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whether the proposed district as set out in the petition will embrace all the lands that may be damaged or benefited, and if not, to report what additional lands will be so affected. Section 12 provides that the boundaries of the district may be changed from that described in the petition by including lands benefited which are not therein mentioned or excluding lands therein mentioned which will not be benefited, provided such alteration of boundaries shall not have the effect of so far enlarging or contracting the proposed district that the petitioners will no longer constitute the majority of the adult land owners of the lands therein situated nor represent less than one-third of its area. This section also provides that any person owning lands adjoining or contiguous to said proposed district may at any time, by application in writing, have his lands annexed to said district. Section 16 provides for the final organization of the district.
It will thus be seen that under the Levee act it is not possible to form a drainage district unless the specified proportion of land owners petition for the same, and after the petition has been filed the boundaries of the district cannot be so altered as to disturb this proportion. Whether lands which are deemed to be in need of reclamation by drainage can be organized into a drainage district is thus made to depend upon the wish of a majority of the owners who own one-third of the area or one-third of the owners who own a major portion of the area. Without the signatures of the requisite number of land owners to the petition a drainage district cannot be organized under the Levee act, and if, upon investigation, the court determines that the boundaries of the district should be changed from those specified in the petition, it cannot be organized unless it leaves within the district this proportion of those favoring its organization.
To place the construction that has been given it upon that part of section 58 quoted in the majority opinion defeats the main purpose of the Levee act, and makes it possible for a smaller proportion of the land owners than that
designated by the other sections of the act to finally bring within a drainage district a territory in which a majority of the land owners who own a major portion of the lands are opposed to the organization of a drainage district and have never consented to its organization. Thus, a comparatively few of the land owners within a territory which is deemed to be in need of drainage may finally organize it into a drainage district, regardless of the rights of the majority; and although the owners of lands adjoining a district as established may be opposed to the organization of a district which will include their lands and have refused to take advantage of the improvement by connecting ditches on their own lands with the ditches constructed in the district, and although they may have no desire whatever to have their lands thus reclaimed, still, under this construction, they are deemed to have made a voluntary application for annexation to the district upon the sole ground that their lands may be benefited thereby.
The word "or," in the clause which reads, "or whose lands are or will be benefited by the work of such district," when given its literal meaning, serves to defeat the main purpose and intent of the act. This statute should not be so construed. When there is an apparent repugnance or inconsistency in a statute, as in this case, the courts will so construe it, if possible, as not to defeat its main intent and purpose. It seems to us plain that the use of the word "or" in this connection is an inadvertence or mistake, and that the word "and" was intended to be used. By giving this section that construction it is then in entire harmony with the other provisions of the act and does not serve to defeat its purpose. The word "or" is frequently held to mean "and," and vice versa, in the construction of statutes in order to effectuate the plain intent of the legislature. "It is well settled that the words 'or' and 'and' will not have their literal meaning when to give them their literal meaning renders the sense of a statutory enactment dubi
Their strict meaning is more readily departed from than that of other words, and one will be read in the place of the other where the meaning of the context requires it. (Sutherland on Stat. Const. sec. 252.) Where it is necessary to effectuate the intention of the legislature, the word 'and' is sometimes considered to mean 'or' and the word 'or' to mean 'and.'-2 Am. & Eng. Ency. of Law, (2d ed.) p. 333; Boyles v. McMurphy, 55 Ill. 236." (Ayers v. Chicago Title and Trust Co. 187 Ill. 42.) To the same effect is People v. VanCleave, 187 Ill. 125.
