text:
    Berthold Lœwenthal v. Cyrus H. McCormick et al.

      Filed at Ottawa November 10, 1881.

    1. Pledge—of note secured by trust deed, to party paying holder. If a bank advances the money due on a note secured by deed of trust, to the holder', under a contract with the maker that the note shall be transferred to the bank, to be held as a pledge for the repayment of the money so advanced, the lien of the trust deed will remain until the advance is repaid; and if another, under a similar agreement with the maker, pays the bank its advance, and the note and deed of trust are passed over to him as security for the money thus paid the bank, the latter, in equity, will be subrogated to the rights of the bank, and entitled to hold the note and deed of trust as security for the money so advanced by him.
    2. Where a party draws his check upon his banker for a sum sufficient to pay off his note secured by deed of trust, and held by another, under an agreement with the bank to make the check good as to any deficiency in his account with the bank, and to take and hold the note and deed of trust in security for the sum paid for him over and above the money deposited to his credit, and it appears from the books of the bank that he had on deposit a sum sufficient to pay the check, less only $2500, this will be a payment by the maker of the note of its amount, less the $2500 deficiency in his account, and a discharge of the mortgage, except as to that sum, in favor of subsequent purchasers of the mortgaged premises, and neither the bank nor its assignee can enforce the deed of trust for any more than that sum.
    3. Evidence—banker’s boolcs. The entries in the books of a bank being its own declarations in writing, are competent evidence against the bank and its officers of the state of a party’s account, and of moneyed transactions with him, and neither the bank, nor its president succeeding to its rights and equities, can be heard to find fault with the manner in which the books were kept.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Rosenthal & Pence, for the appellant:
    If the balance to a man’s credit in bank is less than a check presented, the bank need not pay any portion of the ' check, but must refuse payment altogether. Morse on Banking, 248.
    It is of no consequence what form a transaction may assume. The fact that the bank advanced the money to take - up the mortgage in this case, upon the faith of the promise that the bank should have the benefit of the security then held by Farwell; and the further fact that the security was delivered to the bank concurrently with the agreement of the bank to pay the check of Walker; and also the further fact that all this was done with the expressed intention of Walker and the bank to preserve the existence of the security to the bank to the amount of $10,000; and the further transaction ap detailed between Walker and Loawenthal—all these are sufficient to stamp the transaction. And the form that the transaction assumed will not invalidate the security in a court of equity, where the substance and not the form is considered. White v. Knapp, 8 Paige, 173; Rogers v. Traders’ Ins. Co. 6 id. 583; Angell v. Boner, 38 Barb. 425; Keystone Bank v. Gay, 21 id. 459; Graves v. Mumford, 26 id. 94; Harbeck V. Vanderbilt, 20 N. Y. 395; Dunn v. Seymour, 3 Stockt. 278; Markell v. Eichelberger, 12 Md. 78; Chase v. Ridgley, 7 H & J. 170; Dodge v. Freedman’s Savings Bank, 93 U. S. 379; Gault v. McGrath, 8 Casey, 392.
    Mr. W. T. Burgess, for the appellees 0. H. and L. J. McCormick:
    It is clear that Walker gave to J.V. Farwell & Co. a check for $16,160, to pay the Laughton note with. That check was charged by the bank to Walker in his account, and he paid the note so far as the account between him and the bank goes, for in that day’s business he had a clear credit of $7481.47, and it is for the bank to overcome the statement of its own books, and show such a different state of facts to exist as to entitle it or the present complainant to recover.

      The circuit court erred in finding that Lcewenthal was entitled to be subrogated to the bank for the $2519.53, and interest.
    Messrs. Williams & Thompson, for the appellee D. C. Collins, reviewed and commented at some length upon the facts, and evidence in support of the same.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by appellant, Lcewenthal, to foreclose a trust deed on the north half of a certain block in Chicago, executed by S. J. Walker, to secure a note of $16,000, payable to Adeline Laughton, bearing date June 20, 1871, due in two years. After the trust deed was upon record, and on the 1st day of October, 1872, Walker conveyed a portion of the premises to C. H. and L. J. McCormick, and on the 23d day of November the balance of the property he conveyed to DeWitt C. Collins. The note and trust deed were transferred by Adeline Laughton to J. Y. Farwell & Co. After the note became due, Walker, under an arrangement with the International Bank, the terms of which are in dispute, drew his check on the bank for the amount of the note, which was delivered to Farwell & Co., and they passed the note and deed of trust over to the bank. Subsequently the note and deed of trust were passed over by the bank to Lcewenthal. The contract under which this last transfer was made is also in dispute.

It is contended by appellant that the bank agreed with Walker to advance him $10,000, to be paid to Farwell & Co., to lift the note, and that the note and deed of trust were to be held by • the bank for that amount; that the money was advanced and used for that purpose; that afterwards appellant furnished Walker the money ($10,000) to pay the bank, and the note and deed of trust were delivered to him, to be held as security for.the money so advanced. The defendants, McCormicks and Collins, claim that Walker paid the note and deed of trust held by Farwell & Co.; that neither the bank nor appellant advanced any money in payment of the note, and hence the note and deed of trust can not be held by appellant on account of advances secured. If the money claimed was advanced, the deed of trust was only continued in force for the amount necessary to make Walker’s account good at the bank when the transaction occurred, which was $2518.53.

This case presents no intricate questions of law. If the International Bank advanced $10,000 to pay Farwell & Co. the amount of the Laughton note, under a contract with Walker that the note should be transferred to the bank to be held as a pledge for the repayment of the money advanced, it is plain that the lien created by the deed of trust would remain until the money advanced was repaid. It is also apparent that if appellant, under an agreement with Walker, after-wards furnished the money to repay the bank the amount it had advanced, and the note and deed of trust were passed over to him as security for the money thus paid the bank, he, in equity, would be subrogated to the rights of the bank, and entitled to hold the note and deed of trust for the amount he advanced on the faith of the securities.

But it is said the bank did not advance the money claimed to have been used to pay Farwell & Co., but, on the other hand, Walker’s money, which was at the time standing to his credit on the books of the bank, paid Farwell & Co. It must be conceded that there is much force in this position, and the evidence bearing upon it is not free from doubt. Walker gave his own check to Farwell & Co., on the International Bank, on the 23d day of July, 1873, for $16,160, to pay them the amount of the Laughton note. This check was charged by the bank to Walker in his account, and there remained to his credit at the close of business hours on the 24th day of July, the day the check was paid, $7481.47, as is shown by the books of the bank. Again, the books of the bank do not show, on July 23 or 24, that Walker gave his note, or any other evidence of indebtedness, which they should have shown if the bank loaned him $10,000, as claimed. It is true that the bank may have advanced the money and taken no evidence of the loan, but such is not the usual manner of transacting such business in 'banks, and where business is transacted in such a loose manner by men who are, or ought to be, skilled' in business transactions, it is well calculated to excite suspicion. But Walker, who seems to be a disinterested witness, testified that he made an agreement with the bank that it should advance $10,000 towards the payment of the note, and that it was to hold the note and deed of trust as security. Lcewenthal, who was at the time president of the bank, testified that the bank agreed to advance the money, and that the money was actually advanced and placed to the credit of Walker. The books of the bank show on the 24th day of Julyihree items, of $10,000 each, deposited by Walker on that day. From this evidence the circuit court found that the money was advanced by the bank; and while we are free to admit that the question is not free from doubt, yet, after a careful examination of all the evidence bearing on the question, we are not prepared to say that the finding is not in harmony with the weight of the evidence. •

The next question that arises is whether appellant paid to the bank the money which it had advanced, and received the note and trust deed, as alleged in the bill. Lcewenthal testified that the bank carried the Walker loan from the 24th day of July until July 30; then he furnished Walker means to pay the bank, and the Laughton note and the deed" of trust were turned over to him. He did not pay the cash himself, but gave his note to Walker for $10,000, due in sixty clays, which Walker indorsed over to Greenebaum & Foreman, obtained the money, and deposited it in the bank that day. The note was produced in evidence, and Foreman testified that his firm had purchased it from Walker. ■ Walker, in his evidence, does not remember how the money was paid, but does recollect that appellant agreed to arrange it for him. In confirmation of appellant’s evidence a note was produced, which Walker gave him on July 30, for $10,000, payable in sixty days. The note contained the • following- recital: “Having deposited with said International Bank, as collateral to secure the payment hereof, my note for $16,000, dated June 30, 1871, secured by trust deed to Bufus A. Bice, trustee. ” The books of the bank, offered in evidence, show that on July 30 Walker deposited .three .sums of money, of $10,000 each, on that day. These are the main facts relied upon to prove that appellant paid to the bank the money which it had advanced, and received the note and trust deed to secure him for such payment, and were it not for the fact that appellant’s testimony was in conflict with his evidence given in the case on the first trial of the cause, when he testified that he, in person, paid to the bank the $10,000 in cash, there would be' but little doubt in regard to the sufficiency of the evidence; but while the credibility of appellant is somewhat shaken, still the other evidence seems to corroborate his testimony to such an extent that we are inclined to hold that the finding.of the'court on this branch of the ease may be sustained. •,

