text:
    Henry Kuecken et al. v. John Voltz.

      Filed at Ottawa June 13, 1884.

      1. Easements — of the different hinds — and the incidents thereof. Easements are of two kinds—appurtenant or appendant, and in gross. The former run with the land, and pass by a deed of conveyance; but the latter are personal, and will not pass by a deed of conveyance.
    2. Same—grant of a way—whether in gross, or appurtenant—presumption. The grant of a way is never presumed to be in gross when it can be fairly construed to be appurtenant to the land.
    3. Same—reservation of a servitude—whether the servitude becomes appu/rtenant. Where it appears, by fair interpretation of the words of a grant, that it was the intention of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land of the grantor, and originally forming, with the land convej'ed, one parcel, such right will be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee; and the right and burden thus created will pass to and be binding on all subsequent grantees of the respective lots of land.
    4. Same—in the particular case. A, being the owner of eighty-nine feet of ground, bounded on the east and south by two streets, and extending west ninety feet to a lot extending north and south its entire width, in 1856 sold B the south forty-nine feet of the tract, which was followed by a deed on June 1, 1860, the contract and deed both containing this clause: “Excepting and reserving therefrom ten feet across the west end of said premises, for an alley. ” This forty-nine feet passed by mesne conveyances to 0, the deeds containing the same reservation as in the deed from A. In 1860 A sold to D twenty feet off the south side of the remainder of his said tract, but prior to this he conveyed the north twenty feet joining that sold to D, and it passed by mesne conveyances to E. The deeds conve3dng each of these tracts contained the same exception and reservation as in the first deed. At the time A sold the forty-nine feet he did not occupy any part of the tract, but was a non-resident of the State: Held, that the situation and location of the property, the manner in which it was used, in connection with the reservation and exceptions contained in all the deeds from A, clearly indicated an intention to create or establish an alley for a right of way, in the nature of an easement in the property granted to B, for the benefit of the other adjoining property owned by A.

      5. Same—whether lost by mere non-user. Easements acquired by deed, as a general rule, are not lost by non-user, when there is no adverse possession to bar the right.
    6. Same—limitatioiu—what is an adverse possession. In order to balan easement, such as a right of way appurtenant, the proof must show twenty years’ adverse possession. The building of a sidewalk on a street adjoining land over which there is such an easement, and maintaining the same, can not be regarded as an adverse possession of such land.
    7. Dedication—reservation in a deed, of part of a lot for an alley. An owner of a tract of land in a city sold and conveyed the south forty-nine feet thereof, the deed containing this clause: “Excepting and reserving therefrom ten feet across the west end of said premises, for an alley:” Held, that the ten feet across, the west end did not pass, but was reserved from the grant, and dedicated to a specified purpose,—to be used for an alley.
    8. Construction of contracts—ascertainment of intention. In construing deeds or other writings, courts must seek to ascertain and give effect to the intention of the parties; and for that purpose they may and will take notice of attendant circumstances, and by them determine such intention.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Francis Lackner, and Mr. Sidney C. Eastman, for the plaintiffs in error:
    Easements and servitudes are of two kinds,—appurtenant or appendant, or in gross or personal. The former run with the land, while the latter are personal benefits, and are not assignable or inheritable. A good definition of the subject is found in Whitney v. Union Ry. Co. 11 Gray, 365.
    The grant of a way is never presumed to be in gross when it can fairly be construed to be appurtenant to the land. Washburn on Easements, chap. 1, see. 3, No. 2, and chap..2, sec. 1, No. 5; Louisville and Nashville R. R. Co. v. Koelle, 104 Ill. 455; Winthrop v. Fairbanks, 41 Maine, 307.
    Counsel cited and quoted from the following cases, in which reservations and exceptions in conveyances were held to create easements appurtenant to other land; Mendell v. Delano,
      7 Metc. 176; Karmuller v. Krotz, 18 Iowa, 353; Bowen v. Conner, 6 Cush. 132; Kent v. Waite, 10 Pick. 138; Child v. Chippel, 9 N. Y. 257.
    In construing deeds the courts will ascertain and give effect to the intention of the parties, and for that purpose will take notice of attendant circumstances. Hadden v. Shoutz, 15 Ill. 582.
    Easements acquired by deed can not be lost by non-user. Arnold v. Stevens, 24 Pick. 106; White v. Crawford, 10 Mass. 189; Smiles v. Hastings, 24 Barb. 49; Angell on Watercourses, sec. 252.
    Messrs. Rosenthal & Pence, for the defendant in error:
    If the thing granted or reserved be non-continuous, or is to be used only occasionally, like a way, it creates only an incorporeal hereditament—an easement—and not an estate or fee in the land. Garrison v. Rudd, 19 Ill. 563; Washburn on Easements, 29, 31.
    Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming. They must inhere in the land, concern the premises, and be essentially necessary to their enjoyment. Washburn on Easements, *161; Karmuller v. Krotz, 18 Iowa, 357; Morgan v. Mason, 20 Ohio, 409; Garrison v. Rudd, 19 Ill. 558; Louisville and Nashville R. R. Co. v. Koelle, 104 id. 455.
    If an easement has been granted by deed, the ordinary rule which governs in similar cases prevails, namely, that the rights of the parties to the deed must be ascertained from the words of the deed, and the extent of the easement can not be determined from any other source. Goddard on Easements, 275.
    Non-user is not exactly of the same character as adverse enjoyment, though the length of time—twenty years—which it takes to destroy an easement by non-user is the same as it takes to acquire a title by adverse enjoyment. Washburn on Basements, chap. 5, sec. 6, p. 669.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Henry Kuecken and Bertha Reinke, to compel the opening of a certain alley, extending from the west end of two certain lots owned by the complainants, south across the west end of two lots owned by John Voltz, to Chicago avenue. The location of the property and the alley will be better understood and more easily comprehended by an examination of a plat introduced in evidence, which is as follows:

In 1856 George B. Chandler owned eighty-nine feet front-on Wells street, extending west ninety feet deep on Chicago avenue. On the 15th day of May of that year, Chandler sold to Michael O’Neil, by written contract, which was followed by a deed on June 1, 1860, the south forty-nine feet of said tract. The contract and deed both contained the following clause: “Excepting and reserving therefrom ten feet across the west end of said premises, for an alley. ” This forty-nine feet passed, by mesne conveyances, to John Yoltz, the defendant in the bill, the deeds conveying the property containing the same exception and reservation embraced in the contract and deed from Chandler to O’Neil. In 1860 Chandler sold Keinke twenty feet front on Wells street, adjoining on the north the forty-nine feet sold to O’Neil. Prior to this, however, (in 1859,) he conveyed the twenty feet north of the last named tract, and said tract passed, by mesne conveyances, to Kuecken. The deeds conveying each of these tracts contained the same exception and reservation contained in the deed to O’Neil. The circuit court, on the hearing, on the evidence, held that the reservation contained in the deeds was for the benefit of Chandler alone, and that no easement was created for the benefit of the different owners of abutting property, and dismissed the bill.

It is conceded in the argument that an easement was created by the exception and reservation contained in the deeds under which Chandler conveyed the property, but it is contended by the defendant’s counsel that the language used created an easement or right of way in gross, personal to the grantor, (Chandler,) while, on the other hand, complainants insist that a proper construction of the language employed in the deeds preated an easement appurtenant, which runs with the land.

Easements are of two kinds—appurtenant or appendant, and in gross. The former run with the land, and pass by a deed of conveyance; but the latter are personal, are not assignable, and will not pass by a deed of conveyance. The grant óf a way is never presumed to be in gross when it can fairly be construed to be appurtenant to the land. (Washburn on Basements, chap. 1, sec. 3.) There is another rule that may be resorted to in construing the language contained in the deeds, which is declared in Hadden v. Shoutz, 15 Ill. 582, as follows: “In construing deeds or other writings, courts must seek to ascertain and give effect to the intention of the parties, and for that purpose they may and will take notice of attendant circumstances, and by them determine the intention of the parties.”

Had Chandler occupied the two lots now owned by complainants, at the time he sold O’Neil the forty-nine feet, there might be more force in the argument that the reservation of the ten feet was personal, and intended merely for his own use, to reach Chicago avenue from the rear end of his two remaining lots. But such was not the case. The lots were then vacant, and Chandler resided in another State. Again, why was the same reservation and exception incorporated in the deeds which were subsequently made to the complainants for the two remaining lots, if there was no purpose or intention of establishing a right of way over and across the west end of all the property ? If the reservation over the forty-nine feet was intended merely as a personal right for the benefit of Chandler alone, when, he subsequently sold the other lots it is fair to presume the- deeds would have contained no such exception and reservation. On the other-hand, if the original intention was to establish an alley for a right of way over the property for the benefit of all subsequent owners, we can perceive a reason for each deed conveying each lot containing the same exception and reservation, as they do. The situation and location of the property, the manner in which it was used, in connection with the reservation and exceptions contained in all the deeds from Chandler, clearly indicate an intention to create or establish an alley for a right of way, in the nature of an easement in the property granted to O’Neil, for the benefit of the other adjoining property, at the time owned by Chandler. Doubtless, Chandler, at the time he conveyed the forty-nine feet, expected and intended to sell the remaining two lots, and the reservation of an alley across the west end of the land sold was intended as an appurtenant to the remaining lots, which might enhance the price, as being beneficial to a future purchaser.

