    2. Same—evidence of plans for constructing the road—on question of damages—preserving. In a proceeding to condemn land for a right of rvay, it is competent, on the question of damages, for the railroad company to show the plan of construction of its road over the premises sought to be taken. But when such plan will materially affect the question of damages, the plan should be presented, and preserved in the records of the court, so that if there should be a departure from such plan, to the defendant’s damage, he may have his remedy for any increased damages resulting from such departure.
    Appeal from the County Court of St. Clair county; the Hon. W. J. Underwood, Judge, presiding.
    Mr. G-. & Gr. A. KoerNer, for the appellant:
    The inquiry before the jury was, first, tó ascertain the compensation to be paid for the land actually taken; and second, the damages to the- remaining property not taken.
    Various witnesses, called by appellees, testified as to the damages that the mill property would sustain if the railroad company should destroy the pond, and there was no other water supply. They all substantially agreed that if the pond were not destroyed there would be no damage. The theory of appellees was, that if the company obtained the right of way it might fill up, and thus cut the pond into two parts, separating the mill from the larger part of it, which would then be no longer accessible. A mill without water, it was urged, was of no use. To meet this view of the case, the petitioner showed, or attempted to show, first, that it would not interfere with the water supply of the mill; second, that the mill was not dependent upon this water supply, but could have cheaper and better water from other sources. In support of the first of the above propositions, it was shown that the railroad company, under a license from the owner, had been in possession and had the use of this property for more than fifteen years; that it crossed the pond on trestles, and did not in the least interfere with the pond. The question was then asked of the engineer in charge of the construction, how the company intended to cross the pond; but the court excluded the question. This, we think, was error. The company has the right to explain its plans and purposes, and -will be bound to make the construction conform thereto. Railroad Co. v. Kiclder, 21 Ill. 134; Railroad Co. v. Birkett, 62 id. 335.
    ■ If it was to be assumed that the mill would be damaged by impairing its water supply, the extent of that damage should certainly be measured by the incurred ■ expense, if any, of obtaining it from other sources.
    Messrs. Wilderman & Hamill, for the appellees:
    The true test as to damages to be paid for land taken for public use, is its market value for any purpose to which it is adapted or may be applied. Railroad Co. v. Jacobs, 110 Ill. 414; Railway Co. v. Walsh, 106 id. 253.
    Where property has no general market value, from the fact of its being used as a mill pond, and devoted exclusively to a special use, then its value is to be estimated with reference to such use. Railway Co. v. Railroad Co. 100 Ill. 21.

      The appraisement of damages in a case of condemnation, embraces all past, present and future damages which the improvement may thereafter reasonably produce. Mills on Eminent Domain, sec. 216; Railway Co. v. Smith, 111 Ill. 371; Railroad Co. v. Railroad Co. 67 id. 142; Railroad Co. v. Henry, 79 id. 290.
    Had the petitioner entered into a binding obligation, conditioned not to construct an embankment through the pond, it would have been admitted in evidence, and defendant would not have claimed damages to the property not taken.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The petition in this ease was filed in vacation, in the county court of St. Clair county, by the Illinois and St. Louis Bailroad and Coal Company, for condemnation of a strip of land one hundred feet wide, containing one and four one-hundredths acre, for right of way of petitioner. The tract of land of which this strip forms a part, contains about eleven acres, on which a flouring mill is situated. The strip of land is mostly across a pond, from which the water required for steam purposes in the mill is derived. The report of the jury allowed $400 as the value of the land to be taken, and $2185 as damages to the land not taken, upon which finding the court rendered judgment, and the petitioner appealed.

It is the finding and judgment in respect of damages that is complained of. The damage which was sought to be shown by the evidence, was in cutting off the water supply for the mill from the pond. It appeared that the railroad company, under license from the former deceased owner, had been in possession and had the use of the property for some ten or fifteen years; that it crossed the pond on trestles, .and did not interfere with the pond in supplying water.

At the trial, witnesses were introduced, on the part of the defendants, who gave testimony that if the railroad company should build a solid embankment of earth across the pond to place its track upon, it would destroy the pond as a source of water supply for the mill, and that if the pond were destroyed, and there was no other means of getting water, the. damage to the mill would be great,—giying their estimates of the amount, based on that hypothesis. In rebuttal of such testimony, the petitioner offered to prove that the Belleville waterworks can furnish, and agree to furnish, water regularly to the mill, and all it may require, at a cost which will be less than the cost of pumping the water from this pond; also, that Richland creek, which flows nearer to the mill than the pond is, has a capacity to furnish better water, and an abundance, for the use of the mill. The court excluded the testimony. There was, in this, manifest error, for which the judgment must be reversed. There having been an estimate of damages made on the basis that the pond would be destroyed as a source of supply of water for the mill, and that there would be no other means of such supply, it obviously should have been permitted the petitioner to show there would be other sources of '¡vater supply,—not, as is supposed by appellees’ counsel, for the purpose of showing there would be no damage, but for the purpose of affecting the amount of damage, the amount of the estimates of damages by appellees’ witnesses haying been based upon the supposition that there would be ho other means of supplying the mill with water.

