Hellman v. Roe

Mr. Justice Cooke delivered the opinion of the court: Appellee, Bertha Hellman, recovered a judgment in. ejectment in the superior court of Cook county against J. Newton Roe, appellant. The suit was originally against Tony Calicos and appellant but. was dismissed as to Calicos. At the close of appellee’s case, and again at the close of all the evidence, appellant made a motion for a directed verdict, and the denial of this motion is assigned as error. It will only be necessary for us to consider two of the grounds urged in support of this assignment of error: (1) That appellee failed to make a prima facie case; and (2) that the court erred in excluding testimony offered by appellant tending to prove that he had been in possession of the premises in controversy for more than the twenty-year limitation period. The usual declaration in ejectment was filed and was for the recovery of the possession of lot 28 in Assessor’s division of the north part of lot 1, etc., in the city of Chicago. To the declaration appellant pleaded not guilty, and in addition thereto filed three special pleas, each verified, that he was not, and never had been, in possession of the lot described in the declaration or any part of it; that he did not claim any part of the premises; that he had not entered upon the premises, and that he did.not now claim, nor had he at any time claimed, any title to or interest in the premises or any part thereof. Appellant owns the lot immediately north of lot 28, and this suit is the result of a dispute as to the location of the boundary line between those lots. Appellee claims that the building of appellant encroaches upon her lot and that he is in possession of a strip off the north side of her lot 2-Hi inches wide at one end and 4^2 inches wide at the other end. Appellant attempted to prove on the trial that his house had been located in .its present position for more than twenty years, and that he and his grantors had been in possession of the lot upon which his house is located, including thé strip in question, ever since the .house had been built. Appellee testified that she derived title to lot 28 by warranty deed from Mary McDermott, who was the owner of the property, on September 9, 1907, and that she had resided upon the premises for nine years previous to the commencement of the suit. She testified that the house on her lot had been there between twenty-five and thirty years and that the house on appellant’s lot had stood there at least twenty-five years. She proved by the testimony of a surveyor that appellant’s house was built south of the original lot line and encroached on her lot to the extent above mentioned. This was all the proof made on the part of appellee as to title and possession. This is not sufficient to entitle appellee to recover. It was necessary for appellee to prove her title to the strip in controversy, as she must recover upon the strength of her own title and not upon the weakness of the title of appellant. (Whitford v. Drexel, 118 Ill. 600; Agnew v. Perry, 120 id. 655; Krause v. Noltz, 217 id. 298.) As appellee did not show that she was ever in possession of the strip and did not connect herself with any prior grantor who was in possession of it, it was incumbent upon her to deraign title from the government to herself. (Krause v. Nolte, supra.) The filing of the special pleas did not relieve appellee of this burden. Appellee proved that the house on the lot adjoining her lot on the north belonged to appellant and that it had stood there for at least twenty-five years. She did not show that either she or her grantors had ever been in possession of the strip in question nor did she deraign title from the government to herself. The only inference which could be drawn from her proof was that the boundary line between the two lots had been established along the south line of appellant’s building by acquiescence. The mere fact that Mrs. McDermott had conveyed lot 28 to appellee by warranty deed did not prove title in appellee to "the strip in question, as it does not appear that either Mrs. McDermott or appellee was ever in possession of that strip. Appellee failed to make a prima facie case and the court should have given the peremptory instruction. It was error to exclude the testimony relative to the peaceable possession by appellant and his grantors for the period of twenty years. Although parties owning adjoining premises may not have established the boundary line by express agreement, yet when they have acquiesced in and recognized a line as the true one for a period of twenty years they are bound and concluded by such acts. (Hubbard v. Stearns, 86 Ill. 35.) The location of the original line becomes immaterial where it is shown that either by agreement the boundary line between the adjoining premises has been located or the same has been established by acquiescence of the parties and by the recognition of a certain line as the true boundary line between the premises for the period of twenty years. A change in a certain and known boundary line is binding where there has been a clearly proved practical location of a new line and an acquiescence in such line for a time long enough to bar a right of entry under the Statute of Limitations. Henderson v. Dennis, 177 Ill. 547. For the errors indicated the judgment of the superior court is reversed and the cause remanded. Reversed and remanded.