City of Decatur v. Niedermeyer

Mr. Justice Carter delivered the opinion of the court: The principal question in this case relates to the weight of the evidence. According to the latest surveys, the alley should be located somewhere from four to seven feet further north than the place where it now is and for more than twenty-five years has been actually opened, located and used, and would include within it, to the extent mentioned, the enclosure, buildings and improvements of the defendant in error. A. T. Risley, a former county survejror, testified that when surveying in 1861 he found a number of stakes on the line of the alley as now located, and recognized some of the original corners in block 2; that the alley in block 2 was on a line with the alley in block 1, and that the line is substantially the same now that it was then. William Niedermeyer, son of the defendant, testified that the fence was built on the line of the stakes there, in lot 2. F. W. Niedermeyer testified that he built this first fence in 1857, on the line of pegs shown him by one Baker, the agent for Yates & King; that there were stakes all over the addition; that one Young built his fence on the south line of the alley according to the pegs; that the last time he (Niedermeyer) re-built the fence, nine or ten years ago, he found one of the original pegs in the ground. All the witnesses testified that the fence had been on the same line ever since it was first put up, and the barns and corn-crib had always stood on the line where they stand now; that no change had been made in the location of the alley since it was first fenced on both sides, and they refer to periods of time running back from fifteen to thirty years. This evidence is-uncontradicted. The city had the addition surveyed recently by the city engineer and by the county surveyor, and while their measurements do not agree exactly, they both locate the alley farther north than it is at present, one of them four feet and the other from six to seven feet, but no original corner stone of the addition could be found by them. It is claimed by defendant that there is a mistake in the figures of the plat; that the lots in the southern portion of block 1 should be only 150|- feet deep instead of 156!, thus corresponding with the size of the lots in the blocks south, and thus explaining the discrepancy between the measurements according to the plat and the location of the stakes by the original surveyor. However this may be, the acquiescence by the city for so long a time in the location of the alley and of the improvements made by the defendant upon the line of the alley as so located, should be given great weight in determining, in a conflict of evidence, where the true boundary is. (City of Mt. Carmel v. McClintock, 155 Ill. 608.) The propositions which plaintiff in error asked and the court refused to hold as law do not correctly state the law, for they all make the lot lines, as shown on the plat, control, and not the lines as actually run on the ground and the stakes set by the surveyor. As has been repeatedly held by this court, the true boundary lines of a city lot are where they are actually marked by the monuments placed by the surveyor to indicate where they are to be found, and the most satisfactory evidence of the place where the lines were located is afforded by the original stakes. The monuments must necessarily control the field notes and maps of the survey, as well as courses, distances and quantity. These monuments are facts; the field notes and plats are but descriptions which serve to assist in ascertaining the facts. (McClintock v. Rogers, 11 Ill. 279; Bauer v. Gottmanhausen, 65 id. 429; City of Mt. Carmel v. McClintock, supra.) The fences and buildings had been built on the same line for over twenty-five years, and the alley has been opened and used according to such fences since 1872. There is evidence that the city authorities recognized the alley as now located. The city put in a culvert in this alley, ordered Niedermeyer to clean out the filth in it, and has never made any claim to that part alleged to be within his enclosure, Niedermeyer having been in undisputed possession of it for over thirty years. Muzzy, who had been alderman of Decatur for a number of times, testified that the aldermen gave the same attention to this alley as to any other alley; that it had been used by the public continuously since 1873. The long acquiescence of the city in the location of the alley as actually established, and its acts of recognition shown by the evidence, taken in connection with the other evidence tending to show that the alley was actually located according to the original survey, make the weight of the evidence such that the judgment should not be disturbed. The court below found for defendant in error, and, we think, correctly. The judgment for costs against the city is erroneous, (City of Carrollton v. Bazzette, 159 Ill. 284,) and so far is reversed, but the judgment is in all other respects affirmed. Judgment affirmed in part.