Webb v. Sturtevant

Lockwood, Justice,

delivered the opinion of the Court:

This was an action of trespass quare clausum fregit, brought in the Cook Circuit Court, by Sturtevant against Webb, for breaking and entering the close of Sturtevant, and felling and carrying away the timber growing thereon. To the declaration filed in the cause, the defendant below pleaded not guilty. On the trial in the Circuit Court, the defendant below asked the Court, among other things, to instruct the jury, as follows, to wit, “ That if the jury shall be of opinion from tbe evidence, that at the time of the committing of the supposed trespasses, the plaintiff was a mere squatter on the land, without any title thereto, either in law or equity, and that said land was the property of the United States or of this State, and also that the supposed trespasses were not committed within the plaintiff’s actual enclosure, then the law is for the defendant,” which instruction the Circuit Court refused to give. This refusal is assigned for error, and the question presented, is, whether the instruction ought to have been given. In actions of trespass quare clausum fregit, the law is well settled, that possession of the close is sufficient to sustain the action against any person who shall enter upon that possession, except the owner./The possession, where that alone is relied on, must, however, be an actual and not a constructive possession. The mere entry upon a tract of land without any color of title, and enclosing a small- part of it, does not, of itself, constitute an actual possession of any more land than is enclosed. A contrary doctrine would lead to great uncertainty. It could with as much propriety be contended, that the actual possession of a part of a tract of land drew to it the possession of a whole section containing 640 acres, as that such actual possession drew after it the possession of 160 acres, or any other legal subdivision of a lot. This would be manifestly unreasonable. The reason that the law protects the mere possession of land, where the possessor is a squatter, is to preserve the public peace; and such protection is not intended as an encouragement to squatters, and ought not, therefore, to be extended any further than is necessary to attain the desired object.

From this view of the law, and the reason upon which it is founded, the Court below ought to have given the instructions asked for by the defendant below. For this error, without enquiring into the other errors that have been assigned, the judgment must be reversed with costs.

Judgment reversed.

Note. See Lovett et al. v. Noble. Post.

Since the decision of this case the following acts have been passed by the General Assembly:

AN ACT to define the extent of possession in cases of settlement on the public lands. -

Sec. 1. Be it enacted by the People of the Stale of Illinois, represented in the General Assembly, That hereafter in all actions of trespass quare quasum fregit, trespass, and ejectment, and forcible entry and detainer, as well as forcible detainer only, where any person or persons may be settled on any of the public lands in this State, when the same have not been sold by the general government, his, her, or their possession shall, in the absence of paper title, be considered on the trial as extending to the number of acres embraced by the claim of such person or persons, according to the custom of the neighborhood in which such lands may be situated: Provided, That such claim shall not exceed in the whole three hundred and twenty acres : Provided further, That where the lands have been surveyed, such claim shall not exceed one hundred and sixty acres, and be ascertained by land marks so plainly made that the same may be designated from the other lands contiguous thereto in the same neighborhood of country: And provided farther, That such claim shall not be plead or set up in bar of any action, at any time commenced or to be commenced, by a bona fide purchaser or purchasers of such lands from the United States, or persons entitled to a right of pre-emption on the same, under any act of Congress now in force, or hereafter to be in force.

This act to take effect from its passage.

Approved 27th February, 1837.

Acts of 1836-7,154; Gale’s Stat. 436.

AN ACT supplemental to the act entitled “An act to define the extent of post sessionin cases of settlement on the public lands,” approved February 27, 1837.

Sec. 1. Be it enacted by the People of the Stale of Illinois, represented in the General Assembly, That the said act to which this is supplemental shall be construed to mean, and to give to the claimant, the legal possession (for the purposes mentioned in said act) of three hundred and twenty acres (if the custom of the neighborhood extends to that number) of unsurveyed lands, or one hundred and sixty acres of surveyed lands, whether the same be in one or more separate parcels, and that the claimant shall reside on or near the same; and that the claim of unsurveyed lands be so plainly marked that it can be designated from the adjacent lands.

Approved February 16,1839.

Acts of 1838-9, 124.