A concise statement of a grant which may be regarded appurtenant, may be found in Whitney v. Union Ry. Co. 11 Gray, 365. It is there said: “When it appears, by fair interpretation of the words of a grant, that it was the intention of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, and originally forming, with the land conveyed, one parcel, such right will be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee; and the right and burden thus created will pass, respectively, to, and be binding on, all subsequent grantees of the respective lots of land.” From the language of the deed there was certainly no intention of conveying the title to the ten feet in question to O’Neil, but, on the contrary, the ten feet was expressly excepted and reserved from the grant, and dedicated to a specified purpose,—to be used for an alley. See, also, Winthrop v. Fairbanks, 41 Maine, 307; Kent v. Wait, 10 Pick. 138; Mendell v. Delano, 7 Metc. 176; Karmuller v. Krotz, 18 Iowa, 353.

The case of Garrison v. Rudd, 19 Ill. 558, has been cited as an authority by the defendants. The case is, however, so different from the one under consideration that it can not be regarded as an authority here. The reservation in the case cited was merely the joint use of a certain alley from a public highway to a river. Neither terminus was on the land of the party claiming. The court properly, under the facts there presented^held the grant to be in gross.

The defendants also rely upon twenty years’ adverse possession of the alley to defeat the relief claimed in the bill. We do not regard the evidence relied upon sufficient to establish this defence. O’Neil erected a house on Chicago avenue, on the ten feet in question, in 1857, and the property was thus occupied until 1871, when the house was destroyed by fire, and no buildings were afterwards erected on the ten feet. Jl sidewalk was built in the street after the house was destroyed, but this can not be regarded as an adverse possession of the land in question. In order to avail of the Limitation law, the proof must show twenty years’ continuous adverse possession, while here the evidence shows only about fourteen years.

It is also claimed that complainants lost their rights by non-user. Easements acquired by deed, as a general rule, are not lost by non-user, where there is no adverse possession to bar the right. Angell on Water-courses, sec. 252; White v. Crawford, 10 Mass. 189; Arnold v. Stevens, 24 Pick. 106; Smith v. Hastings, 24 Barb. 49.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    John Grim et al. v. Cornelius Murphy.

      Filed at Mt. Vernon June 13, 1884.

    1. Boundaries—settled by parol agreement. The owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line thus agreed upon, is binding and conclusive, not only upon them, but also upon their grantees.
    2. Limitation—adverse possession—how it may be shown. Adverse possession of land under the Limitation law may be shown by inference, from circumstantial evidence. In respect to a disputed boundary line, the fact that the defendant placed his fence twenty feet beyond or outside of what was generally regarded, and he was told was, the true line, and that he built his house and planted his orchard on the disputed land, are circumstances from which a jury may infer his possession was adverse, and that he claimed to own the land,—and this, too, in the absence of any declarations of such claim of adverse possession. It is not true that adverse possession can be proved only by clear and positive evidence. It may be proved by any legitimate testimony, and by a mere preponderance, like any other issue in a civil suit.
    3. Same—what regarded as adverse possession. If'the owner of a tract of land, in inclosing the same, builds his fence on one side in doubt as to whether it is on his own land, and declares that if it is not on the true line, when established he will conform to it, the possession outside of the true line, and up to the fence, will not be adverse; but if such party believed his fence was within the true boundary line, and he took possession and occupied it under that belief, his possession would be adverse. Nor would it matter that he made a statement that if it should be established that the fence was not upon the true line before the bar of the statute had run, he would submit and regard the true line under his possession subservient to the true owner.
    4. Instbuction—calling attention to an issue not in the case. In ejectment to recover a strip of land which had been occupied by the defendant for twenty years, under a claim that it was within the boundaries of his quarter section, in which the twenty years’ Limitation law was set up as a defence, the court instructed the jury, for the plaintiff, that if the defendant, by his declarations and acts, admitted that his fence was not a fixed and settled boundary line between the lands in dispute, they should find the Statute of Limitations was no bar. There was no pretense that the defendant ever claimed the fence as the boundary line, but he did claim that the centre of the road along and twenty feet south of his fence was the line between the two tracts: Held, that the instruction was erroneous and misleading, as calling the attention of the jury from the real to a fictitious issue.
    5. Same—assuming facts to be true which are controverted. An instruction which assumes as true certain statements and admissions of the opposite party which are controverted facts for the jury, and that they were absolute and unconditional, while the evidence clearly tends to prove that if made they were conditional, is highly calculated to mislead the jury, and is erroneous.
    6. Same—construed, as being contradictory. In a contest over a strip of land, between adjoining owners, growing out of a dispute as to the true line dividing the two tracts, in which the defendant relied upon the Statute of Limitations, the court, at the instance of the plaintiff, instructed the jury that if the defendant occupied the land up to his fence because he believed it to be the true line, without intending to claim to the fence if it should not be the line, then an element of adverse possession was wanting: Held, that the instruction was not accurate, and should not have been given, its language being self-contradictory.

      Appeal from the Circuit Court of Jasper county; the Horn William C. Jones, Judge, presiding.
    Mr. John H. Halley, and Mr. W. H. McDonald, for the appellants:
    The testimony of the witnesses upon the question of the parol agreement to fix the boundaries, as well as the adverse possession, is not controverted, and we insist that the law is with the appellants on both points. Cutler v. Callison, 72 Ill. 113; Kerr v. Hitt, 75 id. 51; Hubbard v. Stearns, 86 id. 35; McNamara v. Seaton, 82 id. 498; Tyler’s Law of Boundaries, Fences, etc. 254-256.
    As to the question of adverse possession under the plea of the Statute of Limitations, see Huntington v. Whaley, 29 Conn. 391; Tyler’s Law of Boundaries, Fences, etc. 335; Libeau v. Bergeson, 14 La. 489.
    We insist that the law is, that original monuments- afford the best evidence as to the line run by the government surveyors. McClintock v. Rodgers, 11 Ill. 279; Yates v. Shaw, 24 id. 367.
    Mr. J. M. Hoeny, and Mr. P. A. Brady, for the appellee:
    We insist that the evidence does not establish the agreement respecting the boundary line with that certainty and clearness required by law. The evidence does not bring the case within the rule in McNamara y. Seaton, 82 Ill. 500.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of ejectment, for the recovery of a strip of ground sixty-three feet and nine inches wide at the west end, and fifty-nine feet wide at the east end. It is claimed to be a part of the north-west quarter of the north-west quarter of section 4, town 8, range 10 east. The controversy grows out of a dispute as to the true line between the land of Grim and appellee, and as to whether the occupancy of the strip in controversy by Grim for more than twenty years, under an agreement between him and a former owner of appellee’s land under the claim of ownership, is a bar tov controverting the question as to where the line was really located by the government surveyors.

In the case of Cutler v. Callison, 72 Ill. 113, it was held that the owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line thus agreed upon, is binding and conclusive, not only upon them, but upon their grantees. It is upon the principle, not that title passes by the parol agreement, but that the extent of the ownership of the land of each has been agreed upon, settled and determined, and that when acted upon, the parties and privies are estopped to question the executed agreement. The same doctrine is announced in the cases of Crowell v. Maughs, 2 Gilm. 419, Kerr v. Hitt, 75 Ill. 51, Hubbard v. Stearns, 86 id. 35, McNamara v. Seaton, 82 id. 498, Yates v. Shaw, 24 id. 367, and Bauer v. Gottmanhausen, 65 id. 499. We, after such repeated and uniform decisions of this court, especially when it has become a rule of property, must regard the doctrine as settled.

It was held in some of these cases, that when the boundary line was thus agreed upon, and possession taken and held for twenty years or more, a recovery was barred by the Statute of Limitations. Here, Black, the agent for the land appellee now owns, testifies that as early as in 1852 he had the land surveyed, and the corners and monuments placed by the government surveyors were found, and the line established by them; that he showed Grim that line, and it was adopted by them as the line; that both tracts were improved by them to conform to that line; that Black first fenced, and Grim afterwards, in 1858 or 1859 ; that he placed his fence where it now stands; that he set his orchard and built his house on the land now claimed by appellee, and Grim has had it in actual occupancy ever since, more than twenty years before this suit was brought. Grim testified to substantially the same as Black,—nor do we find that this evidence is contradicted by any witness testifying in the case. But it is attempted to break the force of this evidence by proof of admissions made by Grim. There are witnesses who testify, (and appellee of that number,) that Grim, within the twenty years, had proposed to buy the strip in controversy, or stated he would purchase it if the line was established different from his claim. Appellee first stated that Grim proposed to purchase, but on cross-examination he says Grim only proposed to purchase in case the line was established otherwise than he claimed, and adverse to him. There is no evidence that he ever, after the expiration of his twenty years’ possession, unconditionally proposed to or said he.would buy. Grim testified that he had no recollection of such an offer, but may have said he would purchase to avoid suit. There are a number of witnesses who testify that the line was always regarded by the neighbors as being twenty feet south of Grim’s fence, and they all fenced their lands to conform to it as the line. It appears that several recent surveys were made, all running from one to four rods north of what had been regarded previously as the line. It appears that no two of these later surveys correspond, but vary from one to three rods from each other.

