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advantage of his own wrong or of an error | fendants said, "Make him pray." Byrn said, of the court induced by his own motion. If "I will do anything you want." Another it was error to instruct the jury upon the said, "Pray, then." Byrn said, "Oh, Lord' question of manslaughter and to submit to Lord!" which was followed by a moaning the jury the question of plaintiff in error's sound and revolver shots. Byrn's body was guilt of the crime of manslaughter, plaintiff dragged from the room, placed on the rear in error invited the error, and having done of his automobile, between the spare tire so must accept its results. He cannot ask the and the body of the car, with the feet dragcourt below to make a specific ruling or to ging on the ground, and the car was driven proceed in a certain manner and then suc- about two miles, where it and Byrn's body cessfully assign as error in a court of review were found a few hours afterwards, in a that the ruling or action of the court is er- ditch. Byrn's body had a gunshot wound roneous. Sheridan v. City of Chicago, 175 in the center of the upper lip. There were Ill. 421, 51 N. E. 898; Union Traction Co. v. two other bullet wounds on Byrn's bodyLundahl, 215 Ill. 289, 74 N. E. 155; People one over the left temple and one just back v. Darr, 262 III. 202, 104 N. E. 389; 2 R. C. of the left ear. Both bullets penetrated the L. 238. brain and brain was oozing out of both of the bullet holes. All three bullet wounds were powder burned. The bullet wounds were not all made by the same size bullets. There were six or seven cuts on Byrn's head. About 8:30 o'clock of that evening Byrn had a watch and about $40 in bills upon his person. When the body was found, all that was upon his person was 90 cents and a key.

[5] The murder was committed in the barroom of a "soft drink" establishment kept by Albert Bradley in the town of Pershing, in Franklin county. Bradley's place faced west and was a one-story building of five rooms a barroom, dining room, and three bedrooms. The west room was the barroom, 26 feet north and south and 20 feet east and west. In it were a bar, a kitchen cabinet, a stove, and an ice box. Back of this room An examination of the front room of the were a dining room and a bedroom and in Bradley place after the murder showed that the rear two bedrooms. On the night of on the kitchen cabinet, which was at the east April 2, 1922, between 11 and 12 o'clock, end of the bar, at the northeast corner of Byrn with two girls came to the Bradley the room, there was blood, starting about place in his Essex car. He left the car stand the top of the door and running down to the by the side of the road and with the girls floor. On the floor near the door there was entered the rear door of the place. The a big puddle of blood and brains. In front two girls remained in the northeast corner of the bar there was a large quantity of room and Byrn went to Bradley's room. blood. East of that place a short distance Shortly thereafter another girl came and there was another puddle of blood and brains. went into the southwest bedroom, where In the extreme south of the room there was there were two girls, one of whom was Helen blood against the wall and a bunch of hair Worsham, sister-in-law of the defendant sticking against the wall with the blood. Worsham and an assistant to Bradley. There was a small portion of blood in front, About 12 o'clock a knocking was heard at close to the wall, and there was another the front door, and Bradley told Helen Wor- pool of blood a short distance out from the sham to go and see who was there. She bar, and streaks of blood continued on the went into the front room, and after some floor and on the steps and a trail of blood words the door was forced open and plaintiff led to where Byrn's car had been standing. in error and his four codefendants entered In the barroom there was a cooking vessel the room. About this time Bradley appeared setting on the bar, about half full of bloody on the scene, followed by Byrn. The de- water. There was also a bucket about half fendants demanded liquor. Bradley told full of bloody water and a pitcher with them he did not have any but would see if bloody finger prints all over it. After the he could get some. The defendants then murder plaintiff in error, Worsham, and saw Byrn, and one of them said, "There is a Zappe left Pershing and went to Weaver, policeman." Another said, "It is the motor- where plaintiff in error and Zappe slept the cycle cop." A wrangle then ensued, in which remainder of the night on a pool table. They Worsham accused Byrn of having "snitched informed the proprietor of the place that on my brother," and knocked him down. Re- they had just come from Zeigler. The devolvers were then drawn, at least three or fendants were all arrested the next morning, more of the defendants having revolvers, and when arrested the clothing of all of the as did Byrn. Bradley and Helen Worsham defendants was smeared with blood. There fled from the room and in a short time left were spots of blood on plaintiff in error's the house, as did also the two girls who coat and a smear of blood on his shirt, near were in the southeast bedroom. A fight then the waist line. Plaintiff in error's coat and ensued in the barroom, in which it was evi- shirt were taken from him and introduced dent from the noise and the voices several in evidence. Notwithstanding the fact that persons were taking part. One of the de- the evidence shows that plaintiff in error

(147 N.E.)

sufficient to prove payment of taxes for 7 consecutive years.

