Rohn v. Harris , 130 Ill. 525 ( 1889 )

Mr. Justice Craig

delivered the opinion of the Court:

It is first claimed that a ferry is but a franchise, and is in no respect real property, and a bill for partition will not lie. The privilege of establishing a ferry and taking tolls for the use of the same is a franchise. (3 Kent, 458.) The same author says (459): “An estate in such a franchise and an estate in land rest upon the same principle, being equally grants of a right or privilege for an adequate consideration.” In Dundy v. Chambers, 23 Ill. 369, the question arose whether 'a ferry franchise is embraced within and governed by the Conveyance act, or whether it was to be regarded as personal chattels in its sale and transfer, and the court held that a ferry franchise could only be transferred in accordance with the provisions of the statute in reference to the conveyance of real estate. Strictly speaking, it may be conceded that a ferry franchise is not real estate, but it partakes so far of the nature of real estate that we are inclined to hold that it may be partitioned in the same manner as real property. The land on each side of the river where the boats landed belonged to and was a part of the ferry, and no question can arise as to the jurisdiction of the court to award a partition of the land; and the franchise to cross the river and receive tolls was so connected with the land that it may, for the purpose of this proceeding, be regarded as a part thereof.

It is also claimed that whatever rights complainants had in the property are barred by the Statute of Limitations. It may be true that defendants’ grantees, Jones and Thompson, held possession of the property under color of title, and paid all taxes for more than seven years; but the bar of the Statute of Limitations can not be invoked to defeat the title of the complainants, under the facts of this case, on the ground that the possession was not adverse. It will be remembered that Edward Tull devised his undivided half of the ferry to his wife, Mary Ann, for life, while the remainder in fee passed to complainants. Mary Ann sold and conveyed this life estate to Beard in 1849. Beard held under this title until his death, and Jones and Thompson, who subsequently acquired Beard’s title, held under the same title, and the defendants occupy under the same title. The various deeds and wills were upon-record, so that each purchaser had notice of the title under which he occupied the property. Until the termination of the-life estate by the death of Mary Ann Tull, which did not occur until 1886, the complainants, as remainder-men, had no right of entry, as they had no right to the possession until the- death of the life tenant, and until the death of the life tenant the- statute could not begin to run. It is a plain proposition, as held in Higgins v. Crosby, 40 Ill. 260, that the statute does not run against a reversioner or remainder-man during the existence-of the prior estate, because during that time he has- no- right of entry.

By an act of the General Assembly of the State of Illinois, approved February 26, 1867, the transfer of the ferry property from Beard to Jones and Thompson was confirmed, and1 the title of Jones and Thompson in the same was declared to be-absolute and perfect, with full power to sell and convey, which act took effect from its passage. This act could not affect complainants’ title. It merely confirmed in Jones and Thompson such rights as they had acquired under their purchase. The legislature had no power to divest complainants’ title, if an attempt had been made to do so, but the legislature did not undertake to divest complainants’ title. We do not therefore regard this act as having any particular bearing on the rights of the parties.

It appears, however, from an examination of the decree, that the court-decreed a sale of the property without appointing commissioners to divide it, as required by the statute, and it is claimed that this action of the court was not erroneous, because this was a proceeding in chancery, and not a petition for partition under the statute. Section 1, of chapter 106, entitled “Partition,” provides, that “where land, tenements or hereditaments are held in joint tenancy, tenancy in common or co-parcenary, * * * any one or more of the persons interested therein may compel a partition thereof by bill in chancery, as heretofore, or by petition in the circuit court of the proper county.” Section 16 declares, that “the court, when it shall order a partition of any premises to be- made, under the provisions of this act, shall appoint three commissioners, not connected with any of the parties, * * * to make partition of the premises.” Section 17 provides for an oath, and section 18 defines the duties, and section 19 provides for a report. As before observed, section 1 of the statute provides that the proceeding may be by bill in chancery or by petition under the statute. It would therefore seem that either mode which might be resorted to would fall within the provisions of the statute, and if so, section 16 in plain terms requires the appointment of commissioners. We are therefore inclined to hold, that whether the proceeding may be by bill or petition, in either event the statute requires the court to appoint commissioners.

As the court failed to observe this requirement of the law, the decree will be reversed and the cause remanded.

Decree reversed.