There was evidence that to cross the pond on trestle work would cause no, or but little, damage in injuring the pond, and that an embankment of earth across the pond, with a culvert to allow communication between the two sides, would not interfere with the capacity of the pond to supply water to the mill. The question was asked by the petitioner, of a witness, to the effect, how the company intended to cross the pond, and the court excluded the question. And the court gave this instruction to the jury:

“The court instructs you that the verbal statements of the employes and officers of the railroad company, even when made under oath, that they do not intend to make an embankment of earth or other material across said mill pond, for said railroad tracks, will not legally bind said railroad company, its successors and .assigns, not to make said embankment. The only way that said railroad company can legally bind itself and its successors and assigns not to build an embankment of. earth or other material across said pond for its track, is for said company to make, in writing, and sign and file with the papers in this case, a stipulation or covenant running with the land, that said railroad company and its successors and assigns will never make an embankment across said pond, but will perpetually maintain its tracks on trestle work, or put a bridge or culvert across said pond.”

Whether1 there was error in the rulings in this regard, it is unnecessary for the decision of this case to determine. It may be proper, in view of another trial, to say it was undoubtedly competent for the railroad company to show the plan of construction of its road over the premises in question; but where, as here, the particular plan of construction would materially affect the question of damages, the plan should be presented, and preserved in the records of the court, so that it might thereafter be known upon what plan of construction the damages were assessed, and if there should be departure from the plan, to the defendants’ damage, they might have their remedy for any such increased damage.

The judgment will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. 'Chief Justice Scott

text:
    Delonas W. Potter v. J. A. Gronbeck et al.

      Filed at Ottawa June 12, 1886.

    Pleading and evidence—common counts—recovery of rent against guarantors. The assignee of a lessor can not recover for rents due from the l®ssee> under the common counts, in assumpsit, against parties guaranteeing Pnyraen* °f the rent and performance of the covenants of the-lease. If any recovery is had of the guarantors, it must be upon the guaranty.
    2. Assignment—what is assignable, so as to pass legal title—generally. An instrument depending upon extrinsic proof, before it becomes a binding obligation for the payment of money, is not assignable, under the statute, so as to vest absolutely the legal title in the assignee.
    3. Same—where a part of the subject matter of an instrument is not assignable—splitting a cause of action. Our statute makes an instrument in writing for the payment of money or articles of personal property, assignable, the same as bills of exchange; but when the instrument, in addition to a provision for the payment of money, contains other covenants not assignable, and the whole constitutes but one agreement, no assignment can be had of any part thereof so as to vest the legal title. A cause of action can not be split, so as to authorize two or more actions.
    4. Same—guaranty for payment of rent and performance of covenants. A written guaranty indorsed upon a lease, whereby the signers “guarantee the payment of the rent and the performance of the covenants by the party of the second part (lessee) in the within lease,” is not assignable, so as to pass the legal title to the assignee.
    5. G-uabantt—revocation by one of several guarantors—effect as to the liability of the others. One of several joint guarantors may revoke his guaranty at any time before it is delivered or accepted, and if the party to whom made afterward accepts the guaranty, with notice of its revocation by one of the guarantors, without informing the others of that fact, that will release the other guarantors also from any supposed obligation as joint guarantors with the one who revoked his guaranty before acceptance.
    6. Judgment—in action against several—against all or none. Where several persons are sued jointly upon a written guaranty, and their liability, both joint and several, is put in issue by pleas properly verified, and it appears that one of the defendants is not liable at all, having revoked his undertaking before its acceptance, there can be no judgment against the other defendants. In such case there can be no judgment for the plaintiff unless it is against all.

