Hammond v. Shepard

57 N.E. 867, 186 Ill. 235

• Court: Illinois Supreme Court
• Decided: June 21, 1900
• Status: Published

Opinion

Mr. Justice Wilkin

delivered the opinion of the court:

In an action of ejectment in the circuit court of Carroll county Martin Shepard, appellee, recovered a judgment against appellants for the east half of the north-west quarter of section 21, township 24, north, range 4, east of the fourth principal meridian, Carroll county, in fee. To reverse that judgment this appeal is prosecuted.

The declaration is of three counts, the first describing and claiming the whole of the east half, etc., and each of the others describing and claiming one of the 40-acre tracts ofdhe 80. The plea was not guilty, and a trial was had before the court without a jury.

Plaintiff sought to establish his title to the premises as a whole by color of title, possession and payment of taxes for seven years, and also by twenty years’ advérse possession to a fraction of 3.39 acres in the south-east corner of the tract, claiming that he became the owner in fee of the remaining 76.61 acres as accretions to or relictions from said fraction; also, that at the time his grantor obtained a patent from the government to the fraction, all the remainder of the 80-acre tract was between the meandered line of the fraction and the true water line of the lake on which it bounded, and therefore the whole tract passed by such patent; and further, that he had been in the open, exclusive possession of all of the 80-acre tract for more than twenty years prior to the entry upon the same by the defendants. He also set up title to a small part of the north 40 of the tract by deed from one Edwin Doty. The defendants introduced in evidence a patent from the United States to Elhanan Fisher, dated July 10, 1873, to the west fractional half of the north-west quarter of this section, containing 44 acres, and deraigning title to that fraction from said Fisher. The only theory upon which they could claim title to the land in controversy in this suit would be, that by accretion or reliction it had become added to the fractional 44 acres. It is clear such a claim could not be maintained upon the proofs in this record, and it is not insisted upon by appellants. Their contention is, that the plaintiff failed to establish title in himself to any part of the land described in his declaration, much less to the whole of it, and therefore the judgment of the trial court is erroneous.

The 3.39 acres is a part of an island in Sunfish lake, the lake extending over portions of Mt. Carroll and York townships, in Carroll county. This lake at one time covered 738.70 acres in sections 30, 31 and 32, township 24, etc., in Mt. Carroll township, extending about one and a half miles north and south and one mile east and west, most of it being in section 31. In the year 1839 the island of which the 3.39 acres is a part, (known as Shepard’s island,) and the lake, were meandered by government surveyors and duly platted. The evidence all shows that prior to 1871 the bed of the lake, to substantially the meandered line, was. covered with water to a depth of several feet. North of the head of the lake-is Plum river, and in the fall of 1871, for some reason riot appearing from the evidence, the county caused a ditch to be dug from the lake to this river. This drained most, if not all, of the water of the lake from the lands in controversy, in which condition they remained for several years. The-ditch became filled up, and in 1880 or 1881 the lake had again become filled with water to substantially its former depth. No material chang'e took place until the spring of 1890, when the water began to again disappear, which the plaintiff contends continued until the land in suit became dry.

The law of this State, as repeatedly announced, is, that shore owners on meandered lakes, whether navigable or non-navigable, take title only to the water’s edge, the bed of the lake being in the State. It is not claimed that the 76.61 acres became dry land after the lake filled in 1880 or 1881, until after the year 1890, and as no statute of limitations could run against the State, plaintiff wholly failed to prove a prescriptive title to that part of the tract.

The title to the 8.39 acres remained in the government of the United States until July 10, 1873, when a patent was issued by it to one Elijah Funk, for the use of Carroll county. Afterwards, April 20, 1875, Funk and wife deeded the same to plaintiff, the deed reciting: “It being the same land that I, as drainage commissioner, located for the use of Carroll county.” Under this deed plaintiff claims title to the 3.39 acres by color of title, possession and payment of taxes for the statutory period of seven years. The payment of taxes is not denied, but the defendants insist that the requisite proof of possession is wanting, and especially that the land was held by the county of Carroll as a public trust, and that no limitation could run against it under sections 6 and 7 of the Statute of Limitations. (Starr & Cur. Stat. chap. 83, sec. 8.) While the proof of plaintiff’s possession under the Funk deed is not entirely satisfactory, we are inclined to think it sufficient to justify the court below in finding that fact in his favor. In County of Piatt v. Gooclell, 97 Ill. 84, one of the questions being, “Does the Statute of Limitations run against a county in favor of a party holding color of title for swamp lands acquired in good faith and showing payment of taxes and possession for eight years,” we said “the tax deed was color of title under the Limitation act of 1839,” holding that such land was not held by the county for any public purpose, and the exception in section 8, supra, did not apply; that a county, being the owner of land which it may sell and convey without a breach- of duty, holds the same as an individual, and its title “may be defeated by possession and payment of taxes under color of title made in good faith, for a period of seven years, in the same manner as if the land belonged to an individual.” The land in question was not held by the county for a public use. It could unquestionably sell it and use the proceeds for any lawful purpose. Whether the sale and conveyance were regularly made or not, the deed from Funk was color of title. (Dickenson v. Breeden, 30 Ill. 279; Coleman v. Billings, 89 id. 183; Hinkley v. Greene, 52 id. 223; Fagan v. Rosier, 68 id. 84.) We think the plaintiff established in himself title to the 3.'39 acres, and to that extent he became a shore owner upon the lake.