But, conceding that the bank, on the 24th of July, and Lcewenthal, on the 30th of the same month, made advances, under an agreement with Walker, the question then arises how much money was advanced for which the Laughton note and trust deed can be held as security as against the rights of appellees, who -were purchasers before the arrangement was made between Walker and the bank. If Walker paid Farwell & Co. the amount of the Laughton note with his own funds, .derived from any source other than the bank, then the note and trust deed became extinguished, and no decree of foreclosure can be rendered thereon; or if any part of the note was paid by funds which were not obtained from the bank, to the extent of such payment the note would be extinguished, and the premises in the deed of trust released from that portion of the debt. It must be remembered that Walker drew his check on .July 23, on the bank, for the full amount due Farwell & Co., ($16,160,) under an arrangement that the'bank would pay the check, the securities to be held for the amount advanced. Lcewenthal testified: “I sent one of the messengers of the bank with Mr. Walker to J. V. Farwell & Co. to get those documents. We paid the $16,160 check upon the delivery of these securities to the bank. I regarded it as security for the money advanced. * * * Mr. Walker’s account was running with the bank. It was utterly impossible, during business hours, to tell at any time exactly how his account stood. Neither Mr. Walker nor I knew at the time of the conversation how much money he needed,- but he told me that he wanted the bank to pay his check upon the delivery of these securities, and that he would arrange the next day for it, some way. ” It is obvious, from this evidence, that the arrangement was that the bank should honor Walker’s cheek, and hold the Laughton note and deed of trust for such an amount as it should advance for that purpose. If it was necessary to advance the whole amount, that was to be done; if one-half, that was to be furnished; in other words, neither Walker nor Lcewenthal knew the condition of his bank account, and what sum was needed over and above what Walker had in bank to his credit on July 24r was to be furnished.

From an examination of the books of the bank it appears that on July 24, after all checks had been paid, including the one given to Farwell & Co., and business had been closed for the day, Walker had to his credit $7500. He had provided from other sources all the money necessary to pay his check, except as to the sum of $2500. This, and this alone, was all that the bank had to advance in the payment of Walker’s check, and if the bank advanced $10,000 to Walker, such sum was not required to protect his check, and the bank can not hold the note and deed of trust as security for such a sum. On the day the check was paid by the bank Walker had to his credit of his own money, aside from any amount advanced by the bank, enough to pay the check, less $2500. When, therefore, the check was paid, Walker’s funds, and not the funds of the bank, paid it, save only as to the sum of $2500.

Appellant, however, seeks to avoid the force and effect of the plain facts shown by the books of the bank, by claiming that the book-keeping is bad,—that the check should not have been charged in the account when paid, but held as an obligation or cash memorandum against Walker until it was paid. Neither Loewenthal nor the bank is in a position to find fault with the manner in which the books were kept. The books are their own declarations in writing, which are competent evidence against them, however much they may now stand in the way of their present position. But. the books were kept in the ordinary way. Walker’s account was credited with all the money he received, and charged with such checks as he drew and were paid by the bank. How this method of book-keeping could work' out a bad result, we are at' a loss to perceive.

After a careful examination of all the evidence, we are satisfied the decision of the Appellate Court affirming the decree of the circuit court was right, and it will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    The Chicago, Danville and Vincennes Railroad Company et al. v. The Town of St. Anne et al.

      Filed at Ottawa November 10, 1881.

    1. Remedy—to compel the issue of corporate bonds. A court of chancery has no jurisdiction to entertain a bill to compel the corporate authorities of a town to issue and deliver its bonds in pursuance of a vote to aid in the construction of a railroad. The proper remedy is by mandamus. Such court has not the power to compel the performance of contracts for the payment of money, or to give notes or bonds.
    2. Cbeditob’s bile. A bill can not be maintained as a creditor’s bill when not framed as such, nor when no judgment has been obtained and execution returned nulla bona.

    3. Municipal bonds—of rights in respect thereto. Under an authority to a town to vote a donation in aid of a railroad company, and to levy and collect taxes to pay the same, or to vote such aid and to borrow money to pay the same, and to issue interest-bearing bonds to pay such loans, the company can not be compelled to take bonds of the town in payment, nor can it compel the town authorities to issue bonds to it. The company, in such case, has only a claim for money, and has no right to say how the money shall be raised.
    Writ of Error to the Appellate Court for the Second District heard in that court on writ of error to the Circuit Court of Kankakee county; the Hon. Nathaniel J. Pillsbury, Judge, presiding.
    Mr. Egbert Doyle, for the plaintiffs in error:
    A court of equity will compel the delivery of municipal bonds voted by a town, to an equitable assignee. Thomas v. Morgan County et al. 59 Ill. 488; Morgan County v. Thomas et al. 76 id. 141; Morris et al. v. Cheney, 51 id. 451.
    The bonds or debt of the town to the railroad company is a trust fund, to be held for the payment of the company’s debts, or if assigned by the company in payment of a debt, then for the payment of such assignee. James v. Woodruff,
      2 Paige, 541; S. C. 2 Denio, 574; Morgan County v. Thomas et al. 76 Ill. 148; Angell & Ames on Corp. sec. 779 a.
    If. a trust is created for. the benefit of a party who is to be the ultimate receiver of the money or other thing, he may sustain a suit in equity to have the money or other thing directly paid or delivered to him, for in such case he is entitled to dispose of it as the absolute owner. Story’s Eq. Jur. sec. 1250. See, also, as to the question of jurisdiction, Riddle v. Mandeville, 5 Cranch, 329; Townsend v. Carpenter, 11 Ohio, 21; Taylor v. Reese, 44 Miss. 89.
    Mr. H. Losing, Mr. T. P. Bonfield, and Mr. C. R. Stabs, for the defendants in error:
    The vote of the town, even if sufficiently formal, did not, of itself, create an indebtedness. The vote was simply authority for the town authorities to give aid to the railroad company,— authority to create an indebtedness. We think all the cases in reference to railroad aid bonds will be found to sustain that view of the voting. Such is the view of the court in Aspinwall et al. v. Board of Comrs. of the County of Davis, 22 How. 364, Board of Comrs. of Town of Concord v. Portsmouth Savings Bank, 2 Otto, 626.
    The bill shows an indebtedness from the town to the railroad company was not created by bonds. It avers bonds were written out but never delivered. Delivery was as essential as signing.
    To show that a court has no jurisdiction to compel the town authorities to issue and deliver bonds on the ground of their equitable assignment, counsel cited Story’s Eq. Jur. 1057 a; Chicago and Nortlmestern Ry. Co. v. Nichols et al. 57 Ill. 465.
   Mr. Justice Walker

delivered the opinion of the Court:

Plaintiffs in error filed a bill to compel defendant in error the town of St. Anne, to issue its bonds to it for $30,000, claimed to have been voted to aid the company to construct its road. The charter of the company authorized the electors of the town to vote a donation to the company to aid in the construction of its road, and to levy and collect taxes to pay the same. By an amendment of the charter of the company the town was authorized to vote such aid, and to borrow money to pay the same, and to issue interest-bearing bonds for' the payment of such loans. A citizen of the town filed a bill to enjoin it from issuing the bonds, and pending the suit the town filled up bonds for the amount, and they were signed by the proper authorities, and placed in the hands of the circuit clerk, to hold until that suit should be terminated. The town afterwards destroyed these bonds, and refused to issue other bonds and deliver them to the company.

It appears that J. B. Young & Co. had, under a contract with the railroad company, constructed 110 miles" of the road, and that the company is largely indebted to them, and ' that it is insolvent. It further appears, that by the contract the railroad company assigned and transferred to them all of the local aid and subscriptions along the line of the road which had at the time been, or should afterwards be, made to the company. This donation was voted some four months after the contract was executed. It does not appear that complainants were parties to or knew of the arrangement by which the bonds were filled up, signed, and delivered to the clerk, to hold until the suit for an injunction should be terminated. Young & Co. claim, that by virtue of the contract with the railroad company, they, as assignees, are entitled to have bonds for that amount issued by the town and delivered to them, and hence have brought this bill to compel their issue.

