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(148 N.E.) In the open field around the unfinished end, want of a better term, an attractive nuiof this canal the children of the neighborhood sance. play. There are no houses on the west side In dealing with a case in which the facts of Ogden avenue, between the right of way were almost identical with those of the of the canal and Broadway, which is two case at bar, the Supreme Court of Kansas in blocks south. East of Ogden avenue, on Somerfield v. Land & Power Co., 93 Kan. 762, John street, there are several houses facing 145 P. 893, said: north, and there are houses on both sides of Broadway. Roy Mindeman lived with his

“The canal, as will be observed, has the

characteristics of a natural stream, and can parents and three brothers on Broadway, at

no more be regarded as an attractive nuisance Vine avenue, one block east of Ogden avenue. than would a river flowing through the city, After lunch on the day of the accident, he or a pond or lake therein. It has been held went to the home of a playmate, Irving Roth- that an unprotected pool in a natural water enberger, a boy 11 years old, who lived about course, to which boys resorted to wade and a half block west of him. After playing at swim, could not be regarded as an attractive the house a while, they got some bottles from nuisance within the meaning of the 'turntable' the alley south of Broadway and took them Pac. 185. In Harper v. City of Topeka, 92

cases. Tavis v. Kansas City, 89 Kan, 547, 132 spoil nk on the south sid of the

Kan. 11, 139 Pac. 1018, it was ruled that a pond canal. Irving had played around the un- in a city park, which was substantially a reprofinished end of the canal before, but Roy had duction of a natural pond, although attractive never been there. After playing with the to children, did not come within the rule of atbottles on the spoil bank, they went down tractive nuisances. There is no greater necesto the canal wall, threw the bottles in the sity to build a fence or put a cover over the canal, and began throwing rocks at them. canal than there would be to fence or cover a

natural stream, and there can be little distincIrving walked up the bank to get some more tion made between them, so far as the 'turnrocks, and as he turned around he saw Roy table' doctrine is concerned. There might be disappear over the edge of the wall. He ran ground for the contention of appellees, if the down to the canal and saw him struggling appellant had unnecessarily placed or permitted in the water about 15 or 20 feet west of some attractive or dangerous structure to be the finished end of the wall. Irving called placed on or over the canal, that would imperil for help and ran home to tell his mother. the lives of children attracted there to play Roy's father, who was working a few blocks away, was notified, and he ran to the canal.

In Barnhart v. Chicago, M. & St. P. R. When he arrived there he saw Roy's hat floating on the water, about 25 feet west of Co., 89 Wash. 304, 151 P. 441, L. R. A. 1916D),

443, a boy 8 years old was drowned in a the finished end, but did not see Roy. The pond upon the railroad right of way, and the next day the canal was dragged, and the court, in holding the company free from liabody was recovered from the channel,

bility, said: The water in the canal is not visible from the public street, and it cannot be reached the owner of property may be liable (a) by

“The question here presented is not whether without crossing 300 feet of private property reason of a trap or pitfall upon his property, of the Sanitary District. It is the contention which may produce the death or injury; (b) a of appellee that appellant permitted children hidden or concealed danger; or (c) a dangerto go upon its property over an open road- ous agency in close proximity or so near way, and to play in and about the pool at highway that in the use of the highway an acthe unfinished end of the canal, and that cident may occur—but is whether a pond of wathis pool, with boards and bottles floating ter is a dangerous agency, such as will subject vopn it , was attractive to children, and that the owner of the property to liability for dam

ages for the death of a child of tender years, appellant is liable for the death of the little attracted to the pond for the purpose of play. boy in question, under the doctrine establish- The turntable doctrine makes the owner liable ed in City of Pekin v. McMahon, 154 III. 141, because the dangerous agency was attractive 39 N. E. 484, 27 L. R. A. 206, 45 Am. $t. Rep. to children of tender years, and in playing 114. Whether appellant would be liable for about or with such agenry accident or injury the drowning of a child in the untinished end would probably result. That a pond of water of the canal need not be decided, for the rea- swimming, and fishing, no one will deny. But

is attractive to boys, for the purposes of play, son that there is no evidence in this record its being an attractive agency is not sufficient to showing that Boy Mindeman was attracted subject the owner to liability. It must be an to the canal by the pool, wherein were float- agency such as is likely to, or will probably, ing the bottles and boards, or that he was result in injury to those attracted to it. That drowned in this pool. The evidence is un- many boys every year lose their lives by drowndisputed that he went from the home of his ing is a matter of common knowledge. But the playmate to the spoil bank south of the canal, number of deaths, in comparison to the total and that he went from there to the wall of number of boys that visit ponds, lakes, otor

streams for purposes of play, swimming, and the finished canal. The question, therefore, fishing, is comparatively small. It would be for decision, is whether the canal of the San- extending the doctrine too far to hold that a itary District is what has been called, for pond of water is an attractive nuisance.”