It would seem to be an absurdity to hold that one shall be deemed to be making a voluntary application to be included in a drainage district when his every act may denote the opposite intention. The word "voluntary" has a well known meaning, and it must be assumed that the legislature used it advisedly. That the use of the word "or" was an inadvertence or a mistake is further borne out by section 58 itself. That part of section 58 quoted in the majority opinion, while appearing to be a complete sentence, is not such in fact. It is a portion of the first sentence of that section, the remainder of the sentence being as follows: "And thereupon the commissioners shall make complaint in writing, setting forth a description of such land or lands, benefited, and amount of benefits; the name of the owner or owners thereof, also, a description of the drain or ditch making connection with the ditches of such district, as near as may be; and file said complaint in the county court or before a justice of the peace." As we interpret this language, the commissioners are required, in every case, to set forth in their written complaint the description of the drain or ditch of the owner whose land is thus sought to be annexed which makes connection with the ditches of the district. That could only be done in case a connection had actually been made, and seems to be proof positive that the legislature intended that an owner of land lying outside a drainage district shall be deemed to have
made voluntary application to be included only in the event that he has made connection with the ditches of the district and his lands are or will be benefited by the work of the district.
JOSEPH P. KUHN, Appellee, vs. JACOB GLOS et al.
Opinion filed February 20, 1913.
I. LIMITATIONS—effect of possession and payment of taxes by cestui que trust. If the legal title to land is actually held in trust for the person who is in possession of the premises, the possession and payment of taxes by the cestui que trust is the possession and payment of the trustee under the color of title held by him, even though the deed does not expressly designate him as trustee.
2. SAME statute does not require that possession and payment of taxes be by the same person for entire period. The seven year Statute of Limitations does not require that the possession under claim or color of title shall be continued in the same person nor that the same person shall pay all taxes for that period, and it is sufficient if the taxes are paid under claim and color of title by those having or succeeding to the possession.
3. Tax deeds—when a tax deed may be set aside regardless of its validity or invalidity. Title acquired under the Statute of Limitations by possession and payment of taxes for seven successive years under claim and color of title, after the execution of a tax deed, is good as against the world, and in a proceeding to have such tax deed set aside as a cloud upon the title it is not necessary to allege or prove the invalidity of the tax deed.
4. SAME-party not entitled to have tax deed set aside without reimbursing holder thereof. Where one has acquired title to property by possession and payment of taxes for seven successive years under claim and color of title his possession cannot be disturbed by the holder of an outstanding tax deed, but if he seeks to have such tax deed set aside as a cloud the statute requires him to reimburse the holder of the tax deed for the money properly expended in procuring it.
5. SAME—when it is error to require holder of tax deed to pay costs. If the complainant in a bill to remove a tax deed as a cloud upon title makes no tender, before filing the bill, of the amount
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legally due the holder of the tax deed by way of reimbursement, it is error, upon setting aside the tax deed, to require the costs to be paid by such holder.
6. SAME when objection that the decree does not provide for reimbursement may be urged on appeal. Where by his report the master finds the amount expended by the holder of a tax deed but makes no recommendation as to whether or not he shall be reimbursed for such expenditures, the holder may make the objection, on appeal, that the decree does not provide for such reimbursement, there being no opportunity to urge the objection in the court below.
APPEAL from the Circuit Court of Cook county; the Hon. CHARLES M. WALKER, Judge, presiding.
JOHN R. O'CONNOR, for appellants.
MATHER & HUTSON, for appellee.
Mr. JUSTICE COOKE delivered the opinion of the court:
This is an appeal from a decree of the circuit court of Cook county quieting the title of the appellce to lot 77 of block 64 in Hinman's subdivision of the east half of the south-east quarter of section 19, township 39, north, range 14, east of the third principal meridian, in the city of Chicago, and setting aside a tax deed of appellant Jacob Glos to the premises.
Appellee, Joseph P. Kuhn, filed his bill alleging title, by virtue of section 6 of the Limitations act, under claim and color of title made in good faith and possession and the payment of taxes for seven successive years. The bill was filed on August 4, 1910, and alleges that appellee has been in actual possession of the premises for sixteen years then last past; that the property was purchased by John P. Kuhn, the father of the appellee, in 1872, who upon his death devised the property to his wife, Anna M. Kuhn, the mother of appellee; that in 1896 said Anna M. Kuhn conveyed the premises by warranty deed to Nicholas Johann, and that said Johann conveyed the same to the appellee in 1898, and that the appellee entered into possession in 1894,