Ragain v. Stout

Mr. Justice Phillips delivered the opinion of the court: It cannot be doubted that the appellee was in the quiet and peaceable possession of the land on the west side of the fence as it had stood prior to the institution of the suit, and that that possession was invaded by appellant. This, of itself, standing alone, would make a prima facie case against the appellant. As a matter of defense the appellant insists that he entered by the license and permission of appellee. Such a defense admits possession in plaintiff and that defendant did the act complained of, and simply puts in issue whether the act was done with plaintiff’s consent. Such a license as claimed by appellant carries no interest in the realty, and is revocable at the will of the person who grants the license. (Woodward v. Seely, 11 Ill. 157; Kimball v. Custer, 73 id. 389; Simpson v. Wright, 21 Ill. App. 67; Stoddard v. Filgar, 21 id. 560.) Without entering into a discusssion of the question as to whether the appellant originally entered by the license of appellee, the uncontradicted evidence shows that, even if a license was ever granted, it was revoked by the appellee and appellant forbidden to further prosecute the work or .to further trespass on him, but that, regardless of the act of the appellee, the appellant continued to clear up the land and refused to desist from so doing, and declared a purpose of clearing up the land and to remove his fence to what he claimed was the line. Even if appellant lawfully entered on the land at the commencement of the work, his continuing to work after the license was revoked would constitute him a trespasser, so that under the claim of license no defense could exist in favor of appellant. There is no question but that the title was in the respective parties to the tracts of land respectively claimed by them, and such title is shown by the record. The controversy in reality is over the question as to what constitutes the true line of the survey. Pour surveys were made by three different surveyors, who placed the line at the point where the'fences were constructed. One" of these surveys was made prior to 1883, another was made when appellant’s grantor was the owner of one tract, and two others were made after 1895. Two surveys were made by the same surveyor, who placed the line at the point where it is contended by appellant that it should be established. There is conflict in the testimony on this question of fact, but from an examination of the record it is clear that the weight of evidence is with the finding of the jury, and clearly authorizes the verdict and judgment as entered. There is nothing in the record that would authorize us to disturb the verdict on this question. Complaint is made as to the giving and refusing of instructions. A great many instructions were given on each side as to the different phases of the case, and without entering into an extended discussion of these instructions, which would extend this opinion to an unreasonable length, it is sufficient to say that the instructions, as a series, correctly stated the law and were not misleading. The judgment of the circuit court of Johnson county is affirmed. Judgment affirmed.