Terre Haute & Ind. R. R. v. Smith

Mr. Justice Wall delivered the opinion of the Court. This was debt to recover double the value of a fence built by the plaintiff under the provision of Par. 66, Ch. 144, E. S. The issues were submitted to the court and there was a finding for the plaintiff, damages $363.40, upon which judgment was rendered accordingly, from which the defendant has prosecuted the present appeal. The plaintiff averred that he was the owner of the east half of the southwest quarter of Sec. 30, etc., and that the east line of his land was the west line of the right of way of the defendant. It is objected that by the notice the defendant was required to build the fence on the land of the plaintiff. Construing the notice with reference to the location of the holdings of the parties, we think it means, though somewhat awkwardly worded, that the fence was to be along the line of division. It is objected that the north half of the fence was built on the land of the defendant, and the south half on the land of the plaintiff, but we are inclined to agree with the trial court that it was built on the dividing line. There was some confliction in the proof as to where the line was, but there is no sufficient reason for overruling the conclusion reached in that respect. It is argued that there was no proof plaintiff was the owner of the land claimed by him. It appeared that he and his grantors had been in possession for many years, claiming to own it. This was sufficient without producing the title papers in the absence of opposing proof. Herbert v. Herbert, Breese R. 278; Keith v. Keith, 104 Ill. 397; Adams on Ejectment, 4th Ed., 137, 324; Greenl. on Ev., Vol. 2, Sec. 309. This disposes substantially of the objections nrged by appellant, and we pass to the cross-error assigned by appellee, that the court should have taken the sum of $202.46 as the value of the fence, instead of $181.60. The difference, $20.88, is claimed as the cost of removing an old hedge that stood on the line. In his testimony the plaintiff stated, first, that the sum of $181.46, which he said was the cost of the fence, “ included the cost of clearing away the old hedge,” but afterward, on cross-examination, he said it did not. Perhaps the court may have preferred to believe his first statement. The value of the fence is the basis of calculation, for the statute gives a right of recovery for double the value. The cost of a thing is some evidence of its value, but is not conclusive. However this may be, the abstract fails to show an exception by plaintiff to the decision of the court; and so counsel, in urging the cross-errors, admits, but he says the record shows it. If the abstract is not perfect, or sufficiently so for any purpose of the appellee, he should present an additional abstract under the rule. ¥e are not inclined to search the record in order to find reasons for sustaining cross-errors, especially when the result would be to increase a judgment on a penal statute. The judgment will be affirmed.