City of Elgin v. Goff

38 Ill. App. 362, 1890 Ill. App. LEXIS 349

• Court: Appellate Court of Illinois
• Decided: December 8, 1890
• Status: Published

Opinion

C. B. Smith, P. J.

This was a suit begun before a justice of the peace to recover the value of certain stone belonging to the appellee, which the city, by its marshal and street commissioner, refuse to allow appellee to remove.

Originally the stone in question had been hauled by appellee to a lot owned by him in the city. By reason of some change in the street, made by the city, some of these stones were covered up, and when appellee went to remove his stone tQ another lot the marshal and street commissioner refused to allow him to take the stone, and threatened him with prosecution if he attempted to remove them. The city does not deny that appellee was the owner of the stone, nor does it deny that the city marshal and street commissioner refused the plaintiff the right to remove these stone. The defense is based on the grounds, 1st, that the city marshal and street commissioner were not acting within the scope of their authority, when they refused to allow plaintiff to take the stone, and 2d, that the statute of limitations had run against plaintiff’s right of action.

Neither of these defenses is good. The presumption will be indulged that the marshal and street commissioner are acting within the scope of their authority unless the contrary appears.

The statute of limitations did not commence to run until the city appropriated the stone to its own use by prohibiting the plaintiff from removing it. This act was equivalent to a conversion of the stone by the city. This suit was begun only a short time after this refusal. The proceedings in the Circuit Court where the case had been appealed were in harmony with these views. The plaintiff had judgment for the value of the stone and we think that judgment was right. The judgment is affirmed.

Judgment affirmed.