People v. Nichols , 9 Ill. 307 ( 1847 )

The.Opinion of the Court was delivered by

Lockwood, J.

This was an action of debt, commenced by the plaintiffs against the defendant, to recover the penalties given by the Acts of the legislature, passed for the protection of the canal lands against trespassers.

The cause was tried by the Court below without a jury. On the trial, evidence was given tending to prove that the defendant entered on land that had been granted to this State, by the United States, for the purpose of aiding the State in the construction of the Illinois and Michigan canal, and cut and hauled away three trees which were growing on said land.

' It was admitted on the trial, that said land had been conveyed by the Governor of this State, before the cutting of said trees, to the board of Trustees of said canal, in accordance with the provisions of an Act entitled, “An Act supplemental to an Act to provide for the completion of the Illinois and Michigan Canal, and for the payment of the canal debt, approved February, 21, 1843,” approved March 1st, 1845.

Upon this state of facts the Circuit Court decided, that after the passage of the Act of 1843, and the organization of the board of Trustees of the Illinois and Michigan canal, and the execution by the Governor to said board of a deed of trust, of the canal lands and property, as directed in the Act of 1845, the title to said canal lands included in said deed of trust, was passed by the State of Illinois to said board of Trustees, and no longer remained canal lands within the meaning of the Act entitled “An Act to amend an Act to protect the canal lands against trespassers,” approved March 4th, 1837, and an Act to amend an Act entitled “An Act to protect the canal lands against trespasses, approved February 19th, 1839,” approved February 27th 1845, and that therefore the defendant was not liable to the penalties provided in said Act. This decision of the Circuit Court is assigned for error.

By the fourth section of the amended Act above mentioned, it is provided that “if any person shall cut, fell, box, bore, injure or destroy, any tree or sapling of any description, standing or growing upon canal land, he or she so offending, shall pay five times the value of every tree or sapling so cut, felled, bored, injured or destroyed, to be recovered by action of debt, in the name of the State of Illinois, before any Circuit Court or justice of the peace having jurisdiction of the amount claimed.”

It was conceded on the argument, that the Act containing this provision to protect the canal lands from trespassers, has not been repealed, yet it was contended by the counsel for the defendant, that the conveyance of the canal lands to the board of Trustees, has, by implication, repealed the section, giving the penalties sued for. This position is not correct. The canal lands, before they are sold by the Trustees in pursuance of the various laws authorizing them to complete the canal, are as much canal lands since the transfer, as they were before, and just as much stand in need of the protection afforded by those Acts against trespassers. The State still continues the beneficial owner of the land, in order to carry out the object of the donation made to it by Congress.

The object of the conveyance to Trustees was to enable them to fulfil a public trust, and they are substituted in the place of the former Canal Commissioners, to accomplish the same great object, to wit: the construction of the canal. Whenever the canal shall be completed under the direction and supervision of the present board of Trustees, and the canal debt and expenses are paid, the canal and all the lands that remain unsold by the Trustees, will revert to the State.

We are consequently of opinion, that the Circuit Court erred in deciding that the lands trespassed on were no longer canal lands. For this error, the judgment below is reversed with costs, and the cause remanded for a new trial.

Judgment reversed,.