Has chancery jurisdiction to compel the town to issue and deliver such bonds ? If it has, under what head does it fall ? Hot under the power to compel a specific performance of contracts, as such a bill does not lie to compel the performance of contracts for the payment of money, or to enforce agreements to give notes or bonds, as in such cases there is an adequate remedy at-law. Nor has that court jurisdiction to compel parties to perform acts of this nature. If there be exceptions, they are rare, and relate to contracts or acts of a different character from this.

If complainants are entitled to have these bonds issued, it must be by mandamus, and equity can not afford relief by that writ. Nor can the suit be maintained as a creditor’s bill. It is not framed as such, nor has a judgment been recovered, and an execution returned no property found, to entitle complainants to maintain the bill under the statute, even if that would entitle them to relief, but it is in effect to procure a writ of mandamus. Such a decree would be novel, and, it is believed, unheard of, in practice. To maintain it would be to abolish all distinction between proceedings in chancery and those for relief by mandamus. So long as distinctions between forms of action and proceedings' in our courts exist, they must be observed.

But, aside from all this, the provisions of the charter authorize the donation in money, and not in bonds. But it is provided that when so authorized by vote, the town authorities may borrow money to pay the donation, and issue bonds of the town for its payment. It is purely a matter of discretion, to be exercised by the town authorities, whether they 'will raise the amount by taxation, or borrow it and issue bonds of the town. The railroad company only has a claim for money, and has no right to say whether it shall be raised in the one or the other mode. If the law has been in all things complied with in voting the donation, the town is liable for the payment in money of the sum voted, and no reason is perceived why the amount could not be recovered by an action at law. If the bonds were issued, the railroad company could not be compelled to receive them instead of money, nor can it compel the town to issue its bonds.

We have examined the authorities to which reference has been made, but fail to see that they are applicable to the facts of this case. Nor do we find in this record any error, and the decree of the Appellate Court is therefore affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    Asahel Gage v. Neil McLaughlin.

      Filed at Ottawa November 10, 1881.

      Chancery—of the bill to remove cloud on title. A bill to set aside certain deeds made for property sold for taxes, as a cloud upon the title, which fails to allege any invalidity in the sale or tax deeds, is bad on demurrer.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Augustus N. Gage, and Mr. Henry D. Beam, for the appellant.
    Mr. J. J. Kerrigan, and Mr. B. B. Bacon, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill or petition filed by Neil McLaughlin, ostensibly under the act of April 19, 1872, known as the Burnt Becords act. Petitioner claimed title to the lands described in the bill, being several lots in a certain subdivision of a tract of land in Cook county, by foreclosure of a .mortgage made by one Andrew Cook to petitioner June 1, 1872, and a master’s deed, under the decree of foreclosure and sale, executed August 3, 1873. The petition made parties the widow and heirs of Andrew Cook, who died July 11, 1872, before said decree of foreclosure, and also Asahel Gage, who is alleged to claim an interest in the premises by virtue of two tax deeds executed by the sheriff and county clerk of Cook county, and dated, respectively, September 8, 1869, and July 19, 1879. Asahel Gage appeared, and filed a demurrer to the bill, and the same being overruled by the court, he elected to stand by his demurrer. The court in its decree found, on the report of the master, that the widow and heirs of Andrew Cook had no interest in the premises, and decreed that the petitioner was the owner, in fee simple, of the lands described in the petition. Gage appealed.

There is no allegation in the bill which entitles the petitioner to any relief as against the defendant Gage. The sole allegation with respect to him is, that on July 11, 1874, there was recorded in the recorder’s office of Cook county, a deed, dated September 8, 1869, executed by the sheriff of said county to Asahel Gage, pertaining to one of the lots; that there was recorded in said office, on July 19, 1879, a deed from the county clerk of said county to Asahel Gage, pertaining to said lots; “that said two deeds purport to be tax deeds, and said Asahel Gage claims to have some interest in said lots by virtue of said deeds.” If plaintiff relied, upon any invalidity of defendant’s tax deeds, he should have alleged the same in his bill, which he does not do.

Appellee claims the allegation of the bill was sufficient, under the clause in the Burnt Records act, that the petitioner “shall give the names of all persons owning or claiming any estate in fee in said lands, or any part thereof. ” This bill, while ostensibly filed under that act, is in reality one filed to remove the tax deeds of Gage as clouds on petitioner’s title. All the case made under that act is, that the power of attorney to one Rees to lay out the subdivision in which the lots are situate, the plat of the subdivision, and certain antecedent deeds in the chain of title, were destroyed by fire on October 9, 1871.

The only persons named as defendants, besides Gage, were the widow and heirs of Andrew Cook, the mortgagor. The widow and heirs evidently claimed no interest in the premises after the making of the master’s deed under the decree and sale in foreclosure. The mortgage of Andrew Cook to the petitioner, the foreclosure proceedings, the sale and master’s deed, were all long subsequent to the fire, and needed no proceeding under the Burnt Records act to establish and confirm them. The only object of the bill must have been to set aside the tax deeds of Gage. The bill makes no case for having them set aside, and the demurrer of Gage should have been sustained.

The decree, as respects Gage, is reversed, and the cause remanded for further proceedings consistent herewith.

Decree as to Gage reversed.


author: Mr. Justice Scholfield

text:
    The Pittsburg, Fort Wayne and Chicago Railroad Company v. Michael Reich.

      Filed at Ottawa November 10, 1881.

    1. Evidence—opinions of witnesses as to use, etc., of highway. "Whether a thoroughfare is used, and how used, and worked upon by public authorities, or abandoned, depends upon certain facts only, and not on the opinions of witnesses. So, also, the use made of a street by a railroad company is an existing fact, while the use that ought to be made of it is a mere matter of opinion. Witnesses not experts should be allowed to testify only to facts, and not to give their opinions, and leave the jury to draw conclusions from the facts.
    2. In a suit by a lot owner against a railroad company to recover damages to his lot, caused by the use of a street fronting the same, for railroad tracks, and thereby preventing ingress and egress to and from the same, etc., the statements of the officers of the road as to the intended future use of the street are not admissible in behalf of the company, as being hearsay, and a matter of opinion. An actual direction as to its use might be proper evidence in such case.
    3. Highways—stbeets—of their use for railroad purposes—extent of the use granted. A grant of power to a railroad company to -construct its foacl upon or across a road or highway which the route of its road may intersect, the corporation to restore the road or highway to' its former state, or in a sufficient manner not to impair its usefulness, is equivalent to allowing a joint use of the highway by the company with the public, protecting its use as an ordinary highway against any impairment. It does not authorize a use to the exclusion of ordinary travel thereon.
    4. Same—power of county or town officers to grant use of street or highway for railroad purposes—under act of 1849. Section 26 of the general Bailroad act of 1849, authorizing the county or town officers having charge of lands belonging to their county or town to grant the right of way over the same to railroad corporations, has application only to lands which belong to counties and towns as owners thereof, and not to lands in which they hold the nominal title only, for a prescribed public use, such as for a street or highway.
    5. Same—powers of commissioners of highways in that regard. The commissioners of highways of a town, having no title to an avenue or public highway,, are powerless to grant the same to a railroad company by deed, so as to pass an exclusive right to its use, and a deed by them attempting to grant such right is void.
    6. Same—effect of act of 1861 as to right of way of Pittsburg, Port Wayne and Chicago Railroad Co. The second section of the “act to perfect the title of the purchasers of the Pittsburg, Port Wayne and Chicago railroad, and to enable them to form a corporation,” approved February 8, 1861, has no reference to the mode of acquiring the right of way, and does not have any retroactive operation to validate titles to right of way.
    7. Same—right of action to lot owner for improper use of street for railroad purposes. A lot owner has a right of action to recover damages to his lot from the unauthorized laying of additional railroad tracks in the street fronting his lot, whereby the use of the street for all ordinary purposes of a highway is destroyed, and access to the lot is cut off, and for the creating of a nuisance by allowing stock cars to stand in the street adjoining the lot.
    8. Bight op way—benefits to other property not properly a set-off to damages. Where a lot is divided by a street laid through the same, benefits to one part of the property can not be set off against damage to the other part on the other side of the street by the laying of railroad tracks in the street so as to prevent access to the same, and excluding ordinary travel on the street.
    9. Limitation—what is color of title. As the commissioners of highways can not be grantors of land in any case whatever, their deed for a highway is void, and can not be relied on as color of title under the Limitation law.

