Lovett v. Noble

Lockwood, Justice,

delivered the opinion of the Court:

This was an action of trespass quare clausum fregit, commenced by Noble against Lovett and Ingersoll, in the Cook Circuit Court. The defendants below pleaded not guilty, and on the trial of the cause, moved the Court to instruct the jury, “That the plaintiff must show himself to have been in the actual and exclusive possession of the land at the time of the trespasses complained of; and that it was not sufficient for the plaintiff to show that he was residing upon and cultivating another part of the same legal subdivision, unless he also proved that the alleged trespasses were committed upon the part 'of the lot enclosed or under cultivation by him.” This instruction the Court refused to give, but instructed the jury, that “ The peaceable occupation and possession by building, or cultivating and residing on any portion of the legal subdivision of the public lands, not exceeding 160 acres, will entitle such possessor to an action against the unauthorized entry of any individual who may enter and cut down the timber, or interfere with the possession of such legal subdivision.”

This instruction was clearly erroneous according to the decision of the case of Webb v. Sturtevant,⁽¹⁾ decided at the present term.

The judgment must therefore be reversed with costs.

Judgment reversed.

(1) Ante 181.