Under this evidence it was essential that the jury should have been accurately instructed, which was not done. The third of plaintiff’s instructions is manifestly incorrect as a legal proposition. It is this:

“That adverse possession sufficient to defeat a legal title, when defendants have no paper title, can not be made out by inference, but must be established by clear and positive proof, and the possession must be continuous and uninterruptecl for twenty years, and must be such as to show clearly that the defendant claims the land as his own, openly and exclusively; and unless the proof clearly shows this fact, the verdict should be for the plaintiff, on the issue of limitation. ”

This instruction excludes all inferences from circumstantial evidence. Proof by that character of evidence is always by inference. The fact that Grim placed his fence twenty feet north of what was generally regarded, and he was told by Black was, the true line, and that he built his house and planted his orchard on the land in dispute, were circumstances from which a jury might infer his possession was adverse, and he claimed to own the land,—and this, too, in the absence of all declarations of such claim of adverse possession. This instruction no doubt misled the jury, as it excluded all the circumstances tending to establish adverse possession. And it is vicious in another respect. It is not the law that adverse possession can be proved only by clear and positive evidence, as it may be proved by any legitimate testimony. That fact may be proved by a mere preponderance, like any other issue. This instruction was fatally erroneous, and should not have been given.

We fail to find any evidence on which to base the fourth of plaintiff’s instructions. It informs the jury that if Grim, by his declarations and acts, admitted within twenty years that the fence was not a fixed and settled boundary line between the lands in dispute, the jury should not find the statute was a bar to the action. This was highly calculated to mislead- the jury. There seems to be no pretense that Grim ever claimed the fence as the boundary line, but he did claim that the centre of the road, twenty feet south of the fence, was the boundary line between the tracts. This instruction turned the whole question of the Statute of Limitations on a question not then or ever before made by Grim. The giving this instruction misled the jury from the real to a mere fictitious issue. Grim may have innumerable times said the fence was not the boundary line, and yet be permitted to show that it was south of the fence, as he claimed. This instruction was manifestly erroneous.

The fifth instruction of the, series is not accurate, and should not have been given as framed. It asserts that if the defendant occupied the land up to the fence because he believed it to be the true line, without intention to claim to the fence if it should not be the line, then an element of adverse possession is wanting. This language seems to be self-contradictory. If he took possession and improved to the fence, believing it to be within the line, he manifestly claimed to the fence. He evidently, under such circumstances, claimed to the fence, without asserting the claim in words. Such a claim, accompanied by possession for twenty years, would be adverse, and bar a recovery. If, however, he built the fence in doubt as to whether it was on his own land, and declared that if it was not the true line, when it should be established he would conform to it, then the possession would not be adverse; but if he believed the fence was within the boundary of the true line, and took possession, improved and occupied it under that belief, then the possession would be adverse. Nor would his statement that if it should be established that it was not the true line before the period of the bar of the statute had run, he would submit to and regard the new line as the true one, render his possession subservient to the true owner. He would, by such declarations, only indicate an intention to obey and not resist the law. Such declarations, without in some manner recognizing the claim of the true owner, would not stop the running of the statute. There is no evidence in the record that he ever recognized the title appellee holds as extending into his inclosure. In all his conversations about purchasing this strip, his statement was conditional that the line proved to be different from what he claimed. He, so far as the record discloses, never admitted the line was at any other place than in the centre of the public road.

The seventh of plaintiff’s instructions is erroneous. It is this:

“The court instructs the jury, that if they believe, from the evidence, that within the last twenty years the defendant Grim, one of the defendants, while he was the sole owner of the land in controversy, offered to buy said land, that is a circumstance, if unexplained, to show that he did not claim the land adversely to the plaintiff; and his repeated acts or statements to other persons, of the same nature, within the last twenty years, are proper to be considered in arriving at a verdict on the plea of limitation. ”

This instruction assumes as true that Grim had repeatedly-stated, or by his acts admitted, the centre of the road was not the true line. This was a controverted fact, for the consideration of the jury. The instruction not only assumes such admissions were made, but Were absolute and unconditional. The evidence clearly tends to prove that if made, the offer was conditional. It was highly calculated to mislead the jury, and should not have been given.

The evidence tended strongly to establish the defence, and the finding would probably have been the other way had the jury been fairly instructed. We are not satisfied with the verdict, and think the case should be submitted to another jury, under proper instructions.

The judgment of the court below is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    John Dawson v. Jane Dawson.

      Filed at Ottawa June 13, 1884.

      Alimony—of its reasonableness. After a decree of divorce in favor of a wife, giving her the custody of the two children of the marriage, (a son, aged fifteen years, and a daughter, aged thirteen years,) it was agreed that the husband should pay the wife $150 per month, which was more than one-half of his net income, and give her all his household furniture, worth from $3000 to $5000, and the court decreed accordingly. The wife agreed to this, with full knowledge of the husband’s circumstances, and was in no respect deceived or misled, and it appeared that she brought to the husband no property, and that the burden of paying taxes and assessments, and rebuilding, repairing, renting, collecting rents, etc., was left upon him. Afterward, the wife filed her petition to be allowed a further sum for the support and education of the children, and the court required the husband to pay $25 per month additional alimony, and to pay the wife’s solicitor $200, and the costs of the proceeding: Held, the sum first allowed was sufficient, and that the wife should pay her own attorney’s fees, and the supplemental decree increasing the alimony and directing the husband to pay the attorney’s fees was reversed, each party to pay the costs incurred by him or her.
    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.
    Jane Dawson filed her bill in chancery, praying for a divorce from her husband, John Dawson, in the circuit court of Cook county, on the second day of December, 1881, alleging therein, among other things, her marriage with John Dawson, the birth of two children, the issue of such marriage, the ownership of certain ” property by John, and that he had been guilty of habitual drunkenness for more than two years last past. John Dawson answered the bill, denying the material allegations, but subsequently, by leave of the court, he withdrew his answer, and the bill was then taken pro confesso against him. At the April term, 1882, of the court, the cause came on to be heard, and was heard on evidence, and the court thereupon decreed that the parties be divorced, that Jane have the custody of the two children, and that John pay her $150 per month alimony.
    On the third day of November, 1882, an order of the circuit court of Cook county was made, allowing Jane Dawson to file a petition to increase the amount allowed for alimony, and to add thereto an amount for the education and support of the children. The petition was forthwith filed, and alleges that the amount of alimony decreed is inadequate for the support of the petitioner and the education and nurture of the children; that the defendant did not fully disclose all his property in the divorce suit,—setting forth what she believes to be the value of the property, and stating that defendant has threatened to, and that she fears he will, convey or incumber his property, etc. The defendant, John Dawson, answered the petition, denying that the amount awarded as alimony is insufficient for the support of the complainant and the education and nurture of the children, alleging that in addition to the amount awarded as alimony, complainant had enjoyed, free of charge, $5000 worth of furniture belonging to him.
    On the 19th of December, 1882, the court decreed that the cause be referred to a master in chancery, to “take further testimony, and examine the testimony already taken, and to inquire and report as to the value of the defendant’s estate, and the amount of his income therefrom, at the time of the filing of the petition, * * * and the situation and circumstances of the respective parties, and what would be a reasonable sum to be allowed to the petitioner for the support and maintenance of herself and children. ”
    On the 7th of May, 1883, John Dawson filed his petition in the same court, reciting the proceedings in the divorce suit, and alleging that by the decree therein Jane Dawson was to have the care and custody of the children, and the sum of $150 dollars per month as and for alimony; that “it was the intention of the court, and the understanding of counsel for all parties concerned, that the said sum of $150 should go to the support of the said Jane Dawson and the said children; that through inadvertence of counsel in drafting said decree, the order of court was not expressed in words unequivocal; that the said Jane Dawson now seeks to take advantage of the wording in said decree, by asking for an allowance to be decreed to said children; ” and the petition concludes by praying that the decree be so reformed that the intent and meaning of the court may be expressed in words and terms unequivocal. Jane Dawson answered this petition, denying that the decree therein referred to, or the original draft thereof, is or was equivocal, or that any error or mistake was made therein in reference to the said alimony or the support of said children.
    Afterwards, on the 14th day of May, 1883, the court ordered that the -petition of John Dawson, so filed therein, stand as a bill to amend said decree, by reason of a mistake therein, with the right to Jane Dawson to file a cross-bill; and thereupon, on the 18th day of May, 1883, Jane Dawson filed her cross-bill in said cause, in which, among other things, she alleged that in the divorce case the court ordered that she have and retain the household furniture as her property ; that by negligence in drafting the decree this order was omitted therein, and also that a mistake was made in describing the real estate of the defendant; that by want of a provision in said decree that the payment of alimony shall continue during her natural life if she should survive'the defendant, her right to recover either alimony or dower after his decease would be involved in great doubt, and prays that said decree be corrected in the respects indicated, etc. The answer of John Dawson admits that a mistake was made in the decree in omitting to include therein the personal property, and in the description of the real estate.