148 N.E.-20

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quoting from the many authorities on the ing or tending to show that appellant is subject, it is sufficient to say that the courts guilty of any wrongful act which caused the seem to be of one mind in holding that a death of appellee's intestate, and the court canal, a pond, or other open body of water should have directed a verdict of not guilty. on private property, is not of itself an at- Austin v. Public Service Co., 299 Ill. 112, 132 tractive nuisance, as that term is used in N. E. 458, 17 A, L, R. 795; Heimann v. Kindescribing an instrumentality which will ren-nare, 190 Ill. 156, 60 N. E. 215, 52 L. R. A. der the owner liable for injuries to a child 652, 83 Am. St. Rep. 123. attracted to and injured by it. United Zinc The judgments of the Appellate Court and & Chemical Co. v. Britt, 258 U. S. 268, 42 S. superior court are reversed. Ct. 299, 66 L. Ed. 615; Thompson v. Illi Judgment reversed. nois Central Railroad Co., 105 Miss. 636, 63 So. 185, 47 L. R. A. (N. S.) 1101; Emond v. Kimberly-Clark Co., 159 Wis. 83, 149 N. W.

(317 III. 425) 760; Stendal v. Boyd, 73 Minn. 53, 75 N. W. PEOPLE ex rel. NAFTZGER V, ARNETT 735, 42 L. R. A. 288, 72 Am. St. Rep. 597;

et al. (No. 16681.) Wheeling & L. E. R. Co. v. Harvey, 77 Ohio

(Supreme Court of Illinois. June 18, 1925.) St. 235, 83 N. E. 66, 19 L. R. A. (N. S.) 1136, 122 Am. 'St. Rep. 503, 11 Ann. Cas. 981; 1. Appeal and error m520(I)-Motion to set Peters v. Bowman, 115 Cal. 345, 47 P. 113,

aside order, granting leave to file informa. 598, 56 Am. St. Rep. 106,

tion in quo warranto, must be preserved by The case of City of Pekin v McMahon, su

bill of exceptions. pra, is not in conflict with these authorities.

Motion to set aside order, granting leave to In that case this court did not hold that a

file information in quo warranto and rulings pond of water was an attractive nuisance, but must be preserved by bill of exceptions.

thereon, are not parts of common-law record, but it held that a pond of water, in which floating logs on which children were in the 2. Appeal and error Ow544(1)-Order, setting habit of playing were permitted to remain,

aside leave to file information and dismissing when maintained near a driveway in a popu

petition, not reviewable, in absence of bill of

exceptions or stenographic report signed by lous city, was under the circumstances such

judge. a dangerous instrumentality, attractive to

Assignments of error on rulings of court on children, as to render the owner liable for motion to set aside order, granting leave to file the drowning of a child playing there. In information in quo warranto and to dismiss peMcDermott v. Burke, 256 Ill. 401, 100 N. E. tition, are not reviewable, where not preserved 168, a boy went upon private property to by bill of exceptions or stenographic report play in a sand pile, and after playing there signed by judge. a while walked over to a place where some 3. Quo warranto E43—Leave to file infor. workmen were hoisting materials from the

mation granted, without notice or hearing,

may be vacated and set aside during term. first to the second floor of a building under construction. He placed his hand upon the

Court, granting leave to file information hoisting cable running over a sheave, and it ing term, may vacate and set aside such order,

in quo warranto, without notice or hearing durwas crushed between the cable and the when shown to have been inadvertently or imsheave. After discussing at considerable properly granted under misapprehension of length the liability of one for maintaining law or facts. an attractive nuisance, the court held that it 4. Quo warranto Em6, 29—Writ is not writ of was a necessary element of the liability that

right; delay o'r acquiescence may justify rethe thing which attracted the child was the

fusal of leave to file information, thing which caused the injury or brought the

Writ of quo warranto is not writ of right, child into the situation where it was injured. and delay or acquiescence on part of public