Evidence held insufficient to prove payment of taxes by persons in possession for 7 consecutive years, under Limitations Act, § 7. 4. Adverse possession 13-Rule as to establishing title by 20 years' possession stated.

had been in the company of many people | 3. Adverse possession 95-Evidence held inafter 10:30 on the night of April 2, the only explanation attempted to be given of this blood on his clothing is by the testimony of a taxi driver living in Orient, who says that he saw plaintiff in error at a place called "The Yellow Dog," about 10:30 o'clock, and that he noticed at that time that his face was bloody around the nose. There was no testimony in the record that there was any blood upon plaintiff in error's clothes prior to the time he went to Bradley's, although he had been in the company of several of the witnesses in the meantime. While his codefendants testified that plaintiff in error took no part in the fight, their testimony in other respects was entirely discredited, and the jury were warranted in giving no credence to it.

No complaint is made as to the admission or exclusion of evidence, the giving or refusal of instructions, misconduct of counsel, or that in any respect plaintiff in error did not have a fair and impartial trial before a fair and impartial jury. The undisputed facts show that for about an hour prior to the killing plaintiff in error and his codefendants were together at a nearby resort; that he knew they were armed with revolvers; that they went together to Bradley's; that he joined with them in making a forcible entrance; that they were engaged upon an unlawful errand; that he was present in the room when the quarrel started; that several people took part in the fight; that after the killing he went, with two other parties who had participated in the killing, to another town; that he there gave a false account of his previous whereabouts. The jury saw and examined the unexplained blood spots on his clothing and were fully warranted by the evidence in finding him guilty.

To establish title by 20 years' possession, under Limitations Act, § 1, complainant must prove that he and his predecessors in title have been in the actual, visible, notorious, exclusive, and continuous possession under claim of ownership, and that the possession was hostile or adverse in its origin.

5. Adverse possession 114(1) Evidence held insufficient to prove title by 20 years' adverse possession.

Evidence held insufficient to establish title by 20 years' possession, under Limitations Act, § 1.

6. Adverse possession 36- Possession of one claiming exclusive ownership is adverse to all the world.

The possession of one claiming the exclusive ownership of land is adverse to all the world, and not merely to those who know or claim that they have title to the property. 7. Adverse possession 112-Presumptions in favor of holder of legal title.

All presumptions are in favor of holder of legal title.

8. Adverse possession 114(1)-Proof to establish title by adverse possession must be clear, positive, and unequivocal.

Proof to establish title by adverse possession must be clear, positive, and unequivocal.

Appeal from Circuit Court, McHenry County; E. D. Shurtleff, Judge.

Bill by Anton M. Schmitt against John

The judgment of the circuit court is af- King and others, in which defendant Jos firmed.

Judgment affirmed.

(316 III. 239)

SCHMITT v. KING et al. (No. 16348.) (Supreme Court of Illinois. Feb. 17, 1925. Rehearing Denied April 11, 1925.)

1. Adverse possession 93-Payments of taxes, without payment thereof for 7 consecutive years, are mere gratuities.

Payments of taxes by persons who are in possession, but are without legal title, and who have not made payments for 7 consecutive years, so as to become entitled to title, under Limitations Act, § 7, are mere gratuities.

eph King filed a cross-bill. From a decree
against complainant and for defendant Jos-
eph King on his cross-bill, complainant ap-
peals. Affirmed.

D. T. Smiley, of Woodstock, for appellant.
V. S. Lumley, of Woodstock, for appellee.

THOMPSON, J. This appeal is from a decree of the circuit court of McHenry county, denying the prayer of the bill of Anton M. Schmitt, praying that the title to a triangular tract of land containing 9.49 acres, located in the northwest corner of the southeast quarter of the southeast quarter of section 13, township 45 north, range 8 east of the third principal meridian, in the county of McHenry, be quieted and held to be in him, and allowing the prayer of the crossbill of Joseph King, appellee, and holding Purchaser of unoccupied land, described by that he is the owner of said tract of land. deed as certain lot, had color of title to land. In 1845 there was issued by the United within the lot as shown on assessor's plat. iStates government to Peter Sabel a patent

