Brooks v. Bruyn

Bbeese, J. When this case was before this court at a former term, Brooks v. Bruyn, 18 Ill. R. 542, we then said that actual possession of land may- arise in different ways, as by entering upon and improving the same, with the intention of appropriating the land to an ordinary or useful purpose, which acts, in their nature, in connection with the claim of right, indicate an exclusive use and control of the property ; by erecting buildings ; by breaking prairie for cultivation; by inclosure; by opening shafts for raising coal or ore, quarries for obtaining rock, ,and using them to the exclusion of others; by the use and control of timber land belonging to a farm or homestead, although disconnected therewith, for the ordinary supply of wood or timber for such farm or homestead, as in Davis v. Easley et al., 13 Ill. R. 198. To constitute possession, there must be some unequivocal act of ownership on the land itself, but it is by no means necessary that the land should be inclosed by a fence. That idea has been long since exploded. Even to defeat an adverse title, it is not necessary. The.erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property. But there are many other acts which are equally evincive of such an intention, such as entering upon land and making improvements thereon, raising a crop, which may be done without a fence, felling and selling the trees thereon under color of title. Meredith v. Pearl, 10 Peters, 413. As a general rule, any act done, evincing to the neighborhood in which .it is situate, that the land is appropriated to individual use, is sufficient. The possession will then be deemed co-extensive with the title under which the party doing the act claims. Dills v. Hubbard, 21 Ill. R. 328. The intention with which such acts, whatever they may be, are done, is exclusively for the jury, and though this court held in this case, as reported in 18 111. R., supra, that doing some useless thing on the land, as erecting a pen, sham building, leaving a few rails or timbers, with the intention thereby of excluding others, and not of permanently improving and using the land, would not amount to actual possession, yet when to such acts are superadded others, manifesting an intention to cultivate and use the land, an actual possession could be maintained. The other acts, as found in this case now, are, running three or four furrows entirely around the land—laying out strips for ploughing “lands”—erecting a dwelling-house upon it, and breaking and inclosing forty or more acres. These acts were submitted to the jury, to determine, from them, the animus with which the plaintiff entered upon the land, and we think, are acts of possession not equivocal, and so the jury have found. The facts show, it is true, that appellant, on the 25th June, 1856, broke about one acre of this land, but did nothing further evincing an intention to improve it, until the 2nd of July following, when his neighbor, and tenant of this land, seeing plaintiff erecting his shanty upon it, went, in the absence of appellant, and roused the neighbors, and with their assistance moved an old roofless stable from the land he occupied, on to this land, and on the same day, in the afternoon, the- house occupied by Memford, with his family in it, mounting it on wheels, and placing it on the disputed property. The animus of all the acts of these parties was a proper matter for the consideration of the jury, and they have found, by their verdict, that they were not done for the purpose and with the intention of using and improving the land, but rather to anticipate and exclude the plaintiff. The evidence is quite sufficient to show, that plaintiff, before these acts done by appellant, was in the actual possession of the land, with the bona fide intention of appropriating it to his own use, and that intention consummated, by breaking forty or more acres of the land, inclosing it with a fence, and building a house upon it. And the acts done by both parties were finally left to the jury, under proper instructions from the court, and' as it is the fourth verdict, as alleged and not denied, that the appellee has obtained against the defendant, and no glaring errors perceived in the rulings of the court, we do not feel disposed to disturb the verdict. “ It is for the interest of the State that an end should be put to litigation,” and four verdicts ought to have this effect. The justice of the case seems clearly with the appellee, and if there be some errors in the record, we do not deem them sufficient to justify our interference. The judgment must be affirmed. Judgment affirmed.