      7. Presumption—that the court considered the evidence—statement of the judge to the contrary. Where a court tries a cause without a jury, and hears testimony offered, it will be presumed that it duly considered the same; and the judge will not be heard to say, in an amendment to the bill of exceptions, that he disregarded his duty in refusing to consider the evidence, any more than a jury would be permitted to make such a.declaration.
    Appeal from the Appellate Court for the First District;— heard in' that court on appeal from the Superior Court of .Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    This suit was brought in the Superior Court of Cook county, by Lauchlin McLean, for the use of Delonas W. Potter, against J. A. Gronbeck, John Levin, Knute Nelson, Charles J. Stromberg, John Hanson and Thomas Brown. The declaration contains the common counts, and also a special count upon a written guaranty purporting to be signed by all of defendants. The guaranty upon which the special count is framed, appears to have been written on the back of or'attached to a lease of certain premises let by Lauchlin McLean to Eudolph Sylvan and Hannah Sylvan, which lease was signed by the parties thereto, and was to run for a period of ten years. It is as follows:
    “For value received, we hereby guarantee the payment of . the rent and the performance of the covenants by the party of the second part in the within lease covenanted and agreed, in manner and form as in said lease provided, for three years from the day of occupancy.
    “Witness our hands and seals this 23d day of July, A. D. 1883. '
    J. A. Gronbeck, (Seal)
    John Levin, (Seal)
    Knute Nelson, (Seal)
    Charles J. Stromberg, (Seal) for 1
    John Hanson, (Seal) for -J-
    Thomas Brown. (Seal) l pt.:

      In the special count of the declaration, the alleged guaranty of defendants was declared upon ás a joint and several obligation. To the declaration, pleas of the general issue; also pleas denying any joint liability, and also pleas of non est factum, were filed by each defendant, all of which appear to have been verified by the affidavits of the respective defendants filing the same. Upon the several pleas, issues "were joinéd, and by agreement of jiarties the cause was submitted to the court for trial without the intervention of a jury, and it is recited in the record, the court, after “hearing all the evidence adduced, ” found the “issues for defendants. ” The motion made for a new trial was overruled, and the court rendered judgment against plaintiff for costs. That judgment was afterwards affirmed in the Appellate Court for the First District on the appeal of Delonas W.Potter, and now he brings the ease to this court on his further appeal.
    Mr. Franklin P. Simons, for the appellant:
    If the phrase, “for one-sixth, ” is to be construed as a reservation or exception in favor of Stromberg, Hansen and Brown, then it is to be construed most strongly against them. But if it can attain the dignity of a proviso, then it is without effect, because repugnant to the contract itself. The first proposition is fundamental doctrine. Cardigan v. Armitage, 2 B. & C.197; Bullen v. Denning, 5 id. 842; House v. Palmer, 9 Ga. 497; Fawkes v. & A. A. 3 B. & S. 929; Jackson v. Lawrence, 11 Johns. 191; Jackson v. Hudson, 3 id. 387.
    That a proviso repugnant to the contract is void, see Benjamin v. McConnell, 4 Gilm. 536; Rice v. Webster, 18 Ill. 331; Richardson v. People, 85 id. 495; Jackson v. Ireland, 3 Wend. 99.
    When an obligation is joint and several, it can not be treated as several as to some and joint as to the rest. The obligee must proceed severally against each, or jointly against all.
      Streatfield v. Halliday, 3 T. R. 782; Cabell v. Vaughn, 1 Wm. Saund. 291; Bank v. Treat, 6 Greenl. 207.
    If the court below did not pass upon the question of revocation, but simply decided the ease upon a construction of the guaranty, it was not proper for the Appellate Court to consider evidence or propositions not passed upon by the court below.
    . Messrs. Blanks & Chytrzbus, for the appellees:
    The ease being tried by the court, and its finding as to the facts being sustained by the Appellate Court, they are conclusive on this court. Fitch v. Johnson, 104 Ill. 118; Bridge Co. v. Comrs. of Highways, 101 id. 518; Miller v. Life Ins. Co. 110 id. 102.
    The guaranty was valid before acceptance by the promisee. 2 Parsons on Contracts, 12; Chitty on Contracts, 742.
    Until accepted, the guaranty may be withdrawn. Offord v. Davis, 12 C..B. (N. S.) 748; Jordan v. Dobbins, 122 Mass. 168.
    The acceptance of the guaranty after'notice of revocation by Leven; without notice to the other signers, releases them. Smith v. United States, 2 Wall. 219; State v. Craig, 58 Iowa, 238; McCamer v. Thompson, 21 id. 244.
    . Where a case is submitted to the court without a jury, the finding.must have the same force and effect as that of a jury. Nimmo v. Kuykendall, 85 Ill. 476.
    On motion for a new trial, a juror is not allowed to give the grounds and train of reasoning by which he arrived at his verdict. Smith v. Eames, 3 Scam. 81.
   Mr. 'Chief Justice Scott

delivered the opinion of the Court:

’There would seem to be one reason why the present judgment should be affirmed, without- any reference to the merits of the controversy. It is ■ seen the suit was commenced by “Lauchlin McLean, for the use of Delonas W. Potter.” After-wards, by leave of court granted for that purpose, Lauchlin McLean was dismissed out of the suit, leaving Delonas W. Potter the only plaintiff, and since then the suit has progressed in the name of Potter, and he alone appealed frpm the decision of the trial court. It is obvious there can be no recovery against defendants, on the common counts, for rent due from the lessees. If any recovery could be had, it must he upon their guaranty of the payment of the rent, and the performance of the covenants of the lease. But can Potter recover on that guaranty in his own name? That depends upon the fact whether the alleged guaranty is assignable under our statute, so as to enable the assignee to maintain a suit upon it in his own 'name. It is thought it is not assignable, as is negotiable paper, so as to vest the legal title in the assignee. It is true that under the statute of this State any instrument in writing, for the payment of money or articles of personal property, is assignable, as are bills of exchange, so.as absolutely to transfer and vest the property thereof in each and every assignee succeeding. But the guaranty declared upon is not such an instrument. It is to be observed defendants undertook to “guarantee the payment of the rent and the performance of the covenants by the party of the second part in the within lease covenanted and agreed, in manner and form as in said lease provided, for three years from the date of occupancy." One objection that appears upon the face of the -instrument is, it is not an unconditional promise or obligation for the payment of money. Before any rent could be -recovered, the fact of occupancy by the lessees must be-averred and proved. An instrument depending upon extrinsic proof, before it becomes a binding obligation for the payment- of money, is not assignable, under the statute, so as to vest absolutely the legal title in the assignee. (Kingsbury v. Wall, 68 Ill. 311.) But a graver objection appears on the face of the guaranty. It -is, that the undertaking to guaranty the payment of the rent and the performance of the covenants of the lease, is an entirety, constituting a single agreement. Certainly that clause that obligates defendants to guaranty the “performance of the covenants” of the lease by the lessees, is not assignable, under the statute, as are bills of exchange. It is not for the payment of. money or articles of personal property. If the agreement contained no covenant other than for the payment of the rent, it would no doubt be assignable, and the assignee might maintain an action upon it in his own name. But this instrument contains other covenants constituting one agreement, and it is not allowable to assign one covenant in an instrument containing other covenants not assignable. That would be to split up a cause of action, which the practice will not permit. In no event can the present plaintiff recover on the alleged guaranty of defendants.

But without considering all the questions made on the argument, the decision affirming the judgment of the Appellate Court may be placed on the distinct ground, one of the guarantors (Levin) revoked his guaranty, without the knowledge or consent of the other guarantors, before the lease was delivered, and so notified both the lessor and the lessees; yet the lessor, after being notified, accepted the lease and guaranty without communicating that fact to the other guarantors. No importance is attached to the amended bill of exceptions, in which the trial judge recites, “that in announcing the finding for defendants, the court did not consider the evidence contained in the bill of exceptions.” The process of reasoning by which the trial court may have reached its conclusion is a matter of no consequence. The court heard the testimony offered, and the presumption is it was duly considered, and certainly the judge who tried the cause instead of a jury, will not be heard to say he disregarded his duty in that respect, and refused to consider the evidence introduced, any more than a jury would be permitted to make such a declaration.

The alleged guaranty was declared on in the special count of the declaration as the joint and several obligation of defendants. The fact of the joint liability of defendants, as well as their several liability, was distinctly put at issue by the pleadings. Upon some of the issues made, the evidence was squarely conflicting. There was evidence tending to show that Levin, whose name appears as one of the makers, revoked his guaranty before the lease was delivered or accepted by the lessor; that the other' guarantors had. no knowledge of such revocation, and never consented to it, and that after being so notified, the lessor accepted such lease and guaranty without notifying the other guarantors of the revocation made by their co-guarantor. ■ As the evidence tends to establish these facts, it will be understood that both the trial and Appellate Courts, in finding the issues for the defendants, as the record shows was done, found every fact the evidence tends to establish, in favor of defendants, and the finding of facts by the latter court on all controverted questions of fact, is, of course, . conclusive upon this court. The law is, a guarantor may revoke his guaranty at any tim.e before it is delivered or accepted, and if the lessor in this case afterwards accepted the guaranty, with knowledge of its revocation, without informing the other guarantors of such fact, that owould release them also from any supposed obligation as joint, guarantors with their co-guarantor, Levin. Assuming that to be the fact, as must be done, as the record comes before this court, there could be no judgment against Levin, and, of course, there could be no judgment in an action of assumpsit, as this is, unless it could go against all of defendants.

The judgment of the Ajjpellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    The Matthiessen & Hegeler Zinc Company v. The City of La Salle.

