Hassett v. Johnson

Citations

• 48 Ill. 68

Syllabus

<p>1. Instructions—should be based upon the evidence. Instructions should be based upon the evidence before the jury, and where they are not it is error, for which a judgment will be reversed, if it is probable they have misled the jury in finding their verdict.</p> <p>2. Same—should not assume facts. An instruction should not assume facts as proven,—that is for the jury to determine.</p> <p>3. Forcible entry and detainer—of the character of possession required. In an action of forcible entry and detainer, it appeared that some ten years previous to the alleged entry of the defendant, the plaintiff had placed a fence around the lot in controversy, but that within six or seven years thereafter, all the fence had been removed by unknown persons, except the short stumps of two or three of the posts, and three or four years after the premises were reduced to that condition, the alleged forcible entry was made. It was held, that while the facts would show a previous possession in the plaintiff, they did not establish possession in him at the time the defendant entered. By allowing the fence to be removed, without repairing or keeping it up, the plaintiff showed an abandonment of the possession as strongly as he did a retention thereof.</p> <p>4. But the plaintiff might show an actual possession, without the lot being enclosed with a fence ; as, if another person, by his permission, was using the ground at the time of the alleged unlawful entry, in piling wood and lumber upon it, in such manner as would naturally apprise the public that he was in the actual, clear and visible possession thereof, this would be the possession of the plaintiff, and would entitle him to maintain the action.</p> <p>E. The legal title or fee draws to it the legal possession of land, but where a pedis possessio is relied upon, it must be open, exclusive and public. The acts in reference thereto must indicate by whom they were performed, and must be such as men usually employ in the enjoyment of