author: Mr. Justice Shope

text:
    Simpson Johnson v. The People of the State of Illinois.

      Filed at Mt. Vernon January 20, 1888.

    1. Officers—fail/u/re to pay over money to successor—subject to prosecution under the Criminal Code. In a prosecution of one who has held an office for several successive terms, under section 215 of the Criminal Code, for a failure or refusal to pay over public moneys received by him, to his successor in office,' it is not necessary to a conviction to show that the defendant received the money after his last appointment, or had it on hand at the time of his last appointment. It is his duty, at the expiration of his term, to pay over to his successor all moneys received by him during his preceding as well as his last term, which he has not legally paid out. He can not shield himself from liability by failing to account to himself as his own successor. _
    2. Same—section 65 of the School law, and section 215 of the Criminal Code—as creating distinct offences. Section 65 of the School law, which provides that when a-township treasurer shall resign or be removed, etc., he shall pay over to his successor in office all moneys on hand, etc., under a penalty of not less than $10 nor more than $100, does not prevent his prosecution under section 215 of the Criminal Code, for his neglect or refusal to pay over all moneys received by him as such officer and not accounted for, to his successor. A township treasurer is not amenable alone to the provisions of the School law in that regard. Two distinct offences are created by these several sections, and they may well consist together.
    Writ of Error to the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Gibson & Johnson, for the plaintiff in error.
    Mr. George Hunt, Attorney General, and Mr. Benjamin E. Harrah, State’s attorney, for the People.
   Mr. Justice Shope

delivered the opinion of the Court:

This was an indictment in the Jasper circuit court, against plaintiff in error, for his failure to pay over to his successor in office certain school funds received by him as township treasurer of township 6 north, range 9 east, in the county of Jasper and State of Illinois. The indictment contained ten counts. Some of them alleged a refusal to pay over the money received hy the defendant, to John W. Honey, his successor in said •office as treasurer of said township, upon demand hy said successor, duly made therefor; and others, that no demand was made, etc., because, by reason of the absence and fault of plaintiff in error, such demand could not conveniently be made. The indictment is under section 215 of the Criminal Code, which provides: “If any State, county, town, municipal or other officer or person who now is, or hereafter may be, authorized to collect, receive, safely keep or disburse any money, revenue, bonds, mortgages, coupons, bank bills, notes, warrants or deeds, or other funds or securities belonging to the State, •or any county, township, incorporated city, town or village, or any State institution, any canal, turnpike, railroad, school or •college fund * * * required or authorized by law to be placed in the keeping of any such officer or person, shall fail or refuse to pay or deliver over the same when required by law, or demand is made by his successor in office or trust, or the officer or person to whom the same should be paid or delivered over, * * * he shall be imprisoned in the penitentiary not less than one nor more than ten years: Provided, ■such demand need not be made when, from the absence or fault of the offender, the same can not conveniently be made; And provided, that no person shall be committed to the penitentiary under this section, unless the money not paid over shall amount to $100, or if it appear that such failure or refusal is occasioned by unavoidable loss or accident.” The trial resulted in a verdict of guilty, and a finding that the amount of money not paid over by defendant, as required by law, was $2171.55, and fixing the term of imprisonment at one year in the penitentiary. Motions for new trial and in arrest of judgment were severally made and overruled.

It appears, substantially without contradiction, that at the April meeting, 1878, of the trustees of schools of township 6 north, range 9 east, in Jasper county, Simpson Johnson was appointed township treasurer of schools for said township; that he was biennially thereafter re-appointed by said trustees to that office, his last appointment to said office being April 19, 1884; that he filed bond and took the oath of office under each of said appointments. On the first day of December, 1885, he tendered his resignation as such treasurer, which was accepted by said trustees of schools, and John W. Honey was on the same day appointed his successor in said office, who duly qualified and entered upon the discharge of the duties thereof. It also-appears that Johnson left the State about the 5th of December, 1885, going to the State of Florida, where he remained; that the night before he left he turned over a list of notes belonging to the township school fund to his successor in office, but paid over no money. It is shown by accounts current, rendered by Mr. Johnson, shown to be in his handwriting, that he had received, at various times, as such treasurer, large amounts of money belonging to the said school fund, and had paid out, from time to time, during his continuance in said office, considerable sums, leaving, however, of such fund so received by him as such officer, the deficit mentioned in the verdict remaining unpaid to his successor.

It is insisted on behalf of plaintiff in error, first, that a conviction can not be sustained, for the reason that it is not shown that the money unaccounted for and not paid over came to the defendant’s hands after his last appointment, or that he received the said funds so remaining unpaid, from himself, as his own predecessor in office, and had the same on hand at or after his appointment, April 19, 1884. This contention is without force. If suit had been brought u]?on one of the bonds executed by him, it might become of the first importance to know when, in fact, the defalcation occurred, so as to fix the liability upon the particular bond in suit. (Trustees of Schools v. Smith, 88 Ill. 181.) But in this case it can make no difference. If he, as treasurer, received money belonging to the school fund, during Ms second term of office, wMch had not been paid out, it was as much his duty to pay that over to Ms successor in office as it was funds received by Mm during Ms last term. He can not sMeld Mmself from liability by failing to account to himself as Ms own successor. When, therefore, John W. Honey was appointed his successor, December 1, 1885, it became the defendant’s duty to account for, and to pay over to his said successor in office, all moneys received by him as such townsMp treasurer and not paid out by Mm according to law, and for his failure to do so, after demand therefor by the person entitled to receive the same,—or without demand, if Ms absence or fault excused the maMng of the same,—he was liable to criminal prosecution under section 215 of the Criminal Code, unless it appeared that his neglect or refusal to pay the same was occasioned by unavoidable loss or accident. It will not be necessary to discuss where the burden of proof rested, in reference to the question of whether Ms refusal or neglect to pay over was occasioned by unavoidable loss or accident, for the reason that it is shown that the money belonging to the township school fund was not thus lost, but was used by defendant in Ms private affairs.

It was not error for the court to refuse the seventeenth instruction asked by defendant, which said to the jury, in substance, that a conviction could not be had unless the evidence showed that the defendant had received the money after Ms last appointment, or had paid over to Mmself, as Ms own successor in office, the money s5 withheld,—the contention being, that section 215 of the Criminal Code applies only where an officer actually has in Ms possession funds wMch came into Ms hands by virtue of Ms office, which, without in any manner converting to his own use, he simply holds or keeps in his possession, and fails and refuses to pay over to Ms successor. This contention would be entitled to great force if the prosecution was under section 65, chapter 122, of the Revised Statutes, which we shall have occasion to consider farther on.

It is next contended, that section 215 does not apply to the failure of the township treasurer to pay over money, etc., for the reason “that that section does not, in specific terms, include a township treasurer, while section 65, chapter 122, of the Revised Statutes, by its terms, applies exclusively to a township treasurer, and creates the offence of failing to pay over money, etc., to his successor in office, and provides a penalty, thus rendering such township treasurer amenable to its provisions, and none other.” This position is, in our opinion, also untenable. The section ■ referred to is as follows: .“When a township treasurer shall resign or be removed, and, at the expiration of his term of office, he shall pay over to his successor in office all moneys on hand, and deliver all books, etc. * * * And for any failure to comply with the requisitions of this section shall be liable to a penalty of not less than $10 nor more than $100.” The general principle contended 'for by counsel may be conceded, but it can have no application in this case. A reading of the two sections will make it apparent that two separate and distinct offences are intended to be created. Both sections are part of the general revision of 1872-74, and the presumption is they were intended to consist together, and each he capable of enforcement. This can readily be done.

The case of Stoker v. The People, 114 Ill. 320, is relied upon by counsel. In that case the defendant was indicted for larceny, under the 74th section of the Criminal Code, and the court held that he could not be convicted under that section, the facts showing that he had collected the money as constable, which it was alleged he had converted to his own use. Section 79, of the same chapter, specially provided a penalty in such cases. The facts proved brought the case within the latter-section, and not within the former, the money not having been delivered to the defendant, within the meaning of the 74th section.

This case would seem to he authority against the position of counsel. It will he observed that section 65 of the School law requires the payment of money “on hand,” and if the construction contended for is to prevail, that section would be inapplicable to cases where the money was not on hand at the end of the term of office. It will not be necessary, however, to determine that question. It is apparent that section 65 was designed to secure the prompt payment over of money, etc., immediately upon the expiration of the term of office. The failure to do so through inadvertence or mere neglect of the duty, subjects the officer to the slight penalty imposed by that section. By section 215 of the Criminal Code, the offence is made to consist in the defendant receiving money, etc., which he is authorized by law to receive, and in failing or refusing to pay over the same to the person entitled by law thereto, when required by law so to do, or upon demand therefor by the person entitled to receive the same. The legislature has here created an offence of much graver character than that created by the 65th section of the School law, involving a deliberate, wrongful act of the accused in failing and refusing to pay over funds in his legal custody when 'required by law to do so, or after demand therefor has been made on him for the same by the person entitled thereto, or after such willful conduct, by absence or fault on his part, as will excuse such demand. It is not necessary for us to determine in this case whether a demand is necessary in cases where the law fixes a time when the fund, etc., shall be delivered to the successor in office, as has been seen. If such demand was necessary, the fault and absence of the accused rendered the same unnecessary to be made. The penalty imposed by the section under consideration is, in consequence of the increased gravity of the offence, made more severe than that prescribed by the section of the School law above referred to. The conduct of the officer contemplated by this section, shows deliberate and willful purpose, and would, in effect, amount to a conversion or embezzlement of the fund so in his hands. The language of section 215 is broad and comprehensive, and includes all persons, whether officers or not, who are authorized by law to receive money for any of the purposes mentioned in said section, among which is the money belonging to the school fund of the township, and no reason is perceived why the case made against the plaintiff in error did not fall directly within its provisions. We think the contention of counsel is without force, and the plaintiff in error was liable to prosecution and conviction under the indictment.