In this case the spoil bank, which was in bringing action for such writ will justify rethe thing visible from the public street and fusal of leave to file information. the place where the child first came to play, 5. Appeal and error Om948—Court held prewas not dangerous, and did not contribute to

sumed to have acted within its discretion in the injury of the child. The water in the

absence of bill of exceptions showing rulings canal, in which the child was drowned, was on motions, not visible from the public street, and did not On appeal from order granting motion to set attract the boy onto the premises of appel- aside order, granting leave to file information lant. As we have said, there is no evidence in quo warranto and dismissing petition, in abwhatever in the record that this boy was sence of bill of exceptions showing rulings of attracted to the canal by the rubbish floating court on motions, it will be presumed court in the pool at the unfinished end of the canal, I acted within its legal discretion in denying re

lief prayed. or that this pool, with its attractive floating objects, contributed in any way to the drown Appeal from Circuit Court, Whiteside ins of the boy. Regrettable as this accident | County; Charles J. Searle, Judge.

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

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(148 N.E.) Petition by the People, on the relation of ing relator the relief prayed; in entering I. G. Naftzger, for leave to file an informa- | judgment for costs against the relator; in tion on quo warranto against Board of Ed-setting aside the order granting leave to file ucation of Community High School District | the information in quo warranto; in disNo. 303, in Whiteside County, was granted, missing the petition for leave to file an inbut on motion of Edwin Arnett and others formation in quo warranto; and in allowvacated, and petition dismissed. Petitioner ing the motion of defendants to set aside appeals. Affirmed.

the order granting leave. Robert W Besse, State's Atty., of Sterling

[2] Assignments of error on the rulings of (A. M. Blodgett, of Fulton, of counsel), for the trial court on motions to set aside an appellant,

order granting leave to file an information Earl L. Scott, of Rock Island, and Jacob in quo warranto and to dismiss the petition Cantlin, of Rock Falls, for appellees.

cannot be considered by this court, where

they are not preserved by a bill of exceptions STONE, J. On December 24, 1924, ap- or a stenographic report signed by the trial pellant, by Robert W. Besse, state's attorney, judge. People v. Fling, 303 Ill. 215, 135 N. filed a petition in the circuit court of White E. 415; People v. Glasgow, supra; People v. side county for leave to file an information in Ritscher, 301 Ill. 40, 133 N. E. 666; People the nature of quo warranto against the v. Cowen, 283 Ill. 308, 119 N. E. 335. board of education of community high school

[3] Where leave has been granted to file district No. 303 in that county, alleging that an information in quo warranto without nothe district is irregular in shape, is not com

tice and hearing on the petition, the court pact and contiguous, as required by law, is authorized, during the term in which the and that the school is maintained at Erie, leave is granted, to vacate and set aside that in said district, which is not the community order where the same is shown to have been center thereof; that the district was organ

inadvertently or improperly granted under ized March 20, 1920, and from that time has a misapprehension of the law or of the facts. conducted a high school and levied taxes, People v. City of Chicago, 270 III. 188, 110 but has not issued bonds. An order was en

N. E, 366. tered allowing the filing of the information,

[4] An examination of the petition and inand, on January 5, the appellees filed a mo- formation filed in this case shows that the tion to vacate that order, and to dismiss the high school in this district had been conpetition. On a hearing this motion was ducted for a period of more than four years granted, and the petition was dismissed. Ap- before an information in quo warranto, was pellant brings the cause here for review. sought. A writ of quo warranto is not a

[1] Appellant has filed no bill of excep- writ of right, and delay or acquiescence, on
tions with the record. The common-law rec the part of the public in bringing action for
ord, only, has been filed. An examination such writ, will justify a refusal of leave to
of the record discloses that the clerk of the file an information. People v. Burrell, 308
trial court has copied into the common-law 111, 600, 139 N. E. 865; People v. Jones, 308
record the motion of appellees to set aside 1l. 246, 139 N. E. 403; People v. Burson,
the order permitting the filing of the infor- 307 Ill. 533, 139 N. E. 139; People v. Stew-
mation, and to dismiss the petition therefor, art, 306 II. 470, 138 N. E. 180.
together with the affidavits filed in support [5] The only error assigned on the com-
thereof. No certificate of the trial judge ap-mon-law record is that the court erred in en-
pears in connection therewith. It has been tering judgment denying the relief prayed.
many times held by this court that motions in the absence of a bill of exceptions show-
of this character made by the parties in a ing the rulings of the court on motions, it
proceeding at law, and the rulings of the will be presumed that the court was acting
court thereon, are not parts of the common within its legal discretion in so doing. It
law record, but must be preserved by bill of is not apparent from an examination of the
exceptions. People v. Levin, 313 111. 588, 145 | information and the petition therefor that
N. E. 75; People v. Glasgow, 301 III. 394, 134 | the denial of the petition amounts to an
N. E. 19; People v. Weston, 236 111. 104, 86 abuse of discretion.