      On the 21st day of May, 1883, the master in chancery made his report in the case of the petition to increase alimony and for an allowance for the children, in which he finds that the complainant and defendant, for several years prior to the decree in said cause, lived with their two children and one servant at a house known as No. 761 West Monroe street, Chicago, furnished with furniture worth from $3000 to $5000, (which was paid for by defendant’s money,) in a comfortable manner, defendant furnishing complainant with money for all wants she expressed; that since the rendition of said decree complainant has resided in the same house, using the same furniture, with her two children and the said servant; that she is paying a rent of $55 per month, and $15 per month for servant hire, and living in a manner less expensive than before the decree; that complainant has since the said decree enjoyed good health, and is now enjoying good health; that her son is aged fifteen years, and her daughter thirteen years; that the said children are in need of clothing, and for current expenses at school; that they attend the public schools of Chicago, the daughter taking music lessons; that complainant has been unable to pay her current expenses from the $150 per month allowed her; that since the rendition of the decree the gross income of the defendant has increased from what it was then stipulated to be, about thirty per cent; that since November 1, 1882, the gross income of defendant has been about $495 per month for all the year 1882; that the average net income of defendant was $333 per month, not deducting the interest on a loan of $10,000, made by defendant in November, 1881, at six per cent per annum, and that defendant, in July, 1881, was the owner of $10,000 in Cook county bonds; that defendant testifies he has no personal property excepting his clothing, and has had to borrow money for his personal expenses; that defendant must have spent in nineteen months more than $20,000; and concluding that defendant should be required to pay for the maintenance, etc., of said children,—to said son the sum of $15 per month, and for said daughter the sum of $20 per month.
    John Dawson filed the following exceptions to this report:

      “First exception—For that the said master has, in the said report, made an unjust allowance for the minor children of said Jane Dawson and John Dawson, inasmuch that the defendant should be required to pay for the maintenance, clothing, and personal expenses of said children,—for said son the sum of $15 per month, and for said daughter the sum of $20 per month,—when the said court had already made a fair and equitable allowance for said children, to be paid by the said defendant.

      “Second exception—For that the said master has evidently made said report taking as a basis for the same the evidence produced before him as to the income of the said defendant after the third day of November, 1882, such testimony having been ruled out by said court, as will more fully appear from the said testimony marked entitled Dawson v. Dawson, testimony before the master, page 143, record.
    “ Third exception—For that the said master has incorrectly and erroneously stated in the said report the net income of the said defendant for the year 1882, and prior to the said third day of November, 1882, in figures far exceeding the actual sum of net income to the said defendant for the said year of 1882, and prior to the said third day of November, 1882, as will more fully appear from the said testimony.

      “Fourth exception—For that the said master has based said report, and his conclusions upon what he thinks is true, from the evidence that the said defendant, in July, 1881, was the owner of $10,000 in Cook county bonds, and that the said defendant had, in November, 1881, $10,000, which he received on a loan, notwithstanding the said defendant’s uncontradicted testimony that he, the said defendant, has no personal property except his clothing and household furniture now used by the said petitioner, and had to borrow money for his personal expenses, as will more fully appear from said testimony, ”
    The exceptions were overruled by the master, and renewed in the circuit court.
    At the June term, 1883, of the circuit court, the following decree was entered in the several proceedings:
    “This cause coming on to be heard, upon the petition of the said Jane Dawson, the answer of the defendant, and the replication of the petitioner thereto, and the petition of the said John Dawson taken as a bill of review, the answer thereto, and the replication of the said John Dawson to said answer; also upon the report of the master in chancery of this court, who makes report of what would be a reasonable allowance to be paid by said defendant to said petitioner, Jane Dawson, for the support and education of the two children of the said parties, and the objections of the defendant to the said master’s report; and also the motion of said petitioner for an order on said defendant to pay her solicitor’s fees, and the proof taken in said cause, and the testimony introduced and heard in open court; and the court having heretofore rendered a decree in said cause dissolving the marriage between the petitioner and the defendant, and by agreement of the parties directing the payment by the defendant to said petitioner of $150 per month as her alimony, it then appearing to the court, by stipulation filed in said cause, that the gross monthly income of said defendant was $385 per month, and that said agreed sum of $150 per month was a fair allowance for said petitioner; and the court having now heard the arguments of counsel for the respective parties, and being fully advised in the premises, finds:
    “That since the entry of said decree the monthly income of the said defendant has increased $107 per month, by an increase in rents of his property, beginning November 1, 1882, and that the children of the said parties are in need of means for clothing and for current expenses at school, with which the said petitioner is not able to furnish them from her alimony, and that the sum of $25 per month in addition to the amount now payable to her by said decree, will enable said petitioner to properly provide for said children; that it is not necessary to change or alter said original decree as to matter complained of in the defendant’s petition, and the prayer of the defendant’s petition to that end should be denied; that in all things except as to the amounts to be paid to said petitioner for said children, the report of the master herein should be confirmed; that the said petitioner is unable to pay the fees of Frank A. Johnson, her solicitor herein, and that $200 is a reasonable fee for the services of her said solicitor herein, and it is therefore ordered, adjudged and decreed, that in all things except the amount to be paid by said defendant to said petitioner for the said children, the report of the master herein be confirmed, and that the said decree heretofore entered herein as to the allowance of alimony and maintenance be and the same is altered as follows: That the said defendant, John Dawson, on the tenth day of each and every month hereafter, beginning June 10, 1883, instead of paying the said petitioner the sum of $150, shall pay to the said petitioner the sum of $175, as and for alimony and for support and proper education of said children, during the natural life of said petitioner, or until the further order of. this court; and the payment of said sum of $175 per month is hereby made a lien and charge upon all the real estate of said defendant ; and that the defendant pay to Frank A. Johnson, solicitor for said petitioner, the sum of $200 as solicitor’s fees, within sixty days from the rendition of this decree, and that the defendant pay the costs of this proceeding, to be taxed by the clerk of this court, within sixty days from the rendition of this decree; and that in default of the payment of any of said sums in the manner and at the time herein provided, execution issue therefor, and that the injunction issued in this cause be and the same is dissolved.”
    From this decree John Dawson appealed to the Appellate Court for the First District, and that court, at its October term, 1883, affirmed the decree of the circuit court, and this appeal is from that affirmance. The errors assigned bring before the court the questions discussed in the opinion.
    Mr. M. R. Freshwaters, for the appellant.
    Mr. Frank A. Johnson, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We think there was error in not sustaining John Dawson’s second and third exceptions to the master’s report. The decree directed the master “to inquire and report as to the value of the defendant’s estate, and the amount of his income therefrom, at the time of the filing the petition.” The petition was filed on the second day of November, 1882, but the report of the master is based on the income derived, or, rather, that he presumed would be derived, from the defendant’s estate after that time.

Counsel for Jane Dawson only claims, as we understand his position, that the evidence shows a net income from John Dawson’s estate for the year 1882,—i. e., prior to the 1st of November, 1882,—of $330.56 per month, and out of this amount the decree for alimony gives her $150 per month,— only a small fraction less than one-half,—in addition to imposing all the costs and expenses of the litigation upon him. Adding to this all the household furniture, valued at from $3000 to $5000, and taking into consideration that none of the property from which the income is derived was obtained from Jane Dawson, it would be difficult to comprehend why, on that basis, the allowance should be regarded as unreasonably low.

The estimated income after November 1, 1882, is not only-in direct opposition to the direction of the decree, but it is not sustained by the evidence, as we understand it, but is purely conjectural. The master’s report, in this respect, is sought to be sustained by two modes of calculation,—one based on what is assumed as the fair result of the evidence as to the values of rent to be paid, which gives a monthly gross income of $496.87; and the other based on a stipulation filed by the parties at the time the original decree was rendered, whereby it was admitted by John Dawson that his gross income was $380 per'month, and adding thereto $200 per month for the increased rental value of eight stores or stalls at the corner of Jackson and. Clinton streets. Neither of these estimates takes into account the necessary and reasonable expenses of the property, and yet it is obviously impossible to make a just estimate of what a party is able to pay from an income without taking them into account. Taxes and assessments must be paid, buildings must be renewed or repaired from time to time, and existing liens, if any, must be renewed, or, at least, the interest kept down. To illustrate: From a gross income of $500 per month, costing $250 per month to produce it, it is evident there can be but a capacity of paying $250 per month.