2. Adverse possession 71(1)—Purchaser of unoccupied land, described as lot, had color of title to land within lot as shown on assessor's plat.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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assessor's plat, the waters of Fox river receded from the lands north and west of it and thereby increased the land area of the southeast fractional quarter of section 13. In making his plat in 1868, the assessor omitted the line showing the southern boundary of the northeast quarter of the quarter section, and divided that part of the quarter section north and west of Fox river into three parts, indicating in the three subdivisions an acreage equal to that represented by the two patents isued by the United States government conveying the lands to Sabel and Mueller. Mueller, through whom appellant traces his title, never had title to any lands in the southeast quarter of the quarter section. The acroage indicated on the assessor's plat for lots 47 and 48 equals the acreage indicated in the government patent conveying to Mueller the fractional northeast quarter. Appellant does not claim to have the record title to the tract of land in question, but he does claim to have title by virtue of possession under sections 1 and 7 of the Limitations Act (Smith-Hurd Rev. St. 1923, c. 83). It is conceded by appellant that the patent to Sabel covers the triangular tract of land in question.

conveying to him the "northwest quarter of the southeast fractional quarter and the southwest fraction of the southeast fractional quarter (west of Fox river) of section thirteen, in township forty-five north, of range eight east, in the district of lands subject to sale at Chicago, Illinois, containing seventy-five acres and sixty-seven hundredths of an acre, according to the official plat of the survey of the said lands, returned to the general land office by the surveyor general." Sabel owned these lands until 1887, when he conveyed them by exactly the same description to Joseph King, grandfa- | ther of the present owner. After the death of King the lands were sold in a partition suit, the master in chancery conveying by the same description to John King, and in 1921 he sold them to his. son Joseph, appellee. Title to the lands in the northeast quarter of the same quarter section came down from the United States government through John Mueller in a direct chain of conveyances. According to the original government survey this subdivision of land contained 36.45 acres, about 32 acres being cut off the southeast corner of the 40 by Fox river. In 1868 the assessor of the town of McHenry divided this subdivision of land into two lots, and numbered the east lot 47 and the west 48. According to the plat, lot 47 contains 18.25 acres of land, and lot 48, which is slightly narrower and longer, contains 18.20 acres. In 1871 John Frett conveyed lot 48 to John Buchner, and nine years later the latter conveyed to Eva Meyers "lot forty-eight (48), northeast quarter of the southeast fractional quarter" of section 13. In 1909 Eva Meyers conveyed "lot forty-eight (48), in the southeast quarter" of section 13, to Stephen M. Schmitt, and five years later the latter conveyed the same lands to his son Anton, appellant. Because of the unusual de scription and survey of the lands conveyed to Sabel and because of the different descriptions given in the several deeds to lot 48, we deem it necessary to incorporate in this opinion the following plats of the southeast quarter of section 13:

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[1-3] Shortly after Stephen M. Schmitt became the owner of lot 48, he learned that John King had the record title to the 9.49 acres of land lying north and west of Fox river, in the northwest corner of the southeast quarter of the quarter section here involved, and he then declared that he and his predecessors in title were the owners of said tract of land and extended his fence along the west side of the disputed tract to Fox river. This suit was brought by his son in December, 1922. There is no dispute in the evidence that the Schmitts have been in the actual, visible, exclusive, and hostile possession of the tract of land for 13 years immediately preceding the filing of the bill. The deed conveying the land to Stephen described it as lot 48 in the southeast quarter of section 13, and the only recorded plat showing lot 48 is the assessor's plat, which shows the lot to include the lands in dispute. The Schmitts, therefore, having color of title made in good faith to the vacant and unoccupied lands in question, are entitled to a decree quieting their title to the same, if they have paid all taxes legally assessed against the said lands for 7 successive years. The Schmitts have paid the taxes on all of lot 48 from 1910 to 1922, inclusive. According to the tax receipts in the record, in 1914 Stephen M. Schmitt paid the taxes on 18.30 acres of land in section 13, described as lot 48, February 23 and February 16 John King paid the taxes on 75.67 acres of land in section 13, described as follows: "W. of river W. front 1⁄2 S. E. 14." In 1917 Anton M. Schmitt paid the taxes on 18.30 acres of land in section 13, described as lot 48, February 22, and February 14 John King paid

(147 N.E.)