      10. Same—the use must be adverse. The grant of a joint and mutual use of a highway to a railroad corporation with the public, can not be set up under the Limitation law of 1839 as a bar, as the use in such case by the corporation is not adverse.
    11. Non-suit—upon the evidence. On a trial by the court without a jury, where there is evidence tending to show a right of action, a proposition that under the evidence no recovery can be had, is properly refused. In such case the weight of the evidence is for the court.
    12. Pbactice in the Supbeme Coubt—what may be assigned as error. Where it is not assigned as a ground for a new trial in the circuit court that the damages are excessive, nor any assignment of that cause for error in the Appellate Court, it can not be urged in this court that the damages are excessive.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moban, Judge, presiding.
    Appellee, on the 6th of March, 1876, brought his action on the case, against appellant, in the circuit court of Cook county, alleging his damages at $20,000, for injuries to the west half of lot'22, School Trustees’ subdivision of ^section 16, town 38, range 14 east, containing five acres, situated on the north-east corner of Fifty-ninth street and Stewart avenue, by reason of the location and operation of certain railroad tracks on said avenue.
    The declaration contains eight counts. The first, second, fourth, fifth and seventh aver, in substance, a wrongful occupation of said avenue with four railroad tracks, so as to render said avenue impassable for vehicles, and depriving appellee of ingress and egress to and from the west half of said lot. The third count avers a wrongful carrying away of 5000 loads of earth from- the said avenue, in front of said premises. The sixth count avers that the appellant unlawfully, wrongfully and negligently stored and left standing on said tracks, opposite said premises, and in close proximity thereto, a large number of hog and cattle cars, in a filthy condition, and continued so to do, thereby rendering said premises uninhabitable, etc. The eighth count avers that the appellant so carelessly and negligently managed and operated said road, as that large quantities of cinders, dust and coal were thrown and cast upon said premises, whereby, etc. To all these counts the appellant pleaded, (1,) the general issue, and (2,) the Statute of Limitations, and to all the counts, ■ except the sixth and eighth, it pleaded, (3,) seven years’ possession and payment of taxes under claim and color of title, and (4,) liberum tenementum, by virtue of sec. 8, chap. 24, Eev. Stat. 1845. To the fourth plea the appellee replied specially that the land was not subject to taxation.
    The cause was tried by the court without the intervention of a jury, and a verdict rendered for the plaintiff, assessing his damages at $2000. Motion for new trial was made upon the grounds:—1. The court admitted improper testimony on the part of plaintiff. 2. The court excluded proper testimony on the part of defendant. 3. The court erred in refusing the propositions 'of law, and each of them, submitted on behalf of the defendant. 4. The finding of the court is against the evidence. 5. The finding of the court is against the law. But the. motion was overruled, and judgment rendered for $2000. An appeal was prosecuted by the defendant from that judgment to the Appellate Court for the First District, and the following errors were there assigned:
    First—The circuit court admitted improper testimony on behalf of the appellee.
    Second—The said circuit court rejected competent and proper testimony on behalf of said appellant.
    Third—The said circuit court erred in refusing to hold the 1st, 3d, 4th, 5th, 8th, 11th, 14th and 15th propositions of law, and each of them, submitted by said appellant.
    Fourth—The finding-of said circuit court that said Stewart avenue, so-called, is now a public highway, was and is against the evidence, and is erroneous.

      Fifth—The finding of said circuit court that appellant had no legal right to lay or operate any railroad track on said Stewart avenue, so-called, was and is erroneous.
    Sixth—The said circuit court erred in overruling appellee’s motion for a new trial.
    The Appellate Court, on considering the case, affirmed the judgment of the circuit court. This appeal is also prosecuted by the defendant below to reverse that judgment, on the ground that the Appellate Court erred in affirming the judgment of the circuit court.
    The following evidence was agreed to by stipulation of parties: “For the purpose of this suit it is agreed that the north-east quarter of section 16, town 38 north, range 14 east of the third principal meridian, in the town of Lake, in the county of Cook, aforesaid, was school land, and was subdivided by the school trustees, and a plat thereof made before the purchase of lot 22 in said section by said plaintiff; that said plat was not acknowledged or recorded; that a copy of such plat may be received in evidence in this case, with all the force and legal effect of the original, were it in existence, the defendant reserving the right to object to the sufficiency of said original plat, for any purpose, as competent evidence in this case; that the abstract of title to said lot 22, made by Handy, Simmons & Co., dated December 8, 1875, may be offered in evidence by either party without objection; that in 1858 the Pittsburg, Fort Wayne and Chicago Railroad Company, under a deed, duly acknowledged and delivered, from the commissioners of the town of Lake to it, dated May 17, 1858, entered upon a strip of land running north and south through said section 16, and on the west end of said lot 22, called Stewart avenue, or School street, sixty-six (66) feet in width, by putting down its first railroad track opposite said lot 22,. and the rails of said track being west of the centre of said so-called Stewart avenue; that on March 2, 1862, this defendant, by deed from Lanier and others, shown in printed book hereinafter referred to, became the owner and possessor of all the right of way and property of said Pittsburg, Fort Wayne and Chicago Bailroad Company, as shown by said deed; that in 1869 this defendant, in pursuance of said conveyance to it, put down a second track opposite said lot 22, and east of the centre of so-called Stewart avenue; that in 1874 the defendant, being in possession of said two railroad tracks, under said conveyance last aforesaid, put down two other tracks opposite said lot 22, in said so-called Stewart avenue, one of which was east and the other west of said two tracks already laid, and that said defendant has used and occupied all of said tracks, claiming to be the owner of said so-called Stewart avenue, by operating said tracks with its cars thereon; (all matters contained in a printed book, purporting to be copies of charters, contracts, court proceedings, etc., relating to the creation and existence of said defendant as a corporation, are correct copies of the original documents, and may be offered in evidence the same as the originals, subject to objection as to their competency or relevancy in this case;) that the defendant, the Pittsburg, Fort Wayne and Chicago Bailroad Company, has, ever since May, 1858, made returns, in accordance with law, to the proper officers, of all its real estate in said county; that the whole of said so-called Stewart avenue lying in. said town of Lake, has been each year so returned by said company; that taxes have been annually levied on all the real estate so returned, -and that all such taxes have been duly and annually paid by said corporation since May 17, 1858, up to date, but plaintiff does not admit that any taxes have been or could be legally levied, assessed or imposed on said strip of land; that all the conditions contained in the deed of right of way over the so-called Stewart avenue, being the sixty-six feet strip of land in controversy herein, from the commissioners of highways of the town of Lake to said railroad company, dated May 17,1858, were duly and completely fulfilled and performed, and that said deed may he received in evidence, subject to all objections thereto.”
    Title in plaintiff to said lot 22 was proved, he having received a deéd therefor from the Governor on the 6th day of September, 1851, and he immediately entered into possession. It was also proved said lot was subsequently divided by running a street north and south through it, called School street, and thereafter the street running north and south on the west side of the lot was called “Stewart avenue.” Evidence was given tending to show damage to the marketable value of plaintiff’s property, and also special injury by being cut off from access to the property, and from dust, cinders, etc., and from foul smells because of allowing stock ears to stand on the track adjacent to the property.
    Messrs. Willabd & Dbiggs, for the appellant:
    The lot is a subdivision of school land owned by the State, and platted by school trustees. The plat not having been acknowledged and recorded, the title to the land in the avenue remained in the State. City of Chicago v. Rumsey, 87 Ill. 348.
    The exercise of the power to lay tracks on said avenue was entered upon, and two of the tracks were actually laid before the rule under the constitution of 1870 took effect. The first proposition, therefore, was correct, under the authority of City of Chicago v. Rumsey, 87 Ill. 348; Chicago, Rock Island and Pacific R. R. Co. v. City of Joliet, 79 id. 25.
    As to the third proposition: It was expressly held in Lake Shore and Michigan Southern R. R. Co. v. Pittsburg, Fort Wayne and Chicago Ry. Co. 71 Ill. 38, that the Lanier deed was color of title to the land occupied by the railway company as a right of way. The commissioners’ deed to the appellant is of the same character, and is fully within the ruling of the Supreme Court in that case. McClellan v. Kellogg, 17 Ill. 498 ; Hinchman v. Whetstone, 23 id. 108; Dickenson v. Breeden,
      30 id. 326; Brooks v. Bruyn, 35 id. 392; Winstanley v. Meacham, 58 id. 97; Hardin v. Gouveneur, 69 id. 140; Allen v. Munn, 55 id. 486.
    The eleventh proposition: Sections 1 and 9 of the charter of the Fort Wayne and Chicago Bailroad Company, granted by the State of Illinois, had the same effect as to Stewart avenue, in the town of Lake, as the Chicago ordinance had as to Beach street, in the city of Chicago, viz: to allow the company to properly lay and operate its tracks therein without liability for consequential damages to adjoining property. Moses v. Pittsburg, Fort Wayne and Chicago R. R. Co. 21 Ill. 511; Chicago, Rock Island and Pacific R. R. Co. v. City of Joliet, 79 id. 25.
    Mr. Thomas S. McClelland, for the appellee:
    1. Stewart avenue became a public highway by virtue of the act of the school trustees in 1851, and under the statutes of Illinois relating to the subdivision of school lands. Bev. Stat. 1845, chap. 98,-secs. 13, 14, 15.
    2. The school trustees being agents of the State in sub- , dividing the section into lots, with spaces left open for streets or highways, it will be presumed that the public are allowed to use such spaces for public travel, and it is incumbent upon the party denying the fact of its being a public highway to overcome the presumption by proof, and show that such spaces were not intended for streets. Angell on Highways, sec. 143; Eyman et al. v. The People, 1 Gilm. 4; Dumoss et al. v. Francis, 15 Ill. 543; Green et al. v. Oakes, 17 id. 249; Jarvis v. Dean, 8 Bing. 449.
    3. The duty of the town and its road officers was limited to keeping the highway in repair for the use of the public. They had no power to turn it over to the railroad company. Stack v. City of East St. Louis, 85 Ill. 377; Peoria and Rock Island Ry. Co. v. Schertz et al. 84 id. 135; Kreigh et al. v. City of Chicago, 86 id. 407; Drake v. Hudson River R. R.

