Glos v. Perkins

Mr. Justice Wilkin delivered the opinion of the court: Under the bill and answer the burthen of proof was upon the complainant to establish two facts in order to entitle him to maintain his bill: First, that he was the owner of the premises; and second, that they were vacant and unoccupied. (Glos v. Randolph, 133 Ill. 197.) Even if it should be conceded, for the purposes of this opinion, that the deed sufficiently established the former fact, — that is, that he had title to the premises, — there is an entire absence of proof in the record that they were vacant and unoccupied. This is not denied, except upon the unwarranted theory that by proving that they were unoccupied some three years prior to filing the bill, the presumption will obtain that they continued to be vacant and unoccupied, — citing and relying upon the rule laid down in Greenleaf on Evidence, (vol. 1, sec. 41,) where it is said: “When, therefore, the existence * * * of a state of things is once established by proof, the law presumes that "x" "x' "x" state of thing's continues to exist as before until the contrary is shown or until a different presumption is raised, from the nature of the subject in question.” Manifestly, this rule can have no application to the question here raised. The premises may have been vacant and unoccupied three years prior to the filing of the bill and yet not vacant and unoccupied at the time of the filing of the bill. There is no fixed or continuing condition of property as to being vacant or unoccupied. Other-questions are raised on the record, but in view of what we have said with reference to the lack of material proof, they become unimportant. The bill should have been dismissed for the reason stated, and the decree of the circuit court will therefore be reversed and the cause remanded for further proceedings consistent with this opinion. Reversed and remanded.