George Curtis, Appellant, vs. MARY JANE Donnelly et al. Appellees. 1. EJECTMENT when judgment for defendant cannot be sustained. A judgment for the defendant in an action of ejectment, in which the only question is the location of the true boundary line between two lots, cannot be upheld, where the preponderance of the evidence shows that the defendant is in possession of some portion of plaintiff's lot, though it does not clearly show how much. 2. SAME what testimony of private surveyor is admissible in dispute as to location of lot line. In an ejectment suit over the location of a lot line, a private surveyor who made a survey for the defendant should be allowed to answer the questions whether he attempted to run the old survey or any part thereof, whether he measured any other lines in the block in which the two lots in dispute were located, and how far he measured on the line he did measure. APPEAL from the Circuit Court of Marion county; the Hon. ALBERT M. ROSE, Judge, presiding. KAGY & VANDERVORT, for appellant. CHARLES H. HOLT, WILLIAM G. WILSON, and WILLIAM D. FARTHING, for appellees. Mr. JUSTICE DUNCAN delivered the opinion of the court: Appellant sued appellees in ejectment in the circuit court of Marion county to recover the possession of lot 4, in block 3, of William Aird's addition to the village of Odin. Appellees are owners of lot 3 in the same block, and it lies immediately east of and adjoining said lot 4. The plea of not guilty is the only plea filed by appellees, but it was stipulated by the parties to the suit that appellant is the owner of lot 4 described in the declaration and that appellees are the owners of said lot 3; that the parties to this suit derived their titles to their respective lots from a common source, John F. Sugg, of Odin, and that the only question in dispute is the boundary line between said lots 4 and 3. Trial by jury was waived, and the court, after hearing the evidence and the arguments, found the issues for the appellees and rendered judgment against the appellant. Appellant contends the east boundary of his lot is east of the extended line of a certain fence lately built by appellees, 91⁄2 feet at the south end and 191⁄2 feet at the north end of his lot. Appellees claim that said fence is on the dividing line, and that the line of the fence extended is the dividing line between said lots. Under the stipulations of the parties the real question in issue is, what part of appellant's lot, if any, have appellees in their possession? Murphy v. Riemenschneider, 104 Ill. 520. Appellant introduced in evidence the original plat of said addition, the record of which shows that it covers the south 742 feet of the southeast quarter of the southeast quarter of section 11, town 2, north, range 1, east of the third principal meridian, in Marion county, and that it was surveyed, at the request of William Aird, in April, 1866, by S. Frazier, county surveyor. The addition contains nine blocks and four extra lots on the west side thereof, designated as lots A, B, C and D. The south line of the addition is marked "Sec. line & northern boundary of original plat of Odin." The east line of the addition is parallel with and 20 feet west of the east line of section 11, which section line is traced on the plat and a stone shown thereon at the southeast corner of section II. A stone is also marked on the quarter-mile line at the southwest corner of the addition. There are stones marked on the plat at the four corners of each of blocks 5 and 8, and also at the southwest and northwest corners of block 2. and south lines of the addition are parallel, the former being 1297 feet long and the latter 1318.5 feet, not including the 20 feet between the addition and the section line on the east. There are two streets, each 66 feet wide, running east and west across said addition, and they are crossed at The north right angles by three other streets of the same width running north and south. Therefore block 3 in the northeast corner of the addition is 344 feet long on the north line and 3472 feet on the south line and block I in the southeast corner of the addition is 383 feet long on its south line, and lot A in the northwest corner of the addition is 55 feet wide on its north line and the south line of lot D in the southwest corner of the addition is 371⁄2 feet long. Said block 3 and its surroundings, so far as material to this case, as appears in said record, is shown by the following plat: P. W. Warner, county surveyor of Marion county, testified as a witness for appellant, that on May 1, 1912, he made and recorded for appellant and others a survey of said block 3, and the record of his plat and survey was introduced in evidence, and his plat as to block 3 is in all respects similar to the plat above shown. He testified that he dug into the earth and found the original corner stone at the northwest corner of lot 10 in block 2, which is 66 feet south of the southwest corner of block 3; that from that stone he surveyed west 66 feet to a point which he located as the northeast corner of block 5 in said addition; that from that point he ran a line north, and that on that line, 66 feet north of the northeast corner of block 5, he located the southeast corner of block 4, and at a point 150 feet north thereof, on said line, he located the northeast corner of block 4; that from said last corner he measured east to the section line above marked and found the distance to be 431 feet and 7 inches, or 17 inches more for that line than is shown by the original survey of Frazier; that he then ran a line from the southeast corner of block 4 as he had located it, east to said section line, and found a gain on that line of 12 inches over the showing made by Frazier in his survey; that he did not apportion the gain found by him to the lots of block 3 but left it all on the east side of lot 1; that after locating the northwest and southwest corners of block 3 by measuring 66 feet east of the northeast and southeast corners of block 4, he then proceeded to survey and locate lots 7, 6, 5, 4, 3, 2 and I as shown in the above plat and gave them the same dimensions as are shown in the above plat, and that he established a line between said lots 3 and 4 in block 3 and drove iron pins on said line at the north and south lines of said lot. He also testified that he could not find any of the original corner stones at the corners of block 5 or at the corners of any other of the blocks of the addition, but that he did locate the stone at the southeast corner of section II and traced the section line north to the first quarter and half mile corner, where he also found the original corner stones. He gave as his reason for leaving the supposed gain all to the east of lot I unapportioned, that the apportionment thereof would necessarily place the east line of said lot 4 still further east, which would perhaps bring differences and difficulties, and that he could give every owner of the seven lots his proper amount of ground without such apportionment. The testimony of this witness clearly shows that appellees were in possession of a part of the east side of appellant's lot 4 of something near the same width as claimed by the appellant, as the testimony further shows that the line established by the surveyor as the east line of lot 4 is about 91⁄2 feet east of the fence built by appellees at the south end of the lot and about 191⁄2 feet east of the fence at the north end of the lot, without taking any account of the unapportioned gain in this block. left on the east side thereof. The witness is corroborated by his chainman who assisted in carrying the chain and by other witnesses who witnessed the same, as to how the survey was made. In rebuttal of the foregoing evidence, E. C. Toothacre, another surveyor, testified for appellees that he measured the south side of said block 3 on the south line thereof beginning 14 inches east of the east side of the concrete walk on the east side of Green street, which he treated as the southwest corner of said block 3, and that from that point he measured east, and after allowing to each lot owner of said seven lots the number of feet as shown by the original survey of said block that belonged to each lot owner, he found that the measurement corresponded very closely to the lines of lots 7, 6, 5 and 4 and the west line of lot 3 as claimed by appellees. This was the full extent of his survey, as he did not attempt to locate any lines or corners in said block and did not even measure the north side of the block, and, so far as this record shows, did not measure as far east as the section line. He gave as his reason for beginning 14 inches east of the concrete walk in question, that he understood that the walk was built 14 inches west of the east line of Green street. Other witnesses testified in rebuttal of his testimony, including the man who constructed the walk, that it was built 10 or II feet west of the property line on the east side thereof because some of the parties would not move their fences. Other witnesses for appellees and for appellant testified that after the original addition was platted, dwelling houses were built on lots 3 and 4 and at a later period were removed, when all of block 3 became pasture land for a number of years. This accounts, perhaps, for the obliterating of most all of the lot lines and corners. Several witnesses for appellees |