      Co. 7 Barb. 508; Tate v. Ohio and Mississippi R. R. Co. 7 Porter, (Ind.) 479; Hynes v. Thomas, 7 id. 38; City of Pekin v. Winkel, 77 Ill. 58; Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 id. 439; City of Pekin v. Brereton, 67 id. 477; City of Jacksonville v. Jacksonville Ry. Co. id. 541; St. Louis, Vincennes and Terre Haute R. R. Co. v. Copps, id. 607.
    4. The general Eailroad law of 1849 prohibits railroad companies from using highways in such manner as to render them unfit for public use. Laws of 1849, p. 24, sec. 21, div. 5.
    5'. The highway commissioners had no power to allow the railroad to enter upon the street. All such authority is derived from the legislature. 2 Dillon on Mun. Corp. sec. 518; Davis v. Mayor, 14 N. Y. 517; Milhan v. Sharp, 27 N. Y. 619.
    6. It is not within the power of highway commissioners, or even the municipal corporation itself, to permit railway companies to blockade public highways and render them impassable ; and railways, notwithstanding their pretensions to act under license acquired from such authorities, will be liable to the property owners damaged thereby. Stack v. City of East St. Louis, 85 Ill. 578; Peoria and Rock Island R. R. Co. v. Schertz, 84 id. 135; Kreigh v. City of Chicago, 86 id. 410; City of Quincy v. Jones et al. 76 id. 231; St. Louis, Vandalia and Terre Haute R. R. Co. v. Haller, 82 id. 208; City of Shawneetown v. Mason et al. 82 id. 337; Eberhart v. Chicago, Milwaukee and St. Paul Ry. Co. 70 id. 347; St. Louis, Vandalia and Terre Haute R. R. Co. v. Copps, 72 id. 188 ; Chicago and Pacific R. R. Co. v. Francis, 70 id. 238; Chicago, Milwaukee and St. Paul R. R. Co. v. Hall, 90 id. 42; Chicago and Iowa R. R. Co. v. Hopkins et al. 90 id. 316; Terre Haute Gas Co. v. Teel, 20 Ind. 131.
    7. As to measure of damages: St. Louis, Vandalia and Terre Haute R. R. Co. v. Haller, 82 Ill. 211; Illinois Central

      R. R. Co. v. Grabill, 50 id. 245; Ottawa Gas Light and Coke Co. v. Graham, 28 id. 73; St. Louis, Vandalia and Terre Haute R. R. Co. v. Copps, 72 id. 190.
    8. Appellant can not plead the Statute of Limitations in bar. The avenue was held for public use as. a street, and the title was either in Eeich or in the State. The property was school land. Eev. Stat. 1845, p. 104, sec. 10; Logan County v. City of Lincoln, 81 Ill. 158; City of Alton v. Transportation Co. 12 id. 59; 2 Dillon on Mun. Corp. secs. 532, 533.
    ■Possession must be adverse to the true owner, and exclusive. Cook v. Norton et al. 48 Ill. 20; Weaver v. Wilson, id. 125.
    Appellant, up to 1874, occupied this street jointly with the public. Even if its color of title could be claimed as acquired in good faith, and even if the Statute of Limitations could run against this public highway, it could not enlarge its color, i. e., to extend over any part of the street not actually occupied by it, to-wit, that part not covered by its first track. Goewey v. Urig, 18 Ill. 241; Davis v. Easley et al. 13 id. 192.
    If the street was used by appellant in common with others, or with the public in general, it can not be regarded as hostile to others. Truesdale v. Ford, 37 Ill. 212; Chicago and Northivestern Ry. Co. v. City of Elgin, 91 id. 251; 61 id. 241; I. P. and C. R. R. Co. v. Ross, 47 Ind. 25.
    The street in question being a public highway, and used by the public for general purposes of travel, the appellant could not acquire exclusive possession, as contemplated by the statute, and adverse to the true owner of the soil— namely, Eeich or the State of Illinois. Parker v. Inhabitants of Framingham, 8 Mete. 260; Truesdale v. Ford, 37 Ill. 210; Jackson et al. v. Berner, 48 id. 203; Tyler on Ejectment, pp. 865, 883, 884; Briggs v. Inhabitants of Marshfield, 13 Pick. 240.
    Eailroads in public highways, without authority, are a nuisance per se, and continue such. 1 Dillon on Mun. Corp. 520, note; 1 Redfield on Railroads, 322; Milhan v. Sharp, 27 N. Y. 612; Commonwealth v. N. and L. R. R. Co. 2 Gray, 56.
    Appellee being specially damaged thereby, may recover. Milhan v. Sharp, 27 N. Y. 627; Lansing v. Smith et al. 4 Wend. 10; Wood on Nuisance, 647; Park v. C. and S. W. R. R. Co. et al. 43 Iowa, 636; Haynes v. Thomas, 7 Porter, (Ind.) 38; Stetson v. Faxton, 19 Pick. 147; Venard v. Cross, 8 Kan. 254.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The questions .first arising upon this record requiring our consideration, relate to the exclusion of certain evidence offered by appellant, and rejected by the court.

Luther W. Crocker having testified that he was acquainted with the location of appellant’s track in the town of Lake, that he had held in that town the office of overseer of highways, commencing about 1865 and continuing to the latter part of 1867, and that as such overseer it was his duty to repair roads and bridges, was asked by appellant’s counsel: “As such overseer, state whether you regarded Stewart avenue as being a public highway for repairs to be made by you, as such overseer?” This was objected to by appellee’s counsel, and the objection sustained. Appellant’s counsel then said: “I offer to prove by this witness, that as overseer of highways he did not regard Stewart avenue as being a public highway to. be repaired by him. ” The court held the proposed evidence incompetent, and the counsel excepted.

Albert Colvin testified, among other things: “While I was a member of the board- of assessors of the town, I don’t think that portion of Stewart avenue occupied by the tracks was ever used for any other purpose only as railway tracks,— only for right of way for tracks. That was the general understanding and impression among the officers of the town for a number of years,—that has been their impression from about the time the town organized under a charter. ” The testimony of the witness as to the understanding and impression of the officers of the town was objected to by the counsel for appellant, and he moved to have the same stricken out, which motion the court sustained.

Josiah Gray was asked this question: “State whether it will be necessary, in the near future, to use the four tracks now on Stewart avenue solely for the running of freight and passenger trains thereon?” This was objected to by counsel for appellee, and the objection was sustained by the court. The counsel then proposed- to prove by the witness that the demand of the business then required the use of those two side-tracks for main tracks, and that very soon they will be converted into main tracks, and further use for storage of cars be entirely dispensed with. Counsel for appellee objected to the reception of such evidence, and the court sustained the objection. The same witness was also asked what he had heard the officers of the road say on this subject, which was also objected to, and objection sustained by the court; and he was then asked what increase of the facilities for stocking cars was then being made by appellant in the vicinity of Forty-seventh and Fifty-ninth streets, and this also was objected to by counsel for appellee, and the objection sustained by the court.

To each of these rulings proper exception was taken, and they are now, in argument, claimed to be erroneous, and to authorize a reversal of the judgment.