But since the year commencing November 1, 1882, would not expire until November 1, 1883, it is impossible that the expenses and costs of producing that rent, as well as the fact „ of the actual collection of the whole amount of rent, can be certainly known before that time,—yet all the evidence taken in this cause was taken on December 12, 1882, January 18, 1883, and February 3, 6 and 10, 1883, respectively, the last more than eight months before the expiration of the year. Moreover, the tenants occupying the premises testify to an unwillingness to continue paying the increased rent, and since they are only tenants from month to month, they might at any time refuse to continue to do so, and after giving the ■ requisite notice, terminate their relation. There is evidence, also, that the property on the corner of Clinton and Jackson streets, from which the chief prospective increase in rents is to be derived, is in an unsafe condition, and that it will cost at least $2000, to repair the premises. In addition to this, the same property is incumbered by a trust deed to secure the payment of $10,000, and accruing interest at six per cent per annum, executed in 1881, and before Jane Dawson filed her bill for divorce. The evidence seems to show that this indebtedness was incurred in good faith. In the chief part of the property from which the income is derived, Dawson is in partnership with one Miller, and Miller testifies that Dawson’s net income for the year 1882, counting up to December 1, 1882, was only $299.60 per month, and that for -1881 it was $236.T2 per month. Dawson’s estimate is still less for the year 1882,—$249.

The master seems, in his report, to lay some stress upon an admission of John Dawson that he had $10,000 of Cook county bonds, testified to by Jane Dawson and her daughter. We think this can cut no figure in the present proceeding.. John Dawson denies, on oath, the ownership of any personal property other than his wearing apparel, and Jane Dawson made the allegation of the same admission, coupled with the charge that he had subsequently wasted and squandered the whole $10,000, in her bill for divorce, which was sworn to by her, and Dawson did not then claim to have such bonds. If they were then spent, they can not now augment the amount of his estate, so as to form the basis of an additional allowance.

There is no pretense that John Dawson has acquired any additional property yielding an income since the decree of divorce was rendered, and the charge in the petition that he “did not fully disclose all his property in the divorce suit,” is wholly unsustained by the evidence. Nor is there any proof that he has become more reckless in the management of his property since the rendering of the decree of divorce. The amount of alimony seems to have been agreed to, at the time, with full knowledge on the part of Jane Dawson of every fact material to a comprehension of her rights. She fails to show that she was deceived or misled in any respect. The amount decreed her was something more than half her husband’s net income, and on a fair consideration of the evidence it still bears substantially that relation to his income. He, meanwhile, has the burden of paying all taxes and assessments, rebuilding, repairing, renting, collecting, etc. We think she should be satisfied. The effect of the decree in first giving her the care, custody, etc., of the two children, and then giving her $150 per month for alimony, was, that that amount included all to which she was entitled from her husband’s estate. She sought the care, custody, etc., of her children, and the court gave them to her, and then gave her the $150 per month as a support. By asking and assuming the care and custody she assumed the duty and obligation of support. It would be unprecedented, especially where, as here, the wife brings no estate to the husband, to give'her, on divorce, more than one-half of his net income, and then charge him with an additional amount to be paid her for the nurture and education of her children.

We think there was no sufficient reason for the filing of this petition. So far as there was a mistake in the decree there was no disposition to resist its correction. It might have been done without expense,—at least it was incumbent on the petitioner to have first made the effort to have had it so done. And there was no material change in the condition of the parties after the decree for divorce was rendered. Under all the circumstances, we think Jane Dawson should pay her own attorney’s fees and costs in this proceeding. The decree below increasing the amount of alimony to be paid by John Dawson, and directing that he pay $200 to Frank Johnson, her solicitor, is reversed. The costs incurred herein by John Dawson will be taxed against him, and those incurred by Jane Dawson will be taxed against her.

Decree reversed.


author: Mr. Justice Craig

text:
    Samuel Ewing v. Sandoval Coal and Mining Company.

      Filed at Mt. Vernon June 13, 1884.

    1. Allegations and proofs—must correspond. As a general rule, in equity the proofs and allegations of the bill must correspond, and a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the case made.
    2. Parol evidence—to show mistake in a written instrument. Parol evidence is admissible on a bill in equity to reform a written contract on the ground of mistake, to establish the fact of there being a mistake; and such cases, like cases of fraud, form an exception to the general rule, which excludes parol evidence to vary written contracts.
    3. Mistake—of the quantum of evidence. A deed or other instrument of writing should not be reformed for mistake unless the evidence of it is clear and positive. The mistake must be clearly made out by satisfactory proofs.
    4. Grant of right to mine and remove coal—of rights incident thereto —relief in chancery without special prayer. A deed giving the grantee the right to mine, excavate and remove coal under a. certain tract of land, carries witi it, as an incident, the right to go upon the land and dig for coal, or to sink a coal shaft. And it is not necessary that a bill to reform a deed conveying such right to mine coal, for a mistake in the description of the land, should contain a special prayer for a decree authorizing the grantee to go upon the land. The deed, when corrected, confers this right of itself.
    Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.

      , Messrs. W. & E. L. Stoker, and Mr. G. Van Horebeke, for the plaintiff in error:
    A complainant can not make out one case by his bill and another by the proofs. The allegations and proofs and decree must agree. Hall et al. v. Towne, 45 Ill. 495.
    A party complainant must stand or fall by the case he makes in his bill. White v. Morrison, 11 Ill. 361; Bowen v. Bowles, 21 id. 17; Chaffin v. Heirs of Kimball, 23 id. 36; Ohling v. Luitjens, 32 id. 23; McKay v. Bissett et al. 5 Gilm. 505.
    The evidence must be clear and positive that the mistake was made, and also that the conditions precedent were all strictly complied with by the grantee, before a court of equity will reform the deed and compel a specific performance. 1 Story’s Eq. Jur. sees. 160, 161, note 2, and sec. 165.
    The court erred in granting a decree for more than the allegations of the bill asked or complainant prayed for. It authorized the complainant to sink a shaft upon the defendant’s land and excavate coal. Simons v. Guthrie, 9 Cranch, 19; Hall et al. v. Towne, 45 Ill. 493.
    Mr. Henry C. Goodnow, and Mr. C. E. Jennings, for the defendant in error:
    Chancery has jurisdiction to correct mistakes. A remote grantee may compel the correction of a mistake. Mills et al. v. Lockwood, 42 Ill. 111; Wilson v. Byers et al. 77 id. 76; 1 Story’s Eq. 169, see. 165.
    If the plaintiff in error sold the right to mine coal under his land, then, under the familiar principle of law that he who sells another a piece of property also sells the right to enjoy it, he sold the right to enter upon the land and dig for the coal, otherwise the purchaser could not enjoy the property purchased. The defendant is a remote grantee of the plaintiff, hence it can enforce its equity and have the mistake corrected. 1 Story’s Eq. sec. 165; Mills et al. v. Lockwood, 42 Ill. 111; Wilson v. Byers et al. 77 id. 76.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by the Sandoval Coal and Mining Company, against Samuel Ewing, to correct a mistake in a deed executed on the 6th day of November, 1877, by Samuel Ewing, to Ozias Townsend, in trust for the St. Louis and Sandoval Coal and Mining Company. The deed conveyed the exclusive right to mine and excavate for coal, and to remove the same under and beneath the east half of the north-west quarter of section 17, township 2, north of range 1, east of the third principal meridian, in Marion county, and it is alleged in the bill that it was the intention to convey the east half of the north-east quarter of section 17; that the scrivener by mistake inserted in the deed, “east half of the north-west quarter of section 17, ” when the grantor and grantee intended to insert in the deed, “east half of the north-east quarter of section 17. ” The defendant put in an answer to the bill, and the court, on the hearing, found that all the material allegations of the bill were sustained by the evidence, and rendered a decree as prayed for in the bill, to reverse which the defendant sued out this writ of error.

It is first contended that the decree is erroneous because the allegations and proofs do not agree. In proceedings in equity, as a general rule, the proofs and the allegations of the bill must correspond, and a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the case made. (Morgan v. Smith, 11 Ill. 194.) But upon an examination of the allegations of the bill, and the evidence introduced in support of those allegations, we find no substantial variance upon any material averment. A mistake in the description of the land embraced in the deed is alleged, and that is established by evidence. It does not militate against the decree that the mistake was established in part by parol evidence. Upon this point, Story, see. 156, says: “We must therefore treat the cases in which equity affords relief, and allows parol evidence to vary and reform written contracts and instruments upon the ground of accident and mistake, as properly forming, like cases of fraud, exceptions to the general rule, which excludes parol evidence, and as standing in the same policy as the rule itself.” A deed or other instrument of writing should not be reformed unless the evidence of mistake is clear and positive,—or as said by Story, sec. 157: “Belief will be granted in cases of written instruments only where there is a plain mistake, clearly made out by satisfactory proofs.”

But it is said that the court erred in decreeing more relief than the allegations of the bill and prayer asked, in this, that the decree authorizes complainant to enter upon defendant’s land and sink a coal shaft. The right to mine coal on the land was conveyed by the deed, and the right to go upon the land and dig for coal passed as an incident to the conveyance. We do not think it was necessary for complainant’s bill to contain a special prayer for a decree authorizing him to go upon the land. That followed as a matter of course. When the mistake was corrected the deed conferred the right to go upon the land and mine the coal, as specified in the deed. But even if it was necessary for the complainant to pray for relief of this character, the prayer -for general relief was all that was required.