      Filed at Ottawa September 21, 1885

      Re-filed August 13, 1886

    1. Dedication for streets—as to the mode of dedication—and the character of title vested — and herein, of lands laid out and platted for a town by the State. The acknowledgment and recording of a plat laying out land into lots and blocks, showing thereon the streets and alleys, by the statute operates as a dedication of the fee in the streets and alleys to the municipal corporation in which they are situate, the same as if made by a conveyance in the ordinary form.
    2. And when land is laid out and platted for a town by the State, holding «the legal title, the title or fee in the streets will vest in the town or village, where incorporated, the same as. if the land had been laid out by a private owner. The corporation in either case holds the title for the use of the public, as an agency for the State government.
    3. 'Same—determinable character of the fee vested in the corporation— reverter in case of abandonment, and to whom. The fee vested in the corporation by a statutory dedication is a qualified, base or determinable fee, which may continue forever, but is liable to be determined by some event or act circumscribing its continuance, as, for instance, by the vacation of the plat, or the entire and permanent abandonment and disuse of the street by the public and abutting lot owners.
    4. Upon the entire and permanent abandonment and disuse of the streets on the vacation of the plat, the property in the streets will revert to the dedicator, and not to the abutting lot-owners, as such. A conveyance of a lot abutting a street so dedicated, does not carry title to the center of the street, but only to the street.
    5. Streets—rights of abutting lot owners, as to the use of the streets —mining under them. A party owning city lots has not the right to make a subterranean passage from one to another through the underlying soil, etc., of a public street, the fee of which is not in him, iñ order to mine and remove minerals, etc., even though no injury may thereby result to the street, as such.
    6. The only trust in favor of a private party when there has been a statutory dedication of the streets is, that the street shall be kept open for the benefit of abutting lot owners who have bought or sold on the faith of their existence and continuance as a means of access to their lots.
    7. Same—as to legal or equitable character of the right. And although a court of equity will enjoin a deprivation of this right, it is in its nature legal, and damages may be recovered at law for its invasion. But whether this right rests upon the doctrine of estoppel in pais or that of implied covenants, it has relation only to the use and enjoyment of streets, as such, without reference to the ownership of the soil.
    8. Appeal—whether freehold involved—bill to enjoin threatened actions of trespass for mining under streets. A bill seeking to enjoin a city from bringing threatened actions of trespass against the complainant for making entries’ through the soil under the streets, for the purpose of mining and removing coal from under his lots abutting such streets, does not directly involve a freehold, and an appeal from an order granting the injunction is properly taken to the Appellate Court.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Josiah McBobebts, Judge, presiding.
    Bill was filed in the circuit court, by the Matthiessen & Hegeler Zinc Company, against the city of LaSalle, and some individuals, with whom the city had made a contract, granting them the right, to mine coal underlying the streets and alleys. The complainant claims, as the grantee of the same, coal under its lots described in the hill, and the right to run entries across such streets and alleys to reach the coal on the lots, through its coal shaft located on the other side of such streets and alleys. The incorporation of the city of LaSalle is alleged to have been after the date of the recording of the plat, and it is alleged that upon its incorporation the title to the streets and -alleys became and was vested in the city for the uses and purposes designated by the canal trustees ; that the city, by virtue of such dedication, was vested with the right to use such streets and alleys as public highways, but not for any other purpose whatever; that the coal can be mined to make the entries across the streets and alleys without in any manner interfering with their usefulness as highways; that the contract between the city and the individuals was not valid, and that the latter have no right, by virtue of it, to remove the coal under the streets and alleys, and that they threaten to do so, to the great and irreparable injury of complainant; that the city claims to own the