The position is wholly untenable. The witnesses were not experts, and it was for them to state facts only, and for the jury to draw conclusions from those facts. Whether a thoroughfare is used, and how used, worked upon by public authorities, or abandoned, depends on certain facts only, and not on the opinions of witnesses. So, also, the use made of the street by appellant is an existing fact. What use ought to be made of it in the future, is matter of opinion about which different men might have different notions—a mere matter of speculation. What the officers of the road said as to the intended future use, is doubly objectionable,—it is mere hearsay, and that, too, in regard to a matter of opinion. Had appellant, through its board of directors or other proper officers, actually directed a particular use of the street in the future, that would doubtless have been competent evidence; but this was not the effect of the evidence excluded. The court heard all the evidence of facts that was offered, and its ruling in the respect under consideration is free of all objection.

The next question raised in argument is, did the court err in rejecting certain propositions of law presented by counsel for appellant. By agreement of parties the cause was tried by the court without the intervention of a jury. By sec. 41 of the Practice act, (Eev. Stat. 1874, p. 780,) it is provided: “In all cases, in any court of record of this State, if both parties shall agree, both matters of law and fact may be tried by the court, and upon such trial either party may, within such time as the court may require, submit to the court written propositions, to he held as law in the decision of the case, upon which the court shall write ‘refused,’ or ‘held,’ as he shall he of opinion is the law, or modify the same, to which either party may except, as to other opinions of the court. ” The propositions were submitted pursuant to this provision, and are, therefore, properly before us for investigation.

The first proposition refused is as follows: “The defendant received authority from the State of Illinois to lay and operate its tracks upon and along Stewart avenue, so-called, opposite to plaintiff’s said lot, and the manner in which the evidence shows that authority has been exercised gives the plaintiff no right of recovery in this case, unless thereby some physical injury has been done to said premises, or unless the plaintiff has shown a right of recovery under the sixth count of his said declaration. ”

The Pittsburg, Fort Wayne and Chicago Eailroad Company was formed by consolidation between the Ohio and Pennsylvania Eailroad Company, the Ohio and Indiana Eailroad Company, and the Fort Wayne and Chicago Eailroad Company, on the 6th day of May, 1856. These several corporations were organized under special charters granted by the States of Pennsylvania, Ohio, Indiana and Illinois, respectively, and the consolidation was authorized by the necessary legislation of each of these States.

The charter of the Fort Wayne and Chicago Eailroad Company, granted by this State, by its fifth section provided: “The said company are hereby authorized to use and exercise all the powers for appropriating and obtaining the rights of way for the construction, maintenance and use of said road, that are given and expressed by the act entitled 1 An act to provide for a general system of railroad incorporations,’ approved November 5, 1849; and in case any lands so appropriated shall not be donated to the company, or in case of disagreement between the owner thereof and said company as to the fair value thereof, the sum to be paid shall be determined in the manner prescribed by said act.” And the ninth section of such charter is as follows: “The said company are hereby authorized to construct their road upon or across any stream or water course, road or highway, railroad or canal, which the route of its road shall intersect; but the corporation shall restore the stream or water course, road or highway, railroad or canal, thus intersected, to its. former state, or in a sufficient manner not to have impaired its usefulness.”

The portion of the act of November 5, 1849, supposed to bear upon the question before us, is from section 26, and is as follows: “If any such corporation shall, for its purpose aforesaid, require any land belonging to the people of this State, or to any of the counties or towns, the General Assembly of the State, and county or town officers, respectively, having charge of such lands, may grant such lands to such corporations for a compensation which .shall be agreed upon between them, and if they shall not agree upon a sale and price, the same may be taken by the corporation as before provided in respect to other cases. ”

The board of commissioners of highways of the town of Lake, by an instrument made and acknowledged on the 17th of May, 1858, purported to grant, convey and quitclaim to the Pittsburg, Fort Wayne and Chicago Bailroad Company, the use, for its railroad, “of the right of way over, across and along the street sometimes called 1 Stewart avenue,’ or 1 School street,’ extending north and south through the centre of the section,” etc., and to “authorize, permit and allow the said company to lay its track or tracks, side-track, switches and turn-outs, in and along said street, avenue or public highway, and to operate, maintain and run its locomotives and cars over the same, and to continue to use and occupy the same, or so much thereof as may be necessary for the purpose of the business of the said railroad, forever. ” Two questions are thus presented, growing out of the refusal of the court to hold the foregoing proposition of law:

First—Was the right to appropriate the entire use of Stewart avenue conferred upon the railroad company by the charter of “The Fort Wayne and Chicago Bailroad Company?”

Second—If not, did the purported deed of the board of commissioners of highways of the town of Lake confer such right of use ?

The ninth section of the charter of the Fort Wayne and Chicago Bailroad Company is the only section that assumes to expressly confer power upon the company to construct its road along a highway; but it will be observed this explicitly requires the corporation tq restore the highway to “its former state, or in a sufficient manner not to have impaired its usefulness.” This is but equivalent to allowing a joint use by the railroad company for its road and by the public for an ordinary -highway, of the avenue, but specially protecting its use as an ordinary highway against any impairment. The quotation from section 26 of the act of November 5, 1849, clearly has no reference to highways. It relates to “land belonging to the people of this State, or to any of the counties or towns, ”—that is to say, land which belongs to the people, counties or towns, as owner, and not such whereof the nominal title only is held in order that a prescribed public use of the land may be enforced. That this is the intention, is put beyond doubt by the fifth clause of section 21 of the same . act, which, in prescribing the powers vested in the corporation, uses this language: “To construct their road upon or across any stream of water, water course, road, highway, railroad or canal, which the route of its road shall intersect; but the corporation shall restore the stream or water course, road or highway thus intersected, -to its former state, or in a sufficient manner not to have impaired its usefulness.” Since here is express authority for laying tracks upon, as well as across, streets or highways, carefully guarded so as to protect the public necessities, it would be absurd to suppose that the legislature intended to enact another section on the same subject, but without at all guarding the public necessities. And this view is still further strengthened by reference to section 25, which- authorizes the company to acquire additional lands, where a change in the line of the highway becomes necessary by reason of an embankment or cutting for the railroad, thus showing that it was constantly in mind to preserve the highway for public use as an ordinary highway. Although, in a general sense, highways or streets, where the fee is in the State or a municipal corporation, are lands belonging to the people of the State, or to the municipal corporation, they are in legislation universally, so far as we recall, referred to as'“highways,” or “streets,” and not as public lands. The ownership, in reality, in such cases, is but nominal, and entirely subordinate to the public trust for which the title is held. See Chicago v. Rumsey, 87 Ill. 348.

It results, then, that while, under its charter, the railroad corporation may doubtless have had the right to lay its tracks in Stewart avenue, that right was not an exclusive one, and could only be enjoyed in common with the use of the avenue by the public as an ordinary highway, and without materially impairing its usefulness as such. The commissioners of highways óf the town of Lake had no title in this avenue, and no authority whatever to barter or convey any interest therein. They were invested with the care and superintendence of highways, and it was their duty to take measures to open and keep them in repair, alter and discontinue them under certain circumstances, to cause obstructions to be removed, etc.; but no title was vested in them in regard to the highways, and they had no power to make conveyances for any purpose. (See 2 Purple’s Stats, p. 1156, title “Tp. Organization,” art. 22.) Their deed was therefore a nullity. H6w far it might be considered as a circumstance on the question of equitable estoppel, in regard to the tracks laid down in 1858, under the authority of Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 25, Chicago and Northwestern R. R. Co. v. The People ex rel. 91 id. 251, and Martel v. East St. Louis, 94 id. 67, we need not now consider, since such estoppel could, in any view, only apply to those tracks, and could not be held to authorize the laying of the two additional tracks in 1874. Besides this, the deed is not used for the purpose of proving, with other evidence, such an estoppel.