Just how this fraction fronted on the lake does not fully appear, but under the foregoing rule of law plaintiff’s deed conveyed the land no further than the water line, giving him certain riparian rights. One of these rights as a shore owner was the right to take title to any land which might be added to his shore by accretion or reliction, and the principal question in this case is, as we view it, did the plaintiff establish, by evidence upon the trial, that the remainder of the 80-acre tract (that is, the 76.61 acres,) became added to the 3.39 acres by reliction or accretion. “Reliction” is the term applied to land made by the recession of the water by which it was previously covered. (Warren v. Chambers, 25 Ark. 120; 4 Am. Rep. 23; Banks v. Ogden, 2 Wall. 57.) “If the addition takes place suddenly and sensibly the ownership remains according to former boundaries; but if it is made gradually and imperceptibly the derelict or dry land belongs to the riparian owner from whose shore or bank the xoater has receded.” (Woolrich on Law of Waters, 29; Warren v. Chambers, supra.) All the authorities agree that in order that a shore owner take land by way of accretion or reliction it must appear that the addition was to his shore either by the deposit of earth or by the receding of the water from his land,' and that such addition must be by slow and imperceptible processes. If two or more own the shore from which the water recedes, the new land must be apportioned between them according to the extent of their shore line.

It is difficult, if not impossible, from the evidence in this case and the very imperfect plats of the lake and the surrounding land, to correctly understand just what caused the waters to disappear or how the surrounding lands were affected by the drying up of the lake. We are unable, however, in view of the facts presented, to reach the conclusion that the plaintiff established his ownership to the 76.61 acres as an addition to the 3.39 acres by reliction. It appears that upon the draining of the lake, in 1871, as the water receded there appeared dry land to the north-west of plaintiff’s fraction, which is known in the evidence as Grass island. This island contained some 15 acres, about one-half of which is situated on the north part of the 80 acres in controversy; also, that some distance north of the 3.39 acres, and east of Grass island, «there appeared a third island. The clear preponderance of testimony is that immediately north of this 3.39-acre fraction, and between it and the third island, there is a depression, and also that on the east side of Grass island, between it on the one side and the third island and the 3.39-acre fraction on the other, there is a swale, in which there is more or less water. The general tendency of the evidence is to the effect that the water of the lake on this north-west quarter is deeper on the west side of Grass island than on the east, but there is no satisfactory proof as to the direction in which the water receded from the shore as the lake dried up. Certainly it fails to show that the whole of the 76.61 acres became dry land by the water receding from the 3.39 acres. The existence of the islands mentioned, and the intervening swales and depressions, tend to show that the reliction, at least as to a part of said 76.61 acres, was not from plaintiff’s shore. As before stated, one of his claims of title is that a portion of the north 40 became dry land by reliction from the shore of Doty, who had conveyed the same to plaintiff. Manifestly, if that claim of title can be maintained,' plaintiff must fail in his contention that he became the owner of the 76.61 acres by reliction from his shore, as owner of the 3.39 acres. Nor is there any proof upon which to base the conclusion that relictions formed upon plaintiffs shore became so connected with the Doty land as to cover the entire 80-acre tract. We think the plaintiff utterly failed to establish his title to the whole of the land in question by reliction, for the reason already stated that he makes no proof whatever that the reliction was from his shore. Upon the contrary, the clear preponderance of the evidence is that at least a part of the dry land became such by the water receding either from the islands in question or from the east shore.

A considerable portion of the argument is devoted to the question whether or not the drying up of the lake was by such slow and imperceptible processes as to entitle shore owners to the dry land by way of accretion or reliction; but we do not regard that question as of controlling importance in the present state of the record, because, whether the recession of the water was sudden, within the meaning of the law, or gradual, no shore owner can take away from the State its title to the former bed of the lake unless he can establish by proof that the dry land was formed by the water receding from his shore line.

Appellee having wholly failed to show a prima facie title in himself to the 76.61 acres, he is in no position to urge that appellants were mere trespassers and insist that they cannot set up an outstanding title to defeat his action of ejectment. There is nothing in the facts of the case to take it out of the general rule that a plaintiff in the action of ej ectment can recover only upon the strength of his own title and never upon the mere weakness of his adversary’s.

The judgment of the circuit court will be reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.