coal under the streets and alleys, with full power to sell and dispose of the same, and threatens to bring, from day to day, actions of trespass against complainant for mining, and interfering "with the coal, and that this will lead to a great multiplicity of suits; that 'complainant has mined some portion of the coal under the streets and alleys, for the purpose of making the entries mentioned, and that it proposes to continue to do so, and that the city, and the persons so contracting, threaten to interfere to prevent it, and also to bring suits, from day to day, against complainant, therefor. The prayer of the bill is, that complainant may have the right, without obstruction, to run the entries and passage ways under-and along the streets, and that defendant may be enjoined, etc.
    There is no claim that the relief at common law is adequate, and the only questions are those heretofore stated. There was an answer by the city, admitting the making of the contract as alleged, and conceding that it was ultra vires and invalid, and to all the rest of the bill the city demurred. There was no answer by the individuals. The demurrer was overruled, and the decree recites the facts proved, substantially as alleged, and enjoins the defendants from interfering to hinder and prevent complainant from making the entries and passages, unless necessary and proper to prevent injury to streets or highways, and from bringing actions at law against complainant for so doing, except for injuries to the streets or highways. On appeal to the Appellate Court for the Second District, this decree was, by the judgment of that court rendered at its May term, 1884, reversed, and the cause was remanded, with directions to the circuit court of LaSalle county to sustain the demurrer of the city of La.Salle, dissolve the injunction against the city, and dismiss the bill so far as the relief asked is based upon the allegations to which the demurrer is so sustained, and it was further adjudged that in all other respects the decree of the circuit court be affirmed. This appeal is from that judgment.
    Messrs. Bull, Strawn & Huger, and Messrs. Leland & Gilbert, for the appellant.
    Mr. G. S. Eldridge, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We do not deem it expedient to now reconsider the construction given the statute in relation to the platting of towns, in Canal Trustees v. Haven, 11 111. 554. That decision was rendered, after full argument and-mature consideration, in June, 1850,—thirty-five years ago. The next year after it was rendered,—in November, 1851,—in Hunter v. Middleton, 13 111. 50,. the rule it declares was attacked in argument by able counsel, and the court was- asked to reconsider and overrule it; and hold as now contended by counsel for appellant; but the court were not convinced by the argument that the rule was wrong, and expressly then declared that it was adhered to. The court qaid : "The statute in substance declares that these acts of the proprietor shall operate to vest the fee in the corporation, in trust for the uses and purposes of the public. By making and recording the plat, he voluntarily parts with the title to the streets and alleys, and transfers it to the corporation. The legal effect is precisely the same as if he had made a conveyance directly to the corporation. The latter holds the legal estate for the benefit of the public. The title may, perhaps, revert to the former owners on the destruction of the corporation, or upon the abandonment of the ground for the purposes of streets or alleys; but until the estate is thus defeated, the fee is as completely out of him as if he had made an absolute and unconditional conveyance. While the fee continues in the corporation, he has no greater interest in the streets and alleys than any other person,—the right of passage over them. Having neither the legal title nor the exclusive right of possession, he can not bring trespass for any injury to the soil or freehold. He has no title to be assailed, no possession to be invaded. ” This doctrine has been either directly repeated, or assumed to be the law, in the following eases: Manly v. Gibson, 13 Ill. 312; Moses v. Pittsburgh, Fort Wayne and Chicago Railroad Co. 21 id. 516; Waugh v. Leech, 28 id. 488; Stephani v. Brown, 40 id. 428; City of Chicago v. McGinn, 51 id. 266; Carter v. City of Chicago, 57 id. 283; Indianapolis, Bloomington and Western Railroad Co. v. Hartley, 67 id. 439; St. John v. Quitzow, 72 id. 336; Gebhardt v. Reeves, 75 id. 301; Stetson v. Chicago and Evanston Railroad Co. id. 74; Stack v. City of East St. Louis, 85 id. 377; City of Chicago v. Ramsey, 87 id. 348; Cairo and Vincennes Railroad Co. v. The People, 92 id. 170; Village of Brooklyn v. Smith, 104 id. 429, and in still later cases.