The only remaining contention is, that some arrangement had been made between the trustees of schools and the defendant, by which the money remaining in the hands of Johnson,'.as township treasurer, had been accounted for. It is evident this is a misapprehension of counsel. It is shown that Mr. Shup, who was security on Johnson’s official bond, was applied to by Johnson for funds, with which to adjust the balance due the township. It appears that the night before Johnson left the State, he assigned to Shup two policies of insurance on his life, but Mr. Shup, as security for the money he would be required to advance, demanded security of Johnson by mortgage on his Florida property, which was not given. It is clear that there was no arrangement by which Shup was to pay the deficit, or by which the trustees were to look to Shup therefor. After Johnson’s departure, Mr. Shup paid orders drawn upon him, to the amount of about $250, and then refused to pay any more, leaving the balance found by the jury unpaid.

Upon the whole record, we are satisfied the defendant was properly convicted, that no such error has intervened as should reverse the judgment of the circuit court, and it will therefore be affirmed. Judgment affirmed.

Mr. Justice Soott : I dissent from both the reasoning and conclusion of this opinion.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    A. P. Brown v. Samuel R. Robertson et al.

      Filed at Mt. Vernon January 20, 1888.

    1. Certiorari at common law—extent of the remedy. On certiorari, at common law, to vacate an order of commissioners of highways vacating and re-locating a part of a highway, the court can only consider upon the record jurisdictional questions. For errors not jurisdictional, ample remedy is presumably afforded by appeal.
    2. Same—amendment of proceedings brought in review—as, in case of a mistake in the order of highway ■commissioners in re-locating a road. Under section 4, chapter 7. of the Revised Statutes, the return of commissioners of highways of their action in vacating and re-locating a highway, made in a proceeding by certiorari to review their action, may be amended by the circuit court as well before as after judgment. That court having the power to permit the amendment of the order of the commissioners, may ratify an amendment already made by such commissioners, this being an exercise of its power to permit such amendment.
    3. Commissioners of highways, within the proper time, on the consideration of a petition to re-locate a public road, made out and filed in writing their decision and order, but by mistake misdescribed the road. A month thereafter, upon discovery of the mistake, they made out and filed another order correcting the former one, so as to make it conform to the facts. On certiorari to quash their proceedings, the amended order was set forth in their return, and the court dismissed the certiorari: Held, that the action of the circuit court in respect to the return, amounted to an adoption of the amendment made by the commissioners.
    4. Highways—survey of road—by whom to be made. The statute does not require that the plat of a road laid out or re-located shall be made by the county surveyor. It only requires that it shall be made by a “competent surveyor.”
    5. Same—agreement as to damages—need not be under seal. The ■statute does not require that an agreement between the commissioners of highways and a land owner as to the amount of damages to be paid him on account of the laying of a highway on his land, shall be under seal. It •only requires that it shall be in writing.
    6. Same—compensationfor land taken, and benefits os to land not taken. The statute relating to the laying out of highways only requires that the ■damages to the lands over which the road is to pass shall be ascertained by agreement or condemnation. For land damaged, but not taken, the owner may be compensated by benefits.

      7. While the public can acquire no right to take the land of an individual for a highway who has not consented thereto, until he is compensated therefor, the question of damages to land not taken may be adjusted afterward. It is not jurisdictional.
    8. Same—right of appeal, and extent thereof. The statute authorizing the commissioners of highways to agree with land owners as to their damages for the laying out, etc., of a public highway, confers upon no one the right to review their action, by appeal or otherwise. No appeal lies in such case, and if taken, may be disregarded.
    9. The right is given to persons interested, to appeal from the decision of the commissioners of highways, in determining to or in refusing to lay out, alter, widen or vacate any road, or revoking any previous order to lay out, alter, widen or vacate any road, or from the verdict of a jury assessing damages. This is the extent and limit of the right.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    Messrs. Casey & Dwight, for the appellant.
    Messrs. W. & E. L. Stoker, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court r

The record sought to he quashed upon this certiorari is that of the commissioners of highways of the town of Centralia, in Marion county, vacating and re-locating a portion of a certain highway therein described.

We are only at liberty to consider, upon this record, jurisdictional questions. For errors not of a jurisdictional character, ample remedy is presumably afforded by appeal. Hyslop et al. v. Finch, 99 Ill. 171.

The' commissioners of highways considered the questions presented to them by the petition, and made their decision thereon, on the 17th of July, 1885, and on that or the next-day they reduced'to writing, and signed and filed with the town clerk, what they intended to be the record of their decision, hut subsequently discovering that they had made a mistake in describing the part of the road intended to be vacated and that intended to be re-located, they thereupon again reduced to writing what they intended to be the record of their decision, correcting therein the mistakes in the former writing, signed it, and filed it with the town clerk on the 17th of August, 1885, and a copy of this was produced, on the hearing, as a part of the answer or return to the certiorari. The first and most important question to be considered is, had the commissioners of highways the power to thus correct the mistakes in their order. That they could not, after rendering their decision, change it and render a different decision, may be conceded. But having made a mistake in describing what they had decided, was it competent, one month afterwards, to correct that mistake in conformity with the facts ? It is provided by section 4 of the Statute of Amendments and Jeofails, (Rev. Stat. 1874, chap. 7,) “that all returns by any sheriff or other officer, or by any court or subordinate tribunal, to any court, may be amended in matter of form, according to the truth of the matter, by the court to which such returns shall be made, in its discretion, as well before as after judgment.”

In Brown v. City of Joliet, 22 Ill. 123, it was held that the return of commissioners appointed to make an assessment, was amendable, under the section quoted, in a proceeding for judgment for a special assessment, and this was repeated in Einstein v. City of Joliet, 22 Ill. 126, and subsequently referred to, with approval, in City of Chicago v. Walker et al. 24 Ill. 493.

It is plain that if the power existed in the court to permit the amendment on the hearing of the case, there can be no error in having permitted the amended record to be considered as an answer or return to the writ, for the court, by ratifying and approving an amendment already made, is but exercising the power to permit amendments, and in no sense transcends it. The case is not one of an amendment from the personal recollection, only, of the commissioners, but one of an amendment by facts sufficiently appearing of record, in the petition, in the report of the survey, and in the previous inaccurate record of the commissioners.

Among those signing the petition are Lewis Kalbrenner and John Woods. It is recited in the petition, that “the names of the owners of land over which said road is to pass, is John McClelland, and the land owners adjoining the road to be vacated, are Lewis Kalbrenner, John Woods and John McClelland.” It is shown in the record, that McClelland and the commissioners agreed upon the amount of damages he sustained by reason of the vacating and re-locating of the road upon his land, and this agreement was reduced to writing, and filed in the office of the town clerk. Counsel for appellant urge-the objection that this is not conclusive upon McClelland, because not under seal. But the statute does not require that it shall be under seal,—it only requires that it shall be in writing. 2 Starr & Curtis, chap. 121, sec. 40, p. 2148.

Counsel for appellant also urge the objection that it does not appear that damages have been- assessed to Kalbrenner and Wood, or that they have relinquished their claim thereto. The answer to this is, none of their land is taken by the vacation and re-location of the road, and it does not appear that they sustain any damages thereby. The statute only requires that the damages to the lands over which the road shall pass shall be ascertained. (2 Starr & Curtis, chap. 121, sec. 39, supra.) For land damaged, but not taken, the owner may be compensated by benefits. (Hyslop v. Finch, supra.) While the public can acquire no right to take the land of an individual for a highway, who has not consented thereto, until he is compensated therefor, the question of damages to land not taken may be adjusted afterwards. It is not jurisdictional. (Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 74. See, also, Chicago and Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203.) If we were to indulge in any presumption here, it would be that the lands of Kalbrenner and Wood are not damaged. They pray for that to be done which was done, and the maxim that “that to which a person assents is not esteemed in law an injury,” would seem to be applicable.

Another objection urged by counsel for appellant is, that the surveyor’s plat filed is not that of the county surveyor. The statute, however, only requires that it shall he that of a "competent surveyor.” (2 Starr & Curtis, chap. 121, secs. 36, 37, supra.) And we have held that this does not render it indispensable that the plat shall he by the county surveyor. Lee et al. v. Town of Mound Station, 118 Ill. 304; Gebhardt v. Reeves, 75 id. 305.

