Pearson v. Herr

Mr. Chief Justice Breese delivered the opinion of the Court: In the action of forcible entry and detainer, it is well settled the title to the premises is not involved, and the introduction of the deed to plaintiff, if for such purpose, was not allowable, but for the purpose of establishing the extent of his claim, it was admissible. Turney v. Chamberlain, 15 Ill. 273 ; Dill v. Hubbard, 21 ib. 328. In the last named case, this court said, also, the deed was admissible, to show the animus — the intention with which the party entered, in connection with the possession and improvements on the adjoining quarters. It seems the plaintiff had purchased two tracts of the same vendor, one of which consisted of his farm land, arable land, and the tract in controversy, his timber land. It is said by plaintiff in error, that defendant in error had no actual possession of this tract. But it is proved it was an adjunct to his farm, and that he had all the possession an owner of timber land usually has. He took timber, rails and wood from it without stint, and without challenge from any person, for near sixteen years prior to the time of plaintiff’s entry upon it. The possession of a farm unquestionably draws to it the possession of the woodland belonging to it, though not inclosed, especially if repeated and unchallenged acts of ownership are shown. The proof is ample that the plaintiff in the action, had all the possession one can have of a wood lot, reserved and used exclusively for fuel, and fencing, and other necessary farm purposes. The court said in Davis v. Easley et al. 13 Ill. 192, that a party having a deed for a tract of land, covered with timber, and which is used in support of the farm for an uninterrupted period of time, from which he habitually takes firewood, rails and other materials, has such an actual possession as will entitle him to maintain an action of replevin against a party who shall convert a portion of the timber growing upon such land into boards. In Brooks v. Bruyn, 18 ib. 539, actual possession of timber land is defined, and is said to consist of such acts as the plaintiff repeatedly performed in regard to this tract of land. In the case of the same parties, 24 ib. 372, it was held, that possession of land might be manifested by other acts than by inclosing it with a fence, referring to Meredith v. Pearl, 10 Peters, 413, where this doctrine is distinctly announced. This was a case on the tzial of a wrzit of right, and the couz't say, the assumption that there can be no possession to defeat an adverse title, except by an actual z-esidence or an actual inclosure, is a doctrine wholly irreconcilable with principle and authority. Nothing can be more clear, than that a fence is not indispensable to constitute possession of a tract of land— that it 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 equally evincive of such an intention, such as entering upon land and znaking improvements thereon ; raising a crop; felling and selling the trees thereon, under color of title. O ther cases to the same effect might be cited. The case of McCartney v. McMullen, 38 Ill. 241, is cited by plaintiff in error as establishing the doetrizie that nothing less than an actual pedis possessio will support the action of forcible entry and detainer. It must be adizzitted that case goes to some extent in that direction, on the authority of decisions by the Supreme Court of Kentucky, but the case itself showed no such possession of the land by a constant use of it for a series of years, under color of title, and such use being the only use of which it was susceptible, as is shown in this case and kindred cases cited. Actual possession may exist by proof of something short of an actual residence ozz the .land, or inclosing it by a fence.- That case and this are dissimilar in their facts. There being no error in the record, the judgment is affirmed. Judgment affirmed.