In conclusion, we think the evidence fully sustains the decree, and we perceive no substantial error in the record. The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    City of Peoria et al. v. Robert Simpson.

      Filed at Ottawa June 13, 1884.

    1. Negligence—due care on the part of the plaintiff. In an action on the case against a city and the owner of premises in the city, to recover for an injury received from a neglect to keep the sidewalk in front of the premises in repair, the court instructed the jury that “when a city is vested, under the provisions of its charter, with the charge of its streets, roads, alleys and sidewalks, said city is bound to see that the same are kept in a reasonably safe state of repair; and such city is liable to parties injured by its negligence in so doing:” Held, that the instruction lacked the essential qualification that the plaintiff was, at the time of the injury, observing that due care and caution for his personal safety a reasonable person would do under the same circumstances.
    2. Same — of joint and several liability — distinction in this regard between a trespass and a neglect of duty. For separate acts of trespass separately done, or for positive acts negligently done, although a single injury is inflicted, the parties can not be jointly held liable to the party injured. If there is no concert of action, or no common intent, there is no joint liability. But a different principle applies when the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the injured party may have his election to sue all parties owing the common duty, or each separately, treating the liability as joint or separate.
    3. Same—in the case sidewalks are out of repair—liability of the city and of the private owner of adjacent premises. Where a duty rests upon both a city and the owner of premises within the city to keep the sidewalk in repair fronting the premises, and over an excavation, a failure to do so is a common neglect of duty, and both will be liable, either jointly or severally, to one injured in consequence of such neglect, who has himself exercised due care.
    4. Same—in the case of leased premises—liability as between landlord and tenant. The tenant in possession, and not the landlord, is responsible to third persons for injuries occasioned by a failure to keep the demised premises in repair, unless the owner has agreed to keep them in repair, or when the premises were let with the alleged nuisance upon them, in which case the owner, and not the tenant, is responsible for injuries caused by the nuisance.

      5. Instruction—correcting an error in one by stating the true rule in another. The practice of giving an instruction which, standing alone, does not correctly state the law of the case upon the facts, and then giving a separate instruction which, if read with the other, would announce the true rule, is not to be commended, if it is not an error. It is better that each instruction should be as nearly accurate as it can be made, in itself.
    6. Same—directing the jury as to extent of finding of damages. In an action to recover damages for a personal injury alleged to have been occasioned by the negligence of the defendant, the court instructed the jury, for the plaintiff, that if they found, from the evidence, the plaintiff had established his case, and was entitled to a verdict for damages, then it became their “duty to fix such damages at the full sum that upon the whole evidence” should “prove to be just and reasonable:” Held, that the instruction was calculated to create in the minds of the jury the belief that it was their duty, in case they found for the plaintiff, to fix his damages at the highest possible amount the evidence would justify, and that it was error to tell the jury, as a matter of law, that such was their duty.
    7. Same—suggesting what influences ought not to control as to extent of damages. In an action on the case against a city and another party, the court, in an instruction, told the jury that in forming an estimate of the damages sustained by the plaintiff, they had no right and should not permit themselves to be influenced by any consideration of what effect their verdict might have upon taxation in the case of the city, or upon his financial condition in the case of the other defendant: Held, that this was in no sense submitting a proposition of law to the jury, applicable to the facts, but a mere suggestion to them, which the court had no right to make.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. Ninian M. Laws, Judge, presiding.
    Mr. George A. Wilson, for the city of Peoria:
    Plaintiff’s ninth instruction is bad beyond question. It plainly tells the jury that no matter how negligent the injured party may have been, the city is liable to him in any event. Lovenguth v. Bloomington, 71 Ill. 238; Village of Kewanee v. Depew, 80 id. 109; Armour v. McFadden, 9 Bradw. 508; City of Chicago v. Watson, 6 id. 349.
    The sixteenth instruction is erroneous' in telling the jury that if they found for the plaintiff it was their duty to ñx his damages at the full sum the whole evidence proved to be just and reasonable. We deny that any court can instruct a jury to fix the damages at the full sum, etc. Chicago and Northwestern Ry. Co. v. Chisholm, 79 Ill. 583.
    The ninth instruction should have been modified as follows, viz: “This is the law if the parties injured were at the time exercising reasonable care and prudence to avoid injury.” City of Chicago v. McGiven, 78 Ill. 347; Litchfield Coal Co. v. Taylor, 81 id. 590; City of Chicago v. Bixby, 84 id. 82.
    A correct instruction given for one side will not obviate an error in an instruction oil the other side. Illinois Linen Co. v. Hough, 91 Ill. 63; Quinn v. Donovan, 85 id. 194.
    Messrs. Jack & Moore, for the appellant Densberger:
    As a general rule the tenant in possession, and not the owner, is responsible for injuries received in consequence of a failure to keep the premises occupied, in repair. Gridley v. Bloomington, 68 Ill. 47; Union Brass Manf. Co. v. Lindsay, 10 Bradw. 583; Fisher v. Thirkell, 21 Mich. 1; City of Lowell v. Spaulding, 4 Cush. 237; Milford v. Holbrook, 9 Allen, 17; Leonard v. Storer, 115 Mass. 86; Shipley v. Fifty Associates, 101 id. 251; Irvine v. Wood, 51 N. Y. 224; Bears v. Ambler, 9 Barr, 153; Painter v. Pittsburg, 46 Pa. 213; Clark v. Fry, 8 Ohio St. 358; Shindlebeck v. Moore, 32 id. 264; Payne v. Rogers, 2 H. Blackf. 350; Roswell v. Price, 12 Mod. 635; Rich v. Basterfield, 4 Com. B. 783; Russell v. Shenton, 4 Eng. C. L. 449; Bishop v. Bradford, 1 E. & E. 697; Hadley v. Taylor, L. R. 1 C. P. 53.
    To this rule there are two exceptions: First, when the landlord has, by express agreement, covenanted to make repairs ; and second, when the premises have been let with a nuisance on them.
    When there is no agreement as to who shall make repairs the burden is thrown on the tenant. Gridley v. Bloomington, 68 Ill. 47; Gott v. Gandy, 22 Eng. L. & E. 173; Leavitt v.
      Fletcher, 10 Allen, 121; Elliott v. Aiken, 45 N. H. 36; Estep v. Estep, 23 Ind. 114; City of Lowell v. Spaulding, 4 Cush. 277.
    If a tenant leases premises with a nuisance upon them, he does not become liable until notified of the existence of the nuisance. Saxby v. Manchester R. R. Co. 38 L. J. (N. S.) 153; 1 Washburn on Real Estate, (4th ed.) 542.
    Even where the landlord contracts in his lease to make repairs, he can not be held liable to third persons until notified of the existence of the defect, for not being liable over to the occupant, he can not be liable to the third party, to whom the occupant is primarily responsible. Norfleet v. Cromwell, 64 N. C. 1; Favrott v. Mettler, 21 La. Ann. 220; Coope v. England, 27 Md. 14.
    As to the joinder of parties, see Parsons v. Winchell, 5 Cush. 592; Gray v. Boston Gas Light Co. 114 Mass. 149; Clark v. Fry, 8 Ohio St. 358; Bigelow Carpet Co. v. Bryant, 131 Mass. 491; Dicey on Parties to Actions, 449; Bard v. Yohn, 26 Pa. St. 489; 2 Hilliard on Torts, 147.
    Messrs. Worthington & Page, for the appellee:
    The ninth of plaintiff’s instructions is qualified by the defendants’ second. All the law can not be repeated in each instruction.
    There is nothing wrong in the sixteenth instruction. It is proper that the jury should find the full sum of damages that the evidence establishes. They have no more right to disregard the evidence, and find a less sum than it establishes, than they have to -find a greater sum. City of Ottawa v. Sweely, 65 Ill. 434; City of Chicago v. Jones, 66 id. 349.
    When the premises are out of repair when leased, the landlord, as well as the tenant, is liable, jointly or severally, for damages caused thereby. An unsafe cellar door, forming part of the highway, is a nuisance, and the landlord is liable for a nuisance existing when the property is let. Stephani v.
      Brown, 40 Ill. 428; Gridley v. City of Bloomington, 68 id. 47; Rex v. Pedley, 1 A. & E. 825; Owings v. Jones, 9 Md. 108; Anderson v. Dickie, 1 Robt. 238; Davenport v. Ruckman, 37 N. Y. 568; Irvin v. Fowler, 5 Rob. 482; Fisher v. Thirkell, 21 Mich. 1; Vedder v. Vedder, 1 Denio, 257; Rex v. Kerrison, 3 M. & S. 526; Shearman & Redfield on Negligence, secs. 56, 361; Wood on Nuisances, sec. 269, p. 282; Dicey on Parties, 423; Gandy v. Jubber, 33 L. J. 151; Nelson v. Godfrey, 12 Ill. 20; Dillon on Mun. Corp. sec. 660.
    Where a party suffers an injury from the concurring negligence of several, he may recover against all or either of them. 4 Wait’s Actions and Defences, 710; Barrett v. Third Avenue R. R. Co. 45 N. Y. 628; Lake v. Millikin, 62 Maine, 240; Coleyrove v. New York R. R. Co. 20 N. Y. 492; Phelps v. Wait, 30 id. 78.
   Mr. Justice Scott

delivered the opinion of the Court:

This was an action to recover for personal injuries, and was brought by Bobert Simpson, against the city of Peoria and Magnus Densberger. It is averred in the declaration that defendant Densberger was the owner of the premises situated on Water street, in the city of Peoria, at the place where plaintiff was injured; that there was an opening into the cellar or vault in front of the premises, the covering to which constituted a part of the usual sidewalk; that the owner of the premises wrongfully and negligently permitted such opening to be and remain insufficiently and defectively covered, whereby the sidewalk was left in an unsafe condition; and that at that time, and prior thereto, the city was possessed of and had control of the sidewalk in front of the premises, and ought to have kept the same in good repair and safe condition. It is then further averred as a ground for recovery, that both 'defendants, well knowing the unsafe and dangerous condition of the sidewalk, wrongfully and negligently suffered the covering to such opening to remain in an insecure and unsafe condition, so that while plaintiff was passing over the sidewalk, in the observance of due care, it broke, and he fell through the opening, into the cellar or vault, and thereby sustained severe injuries, by which he became paralyzed in his back and arm. The declaration contains the usual averments as to the expenditure of large sums of money in the endeavor to be healed and cured. The second count contains an averment the covering to the opening was dangerous at the time the owner let the premises to the occupying tenant, and the condition of the covering at the time rendered the sidewalk dangerous, and that defendants had notice of its dangerous condition. The amended declaration contains an averment the opening was covered with a wooden door, of a height and length prohibited by an ordinance of the city, and that such doors were at the time, and prior thereto had been, a nuisance, and that the city had notice thereof. Separate demurrers filed by each defendant were overruled by the court, and thereupon pleas of not guilty were filed by each defendant. A trial was had before a jury, who returned a verdict finding the issues for plaintiff, and assessing his damages at $6000. Motions for a new trial and in arrest of judgment were severally overruled, and the court entered judgment on the verdict. That judgment was afterwards affirmed in the Appellate Court for the Second District. The case comes to this court on the appeal of the city of Peoria, and since then defendant Densberger has also assigned errors on the same record.

The point is made that no recovery, in any event, could be had against Densberger, because at the time the accident occurred the premises were in the possession of a tenant, with no obligation on the part of the owner to make repairs. The argument proceeds on the theory the owner had reserved no authority, and therefore could not enter to make the needed repairs. The rule of law on this subject, as stated by this court in Gridley v. Bloomington, 68 Ill. 47, is, the occupant, and not the owner, is responsible for injuries occasioned by a failure to keep the premises in repair, unless where the owner has agreed to keep the premises in repair, or where the premises were let with the nuisance upon them. There is some evidence tending to show the owner was requested by the occupying tenant to make repairs, and agreed to do so. But whether that fact could impose any liability on the owner in the absence of an expressed contract to make repairs; need not now be considered. Evidence was given tending to show the premises were let with the nuisance upon them, and the jury may have so found. The authorities generally hold.that in such cases the owner, and not the tenant, would be responsible for injuries that might be occasioned by the nuisance. It is for the reason the cause of the injury existed anterior to the letting, and the owner should have made the repairs. Nelson v. Liverpool Brewing Co. 2 C. P. Div. 311.

A question not entirely free from doubt is, can the owner of the premises and the city be held jointly liable for the injuries to plaintiff in the same action. It is said this question can not now be considered, for the reason defendants did not stand by their demurrers, the rule being familiar that a party may not at the same time plead and demur to the same pleading. It is also true any substantial defect in a declaration can always be taken advantage of by á motion in arrest of judgment, and that was done in this case.

It will be observed both defendants are charged with negligence as to the condition of the sidewalk that occasioned the injury to plaintiff, and why may they not be jointly liable in the same action ? The owner is liable, if at all, because the premises were let with the nuisance upon them, and that liability, if any existed, continued, notwithstanding the possession of the tenant, and continued up to the time of the accident. On the hypothesis the city had notice, it was the duty of the- municipal authorities to make repairs at and before the injury to plaintiff. The same duty rested upon the owner and the municipality, at the same time, to make such repairs, and both may therefore be said to be guilty of negligence in respect to the same thing. Had the action been brought against the owner and the tenant, no doubt it could have been maintained had it been averred and proved both were under obligations to make repairs, and both were guilty of negligence in that respect. The averment is, it was the duty of both the owner and the municipality to repair the sidewalk, and both are charged with the omission of a common duty in that regard,—and what reason is there why they may not be joined in the same action? Undoubtedly the rule is, for separate acts of trespass separately done, or for positive acts negligently done, although a single injury ■ is inflicted, the parties can not be jointly held liable to the party injured. If there is no concert of action—no common intent—there is no joint liability. This rule is very well settled by authority: Hilliard on Torts, sec. 10, p. 315; Nav. Railroad and Coal Co. v. Richards, 57 Pa. St. 142; Shearman & Redfield on Negligence, 58; Bard v. Yohn, 26 Pa. St. 482.

But a different principle applies where the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the party injured may have his election to sue all parties owing the common duty, or each separately, treating the liability as joint or separate. A familiar case illustrating the principle is, where a person is injured by the falling of a party wall erected on the dividing line between two lots owned by different persons, the action is maintainable jointly against both owners. It is for the reason it was a common duty of both owners to make the repairs. Another instance is, where a passenger is injured by a negligent collision of the trains of two railroad companies, he may maintain one action against -both. And so it has been held an action may be maintained jointly against towns, where the law will authorize such an action, for an injury resulting from the insufficiency of a bridge which both towns are under an obligation to maintain. (Klauder v. McGrath, 36 Pa. St. 128; Colegrove v. N. Y., B. N. and N. H. R. R. Co. 6 Duer, 382; Same v. Same, 6 Smith, (N. Y.) 492; Peckham v. Burlington, 1 Vt. 34.) In Bryant v. Bigelow Carpet Co. 1 Mass. 491, it was held, where the negligent acts of two defendants combined to produce the injury to plaintiff, a joint action could be maintained against both negligent parties.

It will be seen the rule recognized rests on sound principle,—that is, where an injury results from the concurrent negligence of several persons, all being under a common duty to observe care, though that duty is separate with reference to that which causes the injury, all are jointly liable. Applying this principle to the case being considered, it would seem to be conclusive as to the point made the city and the owner are not jointly liable for the injury to plaintiff. If it shall be ascertained it was the duty of both the owner and the city to keep the sidewalk in repair, then the failure to do so was a common neglect, and the case comes precisely within the principle stated. Whether both or either party was under such duty, depends on facts to be found by the jury in the trial court.

As respects the point suggested whether the city could recover against the owner in case it was compelled to pay the judgment, is a question that does not" affect the principle being considered. How the law may be on that subject need not now be determined. It is a question in which plaintiff can have no interest. As was said in Bryant v. Bigelow Carpet Co. supra, the question of their relative rights and liabilities will be left to future litigation or adjustment between defendants. It is enough that it appears both defendants may have been guilty of negligence in regard to that which caused the injury to plaintiff, to enable him to maintain his action against them jointly.

Passing now to consider the instructions given by the court on the trial, it is seen by the ninth charge of the court given for plaintiff, the jury were told, “where a city is vested, under the provisions of its charter, with the charge of its streets, roads, alleys and sidewalks, said city is bound to see that the same are kept in a reasonably safe state of repair; and such city is liable to parties injured by its negligence in so doing. ” Standing alone, this proposition would not be the law as applicable to the facts of the case. It lacks the essential qualification the plaintiff was at the time observing that care and caution for his personal safety a reasonable person would do under the Same circumstances. But it may be this defect was cured by the second instruction of the series given for plaintiff. In that charge the jury were told several propositions must be established by a preponderance of the testimony, or by the admission of defendant, before plaintiff could recover a judgment against both defendants, and that such limitations applied to all instructions given for plaintiff, whether especially expressed in each instruction or not. Then follow six distinct propositions, the first of which is as follows: “That the plaintiff was, at the time of the alleged injury, exercising the care and caution that a reasonable man would have exercised under all the circumstances. ” Could it be known this proposition was read in connection with the ninth instruction, both together would have been an accurate expression of the law. Of course this can not be known. Without intimating there is any prejudicial error in this mode of framing instructions, it may be 'properly said it is one not to be commended. It is too complicated to be submitted to a jury composed of men unaccustomed to considering such matters. It is far better each instruction should be as nearly accurate as it can be made, in itself. Omitting to read the qualifying charge in connection therewith, many of the subsequent instructions might mislead the jury, to the prejudice of defendants.