Wilson Gragg petitioned a justice of the peace to grant an appeal from the decision of the commissioners in allowing damages to John McClelland. It is insisted that this suspended all previous action of the commissioners, and inasmuch as the supervisors whom the justice summoned to hear the appeal did not make and file with the town clerk a report of their decision in the case, nothing further can be done under the order of the commissioners of highways. In our opinion there was no right to appeal from this action of the commissioners. The statute authorizes the commissioners and land owner to make such an agreement, and it confers upon no one the right to review their action in this respect, by appeal or otherwise. (2 Starr & Curtis, chap. 121, sec. 40, supra.) The right is given to persons interested, to appeal from the decision of the commissioners in determining to or in refusing to lay out, alter, widen or vacate any road, or revoking any previous order to lay out, alter, widen or vacate any road, or from the verdict of a jury assessing damages in these respects; but this is the extent and limit of the right. (2 Starr & Curtis, chap. 121, sec. 59, supra.) The appeal being without authority of law, the supervisors were under no obligation to pay attention to it, and it suspended no order of the commissioners.

The other questions presented are not of a jurisdictional character.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    John E. Ballard v. Henry G. Struckman.

      Filed at Ottawa January 19, 1888.

    Overflowing- lands of another—hy a mill-dam—prescriptive right, after twenty years. Where the owner of a mill, and his grantors, have maintained a dam of a given height across a stream for over twenty years, and have exercised the uninterrupted enjoyment of the privilege to overflow the lands of another situated above such dam, such mill owner will have acquired a prescriptive right to maintain his dam at such height and overflow the lands above, and the upper land owner can not enjoin him from rebuilding such dam to the same height when washed out by a freshet.
    Appeal from the. Appellate Court for the Hirst District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Jesse J. Phillips, Judge, presiding.
    Mr. Charles Whitney, and Messrs. Cook & Upton, for the appellant:
    When an easement to flow water hack on lands is claimed hy adverse enjoyment, the whole burden of proof is on the claimant. Gould on Waters, sec. 341, p. 552; Haight v. Price, 21 N. Y. 241; Carlisle v. Cooper, 19 N. J. Eq. 256; American Co. v. Bradford, 27 Cal. 360.
    By the occasional use of short boards, raising the height of the dam temporarily, no right to maintain a permanent dam to the same height was being acquired. Gould on Waters, sec. 337; Angell on Water-courses, secs. 378, 379; Wood on Nuisances, secs. 322-324; Marchy v. Shuts, 29 N. Y. 346; Pierce v. Travers, 97 Mass. 306; Branch v. Doane, 17 Conn. 402; Carlisle v. Cooper, 19 N. J. Eq. 257; 21 id. 578.
    The acquiescence of the owner of the servient estate is an indispensable condition upon which a right to overflow" can be acquired by prescription, and is clearly defined in Chicago and Northwestern Railway Co. v. Hoag, 90 Ill. 339.

      Mr. Hiram H. Cody & Son, and Mr. Elbert H. Gary, for the appellee:
    As to the right to enjoin a private nuisance, see 2 Story’s Eq. sec. 925; High on Injunctions, sec. 486; Gould on Waters, secs. 416, 509; Dunning v. Aurora, 40 Ill. 481; Bliss v. Kennedy, 43 id. 74; Stolp v. Hoyt, 44 id. 219; Parker v. Water Co. 2 Black, 545.
    The acquiescence of complainant and his grantees for forty years in the maintenance of the dam at six and a half feet, created an equitable estoppel. Water Power Co. v. Veght, 21 N. J. Eq. 478; Carlysle v. Stevenson, 3 Md. 506; High on Injunctions, secs. 494-496, 505; Vail v. Mix, 74 Ill. 127.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill for an injunction, brought by John E. Ballard, in the circuit court of Lake county, to enjoin Henry G. Struckman from rebuilding a certain mill-dam across the Des Plaines river, to a greater height than four and a half feet.

It is alleged in the bill, that the defendant owns and occupies land lying along the river, below the land of complainant; that on the land of defendant is a mill owned and operated by him; that the dam across the river has been located in the same place for several years; that the dam causes the waters of the river to flow back on the lands of complainant, to his injury and damage; that in or about 1875 the dam stood at the height of about four and a half feet, which height of about four and a half feet, or less, was the height at which the dam had stood ever since the erection thereof; that up to 1875 the dam had never exceeded in height four and a half feet; that in or about 1875, while the dam and mill, and land on which the same stand, were owned by Diedrich Struckman, father of defendant, and while defendant alone, or in company with his father, was in possession and occupancy of the dam and mill, the dam was repaired and raised in height about two feet, by defendant, or his father, or both; that when the dam was so raised in height, the increasing of the height thereof necessarily took and damaged, and did take and damage, a large portion of complainant’s land, then owned and occupied by him as his homestead and farm, by the water of the river- setting back and overflowing the same to a much greater height and extent' than it ever theretofore had been overflowed on account of said dam; that complainant’s land, from year to year, since 1875, has been taken and injured to a much greater extent than ever prior to the raising of the dam; that the dam was increased in height without the consent of complainant, arid against his objection, made to defendant and his father; that complainant’s damages to his land, by reason of the increased height of the dam, were not released by him, or ascertained or assessed by a jury, as required by law, or in any way whatever. It is also alleged in the bill, that a portion of the dam has recently washed out, and the defendant is proceeding to repair and raise the same to the height it stood in 1875, and if this is done, the land of complainant so injured, as aforesaid, which was originally good grass land, fit for pasture or meadow, will continue to be injured as aforesaid, “and that the damage to your orator’s land which will result from increasing the height of the dam will amount to $500,” and “great and irreparable damage will be done to your orator’s said land.”

The defendant put in an answer, in which he denied all the material allegations of the bill. He denied that complainant was entitled to any damages, and alleged that complainant had land in the neighborhood of the dam since 1853, and that during all that time it has been kept at a greater height than four and a half feet, and at the height of six and a half feet ; that at the time complainant became the owner of the land described in the bill as his farm, the dam stood at the height last mentioned; that complainant has, ever since he so became owner, acquiesced in keeping the dam at that height; that complainant’s grantors before him had, in.like manner, acquiesced therein for nineteen years and more prior to 1872; that said dam was not increased in height in 1875, or at any time, and that complainant has, since 1875, assisted defendant in repairing said dam without objection to its height, and in 1883, with full knowledge of defendant’s intentions in relation thereto, solicited the work of repairing the same after the “washout” of that year, mentioned in the bill.

It is also alleged that the dam was erected by "Vincent in 1853, by virtue of an act of the General Assembly of the State of Illinois, as follows:

“An act to authorize Tristram Vincent to build and maintain a dam across the Des Plaines river, in Lake county.

“Sec. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That Tristram Vincent, of the town of Vernon, in Lake county, his heirs and assigns, be and is hereby authorized to build and maintain a mill-dain seven feet high, across the Des Plaines river, on the south half of section 23, in township 43, north, of range 11, east of the third principal meridian, in said county.

“This act shall take effect and be in force from and after its passage.

“Approved February 11, 1853.”

After a long and patient hearing in the circuit court, where the most of the witnesses appeared and testified in person before the court, a decree was rendered dismissing the bill for want of equity. The complainant appealed to the Appellate Court, where the decree of the circuit court was affirmed. To reverse that decree the complainant has appealed to this court.

The mill-dam in question was erected at an early day,—as early as 1846,—and it has been maintained ever since. In 1853, the mill was purchased by one Vincent, who kept the dam in repair, and used the mill until July, 1863, when it passed into the hands of Boker, who operated it until 1867, when it passed into the hands of Wiley, who operated the mill until 1871, and since that time the mill has been owned and operated by appellee and his father. In 1875, the dam washed out, and appellee rebuilt it to the height of six and a half feet. The dam was maintained at this height until February, 1883, when a part was carried out by high water. The defendant was making preparations to rebuild when this suit was commenced, in March, 1883.

The fact that a dam was erected as early as 1846, and has been maintained from that time to the present, and the mill operated on the present site, is not in dispute; but the complainant insists, that prior to 1875 the dam was only four and a half feet high, and in that year the defendant increased the height two or two and a half feet, while, on the other hand, the, defendant claims, that as early as 1863 the dam was at least six and a half feet high, and the height was not increased in 1875. Much evidence was introduced, on the hearing, upon this controverted point, by both parties, and after a careful consideration of all the evidence we are not prepared to say that there is such a preponderance in favor of the complainant as to authorize us to say that the circuit and Appellate courts misjudged the evidence upon this question. If, then, the conclusion reached by the circuit court, that the dam had not been raised in 1875, as charged in the bill, was not contrary to the weight of the evidence, it is clear that the complainant had no standing in a court of equity. For a period of thirty years the defendant and his grantors have operated the mill, and exercised the uninterrupted adverse enjoyment of the privilege to overflow lands belonging to complainant and others, lying in the river bottom, above where the dam was erected. An uninterrupted adverse enjoyment for over twenty years is a bar to a bill of this character. Vail v. Mix, 74 Ill. 128, is an authority in point. Here, the complainant and his grantors acquiesced in the erection of the dam and the use of the mill, and the consequent overflowing of the lands, for over thirty years. Under such circumstances, they have no standing in a court of equity, to enjoin the rebuilding of a portion of the dam which was carried away.

' The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    The City of Joliet v. Frederick Weston, Admr.

      Filed at Ottawa January 19, 1888.