The judgment of the circuit court will be
The errors assigned on the record are that affirmed.
the court erred in entering judgment deny Judgment affirmed.

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N. E, 188.

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(317 I!. 441)

for complainant, with dismissal of defendPARKER v. RULEY. (No. 16711.) ant's cross-bill, defendant appeals. Affirmed. (Supreme Court of Illinois. June 18, 1925.) Charles W. Lamborn, of Chicago, and Mor

ris & South, of Watseka, for appellant. 1. Wills m488–Oral and written declarations

McCulloch & McCulloch, of Chicago, and of testator held incompetent, where will J. W. Kern, of Watseka (Arthur Abraham, unambiguous.

of Chicago, of counsel), for appellee. Where no question of validity of will or mental competency of testator was involved, and language of will was unambiguous, neither

DUNN, C. J. This is an appeal by Grace written statement of testator attached to his Parker Ruley from a decree of the circuit will, nor oral statements made by him, either court of Iroquois county quieting the title to before or after execution of will, were com- certain real estate in the appellee, Grace petent.

Weller Parker, and dismissing for want of 2. Trusts 89(5)-Parol evidence to estab. equity the appellant's cross-bill, praying that

lish equitable title, as against legal title of the appellee be decreed to hold the title in one in possession, must be clear and con- trust for the appellant and her children, vincing.

subject only to a life estate in the appellee. Where proof to establish equitable title Robert W. Parker died on March 20, 1922, against holder of legal title in possession rests having no children or descendant, but leavwholly in parol, evidence must be strong, clear, ing the appellee, his widow. His other heirs and convincing.

were his mother, Mary L. Parker, his sister, 3. Trusts 89(1)-Resulting or implied trust the appellant, and his brother, Ralph D.

not sufficiently established, where evidence Parker. He left a will, dated September 16, capable of reasonable explanation on theory 1919, by which he gave all his property to other than existence of such trust.

his wife, if she survived him, but, if she did Where evidence is capable of reasonable ex not, then to his sister, Grace Parker Ruley. planation on theories other than existence of The will was admitted to probate in the an implied or resulting trust, such trust will probate court of Cook county. The testanot be held to be sufficiently established.

tor owned at the time of his death the north4. Wills Cm 477–Wife's will held not to show east quarter of section 27, town 27 north,

that it was made pursuant to agreement with range 14 west of the second principal meritestator that wife would devise property to dian, in Iroquois county. testator's sister.

On March 8, 1923, his widow filed a bill Wife's will, containing clause, “This devise in the circuit court of Iroquois county, aland bequest is made in accordance with an un- leging that since the death of the testator derstanding between myself and my said hus- the appellant, on her own behalf and on beband during his lifetime,” held not to show existence of alleged contract between testator and, half of her two minor children, has made his wife, whereby wife agreed to devise prop

an unjust and unfounded claim to the enerty, willed to her by testator, to testator's tire right and title to the real and personal sister or her children.

estate acquired by appellee under her hus

band's will, subject only to a life estate of 5. Wills Cw58(2)-Evidence held not to estab- the appellee, claiming that the appellee holds

lish agreement between testator and wife, whereby wife was to devise property to tes the legal title to the real estate in trust for tator's sister.

the appellant or her children, and that the Evidence held not to establish agreement be appellee legally contracted with her hustween testator and his wife, whereby wife was

band to execute, a will by which such real to have only a life estate, and was to devise and personal property should at her death property to testator's sister or her children, go to the appellant, or to her children in especially as such agreement would be entirely case of her death, and that the appellee is inconsistent with testator's will, whereby he legally bound to carry out the terms of such devised property to his wife in fee simple.

agreement, and execute a will devising and 6. Appeal and error C 1009 (4)--Chancellor's bequeathing such real and personal property,

conclusion not disregarded, unless manifestly as it is alleged said pretended contract against weight of evidence.

provides. The bill denies that the appellee In view of chancellor's superior means of ever made any such contract or any contract determining credit of witnesses, whom he saw with respect to a will, alleges that by reason and heard testify, his conclusion cannot be dis- of the unfounded claims of the appellant regarded, unless manifestly against weight of the title of the appellee is clouded and inevidence.

secure, and prays that the appellee be de. Appeal from Circuit Court, Iroquois Coun- creed to be the sole owner, in fee simple, of ty; Frank E. Hooper, Judge.

