Mullaney v. Duffy (145 Ill. 559, 1893)

Mr. Justice Shope

delivered the opinion of the Court :

This was an action of ejectment by appellee, John Duffy,against appellant, the real purpose of which was to settle the boundary line between lot two (2) owned by Duffy, and lot three (3) owned by Mullaney, of the assessor’s division of part of the N. W. quarter of Sec. 22, T. 39 N., E. 14 E., in Cook county. The respective lots are described and conveyed by metes and bounds, and front on Indiana avenue, in the city of Chicago. The plaintiff’s lot was described as commencing at a point on the west line of Indiana avenue, 747 7-10 feet north of the south line of the northwest fractional quarter of said section 22, and running thence south on the western line of said avenue twenty-five feet, thence west, parallel with said south line of said quarter section, to an alley, running north and south between Indiana and Michigan avenues, thence north along the line of said alley twenty-five feet, thence east to the place of beginning. The defendant ( appellant) owned the adjoining lot next south of the plaintiff’s, and which was described by metes and bounds as commencing 722 7-10 feet north of the south line of the N. W. quarter of said Sec. 22, etc., and running thence south twenty-one and 4-10 feet, thence west to a point equi-distant between Michigan and Indiana avenues, thence north twenty-one and 4-10 feet, thence east to the place of beginning. Both derived title from Mathew Laflin as a common source. Appellee purchased of said Laflin in 1866, and appellant in 1867. Immediately after the .purchase, appellant moved an old frame house upon the property, and in 1868 built a frame house thereon. It appears that Duffy, at that time, was in occupancy also of his lot, but with how much improvement does not appear. The frame house built by appellant remained upon the lot from 1868 to 1884, when he built a three (3) story brick building thereon, the north line of which was a little south, but practically the same as the north line of the frame house built in 1868. The claim of appellee is that this north wall upon Indiana avenue, the northeast corner of the building, is eighteen (18) inches north of the line between said lots; and that the northwest or rear corner of the building is sixteen (16) inches north of said line; and that in the rear of said brick building is a two (2) story frame building, which is over the said line at the northeast corner eight and one-half (8£) inches, and at the northwest corner six and one-half (6£) inches. That is, that the walls of appellant’s building are to that extent upon appellee’s lot. The brick building is of the depth of fifty-six feet.

A trial without a jury resulted in a finding and judgment for pliintiff for the land described.

The question as to where the true line really is, would depend upon the location of the starting point, that is, the point where Indiana avenue would cross the south line of the N. W. fractional quarter of Sec. 22. It is claimed by plaintiff that the center line of Sixteenth street, at Indiana avenue, is the south line of said quarter section. If this be correct, the line between the lots is where plaintiff claims it to be, and the defendant’s buildings are upon plaintiff’s lot, as claimed.

The real controversy arose in respect of the location of the south line of said quarter section. Appellee, for the purpose of establishing the location of that line, among other things offered, and the court admitted, evidence tending to show that the center line of Sixteenth street had been recognized and reputed to be coincident with the south line of said fractional quarter. Witnesses were introduced, who were familiar with the locality for many years, dating back as far as 1855, and one of whom, at least, had lived in the immediate vicinity for twenty-four years. Among other questions the witnesses were asked: 6