      Appeal—reviewing facts—question of excessive damages. Whether the ■amount of damages found in an action for a tort is excessive, is a question ■of fact, not reviewable in this court on appeal from the Appellate Court. What is the rule for assessing the damages in any case is a question of law, but the amount of the damages, as depending upon the evidence, is a question of fact.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will ■county; the Hon. Charles Blanchard, Judge, presiding.
    Mr. Fred. Bennitt, for the appellant:
    The damages ($1000 for the death of a child only four months old) are excessive, and nothing but the actual deprivation can be taken into consideration. Chicago v. Major, 18 Ill. 349.
    Messrs. Flanders & Shutts, for the appellee:
    The amount of damages in a case of this kind is a question of fact, not to be reviewed here. Furnace Co. v. Magill, 108 Ill. 656; Railroad Co. v. Becker, 84 id. 483.
    How the pecuniary damage is to be measured must be left largely to the discretion of the jury. Railroad Co. v. Shannon, 43 Ill. 338.
    This court has sustained judgments from $800 to $2000 in cases similar, the deceased being young children. Chicago v.
      Major, 18 Ill. 349; Chicago v. Hesing, 83 id. 204; Railroad, Co. v. Becker, 84 id. 483.
   Mr. Justice Scott

delivered the opinion of the Court:

. The plaintiff in this case, Frederick Weston, as he was walking with a friend on one of the principal streets of the city of Joliet, carrying his little child in his arms, tripped and fell. By the fall the child, was so fatally injured it died in a few moments after the accident. The alleged cause of the accident was a defective condition of the sidewalk. The plaintiff, as administrator of his deceased child, brought this suit against the city of Joliet, to recover damages resulting to the next of kin on account of the death of the intestate. On the trial in the circuit court plaintiff recovered a judgment. That judgment was affirmed in the Appellate Court for the Second District, and the city asked for and was allowed an appeal to this court.

The attention of this court is directed to but one question,— that is, the damages found are excessive. That is a question that is not subject to review in this court. The rule for ascertaining the damages in any case, is, of course, a question of law, but the amount of the damages, as the same appears from the evidence, is a question of fact. No complaint is made, the court misdirected the jury as to the rules of law they should observe in ascertaining the damages the next of kin of the intestate had sustained, and which plaintiff was entitled to recover for them. It has been so often decided by this court, the amount of the damages sustained by the plaintiff in an action at law is a question of fact, not open to reconsideration in this court, under the statute, the question need not be discussed. It is enough to refer to the many cases in this court on that subject.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    The City of East St. Louis v. The Trustees of Schools.

      Filed at Mt. Vernon January 20, 1888.

    Law and fact—as to the existence of fraud. Where the only presumption of fraud is an inference from the facts, there is no question of law for the court, but one of fact for the jury.
    Appeal from the Appellate Court for the Fourth District;— - heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.
    Mr. E. R Davis, and Mr. F. G-. Cockrell, for the appellant.
    Mr. B. A. Hat,bert, and Mr. L. H. Hite, for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The charter of the city of East St. Louis, (1 Private Laws 1869, art. 7, sec. 12, p. 903,) provides that one-half of all the money received into the city treasury from dram-shop licenses collected, shall be paid over, at least quarterly, to the treasurer of school township No. 2, north, range 10, west, in St. Clair county, Illinois, by him to be apportioned among the several schools taught in said city, etc. The refusal of the city to pay over this money gave rise to several suits at law for its recovery. There had been brought for such recovery a suit by the trustees of schools against William P. Launtz, an exrtreasurer of the city, and at the September term of the St. Clair county circuit court there were pending therein for such purpose, two suits by the trustees of schools,—one against Alexander Flannigen, the then treasurer of the city, and one against the city itself of Bast St. Louis. At that term, in the suit against the city, there was entered against the city a judgment by confession, 'by Alexander Flannigen, its attorney, for $79,984.79, and the suit against Flannigen was dismissed. Afterward, at the same term of court, on petition of the trustees of schools for a writ of mandamus, there was entered against the city, by consent of Flannigen, its attorney, an order for the issuance of a peremptory writ of mandamus for the payment of said judgment. After this, a February term of the court intervened. At the May term, 1887, of said court, the city made a motion to quash the writ of mandamus, to set aside the order for the writ, and to vacate the original judgment against the city, and that it might be allowed to plead to the cause of action, and defend therein. The motion was predicated on the alleged ground that the judgment and writ had been obtained through fraud, in the appearance of an unauthorized attorney for the city, and that the order required the city to perform an illegal and an impossible act. The circuit court overruled the motion. On appeal to the Appellate Court for the Fourth District, that' court affirmed the judgment of the circuit court, and the city appeals further to this court.

In its opinion the Appellate Court says: “It sufficiently appears, from the affidavits and evidence in the record, that Alexander Flannigen was duly authorized by the city council of East St. Louis to enter the appearance of said city, and consent on its behalf to the rendition of the judgment against it; and as there is no evidence of fraud or collusion rendering his action in the premises void, and no valid defence to said claim of the school trustees, for which said judgment was entered, was shown, we find no reason why it ought to have been vacated, and mandamus being the only remedy to collect the judgment, the order for such a writ was properly made by the court, with the consent of the city, through its authorized attorney.”

We do not see that this leaves any question for this court to pass upon, the finding of the Appellate Court upon controverted questions of fact being conclusive upon this court. There is no question of law arising. It is said that it is a' question of law, whether, under the facts presented, there is not a legal presumption of fraud. The presumption which is here to he made is an inference of fact, which is a question of fact for a jury, and is not a presumption of law. It is no such a case as this, where a presumption of law of fraud, as a matter of law, arises. As observed in the opinion of the Appellate Court, if it should appear, by the return to the writ of mandamus, that the city council was ordered by the writ to do an impossible and illegal act, the circuit court, on such return being made, will doubtless take such proper action as will afford the city all of benefit in that regard to which it may be entitled.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Andrew Moore v. The People of the State of Illinois.

      Filed at Springfield January 18, 1888.

      Taxation—evidence to authorise judgment—burden of proof to defeat the application. The collector’s return of the delinquent list, and the filing of the same, with the statutory notice and proof of publication, prima facie entitles the collector to judgment for the taxes, and the burden of proof is then cast upon the objector to show sufficient ground to defeat the application for judgment. If he claims an alteration in the assessment by the town board, without notice, he must show that fact by a preponderance of_ the evidence.
    Appeal from the County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.
    Mr. A. J. Fryer, for the appellant:
    An assessor can not change an assessment made by him, increasing the same, without notice to the party assessed.
      McConkey v. Smith, 73 Ill. 313; Cleghorn v. Postlewaite, 43 id. 428; Glassford v. Dorsey, 2 Bradw. 521; Cooley on Taxation, 266, 267.
    The town hoard of equalization and review can not increase an assessment made by the assessor, except when complaint is made that the assessment is too low, and notice is given to the owner. Revenue act, sec. 86.
    Mr. S. M. Leitch, for the appellee:
    The objector can only defeat the collection of taxes by showing them to be illegal by a clear preponderance of the evidence.
   Mr. Justice Shope

delivered the opinion of the Court:

This was an application by the collector of taxes of the county of Coles, to the county court of that county, for judgment for taxes for the year 1885, against delinquent lands and lots. No objection seems to have been made to the delinquent list as returned, or publication and notice.

Andrew.Moore, appellant, appeared in the county court and filed objections to judgment being rendered against the northeast quarter of the north-west quarter of section 10, township 12, range 9, in Coles county, Illinois, assessed to him and returned as delinquent, for the reason, as alleged, the assessor assessed said land for the year 1885 at $800, and that the town board of equalization, or some one, without notice to the objector, afterwards changed the assessment, increasing it to $1000. The collector’s return of the delinquent list, and the filing of the same, with the statutory notice and proof of publication, prima facie entitled the collector to judgment, and the burden was then cast upon the objector to show that the irregularity complained of existed. Durham v. The People, 67 Ill. 414; Mix v. The People, 81 id. 118; Frew v. Taylor, 106 id. 159; Chiniquy v. The People, 78 id. 570; Brackett v. The People, 115 id. 29.

The only question presented here, is, therefore, one of fact, as to whether the evidence introduced overcomes the legal presumption that the assessor and other officers connected with the assessment and collection of the revenue did their duty. We have carefully considered the evidence contained in this record, and we are unable to say that the weight of proof is with appellant. It appears that originally the sum put down in the assessor’s book opposite this tract of land was $800. It is, however, explained, that the tracts of land and amounts of assessments were transcribed from the assessments of the previous year, and then changed, as the assessor thought proper. Mr. E. N. Chapman made the entries for the assessor on his book, and also acted for the board of equalization in making such changes in the assessment as they directed. The figures “$1000” are in the handwriting of Mr. Chapman, but when they were made, he, nor anyone else, seems able to determine. The supervisor, who was a member of the board of equalization, the assessor and clerk, who were all present during the meeting of the board of equalization, all testified, and no one remembers that, any change was made or ordered made in the assessment of this tract of land by the board, and there is nothing in this record to show when it was in fact done. The assessor made return of his assessor’s book, under oath, as required by law, upon which this assessment appears. We can not say that the failure of the assessor and his clerk to remember that it was done by the assessor before the return, overcomes the negative testimony of the clerk, supervisor and assessor, and the sworn return. It being incumbent upon the objector to show, by at least a preponderance of the evidence, affirmatively, that the change was made after the books left the hands of the assessor, we think he has failed to make out his case.