In the Stetson case it was sought to enjoin the construction of a railroad in the street. The court said, in denying the right of the abutting lot owner: “The principle is, the adjoining proprietor has no interest in the fee of the street, and therefore can not recover for an injury to it. Where the fee of the street, however, remains in the abutting land owner, a recovery has been permitted.” In the case of Brooklyn v. Smith, which was -decided in 1882, the court repeated, that one who had made and acknowledged a plat, with streets marked thereon, retained in the streets no interest to descend to heirs or to be conveyed. “The acknowledgment, ” says the court, “by him, and recording of the original plat, had all the force of an express grant to convey from him the land embraced by Water street, and vest it in the. corporation of the village, ”—referring to Canal Trustees v. Haven, supra. “The corporation was the owner in fee of the streets. ” This language was not only pertinent, but necessary to a decision of the question before the court.

The public welfare forbids that a rule so long established and so firmly adhered to, should be regarded as open to discussion or question. If it is to be changed, it must be by the legislature.

But it is objected that the statute in regard to laying out and platting towns has no application to the State, and that this was, therefore, but a common law dedication. This objection is answered by Chicago v. Rumsey, supra, where a like objection was interposed, and held to be untenable. Without at all conceding that the reasoning there, upon which the ruling on this point was predicated, is unsatisfactory, there is another obvious and satisfactory line of reasoning which reaches the same conclusion. While the statute in relation to town plats does, not name the State, it contains specific and full directions for the laying out and platting, towns by “county commissioners, and other persons wishing to lay out towns, or additions thereto, in this State.” (See Stat. 1833, p. 599.) When the several sections in relation to the laying out of towns by the commissioners of the Illinois and Michigan Canal were passed, that statute was in force, and there was no other statute in force in relation to the same subject. By section 32 of the act for the construction of the" Illinois and Michigan Canal, approved January 9,1836, the commissioners are empowered “to examine the w'hole ea-ndl route, and select such places thereon as may be eligible for town sites, and cause the same to be laid off into town lots. ” And by section 7 of an act to amend the above named act, approved March 2, 1837, it is provided : “The said commissioners,”—i. e., canal commissioners,—“shall have power to cause surveys of such town sites as they may select, to be laid out by such person or persons as they may think proper. The plats of such towns, certified by such person or persons so employed, and said commissioners, shall be recorded in the recorder’s office in the county where such town is situated; and such plat, so certified and recorded, or an attested" copy thereof, shall be evidence in any court of law or equity in this State; and plats of such town sites, subdivisions of sections or surveys, which have been -- made and certified by the former commissioners,shall also be recorded in the same manner, and have the same validity, as aforesaid.” - But what shall constitute a “laying out” and a “platting,” and of what facts the plat shall be evidence, these sections do not undertake to declare. The terms, “laying out” and “platting,” as applied to towns, are descriptive of legal steps for the creation of a town, and the perpetuating of evidence of its creation, and their use here plainly implies the existence of law defining or prescribing such steps. Such law can- not be found in the common law, and since the statute referred to is the only statute in relation to the subject that has ever been in force, it must have been intended by these sections to refer to it to ascertain what shall constitute a “laying out” and “platting,” and of what facts the plat shall be evidence. These sections are, therefore, in pari materia with that statute. 'Thus rea°ding them, it is only necessary that the plat shall be certified, as was here done, by the persons laying out the town and the. commissioners, and when thus certified and recorded, it shall have the force and effect of a towm plat,—i. e., as made, certified and acknowledged under the statute in relation to town plats. And this is consistent with other legislation of a kindred character, wdiich provides that “all deeds, title papers, and agreements and contracts affecting title to real estate, executed under the seal of the board of canal commissioners, shall be admitted to record without proof- or acknowledgment of the execution thereof.” Purple’s Stat. 488.

But it is again contended, conceding that we are right in the views heretofore expressed, that inasmuch as by section 2, of chapter 145, of the Revised Statutes of 1874, it is provided that upon the vacation of any street, the lot or tract of land immediately adjoining on either side shall extend to the central line of such street,-etc., the adjacent lot owners have a reversionary interest in the soil, which gives them a right to enter and take and appropriate the coal in the street. Waiving the question whether this act, though unconstitutional as respects eases where the dedicator was a private owner, is the laxy in cases like the present, where the dedication was by the State, it is enough to say, the adjacent lot oxvner does not-have a reversion, but a possibility of reverter, only. The title vested in the town by the statutory dedication is absolutely for the purpose of the statutory trust until the street shall be subsequently vacated, when it xvill revert .to the dedicator, or, it may be, in cases like the present, to the adjacent lot oxvner. • Possibly, at some time in the future, there may be a reverter, but this is no reversion. 4 Kent’s Com. (8th ed.) 372. It is too palpable for argument, that until there is a reverter, the lot owner can have no greater right to enter upon and appropriate the soil and minerals of the street to his personal use, than a stranger, because- his right can only commence in the event and at the time that the right of the toxxm has ended.

Waixdng this, howex-er, counsel further contend that the cases decided by this court recognize the existence of an equitable estate in the street, in the dedicator, distinct and apart from the estate, xvliich passes by the dedication, and which .equitable estate passes, by a conveyance of the abutting lots, to the grantee. Using the wrord “estate” in its strict technical sense, as seems intended, xve do not so understand the cases, and, in our opinion, the contention can not be maintained. The Stetson case, as has been seen, is diametrically opposed to this position. The cases have held that the only trust in favor of a private party, where there has been a statutory dedication of streets, is, that the streets shall be kept open for the benefit of abutting lot owners xvho have bought on the faith of its existence and continuance as a means of access to their lots. (City of Chicago v. Union Building Association, 102 Ill. 379.) And although a court of equity will enjoin the deprivation of this right, (Carter v. City of Chicago, supra,) yet the right, in its nature, is legal, and damages for its invasion may be recovered’ in an action at law. (City of Pekin v. Brereton, 67 Ill. 477; Rigney v. Chicago, 102 id. 81, and cases there cited.) Whether the right has its origin in the doctrine of estoppels in pais, as held in Cincinnati v. White, 6 Pet. 431, or in that of implied covenants, as held In the matter of Lewis Street, 2 Wend. 472, Livingston v. 21 Mayor, 8 id. 85, and Haynes v. Thomas, 7 Ind. 38, it has necessarily relation only to the use and enjoyment of streets as such, without reference to the ownership of the soil in the streets. And no authority has been cited, and, in our opinion, none can he, holding that this right in the adjacent lot owner confers any power upon him-to enter upon the manual possession of the soil or minerals in the street, to appropriate and use the same for his personal purposes.