It is thought the sixteenth instruction of the series given for plaintiff is so positively bad it was error to give it, and for which the judgment must be reversed. It partakes of the nature of an argument, and contains few, if any, elements of a proposition of law, and the effect could not have been otherwise than hurtful to the defence. It is also objectionable in manner of expression. By it the jury were told if they should find, from the evidence, plaintiff had established his case, and was entitled to a verdict for damages, then it became their “duty to fix such damages at the full sum that the whole evidence shall prove to be just and reasonable. ” The language in which this instruction is expressed is well calculated to create in the minds of the jury the belief it was their “duty,” in case they found for plaintiff, to fix the damages at the highest possible amount the evidence would justify. It was error to tell the jury, as a matter of law, that such was their duty. (Chicago and Northwestern Ry. Co. v. Chisholm, 79 Ill. 584.) This form of expression may have induced the jury to find the extraordinary amount of damages they did. Again, by the latter clause of the same instruction the jury were told that, in forming an estimate of the damages sustained by plaintiff they had no right and should not permit themselves to be influenced by any consideration of what effect their “verdict might have upon taxation in the case of the city, nor upon his financial condition in case of Densberger. ” This is in no sense submitting a proposition of law to the jury, applicable to the facts. At most it is a mere suggestion to them as to the consequences that might flow from their verdict that should not be considered in arriving at a conclusion, that it was not the province of the court to make to them. It is difficult to conceive of an instruction more mischievous in its effects or calculated to make a worse impression on the minds of the jury.

Other instructions may be faulty in some degree, but are not seriously defective. Such defects as appear can readily be avoided with more care on another trial.

The judgment of the Appellate Court will be reversed, and the cause remanded, with instructions to that court to reverse the judgment of the circuit court and remand the cause for a new trial.

Judgment reversed„


text:
    Donald McKinnon v. The People ex rel. Henry Malzacher.

      Filed at Ottawa June 13, 1884.

    1. Contested election—how far governed by chancery principles and rules. A proceeding to contest an election is to be tried in like manner, and like evidence is admissible and like principles must control, as in the trial of causes in chancery.
    2. Same—intention of the voter—how ascertained. Where the question is for what or for whom a ballot should be counted, the intention of the voter should, if possible, be ascertained, and when ascertained it must control.
    3. AVhere there is a mistake or imperfection in the ballots cast at an election, extraneous evidence is admissible in a contest to show what was intended. So where ballots were cast at an election for Henry M., and also some for Joseph M., it was proved in a contest of the election that Henry M. was the democratic nominee, and another the republican nominee, to be voted for at that election for the office of town clerk, and that there were no other candidates for that office at that election, and that no person by the name of Joseph M. resided in the town or was known to the witnesses, residents of such town, and also that the name of Joseph M. was printed on a number of democratic ballots, and voted by mistake: Held, that the evidence was properly received, and the ballots cast for Joseph M. counted for Henry H.
    4. Where a patent ambiguity is raised in respect to the name of a candidate upon a ballot, the voter casting the same may, if he so elects, be allowed to testify for whom he intended to vote, or what he intended by the ballot.

      Appeal from the County Court of Du Page county; the Hon. Elbert H. Gary, Judge, presiding.
    • This was a proceeding to contest an election for the office of town clerk of the town of South Chicago, commenced in the county court of Cook county, and taken thence, by change of venue, to the county court of Du Page county. That court found that the contestant, Henry Malzacher, was duly elected to the office, and decreed accordingly, and this appeal is prosecuted to reverse that decree. .
    Mr. Thos. J. Sutherland, for the appellant.
    Mr. A. Garrison, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Proceedings of this kind are to be tried in like manner, and like evidence is admissible and like principles must control, as in the trial of causes in chancery. (Rev. Stat. 1874, chap. 46, secs. 113-116; Talkington v. Turner, 71 Ill. 234; Dale v. Irwin, 78 id. 170; Kingery v. Berry, 94 id. 515.) Where the question is for what or for whom a ballot should be counted, the intention of the voter should, if possible, be ascertained, and when ascertained it must control. (People ex rel. v. Matteson et al. 17 Ill. 167.) When there is a mistake or imperfection in the ballots, extraneous evidence is admissible to show what was intended. Cooley, in his work on Constitutional Limitations, (1st ed.) sec. 611, says: “We think evidence of such facts as may be called the circumstances surrounding the election,—such as, who were the candidates brought forward by the nominating conventions; whether other persons of the same name resided in the district from which the officer was to be chosen, and if so, whether they were eligible or had been named for the office; if a ballot was printed imperfectly, how it came to be so printed, and the like,—is admissible for the purpose of shewing that an imperfect ballot was meant for a particular candidate, unless the name is so different that to thus apply it would be to contradict the ballot itself, or unless the ballot is so defective that it fails to show any intention whatever. ” And this is cited with approval in McCrary on Elections, (2d ed.) 339.

In Carpenter v. Ely, 4 Wis. 420, Matthew H. Carpenter and George B. Ely were rival candidates for the office of district attorney. In a proceeding, on the relation of Carpenter, to contest the election, the Supreme Court held that ballots cast for “George B. Ela, ” for “Ely Ely, ” and for “Ely, ” for “D. M. Carpenter, ” “M. D. Carpenter, ” “M. T. Carpenter, ” and “Carpenter, ” Were competent evidence for the consideration of the jury, it being also proved that before the election it was announced to the electors of the county, in all the newspapers printed in the county, that George B. Ely and Matthew H. Carpenter would be and were candidates for the office of district attorney of the county; that at this time there was no lawyer in the county eligible to the office of district attorney, of the name of “George B. Ela, ” “Ely Ely, ” or “Ely, ” and that there was no lawyer whose surname was “Ely, ” except the respondent; that there was no lawyer in the county by the name of “D. M. Carpenter, ” “M. D. Carpenter, ” “M. T. Carpenter,” or whose surname was “Carpenter, ” except the relator; that there were no votes cast in the county, at said election, for any persons of the names of Ely and Carpenter, except for the office of district attorney, and that both the relator and the respondent were practicing attorneys at that time in the county, and eligible to the office. The court, among other things, observed, after saying that the facts proven were competent evidence to go to the jury: “A contract may be read by the light of surrounding circumstances,—not to contradict it, but in order more perfectly to understand the intent and meaning of the parties who made it. By analogous principles we think that these facts, and others of like nature connected with the election, could be given in evidence, for the purpose of aiding the jury in determining who was intended to be voted for. ” In that case the finding of the jury was, that all the ballots cast upon which was the name of “Ely” or “Ela,” were intended to be cast for “George B. Ely, ” and all the ballots cast upon which was the name of “Carpenter, ” were intended to be cast for “Matthew H. Carpenter, ” and judgment was accordingly so rendered, and it was affirmed by the Supreme Court.

In People ex rel. v. Pease, 27 N. Y. 45, the court of appeals held that a voter may be allowed to testify, if he so elects, for'whom he intended to vote, as one of the circumstances bearing upon the question of intention. This case, it is true, is criticised, and in some respects declined to be followed, in Virginia v. Beardstown, 76 Ill. 34, but not as respects this question. Where a patent ambiguity is raised in respect to the name upon a ballot, we perceive no reason why, as held in the Pease case, the, party may not be allowed to state what he intended by the ballot.

The practice recognized in this court is in conformity with the quotation from Cooley, supra, and the ruling in Carpenter v. Ely, supra, though no attempt has been made to lay down any rule farther than as quoted supra in People ex rel. v. Matteson. In that case the contest was for the office of “police magistrate, ” and it was held ballots cast for the relators for “police justices” should be counted as cast for “police magistrates.” In Talkington v. Turner, supra, we held that ballots for “Talkington” should have been, under the evidence, counted for “Joseph Talkington. ” And in Clark v. Robinson, 88 Ill. 498, we held, under the evidence, that ballots .cast on which were written “W. E. Robso,” “Robertson,” “W. E. Robers,” and “Robin,” should be counted for “William E. Robinson.”

In the present case, the evidence shows that ballots were cast at the election and for the office in question, as follows: For Henry Malzacher, 8819 votes; for Joseph Malzacher, 919 votes; for Donald C. McKinnon, 9641 votes. If the ballots cast on which is the name of Joseph Malzacher, shall be counted for Henry Malzacher, he will have a majority, and be entitled to the office, otherwise McKinnon will have a majority and be entitled to it,—and this presents the only question to be considered.

The proofs show that Henry Malzacher was the democratic nominee, and Donald C. McKinnon the republican nominee, respectively, to be voted for at the town election on April 3, 1883, for the office of town clerk of the town of South Chicago, and that there were no other candidates for that office at that election; that no person by the name of Joseph Malzacher at that time resided in the town of South Chicago, and no person of that name was known to or had ever been heard of by the witnesses testifying, and yet they professed to be well acquainted with the Malzacher family, and they were residents of the town and voters at the election. There is no affirmative evidence in the record that there is such a person in existence as Joseph Malzacher. The proof also shows that the name of Joseph Malzacher was printed on a number of democratic ballots, and voted by mistake, the person having the ballots printed, and those voting them, being informed, and believing at the time, that that was- the name of the democratic nominee, but intending that the name should be, and the ballots cast for, that of the regular democratic nominee, which was Henry Malzacher. No clearer ease of mistake in the respect pointed out can be proved, and the county court of DuPage county, in view of the authorities to which we have referred, properly found and decreed that Henry Malzacher is entitled to the office.

The decree is affirmed.

Decree affirmed.