The judgment of the county court will therefore be affirmed.

Judgment affirmed.


text:
    The Ohio and Mississippi Railway Company v. The People ex rel. James O. Calvin, Collector.

      Filed at Mt. Vernon January 20, 1888.

    1. Commissioners op highways—of their powers. Commissioners-of highways have no powers except those conferred by the statute, and they can perform no act imposing burdens, except those plainly authorized by the statute.
    2. Road tax—levy should he made annually—not for several years at one time. Highway commissioners are required annually to ascertain how much road tax is required to be raised, and to levy the same. If they omit to tax certain property for several years, they will not be warranted by the-law in assessing such property in the current years with all the taxes it should have been charged with in the omitted years.
    3. Certain commissioners of highways, from 1875 to 1883, inclusive, levied the necessary road taxes annually upon all the taxable property in their town, except the property of a railroad company, which was overlooked. In 1886 the omission was discovered, and the commissioners then-made out lists for the several districts, of property of the company, for each year, from 1875 to 1883, both inclusive, and ordered that the road taxes for those years be levied against the property of the company, which were extended accordingly: Held, that the taxes for such years were illegally levied, and could not be collected by law.
    Appeal from the County Court of Wayne county; the Hon. E. C. Kramer, Judge, presiding.
    Messrs. Pollard & Werner, for the appellant.
    Messrs. Creighton & Sibley, and Mr. Edwin Beecher, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an application, at the May term, 1887, of the county court of Wayne county, for judgment against certain real property of the Ohio and Mississippi Railway Company, for back district road taxes claimed to be due and unpaid for a period of nine years, from 1875 to 1883, both inclusive, extended for the first time, with the taxes of 1886. The railway company appeared in the county court and filed various objections to the application for judgment, but the court overruled all of the objections, and rendered judgment against the property for $1008.39 district road taxes for nine years. To reverse the judgment of the county court, the railway company appealed.

From an examination of the evidence introduced on the hearing before the county court, it appears that the railway company was assessed for each of the nine years named in the proceeding, for State, county and all other taxes for which other property was assessed, except district road taxes, and the railway company paid, for each of said years, all taxes assessed against it. It also appears that the highway commissioners of the town in which the tax in question is claimed, in each of the nine years above mentioned, at the regular meeting in April, levied and assessed a tax for district road purposes, and made a list of the real and personal property in each road district in the town, except the property of the railway company, and extended the tax on the same as required by the statute, except upon the property of the railway company in said town, and that the tax so levied and extended was paid by the property owners in the town each year. It also appears that at the regular meeting of said board of highway commissioners in April, 1886, it was discovered that the property of the Ohio and Mississippi Railway Company in the township of Bedford had been omitted from the lists, and from the levy and assessment by the highway commissioners of Bed-ford township, for road taxes only, for the years from 1875 to 1883, both inclusive. It was therefore ordered by said commissioners of highways, at said meeting, that lists be made out, for the several road districts, of the property of the said Ohio and Mississippi Railway Company, for each year from 1875 to. 1883, both inclusive, and that the taxes for road purposes only, so levied and assessed as aforesaid, be extended against said property of the Ohio and Mississippi Bailway Company for each year so omitted, at the same rate and in the same manner as said taxes were extended against all the other real and personal property in said township for said years, respectively; that said commissioners of highways did prepare lists, and levy and extend said omitted tax against the railroad track and rolling stock and property of the Ohio and Mississippi Bailway Company in said township, and on the 20th day of August, 1886, served notice on said company to work out said tax, which it failed to do, whereupon the overseers placed said company on the delinquent list, which was submitted to the board of supervisors, and the board, at its September meeting, 1886, ordered the county clerk to extend the amount of the arrearages of road taxes returned as aforesaid, and the county clerk notified defendant, and did extend said tax.

The main question presented by the facts, as they appear from the record, is, whether the highway commissioners had the authority, in April, 1886, to levy and extend the taxes for the nine years from 1875 to 1883, inclusive, against the property of the railway company. It is a plain proposition that the highway commissioners have no powers except those conferred by the statute, and that they can perform no acts or impose no burdens except those plainly authorized by the statute; and when they undertake to perform any act which the statute does not say they may do, that act will be void. Section 83, chapter 121, of the statute entitled “Beads and Bridges,” (Starr & Curtis, p. 2161,) provides, that “the commissioners of highways of each town shall annually ascertain * * * how much money must be raised by tax on real and personal property and railroad. property * * * for the making and repairing of roads, * * * not exceeding forty cents on each one hundred dollars worth, as equalized and assessed by the State Board of Equalization for taxation for the previous year, and shall levy and assess the same as a road tax against said property.” Then follow various other sections, defining the duties of the commissioners, the overseers, etc., but they have no special bearing on the question involved, and it will not be necessary to set them out in full. Section 83 is the one which confers the power on the highway commissioners to assess and extend taxes for road purposes, but it will be observed that the statute only authorizes them to act annually. They are empowered to meet each year, and determine how much shall be raised for that year, and shall levy and assess the same as a road tax against the property of the town. But the statute nowhere declares that these highway commissioners may wait for nine years, and then meet, and determine that a property owner shall pay a road tax for the past nine years,—pay a gross sum in one year for the past nine. No such power is given, and as the power has not been conferred it can not be exercised. There is wisdom in requiring the tax to be assessed and extended annually. When so extended, the property owner may be able to work out the tax or pay it; but if, on the other hand, the commissioners may wait until the expiration of nine years, and then levy for the whole period, and require it to be paid at once, the amount might be so large that the owner could not pay, and thus his property would be liable to be sacrificed. Here the road tax, as assessed by the commissioners, for the nine years, against the railway company in the one township, without interest or penalty or costs, amounts to the sum of $1008.39. It is unreasonable to believe the legislature ever intended to intrust in the hands of the highway commissioners the power to place such great burdens on the property owners, as contended for in this case.

But it is claimed that the tax may be sustained under sections 278 and 279 of the Revenue law. The first named section is as follows: “If any real or personal property shall be omitted in the assessment of any year or number of years, or the tax thereon, for which such property was liable, for any cause has not been paid, or if any such property, by reason of defective description or assessment thereof, shall fail to pay taxes for any year or years, in either case, when discovered, shall be listed and assessed by the assessor, and placed on the assessment and tax books. The arrearages of tax which might have been assessed, with ten per cent interest thereon from the time the same ought to have been paid, shall be charged against such property by the county clerk.”-

The railway property was not omitted from the assessment, as the evidence shows it was assessed each year. The first clause of the section has therefore no bearing on the case. All taxes levied upon the property, and for which such property was liable, have been paid each year, and hence the second clause has no application. There was no defect in the description of the property, and hence the third clause of the section has no bearing.

The next section (279) supposed to have some bearing on the case is as follows: “If the tax or assessments on property liable to taxation is prevented from being collected for any year or years, by reason of any erroneous proceeding or other-cause, the amount of such tax or assessment which such property should have paid may be added to the tax on such property for any subsequent year, in separate columns, designating the year or years.”

It is manifest, after a moment’s reflection, that this section of the statute has no bearing whatever on the case. No road tax having been assessed or levied on the property during the nine years, there was therefore no tax on the property to be prevented from being collected by reason of an erroneous proceeding or other cause, as specified in the act. Indeed, we find no provision of the statute which will sanction or authorize the action of the highway commissioners in the assessment or extension of the taxes in question.

It therefore follows that the judgment of the county court was erroneous, and it will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Magruder

text:
    John Totel v. Esaie Bonnefoy et al.

      Filed at Ottawa January 19, 1888.

    1. Subface watebs—natural easement over lands of another. Where the situation of two adjoining tracts of land is such that the water falling or collected by melting snow, or the like, upon one, naturally descends upon the other, it must be suffered by the lower proprietor to be discharged upon his land, if desired by the owner of the upper tract. The owner' of the higher land will have a natural easement to have the water from the same flow upon the lower tract, which is charged with a corresponding servitude.
    2. Same—prescriptive right to drainage over the land of another. The owner of land had the use of a ditch for the drainage of the water from his land over that of another, from 1861 to 1877, when a new ditch was made near the former, the old one being'filled up, and he had the use of the new ditch until some time in 1882: Feld, that such former land owner did not thereby acquire a prescriptive right to have the surface water from his land drained over that of the adjoining owner, and that the time of the use of the new ditch could not be added to the time of the use of the old one, to make a prescriptive period of twenty years.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Bull, Straw & Buger, for the appellant:
    The change or partial change in the location of the new ditch can not be urged against our prescriptive right so clearly established. Peck v. Herrington, 109 Ill. 611; Vail v. Mix, 74: id. 127; Earl v. DeHart, 1 Beasley’s Ch. 280; White v. Chapin, 12 Allen, 516.
    A dam need not be maintained upon the same spot for twenty years, to establish a prescriptive right. Angelí on Water-courses, sec. 383b; 2 Washburn on Real Prop. 323.