The point is made,’ that owners of city lots have the right of subterranean passage from the one to the other side of the street. No authority is cited in favor of the position, and we think none can be. We think the position untenable. This certainly can not be claimed as an incident to the right resulting from the possibility of a reverter, and if we have successfully shown that the rights of abutting lot owners are simply to the access and use of the streets as such, it must follow that they have no right to construct subterranean" passages. Doubtless the public, in proper cases, may construct or authorize the construction of subterranean passages for the accommodation of the public; hut the right is public, and not private, and is to be exercised for the public good, and not for private emolument.

Counsel refer to the fact that the General Assembly have provided for the condemnation of passivays through or under other land between mines. Surely this, instead of proving a private right of passage in a lot owner, if it proves anything, proves directly the reverse. It will be time enough, however, to consider the effect of the statute when some party shall be before us in a case arising under it.

We are referred to cases in Wisconsin and Minnesota, predicated, as counsel claim, upon statutes which are literal transcripts of our statute" in relation to the platting of towns, holding differently from the views we have here expressed, to some extent. It will be found, on examination, that that difference results from a different construction placed upon the statutes of those States by their respective courts than that given our statute in Trustees v. Haven and Hunter v. Middleton, supra, and hence the cases referred to need no further consideration.

We are also referred to Dubuque v. Benson, 2 Iowa, 248, as ruling differently from our ruling here; but that case is predicated on language'limiting the effect of the dedication, and the court hold the effect was to reserve to the dedicator all other rights than those of an easement of passage in the streets, and to use and work them as public ways, and this reservation included that of mining and taking minerals therefrom. In City of Des Moines v. Hall, 24 Iowa, 234, an action was brought by the city to recover damages for coal mined and taken by the defendant from beneath the surface of certain streets of the city of Des Moines. The streets had been laid off and platted in conformity with the statute of that State, and the city claimed that under the statute it had the fee simple title to the streets, and having such a title, it might rightfully maintain the action against the dedicator, or any other person who, without its authority, mined and took coal therefrom. The defendant denied that there was any statutory dedication, but contended that if there was, in law such a dedication does not give the city the right to the coal in the streets beneath the surface. The court held that there was a statutory dedication, and that the city owned the coal and minerals in the street beneath the surface, and consequently was entitled to recover.

The language of the Iowa statute, it is true, is somewhat stronger than that of our statute, but it does not materially differ from what our statute is held to mean in Trustees v. Haven, and other cases.cited supra. "Judge Dillon, in the case referred to, in delivering the opinion filed, on overruling a petition for rehearing, among other things said: “The true view is, that when land has been dedicated under the statute, without reservation, and the plat has been recorded, and accepted, in cases where an acceptance is necessary, the dedicator or his grantee has no special proprietary rights in the soil composing the streets, but the dominion of the streets passes to the public authorities. No other view gives effect to the strong language of the statute, that ‘the acknowledgment and, recording of such a plat is equivalent to a deed in fee simple of the portion of the land set apart for public use.’ It is plain, from this language, that such a dedicator parts with all of his special property rights in the streets, just as effectually as does an ordinary grantor, with, perhaps, the exception of a right of reverter to him or his assignee, in case the street should be vacated. In support of this view see the following eases: Trustees v. Haven, 11 Ill. 554; Hunter v. Middleton, 13 id. 50; Moses et al. v. Pittsburgh, Ft. Wayne and Chicago Railroad Co. 21 id. 516; Seventeenth street, 1 Wend. 262; Clinton v. Railroad Co. 24 Iowa, 455. After such a dedication he has no more right to interfere with the street than a stranger. If the city could maintain this action against a stranger, it can equally maintain it against the dedicator or his grantee.”

It is thus seen that this decision is, in part, based on our earlier decisions cited supra, which, it is apparent, the learned judge deemed entirely analogous.

The city disclaims the right to mine coal herself, and no one insists that she has authority to confer that right upon others.

A motion was made in the Appellate Court to dismiss the appeal out of that court, upon the ground that a freehold was involved, and therefore the case should be brought directly to this court. The motion was overruled, and that ruling is assigned for error. We think the motion was properly overruled. This was a bill to enjoin anticipated or threatened suits for trespasses. A freehold, though incidentally, was not directly, involved. - It is only where the freehold must have beén directly the subject of litigation,—not merely incidentally or collaterally,—that the appeal must be brought directly to this court. Rose et al. v. Choteau, 11 Ill. 167; Chicago, Burlington and Quincy Railroad Co. v. Watson et al. 105 id. 217.

.The judgment of the Appellate Court is affirmed', and the cause is remanded to the circuit court to carry out its mandate.

Judgment affirmed.