the real estate in question. Grace Parker

Ruley, her husband, her two minor sons, the Bill to quiet title by Grace Weller Park- heirs of Robert W. Parker, and the tenant er against Grace Parker Ruley, in which de- of the real estate were made defendants. ferdant filed a cross-bill. From a decree Grace Parker Ruley answered and filed a

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

(148 N.E.) cross-bill, alleging that the testator acquir- | er went away, taking the draft with him. ed the real estate by inheritance from his He returned later with an executed will, in father; that he had no children, and desir- effect the same as the draft, but somewhat ed that his wife should have a life estate, changed in phraseology. Parker then told only, in his property, and that upon her Taylor he had inherited his property from death it should go back to his own family, his father, and he felt that it should go to the appellant, and, in the event of her back to his father's family when his wife prior death, to her children; that he execut was through with it; that he wanted her ed a will making such disposition of his to have the use of it while she lived, but did property, but the appellee induced him to not want it to go to her folks. Some weeks reroke it and execute the will which was later Parker told Taylor that he was goadmitted to probate, promising, if he did | ing to change his will; that his wife was make a will giving her his entire estate, not satisfied to have the property left as that she would execute her will giving to he had left it, and she had agreed that, if the appellant, or, in the event of her death, he would change the will leaving the propto her children, all the property acquired erty to her, she would make her will leavby the appellee under her husband's will; | ing the property to his sister, and, in the that at the time of executing the new will event of the sister's death, to the sister's the testator made the following statement children. Taylor told him that was a very in writing as evidence of the agreement of loose way of leaving things, and Parker his wife, which he signed and attached to said he would leave a writing or a paper his will:

showing there was an agreement of that "Chicago, September 16, 1919. kind. Taylor told him that it would be bet"It is understood between my wife and myself ter to put it in the will itself, and there that on my decease she shall execute a will would be no question; but Parker said his (if she has not already done so) by which any wife had agreed to do it, and she would and all property of mine going to her, shall


Parker afterward brought at her decease go to my sister (or her children

keep her word. in the case of her death). My wife having full in the will of September 16, 1919, which was control and enjoyment and ownership of my already executed, and brought with him the said property during her (my wife's) lifetime written memorandum mentioned in the with all income and profits therefrom.

cross-bill, in his own handwriting and bear. "Robert W. Parker," ing his signature, which he pinned to the -that after his death the appellee acknowl- will in Taylor's office. Taylor was named edged that the agreement had been made, as executor of the will. and executed her will giving to the appel

Two days before Parker's death, when he lant, or to her children in the event of her was dangerously ill and unconscious, Tay. prior death, all the estate which had been lor called at his house, and testified that he derised and bequeathed to her by the will had a long conversation with the appellee, of her husband, but that soon after she

in which she told him that she wanted him revoked such will, and made another giv- to draw her will; that she had agreed with ing the estate to others than the appellant her husband to make a will, and she wanted and her children.

The appelleę answered, him to draw a will leaving the property to the denying the alleged agreement with her hus- appellant and her children. The night after band and other allegations of the cross-bill, Parker's death Taylor again went to his and claiming the benefit of the statute of house and had another conversation with frauds. The cause was heard by the chan- the appellee, in which she again stated that cellor in open court.

she had agreed to make her will, leaving Whether the right to the relief claimed is the property to her husband's sister, and, regarded as based upon contract or fraud, in case of her death, to her children, and It is essential that the complainant in the she wanted Taylor to draw the will that cross-bill prove that the devise to the ap- night. He told her it was not necessary to pellee by her husband was made in consider take it up then-to wait until after the ation of her agreement to make a will de- funeral and he would attend to it for her. vising the property to the appellant, or, in She said she had agreed, if Robert would case of her death, to her children.

change his will, leaving everything to her, The appellant produced as a witness Wil- that she would make this will, leaving the liam A. Taylor, a lawyer and a friend of property to his sister. Taylor testified that the testator, who testified that several weeks after Parker's death he and the appellee, before September 16, 1919, the testator show- her stepfather, and the appellant met in the ed him a draft of a will which he contem- safety deposit vault of the Illinois Trust plated making, giving a life estate in his Safety Deposit Company, in the presence of property to his wife, with remainder to his the manager and a representative of the sister, and in case of her death prior to his inheritance tax office. The testator's box wife then to his sister's children. Taylor was taken into the conference room adjacent and Parker talked over the execution of the to the vault and opened, the will was taken will

, some changes were discussed, and Park- out, and it had pinned to it the paper signed

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