Counsel, however, contend that authority for the execution of this instrument may be found under provisions in sec. 2 of “An act to perfect the title of the purchasers of the Pitts-burg, Fort Wayne and Chicago railroad, and to enable them to form a corporation, and defining the powers and duties of said corporation,” .approved February 8, 1861. The language of that section, supposed to be pertinent, is as follows: “And the said corporation shall also possess all the faculties, powers, authorities, immunities, privileges and franchises at any time held by the said Pittsburg, Fort Wayne and Chicago Eailroad Company, or by any of the corporations heretofore consolidated into the said company, or conferred on the said company, the said corporations, or either of them, by an act or law of this State, or of either of the States of Ohio, Indiana or Pennsylvania, and shall have power and capacity to hold and exercise within each and every of the said States, and, so far as it may be deemed necessary to the general objects of its business, within any other of the United States, all the said faculties, powers, authorities, privileges and franchises, and all others which may hereafter be conferred upon it by or under any law of this State, or of any of the aforesaid States, and to hold meetings of stockholders and directors, and do all corporate acts aijd all things within any of the aforesaid States as validly as it might do the same within this State, and may consolidate with any corporation of said other States authorized to hold, maintain and operate the aforesaid railroad. ”

But this was enacted near three years after the purported deed of the commissioners was executed, and does not assume to have any retroactive effect for the .purpose of validating titles to right of way. Indeed, we think it quite clear that it has not the slighest reference to the mode of acquiring the right of way. It relates purely, as the language unmistakably shows, to the faculties, powers, authorities, privileges and franchises which may be deemed necessary to the general objects of its business within any other of the United States. It relates to the corporation itself, and is designed to make it a unit in each and all of the States in which its line is located, but it does not assume to affect the local -law in regard to the mode of acquiring title to right of way. It has the same power and capacity to take and hold right of way in this State that it does in the other States, but the mode of acquiring right of way is obviously very different from the capacity to take and hold it. The control of streets, and the mode of regulating then- use, and the mode of executing and acknowledging deeds and effecting condemnations, are matters of local law, affected, to some extent, by local constitutions, which it would doubtless be impossible to place under precisely the same law in each of these four States. At all events, we feel quite confident no such attempt has been here made. The provisions of the statutes of the other States can, therefore, have no bearing on the present question.

But counsel make the further point that the deed of the commissioners is color of title, and, being followed by possession and payment of taxes, bars appellee’s action. To make a colorable title there must be a party grantor, as well as grantee. (See Bride v. Watt et al. 23 Ill. 507; Brooks v. Bruyn, 35 id. 392.) The commissioners of highways can not be parties grantors in a deed of conveyance. It may be conceded that if, under any imaginable state of ease, they could be grantors, it is sufficient. But they can not be. Apart • from this, however, their deed only conveys a use of so much of the street as may be necessary, thus, in effect, reserving what is not necessary for the use of the public. It would be a novel doctrine, if a railroad, by getting permission to lay a track in a street, could be regarded as holding the entire street adversely to the public. The use, here, was joint and mutual, not exclusive, and therefore not adverse. Truesdale v. Ford, 37 Ill. 210. And this will apply equally to the deeds made to Tilden and others, and by them to appellant. However effective they may be as to the right of way actually occupied by their tracks, they can not affect the part of the street not thus occupied, and which there was evidence tending to show was used and occupied by the public as an ordinary highway until the laying of the additional tracks in 1874.

Again, counsel insist the title to the street was in the public. The first two tracks were laid in the street, under authority of law, before the constitution of 1870 took effect, and for that act there can be no recovery for damages not resulting from a direct physical injury to the appellee’s property, on the authority of Chicago v. Rumsey, 87 Ill. 848, and Chicago, Rock Island and Pacific R. R. Co. v. City of Joliet, 79 id. 25. This may all be true, and still the proposition have been properly refused. The laying of the two tracks, as we have seen, could not have been, under the law, and the evidence tends to show was not in fact, an appropriation of the entire street. The public had a right to, and still used, the balance of the street. That balance appellant had no right to occupy. It did, in 1874, less than two years • before • suit was brought, occupy it by laying thereon two additional tracks, and, as the evidence tends to show, thereby completely excluded its use for ordinary street purposes, and on that side cut off appellee’s access to his lot. The proposition assumes that the two tracks laid in 1874 were lawfully laid, which we hold could not, under the uncontroverted facts, have been true. It was properly refused.

What has been said disposes, also, of the objections on account of the refusal of the second, third, fourth and fifth propositions.

The eighth proposition was properly refused, because it excludes the idea that there can be a recovery under the first", second, third, fourth or fifth .counts, by cutting off access to appellee’s property. This we do not understand comes within the definition of “physical injury,” as used in that proposition; yet this would be damaging the property, within the meaning of the present constitution, and constitute a ground of recovery. Shawneetown v. Mason, 82 Ill. 337.

■The eleventh proposition was properly refused, because it contemplates setting off benefits to one piece of property against damages done to another and distinct piece. Lot 22 of the school trustees’ subdivision of section 16, had been divided into two separate tracts, by a street running through its centre from north to south, and the injuries sued for are such as have been sustained by the west half of lot 22, whereas the proposition is to offset benefits which have resulted to any part of lot 22—that is, benefits to the east half of lot 22, disconnected entirely from the west half of that lot. This has never been held admissible.

The fourteenth proposition was properly refused,'because there was evidence tending to sustain a cause of action. It asserts, simply, that under the evidence there can be no recovery. There was evidence tending to authorize a recovery. Its weight was for the court.

The fifteenth and last proposition was properly refused, because it implies there can be no recovery for temporary injury, or for preventing access to appellee’s property byway of Stewart avenue.

We are not allowed to look into the evidence in this class of cases, as before observed, further than to see whether there is evidence tending to sustain the cause of action, the finding of the Appellate Court upon all controverted questions of fact being final. We are, therefore, to assume that Stewart avenue was by dedication a public highway or street; that by the laying of the two additional tracks in 1874, the use of the avenue for all ordinary purposes of a highway or street is entirely destroyed; that thereby all access to appellee’s lot from that side is cut off; that stock cars have been permitted to stand in the avenue, adjacent to that lot, creating a-nuisance, and that appellee has been otherwise injured in the use and enjoyment of his property. Clearly, this would authorize a recovery for some amount, and the question of what amount is not before us. Motion for new trial was made, and causes therefor assigned in writing, but it was not therein alleged that the damages are excessive. Errors were assigned in the Appellate Court, but no error was therein assigned on the ground that the damages are excessive.

In Emory v. Addis, 71 Ill. 273, we held, when excessive damages are not assigned as a ground for a new trial in the circuit court, nor for error in this court, the appellant is not in a position to have the question reviewed; and in Thayer v. Peck, 93 Ill. 357, we held, if a, defendant fails to assign for error in the Appellate Court that the judgment was too large, he would not be allowed to present that question in this court. There was also like ruling in Diversey v. Johnson, Admx. 93 Ill. 547; Page et al. v. People ex rel. etc. 99 id. 418; Litchtenstadt v. Rose, 98 id. 643.

' Perceiving no cause to disturb the judgment of the Appellate Court, it is affirmed.

Judgment affirmed.

Mr. Justice Dickey : I do not concur in the above.


author: Mr. Justice Mulkey

text:
    Robert Walsh et al. v. Elizabeth Wright.

      Filed at Ottawa November 10, 1881.

    1. Witness—competency of pa/rty. The exception in favor of heirs, in the statute making parties in interest competent to testify, was made for the benefit of the heirs themselves, and not for the benefit óf strangers who are in nowise identified in interest with them.
    2. On bill for the specific performance of a parol contract for the sale of land against a minor heir of the alleged vendor, the adult heirs having conveyed, and also to set aside a sheriff’s deed to another, made on a sale under execution issued upon a judgment recovered after the sale to the complainant, and possession taken, the suit was dismissed as to the minor heir, and a hearing had as against the holder of the sheriff’s deed: Held, that the complainant was a competent witness, after such dismissal, as to the minor heir, no relief being thereafter sought as against the heir.