      The evidence showed that the natural flow of the water was substantially on the line of the ditch, giving appellant a natural easement.
    Messrs. Duncan, O’Conner & Gilbert, for the appellees:
    The facts fail to show a prescriptive right. 2 Washburn on Real Prop. 321, 322, 325-328; City of Quincy v. Jones, 76 Ill. 231; Railway Co. v. Hoag, 90 id. 339; Ingals v. Plamondon, 75 id. 118.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill filed on April 17,1882, in the circuit court of La Salle county by appellant, to prevent the appellees from damming up and obstructing a ditch extending across their lands from appellant’s land, and through which the surface water on appellant’s land was drained off into a neighboring creek. Appellant claims a natural and prescriptive easement in the ditch in question. The circuit court dissolved the injunction, which had been issued, and dismissed the bill, and its decree has been affirmed by the Appellate Court.

Appellee, Bonnefoy, owns the west half of the north-west quarter of section 17, township 34, range 3 east, in La Salle county. Appellee Douvia owns the east half of the north-west quarter of said section. Appellant owns the south-west quarter of said section.

In 1861, the whole of the north-west quarter was owned by one King, and occupied by Michael Callahan, as tenant of King. At that time, Totel, the appellant, owned the east half of the south-west quarter, and one Boissonas owned the west half of the south-west quarter.

In the fall of 1861 Boissonas and Callahan, with the consent and approval of King, constructed a ditch through the center of the north-west quarter, and running from the north line of the south-west quarter to a slough in the northern part of the north-west quarter. The course of this ditch, which is spoken of in the testimony as the old ditch, was a little west of the dividing line between the west half of the north-west quarter and the east half of the north-west quarter. It was made for the purpose of draining the water into Buck creek from the west half of the south-west quarter, then belonging to Boissonas, and from the north-west quarter, then belonging to King.

Appellant afterwards bought the west half of the south-west quarter from Boissonas, and thus became the owner of the whole of the south-west quarter. One Peter Carpenter subsequently became the owner of the west half of the north-west quarter, and sold it to appellee, Bonnefoy, who owns it at the present time. One Maurice Keating subsequently became the owner of the east half of the north-west quarter, and sold it to appellee, Douvia, who now owns the same.

The ditch, so constructed in the fall of 1861, was used for the purpose of draining the water from the south-west quarter of the section from that time up to the year 1877, a period of sixteen years.

In 1877, Carpenter, Douvia and appellant constructed what is called the new ditch from the south to the north line of the north-west quarter on the line between the east half and the west half of the north-west quarter and from fifteen to twenty or twenty-five feet east of the old ditch. This new ditch was constructed by the joint labors of appellant as the owner of the south-west quarter, and of Carpenter and Douvia as the owners of the north-west quarter, and for the joint and mutual benefit of all such owners. In digging the ditch, Carpenter furnished one team, Douvia one team, and the appellant two teams.

After the new ditch was constructed in 1877, it still continued to be used for the purpose of draining appellant’s property, the south-west quarter of the section, up to the spring of 1882, when it was obstructed, as above stated. The proof shows it to have been wider and deeper than the old ditch.

Two questions are presented for our consideration. The first arises out of the claim made by appellant, that he has a prescriptive right to maintain and keep open a ditch through the north-west quarter of the section on or near the dividing line between the east half and west half thereof by reason of the fact, that one had been dug and maintained by him and his grantors for more than twenty years prior to the wrongful acts complained of, and that, for more than twenty years, such right of drainage across the north-west quarter had existed in the owners of the south-west quarter without question, and hence that an easement existed by prescription.

In Vail et al. v. Mix et al. 74 Ill. 127, we held that a right to overflow land may, like easements in general, be acquired by an uninterrupted and adverse enjoyment for twenty years. In this case the evidence shows that the owners of the southwest quarter used the old ditch for the purpose of draining off their surface water, from the fall of 1861, to 1877, and that they used what is called the new ditch for such purpose, from 1877 to the spring of 1882. We do not deem it necessary to examine further into the facts of this case to determine, whether an easement in the old ditch would have been acquired by prescription, if the appellant and his grantor, Boissonas, had used the old ditch, for the purpose of drainage, for a period of twenty years. It appears from the undisputed evidence in the case, that such old ditch was only used for such purpose for a period of about sixteen years. It was then filled up and a new ditch was dug on a line some twenty or twenty-five feet to the eastward. The latter ditch, built in 1877, was used for the purpose of draining the south-west quarter for a period of more than four years, and up to the time of the making of the obstructions complained of. There was no continued and uninterrupted use of either one of the ditches for a period of twenty years. We do not think, that the time of the use of the new ditch can be added to or tacked on to the time of the use of the old ditch so as to make a prescriptive period of twenty years.

It seems to he held in a number of cases in Massachusetts, that, under such a state of facts as is here presented, the right to an easement in the new ditch would be acquired by prescription. But Washburn in his work on Real Property, (5th ed. vol. 2, pp. 357, 358,) in an exhaustive note, reviews the authorities upon the subject, and comes to the conclusion, that the Massachusetts decisions are not sustained by the weight of authority. He says, in regard to the case of Pope v. Devereux, 5 Gray, 409, as follows: “If it maintains the doctrine that an existing easement may be exchanged by parol for another easement of the same kind, and the owner thereby acquire the same property in the new one as he had in the former, and a title to the same, equally valid, it is apprehended that it cannot be sustained either upon principle or authority.” We are, therefore, of opinion, that no right to the use of the ditch made in 1877, which is the ditch that was obstructed by appellees, was acquired by prescription.

The second question, presented by the record, arises upon the claim of the appellant, that he had a natural easement to the drainage in question by reason of the fact, that the natural flow of water was on substantially the same line as the ditch in controversy, and that there was, in a state of nature, a bed or channel of a branch of Buck creek, through which the surface water flowed long prior to the construction of the ditch, and that the ditch simply enabled the water to pass off, in substantially the same course, more rapidly.

In Peck et al. v. Herrington, 109 Ill. 611, we said: “It may be regarded, as a well settled principle of law, that, where two farms adjoin and one lies lower than the other, the lower farm will be subject to the natural flow of water from the one, which lies in a more elevated position. * * * The owner of the upper field in such a case has a natural easement, as it is called, to have the water, that falls upon his own land, flow off the same upon the field below, which is charged with a corresponding servitude in the nature of dominant and servient tenements.” Washburn on Basements and Servitudes, page 353, says: “It may be stated, as a general principle, that, by the civil law, where the- situation of two adjoining fields is such that the water falling or collected by melting snow, or the like, upon one, naturally descends upon the other, it must be suffered by the lower one to be discharged upon his land if desired by the owner of the upper field.”

Such being the law, it becomes a question of fact whether, in this particular case, appellant was entitled to the natural easement above mentioned. As we understand the contentions of the parties, it is claimed, on the part of the appellant, that the natural flow of water from appellant’s land was northerly through the middle of the north-west quarter, and on the part of the appellees, that such natural flow was north-easterly through the south-east corner of that quarter. Ten witnesses sustained the position of the appellant on this question, and eight witnesses supported the position of the appellees. There was thus a sharp conflict between the testimony on the one side and on the other. The chancellor, who tried the case in the court below, saw the witnesses and heard their evidence. He came to the conclusion, that, upon this question of fact, the merits of the controversy were with appellees. After a careful examination of the evidence, we are not prepared to say, that the conclusion reached by the circuit judge is not correct.

The judgments of the circuit and Appellate courts are therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Michael Butz et al. v. Thomas Kerr.

      Filed at Ottawa January 19, 1888.

    1. Taxation—rule of uniformity—road tax—excluding town authorities from levying within am incorporated city or village. There is nothing in the present constitution, or in that of 1848, which requires the territorial jurisdiction of a town in respect to taxation for road purposes to be uniform or co-extensive with the territorial limits of the town, and the legislature may limit the authority of the highway commissioners to levy taxes for road purposes to the territory outside of incorporated cities and villages, and prohibit them from the levy of such taxes within the corporate limits of such cities and villages.
    2. So where a city charter gives the municipal authorities the exclusive control of all the streets and highways within its limits, with full power to levy taxes to keep them in order, and provides that the town in which the city is situated, or any of the town officers, shall not levy any road tax within the city limits, while such provisions remain unrepealed the commissioners of highways of the town will have no right to levy and collect a road tax within such city, and if it is attempted to be levied, its collection may be enjoined.
    3. Repeal of statutes—by implication. A statute will never be held to be repealed by implication if it can be avoided on any reasonable hypothesis. A statute will not be repealed by implication unless the subsequent act is so inconsistent and repugnant to its provisions that the two can not stand together.
    4. A subsequent general law will not, by implication, operate as a repeal of a special law on the same subject, though inconsistent with it. And a repealing clause of a general statute will not repeal a special one on the same subject, unless a clear intention is manifested that such repealing clause shall embrace special as well as general laws.
    Writ of Error to the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.
    Mr. H. K. Wheeler, for the plaintiffs in error.
    Mr. Daniel H. Paddock, for the defendant in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The defendant in error, Thomas Kerr, filed a bill in the circuit court of Kankakee county, on behalf of himself and other tax-payers and residents of the city of Kankakee, against the plaintiffs in error, Michael Butz and August D. Ehrich, commissioners of highways of the town of Kankakee, and William F. Kenaga, the county clerk, to restrain the collection of a tax of sixty cents on the one hundred dollars levied by the town authorities for road purposes, and extending to persons and property within the corporate limits of the city of Kankakee, in said town. The court having overruled a general demurrer to the bill, and the defendants declining to answer further, a decree was thereupon entered by the court perpetually enjoining the collection of the tax. That decree is before us for review.

