Lesourd v. Edwards

Mr. Justice Scott delivered the opinion of the court: Appellant, relying upon his tax deed as color of title, claims the fifteen acres in dispute under and by virtue of the provisions of section 8 of chapter 83, Hurd’s Revised Statutes of 1905, and under and by virtue of his alleged possession. It is conceded by him that if England, who asserts a legal .title, reduced the land to possession in May, 1907, and thereafter continued in possession up to the time when the appellant strung a strand of barbed wire around the land, the decree of the court below should be affirmed. Since January, 1900, the entire tract has been under water practically all the time. Appellant states that “its principal, and probably its only, value now is for hunting and fishing.” The rule is, that every presumption will be made in favor of the holder of the legal title, and as against him no presumption will be drawn in favor of the holder of color of title, only. (White v. Harris, 206 Ill. 584.) It has frequently- been said in reference to acts necessary to constitute possession, that every case must rest upon its own facts, and that it is difficult to state any general rule as to what character of improvements or acts will be sufficient for this purpose, and that the acts necessary to constitute possession depend, to some extent, upon the nature and locality of the property, the use to which it may be applied and the situation of the parties; that a variety of circumstances necessarily have to be taken into consideration in determining the question. Any acts of dominion exercised over the property by the party claiming to hold title thereto that clearly indicate to others an appropriation thereof to the purposes for which it may ordinarily be used are generally regarded as sufficient. Morrison v. Kelly, 22 Ill. 609; McLean v. Farden, 61 id. 106; Truesdale v. Ford, 37 id. 210; Gage v. Hampton, 127 id. 87; White v. Harris, supra. We find from the record that appellee England obtained his deed for this tract on May 28, 1907. Immediately thereafter, on the same day, he sent two men with twenty fish traps to take possession of the land. These men went to the land on that day and put the traps out on the land. Nineteen of them were put out by tying them to trees with ropes. The rope in each case was put around a tree below the water and the trap was so weighted that it did not rise to the surface. Each of the trees was then blazed. A stake was then driven in the ground beneath the water, the upper end projecting above the water, and to that stake the twentieth trap was in like manner attached. These traps all continued there in use for fishing purposes until after appellant strung his wire around the land, on the 10th of June, 1907. It is strenuously insisted on the part of appellant that inasmuch as these traps, and the ropes with which they were attached to the trees, were not visible above the water, England did not, in fact, take possession-of the land. As the land was covered with water and grew nothing that seems to have been of any value, it is manifest that the owner could not be expected to assert his rights by the ordinary acts of an owner, such as erecting improvements or taking off the produce of the land. It is true that he might, as appellant did, have carried a wire about the property, the only purpose of which would have been to keep others from passing upon the property,—a thing that would have been of very little moment, in view of the fact that the adjoining lands were also submerged, and that it was not a matter of substantial importance to the owner of this particular tract whether persons traveling by boat in this vicinity passed over this land or not. It is true that the traps and ropes were not visible after they had been put in position by England’s employees, but the acts of those employees in placing them there, and in driving the stake and in blazing the trees, indicate the assertion of such rights as would rest only in the owner. 'Where the proprietor of an unfenced tract uses it for grazing purposes and herds his stock thereon each year throughout the grazing season, no indicia of possession or ownership is left upon the land by which it can be determined, after the close of the grazing season, that any person is in actual possession or occupancy of that land, and yet it would scarcely be contended that such land was vacant or unoccupied. It is true that the acts of ownership here relied upon are slight, but in determining the significance thereof the character of the property must be taken into consideration. In view of the fact that this land could be used, at the season at which England placed his traps thereon, only for fishing, we are disposed to think that the acts constituted a visible appropriation thereof for the only purpose for which the land could be used. His men were in open view of passers 'as they blazed the trees, set out the stake and attached the traps, and having so taken possession of the property it was not necessary that England should keep someone on guard or post notices to advise passers-by that he had taken possession. Appellant also contends that to fish with the traps put out by appellee England on this land was, at the time they were placed upon the land, a violation of the fish laws of this State. Whether that was so is immaterial in determining whether England actually took possession of the land. The decree of the circuit court will be affirmed. Decree affirmed.