      3. Practice—time for objecting to secondary evidence. It is well settled that secondary evidence may always be received upon the trial of an issue, unless objected to on that ground at the time it-is given or offered, so that the objection may be obviated by further testimony. The objection to such testimony can not be taken for the first time in a court of review.
    4. Pleading and evidence—variance. A bill by a purchaser of land to set aside a sale under judgment and execution against one of the vendors, alleged that the complainant bought from two persons who were the owners, and the proof showed that the negotiation for the purchase was made with only one of them, who was at the time the agent of the other, for whom he acted, as well as for himself, in making the sale, and who sent the other his share of the purchase money, and which other owner afterwards conveyed his interest to the one making the sale, to" enable the latter to carry the contract into execution: Held, that there was no such variance, but even if there had been, it would not have been material, as the bill did not seek a specific execution of the contract. ,
    5. Notice—possession of land as to party’s equity. Actual possession of land under a parol or unrecorded contract of purchase, before the recovery of a judgment against the vendor, is notice to the judgment creditor, and all perfeons claiming under him, of the purchaser’s rights.
    6. Glodd upon title—sheriffs deed. Where the purchaser of land takes actual possession, and makes payment of the purchase money before the recovery of a judgment against the vendor, a subsequent sale of the property under the judgment, and a sheriff’s deed to the assignee of the creditor, will be set aside as a cloud upon the title of the purchaser.
    Appeal from the Circuit Court of Will county; the Hon., Josiah McRoberts, Judge, presiding.
    Elizabeth Wright, on the 29th day of April, 1878, exhibited in the Will circuit court her bill in chancery, against Ellen McIntyre, Charles Hammond, John Gray, and Henry Prepenbrink, as sheriff, praying for the specific performance of a parol contract for the purchase of a tract of land alleged to have "been made between complainant, the purchaser, and the said Hammond and Archibald McIntyre, the ancestor of ■ the said Ellen McIntyre, and also for other relief. Subsequently an amended supplemental bill was filed in the cause, making Robert Walsh a party.
    The supplemental and amended bill alleges that complainant purchased the tract of land in question of McIntyre and Hammond, on or about the first of April, 1864; that the amount agreed to be paid was $950, with interest at ten per cent per annum; that she was to have her own time in which to make payment, so long as the -interest was paid on the unpaid purchase money; that upon payment the vendors were to make her a good and sufficient deed to the premises; that this contract was in writing, but had been lost, and was never recorded; that soon after the purchase she paid $250, and immediately went into possession, and from thence up to the time of filing her bill she has been in the actual, open and visible possession of the same, and has made valuable improvements thereon, amounting to the sum of $500 and upwards; that on or before the 1st day of September, 1872, she had paid Hammond the full amount due him on the land, and demanded a deed for his interest; that on the 26th day of February, 1876, Hammond and wife made to McIntyre a quitclaim deed to the premises, and the same was duly recorded; that at the date of this deed complainant had not fully paid McIntyre for his interest in said premises, and upon being informed of Hammond’s conveyance to McIntyre, the latter informed complainant it had been done for her benefit, and that as soon as her payments were completed he ' would convey to her; that McIntyre, without having made such conveyance, died, leaving a widow and four adult children, all of whom have since conveyed their interest in the premises; that the said Ellen, his remaining child, has not conveyed, by reason of her minority; that after Hammond had been fully paid for his interest in the land, to-wit, on the 2d of January, 1874, John Gray commenced a suit in the Will county circuit court against Hammond, and subsequently, on the 18th of February following, recovered a judgment against, him in that proceeding, under which the land in controversy was sold, and purchased by Gray, as the property of Hammond; that Gray,- for the purpose of defrauding complainant, without consideration, assigned the certificate of purchase to Walsh, who subsequently received a sheriff’s deed for the premises, and is threatening to oust complainant therefrom, etc., and prays, among other things, that said deed be set aside and surrendered as a cloud on her title.
    The bill was dismissed as to Prepenbrink, Hammond and Ellen McIntyre, and the case proceeded to a hearing upon the merits as to the other parties, resulting in a decree setting aside, and declaring inoperative and void, the sheriff’s deed to Walsh, and directing the same to be delivered up for cancellation, to reverse which decree the present appeal is prosecuted.
    Messrs. Haley & O’Donnell,, for the appellants.
    Messrs. Munn & Munn, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

A reversal of the decree in this case is urged on several grounds, none of which go strictly to the merits of the controversy.

It is urged, in the first place, the court erred in considering the testimony of the complainant, Elizabeth Wright, on the ground that her evidence would not have been competent as against Ellen McIntyre had she been continued as a defendant in the case, for the reason Ellen was defending as heir, and it is insisted that the witness’ competency can not be restored by dismissing the bill as to Ellen, and in support of this position the case of Alexander v. Hoffman, 70 Ill. 114, is cited. We do not regard that case as sustaining the position of appellants. It is neither in principle nor in its facts like the present case. In that case the assignee of an alleged contract of purchase was seeking to enforce it against the heirs of the alleged vendor without making the original purchaser and assignor of the contract a party, and it was held that the assignor of the contract was a necessary party, and that he was not a competent witness as against the heirs. In that case the interests of the complainant and of the omitted party who was held incompetent to testify, were identical, and directly antagonistic to the interests of the heirs of the alleged vendor. In the present case, after dismissing the bill as to Hammond, Ellen McIntyre, and the sheriff, the whole object and purpose of the bill was to have the sheriff’s deed set aside as a cloud upon the title of complainant,—a matter in which Ellen McIntyre had not the slightest interest. The complainant, as alleged in the bill, and clearly shown by the proofs, already had both the legal and equitable title to four-fifths of the property, and the sheriff’s deed to Walsh was clearly a cloud .upon her .title to that extent, and so far as this deed was a cloud upon her title, was a matter in which, as just statéd, Ellen did not have the slightest interest. Had the bill, as amended, sought to enforce a specific performance of the contract as to the remaining fifth of the estate, the legal title of which is still in Ellen, or if the bill, as amended, had sought in any manner to affect the original contract under which appellee claims the remaining fifth of the land, for which she has as yet received no. deed, why, to that extent the present suit would have been adverse to Ellen, and in' that event appellee would not have been a competent witness against her; but nothing of that kind is sought by the bill as finally amended, and neither Ellen, as heir, nor any one identified in interest with her, is complaining of appellee’s testimony. There is no community of interest between appellants and Ellen, and her interests are not at all affected by the decree from which this appeal is prosecuted. The exception in favor of heirs, in the statute making parties in interest competent to testify1-, was inserted for the benefit of the heirs themselves, and not for the benefit of strangers who are in no manner identified in interest with them. We do not think this objection to the decree is well taken.

It is also objected that the court erred in permitting Elizabeth Wright to testify to the terms of the contract with. McIntyre and Hammond, without having sufficiently accounted for the loss of the written contract. There are several answers to this objection, one of which is sufficient. Upon looking into the record itself, we find that the testimony of Mrs. Wright was taken before the master, and reported by him to the court, and that when her deposition was offered upon the hearing no specific objection was made to her testimony on the ground now suggested, and there was not, therefore, and could not have been, any ruling of the court upon it which can now be assigned for error. There was a general objection on the hearing to the competency of this witness, which we have just considered. There was also a general objection to her answers to interrogatories 6, 13,14, 22 and 23, and these were the only objections raised to her testimony. The answers to interrogatories 6, 13 and 14, the only ones having any bearing on the question in hand, were excluded by the court. Thus it will be seen there is no foundation in fact for 'the error now complained of. It is well settled that secondary evidence may always be received upon the trial of an issue, unless objected to on that ground, and the law does not suffer parties to sit by and permit evidence of this character to be received on the trial without objection, and afterwards, for the first time, take advantage of it in a court of review. To permit this would be highly unjust to the opposite party, for where the objection is made in the court below, it affords the opposite party an opportunity of meeting the objection by further testimony.

It is further objected that there is a variance between the allegations and the proofs with respect to the parties from whom the purchase was made. It is claimed that while the bill charges that complainant bought it from McIntyre and Hammond, complainant swears that she had nothing to do with Hammond in the purchase of the land, and Hammond swears that when he conveyed to McIntyre, he understood he was selling his interest to him. This may all be so, and still the purchase, in contemplation of law, may have been made from them both. It clearly appears that complainant was informed, at the time of the purchase, that Hammond had an interest in the land, as well as McIntyre, and it also further appears that the latter was, at the time, the general agent of Hammond with respect to this and other lands owned between them, and McIntyre evidently acted on behalf of Hammond, as well as himself, in making the sale to her, and sent him his share of the purchase money paid by her long before the Gray judgment was obtained, and she being in the actual possession of the premises was notice to Gray, and all persons claiming under him, of her rights.

But even if' the variance existed, which we do not concede, still, under the bill, as amended, for reasons already stated, the variance can not be regarded as material. If complainant were seeking to enforce the specific performance of the contract in question as against appellants, then the objection, if true in point of fact, would be well taken; but such is not the case. As against appellants, complainant by her bill, as amended, seeks to have a cloud removed from her title to the land in controversy, which the bill and proofs clearly show in equity belong to her, hence it is a matter of no concern to appellants whether the original contract was technically with McIntyre and Hammond, or whether McIntyre alone sold her the entire interest in the property, with the understanding that he would procure a deed from Hammond as soon as his interest was paid for, and under this arrangement she, through McIntyre, paid Hammond his share of the purchase money, and the latter, for the purpose of enabling McIntyre to convey to her, conveyed the premises to him. In either view, we do not consider the objection well taken.

These are the only objections made by counsel which we deem of sufficient importance to consider.

The merits of this case are so manifestly with appellee, the decree ought not to be disturbed on any mere technical ground which could not have prejudiced appellants.

. Decree affirmed.