Among other things, it is charged in the bill “that the city of Kankakee is a municipal corporation, organized by virtue of a special charter granted by the General Assembly of the State of Illinois, in the year 1865, and that said charter is in full force and effect; * * * that it is provided in and by said charter, that the town of Kankakee, or any of its officers, are hereby prohibited from levying or collecting any road tax within the limits of said city, ” etc. On the other hand, the city charter, as is shown by the bill, gives the city exclusive control of the streets and alleys, authorizes it to improve and maintain the same, and gives power to raise the necessary funds for such purpose by taxation.

It is manifest that if these provisions of the city charter are in force, the town authorities had no power to levy the tax in question, for that, as we have just seen, is expressly forbidden by the city charter. It is contended, however, that they are in conflict with that provision of the constitution of 1848 which requires “taxes for corporate purposes to be uniform, in respect to persons and property, within the jurisdiction of the body im posing the same.” (See. 5, art. 9.) This is a misapprehension. The argument is specious and unsound in this, that it assumes the jurisdiction of the corporate authorities of the town, in respect to this subject, is necessarily co-extensive with the territorial limits of the town. This is not true in fact, hence the conclusion based upon it is erroneous. There is nothing in the present constitution, or that of 1848, which requires the territorial jurisdiction of a town in respect to taxation for road purposes to be uniform or co-extensive with the territorial limits of the town. The whole subject, therefore, is left within the jurisdiction and control of the legislature. That body having expressed its will on the subject, so far as the town of Kankakee is concerned, it only remains to inquire whether there has ever been a repeal of the provisions of the city charter wherein it has so expressed its will. It is not claimed or pretended that they have ever been expressly repealed, so that if repealed at all it has been done by the adoption of some general law so inconsistent with and repugnant to the provisions of the charter that both acts can not stand together, or by being brought within the repealing clause of some such act, showing a clear intention on the part of the legislature that such repealing clause should embrace special as well as general laws relating to the same subject. Our attention has not been called to any such general law or repealing clause, and we are aware of none. We conclude, therefore, that the city charter is still in force.

It is true, counsel for plaintiffs in error claim that the act of 1883 materially modified the general law on this subject, and that .such modification calls for a corresponding change in the rulings of this court, as expressed in Town of Ottawa v. Walker, 21 Ill. 605, Commissioners v. Baumgarten, 41 id. 254, and other cases. We do not think this contention is justified by a fair construction of that act. Moreover, this court is fully committed to the contrary view, by the construction it has already placed upon the act of 1883. People ex rel. v. Board of Supervisors of La Salle County, 111 Ill. 527; People ex rel. v. Chicago and Northwestern Railway Co. 118 id. 520.

Upon the subject of the repeal of a statute by implication, which is never permitted if it can be avoided on any reasonable hypothesis, we refer to Bruce v. Schuyler, 4 Gilm. 221; Board of Supervisors v. Campbell, 42 id. 490; Hume v. Gossett, 43 id. 297; City of Chicago v. Quimby, 38 id. 274; People v. Barr, 44 id. 198.

There may also be mentioned, in this connection, a still more important principle, so far as this case is „ concerned. It is, that a subsequent general law will not, by implication, operate as a repeal of a special law on the same subject, though inconsistent with it. Town of Ottawa v. County of LaSalle, 12 Ill. 339.

The decree will be affirmed.

Decree affirmed.


text:
    Marie Schifferstein v. E. H. Allison.

      Filed at Mt. Vernon January 20, 1888.

    1. Limitation—when the statute begins to rum,—on foreclosure of mortgage. The ten years’ limitation, in section 11, chapter 83, for the bringing of an action to foreclose a mortgage, begins to run from the time the right of action accrues; but if any payment shall be made upon the mortgage indebtedness, the statute will begin to run from the time of the last payment.
    2. Same—the debt and the mortgage, subject to the same limitation. Section 11 and section 16 of the Limitation law are to be construed together. The effect of the former section, when so construed, is the same as the law implied before its passage,—that is, that the period of limitation which bars the bebt, bars also the mortgage or deed of trust securing the same.
    Appeal from the Appellate Court for the Fourth District;—■ heard in that court on writ of error to the Circuit- Court of Jasper county; the Hon. W. C. Jones, Judge, presiding.

      This was a bill in chancery for the foreclosure of a mortgage given on October 23, 1874, to secure the payment of a promissory note of that date, payable one year after date, for $300. Several payments had been made upon the note, the last of date December 12, 1882. The bill was brought to the December term, 1886, of the circuit court. The defence set up the Statute of Limitations.
    Messrs. Gibson & Johnson, for the appellant:
    The statute provides that no foreclosure shall lie after ten years from the time the right of action accrues. As soon as the right to foreclose has accrued, which is the maturity of the note, the statute begins to run. Prior to this statute there was no way of determining, from the public records, whether a mortgage was a lien upon real estate or not, after the maturity of the notes secured by it, for the reason that a payment perpetuated the right of action. This statute obviates this manifest evil.
    Mr. John P. Heap, for the appellee:
    Under our laws, the mortgagee’s right of foreclosure is not barred until the debt itself is barred by the Statute of Limitations. Hagan v. Parsons, 67 Ill. 170; Harris v. Mills, 28 id. 44; Brown v. Devine, 61 id. 260; Medley v. Elliott, 62 id. 532.
    The mortgage is an incident to the debt, and but a security. But it confers the right to reduce the premises to possession as a means of obtaining satisfaction of the debt, and to render the right effective, ejectment may be maintained against the mortgagor at any time that a recovery may be had on the debt. The mortgagee may resort to any of the various modes of foreclosure so long as his debt is capable of being enforced, but no longer. Pollock v. Maison, 41 Ill. 517.
    The Statute of Limitations, which bars the debt,—the principal,—can alone bar the mortgage,—the incident. Medley v. Elliott, 62 Ill. 532.

      It is an established rule, in the exposition of statutes, that the intention of the law-giver is to be deducted from a view of the whole, and of every part of a statute, taken and compared, together. The real intention, when accurately ascertained, will always prevail over the literal sense of terms. (1 Kent’s Com. 462.) This principle of construction has been repeatedly affirmed by this court, and, it is believed, is not questioned.
    Section 11, chapter 83, of the Revised Statutes of Illinois, upon which plaintiff relies for a reversal in this case, and section 16 of the same chapter, were enacted at the same time, and. should be construed together. Section 16 provides, that “ action, on bonds, promissory notes, etc., shall be commenced within, ten- years next after the cause of action accrued; but if any payment or new promise to pay shall have have been made in. writing * * * within or after said period of ten years, then an action may be commenced thereon at any time within ten years after the time of such payment or promise to pay.”
    Taking a case out of the statute, either by a new promise.or partial payment, has the effect to fix a new date at which the-statute begins to run.
   Mr. Justice Scholfield

delivered the opinion of the Court r

Section 11, of chapter 83, of the Revised Statutes of 1874, provides, that “no person shall commence an action, or make-a sale to foreclose any mortgage or deed of trust in the nature-of a mortgage, unless within ten years after the right of action or right to make such sale accrues.” The question is, where payments have been made on the indebtedness secured- by the mortgage, after its maturity, does the time contemplated by this section only commence to run after the last payment ?

The 16th section of the same act is: “Actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action. accrued; but if any payment or new promise to pay shall have been made, in writing, on any bond, note, bill, lease, contract or other written evidence of indebtedness, within or after the said period of ten years, then an action may be commenced thereon at any time within ten years after the time of such payment or promise to pay.”

i The general doctrine, often repeated in this court, is, that the debt is the principal thing, and the mortgage but the incident, and hence that payment and satisfaction of the debt extinguishes the mortgage; and also, before the passage of section 4, that when the debt was barred by limitation the mortgage was also barred. And in McMillan et al. v. McCormick, 117 Ill. 79, we held that this section was within the saving clause of the 24th section of the same chapter, which provides: “But this section shall not be construed so as to affect any rights or liabilities, or any cause of action, that may have accrued before this act shall take effect.” It was there contended, that mortgages not being specifically named in any preceding limitation act, the case should be governed by Hyman v. Bayne, 83 Ill. 256, and Gridley v. Barnes, 103 id. 216, wherein it was held that the proviso quoted did not apply to cases not specifically named in preceding limitation acts; but we held, that though the words “mortgage” and “deed of trust” were not specifically named, they were in fact included in preceding limitation acts. as inseparable incidents to the debts named in those acts. / The effect of section 11, read in connection with section 16, is, in our opinion, but to express what the law before implied, namely, that the period of limitation which bars the debt, bars also the mortgage or deed of trust.__l

An ordinary mortgage or deed of trust is not an evidence of indebtedness. No cause of action or right to foreclose can accrue under a mortgage or deed of trust alone, except in the extremely rare case that it contains a covenant to pay,—and even then the covenant will be a feature independent of and separable from the mortgage proper. The mortgage or deed of trust confers, not upon its holder, but upon the holder of the debt, the right to resort to the property described, for its payment, and so it is impossible that an action or right to make a sale shall accrue unless it shall accrue under the debt. What, therefore, the word “accrue” means in the 16th section it must mean in this section,—the two must be construed together; and thus construing them, it is quite apparent that the cause of action or right to make sale is to be regarded as having accrued after the last payment indorsed upon the indebtedness. This same word “accrued” occurs in other sections of the Limitation act, but it has always been held that the cause of action is to be deemed as having accrued after the occurrence of that which is held to revive the cause of action. See Sennott, Admx. v. Horner, 30 Ill. 429; Norton v. Colby, 52 id. 202; Kallenbach v. Dickinson, 100 id. 427.