the taxes on 75.67 acres of land in section, bank of Fox river in the south end of the 13, described as follows: "W. creek W. fr. three tracts shown by the assessor's plat, 1⁄2 S. E. 4." If the lands on which John were low and marshy, and until recent years King paid the taxes for the years 1914 and were submerged during the greater part of 1917 include the lands in dispute, then the the year. Lots 47 and 48 were platted at or Schmitts have failed to show payment of about the same time as the village of Johnstaxes for these years; the subsequent pay-burg, which lies immediately north of them ments made by them being mere gratuities. in the northeast quarter of section 13. Clayton v. Feig, 188 Ill. 603, 59 N. E. 245; Twenty-five or 30 years ago the inhabitants Morrison v. Kelly, 22 Ill. 609, 74 Am. Dec. of this village dug a ditch down the west 169. The only tract of land in the south-line of lot 48 to drain the surplus water east quarter of section 13 that, according to the original survey, contains 75.67 acres of land, is the tract owned by the Kings. In the tax receipt for 1914 this tract is described as being west of the river, which is the same description made of a tract of land of the same acreage conveyed by the government to Sabel. There is also on the receipt this description: "W. front 1⁄2 S. E. 14."

from the lands in the village. This ditch was not opened to the river, and it discharged the waters flowing through it into the marsh on the lands in question. These marshy lands along the river were open and unoccupied, and were used as a commons by the people of Johnsburg for pasturing their milch cows.

Some time after the ditch was dug the Undoubtedly the writing which looks like Kings tacked some smooth wire on the wilthe word "front" must have been intended lows growing along the ditch and on posts as an abbreviation for the word "fractional," which they drove into the swamp, for the because the only land owned by the Kings | purpose of preventing the cattle from enterin the southeast quarter was the west frac- ing upon their lands in the west half of the tional one-half of the quarter and the trian- quarter section. This fence extended into gular tract in the northwest corner of the the river at a point some rods east of the southeast quarter of the same quarter sec- point where the west line of lot 48, accordtion. The tax receipts issued to John King ing to the assessor's plat, touches the river. for the years 1912, 1913, 1915, and 1916 de- The fact that the Kings, by the erection of scribe the tract containing 75.67 acres as this fence, separated the land in dispute “W. of river W. fr. 1⁄2 S. E. 4." In the tax from the main body of their land is of no receipts for 1917, and for the five years in- importance. They had the right to run a tervening between that date and the date of fence anywhere they chose, as long as it was filing the bill, the tract of land containing on their own land. If they wanted to leave 75.67 acres in section 13 is described: "W. a part of their unused land outside their creek W. fr. 2 S. E. 4." Undoubtedly the fence, to be used in common with other unword "creek" refers to Fox river. While the used lands, that was their business, but they triangular tract of land in dispute is not in did not by that act surrender their title to the west half of the S. E. 4 of section 13, the adjoining landowners. The fact that the it has been described as being in the west Kings did not know just where their lands half of the fractional S. E. 14 of section 13 lay, or just what portion of these unused from the time the government conveyed it to swamp lands along the bank of Fox river Sabel down to date. We think it is clear belonged to them, is of no consequence. The that John King paid the taxes on the lands possession of one claiming the exclusive in dispute in 1914 and in 1917. This being ownership of land is adverse to all the world, true, the Schmitts have not paid the taxes and not merely to those who know or claim on these lands for 7 successive years, as re- that they have title to the property. Waquired by section 7 of the Limitations Act, terman Hall v. Waterman, 220 Ill. 569, 77 N. and appellant is not entitled to a decree un- E. 142. der that section adjudging him to be the legal owner of the tract of land.

[4-8] In order to establish title by 20 years' possession, appellant must prove that he and his predecessors in title have been in the actual, visible, notorious, exclusive, and continuous possession of said lands under claim of ownership, and that the possession was hostile or adverse in its origin. Jaster v. Spikings, 312 Ill. 170, 143 N. E. 393; Duck Island Hunting & Fishing Club v. Whitnah, 306 Ill. 284, 137 N. E. 840; Hayden v. McCloskey, 161 Ill. 351, 43 N. E. 1091; Ambrose v. Raley, 58 Ill. 506. The evidence on this branch of the case shows that the lands in dispute, and much of the land along the

The act of the assessor in including the disputed tract with the undisputed lands in lot 48 is not binding upon appellee, and does not of itself give title to the disputed tract to the owner of lot 48. Adverse possession cannot be made out by inference or implication. All the presumptions are in favor of the holder of the legal title, and the proof to establish title by adverse possession must be clear, positive, and unequivocal. Wilkinson v. Watts, 309 Ill. 607, 141 N. E. 383; Zirngibl v. Calumet Dock Co., 157 Ill. 430, 42 N. E. 431. The evidence produced by appellant does not meet this test, and the chancellor properly denied the relief asked by him. There being no other challenge to the

record title of appellee, the chancellor was [ 8. Constitutional law 93 (1)-Purchasers of right in confirming title to the disputed tract cemetery lot acquire vested interest.

in him.

