City of Mt. Carmel v. McClintock , 53 Ill. App. 544 ( 1894 )

Mr. Justice Green

delivered the opinion of the Court.

A motion was filed by defendant in error to dismiss the case on the ground this court had no jurisdiction to entertain this writ of error, because this is a case involving a freehold. The jurisdiction of a Appellate Courts ” in this State, in matters of appeal, or writs of error, is defined and limited in Sec. 8, Chap. 37, p. 401, Cothran’s Stat, where, among other things, it is provided, “ such courts shall exercise appellate jurisdiction of all matters of appeal or writs of error, from the final orders, judgments, or decrees of the Circuit Courts * * * other than * * * cases involving a freehold.”

Our Supreme Court have interpreted and applied this clause of the statute, in many cases, where, for a like reason as that set up in the motion, we are considering, the jurisdiction of an Appellate Court is denied. Piper v. Connelly, 108 Ill. 646, was an action of trespass quare clausum fregit in which the plea liberum tenementum was interposed and traversed. The cause was taken by appeal from the Circuit Court direct to the Supreme Court, where a motion to dismiss the appeal was made on the ground a freehold was not involved, and the appeal should have been taken to the Appellate Court. Held, that the plea of liberum tenementum when put in issue by replication necessarily involves a freehold, and the motion was overruled. Chaplin v. Commissioners of Highways, 126 Ill. 264: Bill to res1 run commissioners from digging or opening a ditch or drain across certain lands belonging to complainant. Held, the right sought to be condemned was that of casting a permanent burden upon complainant’s land, which amounted to a perpetual easement, and hence a freehold had been taken, and upon the payment of the damages assessed, will be vested in the proper municipal authorities for the use of the public. Held, also, the case involved a freehold, and the Appellate Court had no jurisdiction. Sanford v. Kane, 127 Ill. 591: Bill to redeem. Held, that a freehold is involved in all cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate; that it is equally clear a freehold is involved within the meaning of the law, and the constitution, when the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue; citing Monroe v. Van Meter, 100 Ill. 347; Piper v. Connelly, supra; Frank v. King, 121 Ill. 250, and other cases, and commenting on the decisions in C., B. & Q. R. R. Co. v. Watson, 105 Ill. 217, and Kirchoff v. Union Mut. Life Ins. Co., then pending on rehearing. Town of Brushy Mound v. McClintock, 146 Ill. 643: Suit to recover penalty for obstructing highway, brought by the town. There was judgment in Circuit Court for defendant, from which the town took an appeal to the Appellate Court. Appeal was there dismissed on the ground a freehold was involved. McClintock, who owned the fee in the land, denied the existence of the highway thereon. The town claimed such highway had been established on said land by prescription. Held, that although suit was brought to recover a penalty, and the judgment upon conviction going no further than to require the payment of such penalty, yet as the right of the town to recover the penalty depends upon the determination of the issue—affirmed on one side by appellant, and denied on the other by appellee—whether or not the public has the interest of a perpetual easement in the highway passing over appellee’s grounds, and as the decision of the case necessarily involves a decision of this issue, “ we think that a freehold is involved, and that the appeal was properly dismissed by the Appellate Court.” The cases in 108 Ill. 646, 126 Ill. 64, and 127 Ill. 591, supra, are also cited and approved in the opinion. By the pleadings in the case at bar, appellees affirm that appellant is about to, and unless, restrained by the order of the court, will break and enter their close and freehold, take possession of a part thereof and construct a public sidewalk upon and across the same. Appellant denies that the strip of land it proposes to enter and take possession of, and construct a sidewalk upon, is a part of appellee’s freehold, but alleges it is outside of the true south boundary line of the lot and part of lot claimed in the bill, and is a part of Eighth street, a public street of said city of hit. Carmel, dedicated to the public use. The issue thus presented, necessarily involves the question whether any part of appellee’s freehold is about to be taken as charged, or whether the public has the interest of a perpetual easement in and upon the strip of land in dispute. Such an easement is held by our Supreme Court in the cases cited, to be a freehold. Hence, the decision of this case necessarily involves the decision of such issue, involving a freehold, and precluding this court from assuming jurisdiction. The writ of error is dismissed.