The judgment is affirmed.

Judgment affirmed.


text:
    James W. Wetherell v. Louisa Eberle.

      Filed at Ottawa January 19, 1888.

    1. Conflict of laws—State court setting aside deed under judgment in Federal court. A bill by one seeking to set aside a United States marshal’s deed of his land, sold by the officer on a judgment and execution of the United States Circuit Court against another, is not obnoxious to the objection that the State court has no jurisdiction where the validity of the proceedings in the United States Court are questioned.
    2. Behoving cloud upon title—requisites of bill. A bill seeking to set aside a deed to land as a cloud on title,' is fatally defective if it fails to show that the complainant is in possession of the land, or that it is unimproved and unoccupied.

      3. Practice in chancery—insufficiency of bill—how mailed of. In considering the question of the sufficiency of a bill in chancery, all matters which go to the jurisdiction of the court may be taken advantage of by demurrer, whether specially pointed out in the demurrer or not, for whenever it appears that the case made by the bill is not brought within the class of cases which courts of equity assume the power to hear and determine, it shows, in the technical sense of the expression, “there is no equity in the bill;” and this defect may be pointed out ore tenus, on the argument.
    Appeal from the Superior Court of Cook county; the Hon. Henby M. Shepard, Judge, presiding.
    Mr. James B. Mann, for the appellant:
    The State courts "will not interfere with the action of the Federal court, or its officers in the discharge of their duties, as it would lead to a conflict of jurisdiction. Logan v. Lucas, 59 Ill. 237; Sproehnle v. Dietrich, 110 id. 202; Munson v. Harroun, 34 id. 422.
    The bill of complaint contained no allegation in regard to the occupancy or possession of-the lot in question, and this objection was specifically alleged-in appellant’s demurrer. It has been repeatedly held by this court that a bill to quiet title or remove a cloud from the title to land, which fails to show that the complainant is in possession, or that the premises are unimproved and unoccupied, is bad on demurrer, as not showing a case for equitable relief. Gage v. Abbott, 99 Ill. 366; Hardin v. Jones, 86 id. 313; Gage v. Griffin, 103 id. 41.
    Mr. Julius Goldzier, for the appellee:
    The court first acquiring jurisdiction has exclusive control over it until the cause is disposed of by final judgment or decree. Peeler’s Law and Equity in United States Courts, 133.
    The power of the court ends with the delivery of the deed. Borer on Judicial Sales, (2d ed.) secs. 965, 590. See, also, Buck v. Colbath, 3 Wall. 334; Clafflin v. Houseman, 93 U. S. 130; Day v. Gallup, 2 Wall. 97; Davidson v. Waldron, 31 Ill. 136; Isett v. Stuart, 80 id. 404; Bank v. Evans, 51 Mo. 335.

      The objection that the bill contains no allegation as to possession, is too technical to prevail, and should have been made in the court below.
    A special demurrer, according to the well established rules of chancery practice, must point out specifically the defect relied upon. (Gage v. Schmidt, 104 Ill. 106.) This the appellant’s demurrer did not do, but resting on the specific objections to the jurisdiction which are above discussed, assigned another cause for demurrer, “because it is not shown but that complainant has an adequate remedy at law, by ejectment.” That this is not a sufficient ground for demurrer, is shown by numerous decisions of this court, from which I quote the following : Gage v. Rohrbach, 56 Ill. 262; Haworth v. Taylor, 108 id. 275; Comstock v. Henneberry, 66 id. 212; Redmond v. Packenham, 66 id. 434; Booth v. Wiley, 102 id. 84; Moore v. Munn, 69 id. 591.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Louisa Eberle brought her bill in the Superior Court of Cook county, against the appellant, James W. Wetherell, to remove an alleged cloud upon her title to certain real estate, particularly described in the bill. It appears from the bill that the property in question originally belonged to appellee’s father, from'whom she derives title; that after her title accrued, it was sold by A. M. Jones, United States marshal, under a judgment and execution against her husband, to the appellant, and that the latter subsequently received a marshal’s deed therefor, which constitutes the alleged cloud on her title. The court overruled a demurrer to the bill, and the defendant declining to answer further, a decree was entered in conformity with the prayer thereof, to reverse which Wetherell prosecutes this appeal.

The question presented by the record for determination is the sufficiency of the bill on demurrer. It is alleged in the demurrer, that the plaintiff is not entitled to the relief prayed,— first, “because it appears that said court has no jurisdiction in regard to the matters in said bill set forth, the same relating to the acts of the United States court and its officers;” second, “and because it is not shown but that complainant has an adequate remedy at law, by‘ejectment.” If either of these grounds of demurrer is well taken, the decree, of course, will have to be reversed.

_As to the first ground, we think the law is with appellee. Upon this branch of the subject it is urged, that the decree, under the facts disclosed, is an unwarrantable interference with legal proceedings in a Federal court, the tendency of which is -to bring about a conflict of jurisdiction between that and the State courts, and Logan v. Lucas, 59 Ill. 237, Munson v. Harroun, 34 id. 422, and Sproehnle v. Dietrich, 110 id. 202, are relied on as sustaining that view. As to the first two oases, which are referred to and commented upon in the last, they are clearly distinguishable from the present, and fall far short of sustaining appellant’s position. The last case, which goes to the very verge of the law in that direction, does not, in our opinion, go to the extent claimed, and there is a marked distinction between it and the present case. In that case the United States marshal, it is true, had, as in this, made a sale of the land under a regular judgment and execution, and had issued to the purchaser a certificate of purchase, but here the similarity between the cases ceases. In the Sproehnle case the marshal had yet another important duty to perform with respect to the property, if not redeemed,—namely, to execute a deed to the purchaser, the time for redemption not having then expired. The threatened injury was not consummated. The maturing title was in fieri, merely, and might be defeated altogether by a redemption of the property. In the present case there is no element of that kind. Here not only the United States court, but all its ofiieers, have ceased to have any power, control or jurisdiction over the case. The time of redemption has expired, and the marshal’s deed has been delivered. Sneh being the case, no ground is perceived for the claim that the decree in the case may lead to jurisdictional complications between Federal and State courts. Nor does the present suit attempt to review, revise or interfere with the judgment or process of the United States court. Nor, indeed, does it question the validity, or even the regularity, of the sale under the execution. The lower court, by its decree, simply found that appellee’s husband, who was supposed to own the land in question at the time it was levied upon and sold by the United States marshal, had no title to it, and that consequently nothing passed by the marshal’s deed. The question as to the validity of his title was not before the United States court, and consequently it could not have been passed upon by that court. There was clearly no objection to the bill on this ground. '

Coming now to the other alleged cause of demurrer, namely, that “it is not shown but that complainant has an adequate remedy at law, by ejectment,” that presents a much more serious question. It is said in Hardin v. Jones, 86 Ill. 313: “There are only two cases, under our law, in which a party may file a bill to quiet title, or to remove a cloud from the title to real property,—first, when he is in possession of the lands; and second, when he claims to be the owner, and the lands in controversy are unimproved and unoccupied.” This is conceded to be a correct statement of the law. In the present case it is neither averred that the complainant was in possession of the lands, nor that they were unimproved and unoccupied. The bill, therefore, was bad in substance. The defect in it, as is clearly shown by the case cited, went to the jurisdiction of the court, in the limited sense in which that term is often used in equity. This, also, is admitted. But it is claimed that the defect in the bill is not pointed out in the demurrer, and that therefore the point is waived. This position, even conceding the fact to be as claimed, is not tenable. All matters which go to the jurisdiction of the court may be taken advantage of by demurrer, whether specially pointed out in the demurrer or not, for whenever it appears that the case made by the bill is not brought within the class of cases in which courts of equity assume the power to hear and determine, it. shows, in the technical sense of the expression, “there is no equity in the bill;” and this defect may be pointed out ore tenus, on the argument. (1 Daniell’s Ch. Pr. 608, 656, 658, and notes.) Indeed, this doctrine is so elementary in its character, and has been so often recognized by this court, that it does not require argument or authority for its support. Gage v. Abbott, 99 Ill. 366; Gage v. Griffin, 103 id. 41.

But the claim that the defect in the bill is not pointed out in the demurrer, is not justified by the facts. The demurrer alleges, that “it appears that said court has no jurisdiction in regard to the matters in said bill set forth, * * * because it is not shown but that complainant has an adequate remedy at law, by ejectment.” In view of this distinct allegation in the demurrer, it is difficult to conceive what more wag wanted to call attention to the fact that there was no averment in the bill that the complainant was in possession of the premises, or that they were vacant and unoccupied. We are clearly of opinion the demurrer to the bill should have been sustained.

The decree is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.