Keyser v. Mann ( 1889 )

C. B. Smith, J.

This suit was commenced before ajustice of the peace and resulted in a verdict for appellee for $13, and on appeal to the Circuit Court on a trial there had, resulted in a verdict for appellee for $1, and after overruling a motion for a new trial, the court rendered judgment on the verdict-Appellant brings the case here on appeal and asks for a reversal of the judgment.

The facts out of which this suit grows are about these: In 1856 Joseph Bolirer owned considerable land in Bosefield township, and among others, sections 6, 7 and 12, or parts of them at least. He laid out about that time the village of Oak Hill. In 1867 he sold appellee, Mrs. Ora J. Mann, the east half of the northeast quarter of section 12, the northern portion of this eighty-acre tract lying immediately west of the southern portion of the corporate line of the town of Oak Hill. It seems that for several years before Bolirer sold the land to Mrs. Mann, he had access to it over a road extending from Depot street in the village, in a westerly direction, over a small piece of vacant ground, to the farm; this road runs along under a high bluff on one side, and a swamp on the other side, and is and always has been the only way to reach this eighty-acre farm from the town. This strip seems to liave belonged to Bolirer, when he deeded the eighty to Mrs. Mann. So far as we can gather from this record, this strip of land seems to be very narrow and small and to be of little or no value except for the purpose of a road for Mrs. Mann to get to her farm, and to get to a sand bank which is a valuable part of her farm. At the time the deed was made to Mrs. Mann, Bolirer owned this strip of land and then assured Mrs. Mann that the road would forever remain open, and would furnish her an outlet from her farm. The proof is clear that she and her tenants, and those hauling sand off her farm have used this strip of land since she bought it in 1867, and that it had been used by others for ingress and egress to the farm 1 and sand bank for many years before, reaching back as far as forty years, and that it has always been in substantially the same track. This was the condition of things until in 1888, when appellant Keyser shut up and obstructed this roadway by ditches and fences under the direction of William Bohrer, one of the heirs of Joseph Bohrer, who sold the land to appellant. Appellee brought suit for this obstruction before a justice of the peace, and claims damages; she claims the road as a private right of way on two grounds: first, by prescription, and second, as a road appurtenant under the deed to her from Joseph Bohrer.

We think the proof clearly establishes the plaintiff’s right to use this road by prescription; she herself has been using it constantly since 1867, and the proof is that her grantors and others, through whom she holds title, had been using the road for nearly forty years. With this view of the case it is unnecessary for us to consider whether she had the additional right to use the road as appurtenant to her purchase and deed when she bought from Bohrer. We think also the justice had jurisdiction under the statute. Chicago & Alton R. R. Co. v. Calkins, 17 Ill. App. 55; Lachman v. Deisch, 71 Ill. 59.

The refusal of the court to allow the evidence of witness to show the death of Joseph Bohrer, the original grantor, in order to interrupt the running of the statute of limitations, was not error, as when the statute begins to run, it continues even after the death of the original owner.

The refused instructions were properly refused because they were not applicable to the issues being tried, as there was no doubt nor claim that appellee was not in the actual possession of the road just prior to and at the time it was obstructed.

Judgment affirmed.