When a cemetery has been platted and lots

The decree of the circuit court is affirmed. sold with reference thereto, purchasers of lots Decree affirmed.

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1. Cemeteries 2-"Cemetery" defined.

A "cemetery" is a place or area of ground set apart for burial of the dead, and is created by act of setting ground apart for burial, marking, and distinguishing it from adjoining ground as a place of burial.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Cemetery.]

2. Dedication 17-Deed conveying described tract of land as a cemetery would be a dedication.

A deed conveying a described tract of land as a cemetery would be a dedication of it as a cemetery and prescribing of its boundaries.

3. Cemeteries Cemeteries not nuisance per se.

Cemeteries are not a nuisance per se and subject of absolute prohibition by legislative action.

4. Nuisance 3 (7)-Cemetery cannot be enjoined because offensive to æsthetic sense.

A cemetery may be objectionable or offensive to taste of adjoining owner, but its use cannot be enjoined merely because it is offensive to æsthetic sense of such proprietor.

5. Nuisance 3(7)—Cemetery must be clear ly proved to be nuisance.

Before a cemetery can be abated or its use enjoined as a nuisance, it must be clearly and satisfactorily proved to be a nuisance, and this cannot be done by evidence tending to show that it might become such.

6. Cemeteries -Power to regulate, stated. Regulation prohibiting maintenance of cemeteries, though warranted where they may endanger life or health by corrupting atmosphere or waters in vicinity, cannot be upheld on æsthetic reasons or because cemeteries are a source of annoyance to some persons, or that they make vicinity less attractive and so lessen value of adjoining lands.

acquire a vested interest in use of premises for burial purposes, of which right they cannot be divested without due process of law.

9. Cemeteries 3-Ordinance prohibiting establishment of cemetery held inapplicable; "establish."

Village ordinance prohibiting dedication or establishment of a cemetery within one mile of corporate limits of village had no application to premises previously dedicated and established as cemetery, though brought within the one-mile radius by subsequent annexation proceedings; "establish" meaning to create and regulate.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Establish.]

Appeal from Circuit Court, Du Page County; Mazzini Slusser, Judge.

Proceedings by the Village of Villa Park and another against the Wanderer's Rest Cemetery Company and others. From decree of dismissal, plaintiffs appeal. Affirmed.

Charles W. Hadley, of Wheaton, and Edmond W. Pottle, of Chicago, for appellants. Delbert A. Clithero, Frederic C. Harbour, and Robert N. Holt, all of Chicago, for appellees.

HEARD, J. This is a proceeding instituted in the circuit court of Du Page county by appellants, the village of Villa Park, a municipal corporation, and Magdalena Junk, seeking to restrain appellees from establishing or dedicating a cemetery within one mile of the corporate limits of the village of Villa Park. Two grounds are set up in the bill of complaint upon which the injunction is

asked. The first is an ordinance of the vil

lage of Villa Park, which provides:

"No person, persons, corporation, association or company shall hereafter establish or dedicate any cemetery within one mile of the corporate limits of the village of Villa Park. To do the same is hereby prohibited."

The second is that the establishing of a cemetery on the premises described in the bill would greatly injure and depreciate the value of the property in the village of Villa Park; that the village is a rapidly growing municipality; that the establishing of the cemetery would greatly damage and depreciate the value of the lands in the vicinity and would make the same unfit and undesirable for modern homes; and that the estabBy reason of interest of public in establish- lishment of a cemetery would constitute a ment of cemeteries and that ordinance prohib- public nuisance. Upon a hearing the circuit iting dedication and establishment of a cemetery within one mile of corporate limits of vil-court entered a decree dismissing the bill lage was penal in its nature, it was to be strict- for want of equity, from which decree an ly construed against municipality. appeal has been perfected to this court.

7. Cemeteries 3-Ordinance prohibiting establishment strictly construed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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