right that had not before been granted | acts, that open and exclusive possession him, but consented that the volume of of land, under an apparent claim of ownwater might be narrowed into an eight- ership, is notice to those subsequently dealfoot channel. This is inconsistent withing with the title of whatever interest the

the conduct of appellee throughout, as shown by the evidence, unless he relied upon the right to the continued use of the south passageway. Again, the fact that from 1870 no change was made in these openings, and that they were openly and notoriously used by appellee for the purposes of passageways for his stock, that when the railroad fenced its road the fence was so built as to preserve the free passage through both, are circumstances strongly corroborating appellee. We think the finding of the court is fully sustained by the evidence.

It is insisted, also, that the contract is not established with the requisite certainty to entitle appellee to its enforcement as to the south passageway. It is true, as said by counsel, that to entitle a party to specific performance, which is, in effect,

possessor has in the premises, whether the interest be legal or equitable in its nature. Wade, Notice, § 273; Davis v. Hopkins, 15 111. 519; Truesdale v. Ford, 37 111. 210; Smith v. Jackson's Heirs, 76 III. 234; Partridge v. Chapman, 81 111. 137. It has been held, also, in this state that, if the grantor remains in possession after conveyance, purchasers from the grantee are affected with notice of the grantor's rights in the land. White v. White, 89 III. 460; Ford v. Mareall, 107 111. 136. Nor does the doctrine that the tenant in possession will not be permitted to assert a claim inconsistent with his recorded deed, (Wade, Notice, §§ 298, 299 ; Smith v. Jackson's Heirs, supra,) where otherwise applicable, apply to the reservation of an easement or right of way or passage in the land conveyed, when the grantor re

the relief granted by the decree rendered, | tains title to adjacent lands, and the ease

ment or right of way is appurtenant to, and essential to the full enjoyment of, the adjacent premises, the title to which remains in the grantor. Wade, Notice, § 300, and cases cited. Ordinarily, when an easement or right of way only is claimed, in the very nature of the right, the use or occupation of the land will be intermittent, and, strictly speaking, not capable of that continuous possession of which lands are ordinarily susceptible. In such cases, notice is necessarily afforded, if at all, by the continued and uninterrupted user, which is analogous to, and in a sense, possession; and the same rule applies, the user must be open, visible, and so far exclusive as to put persons seeing the premises upon notice thereof. In this case appellee retained title to the land on each side of the right of way deeded to the Peoria & Rock Island Railroad Company, and, according to the testimony, so fenced his land that these passageways

the contract must be clearly proved, and be certain and unambiguous in all its parts and terms. Rector v. Rector, 3 Giim. 105; Long v. Long, 118 111, 63s, 9 N. E. Rep. 247; Clark v. Clark, 122 111. 388, 18 N. E. Rep. 553. We think it cannot be said that the contract as proved is either uncertain or ambiguous. When it was finally reduced to writing, and executed, the substructure of the railroad had, as we understand, been completed through appellee's farm. The two openings, and no other, had been made or left, and all parties knew their size, character, and location, and it was in respect of these openings, thus physically existing, that the parties contracted, as it is alleged and proved. It was these then existing pas. sageways through its embankment that the railroad company was to keep and maintain as passageways for appellee's stock. The south opening was left, as shown by a decided preponderance of the evidence, under an understanding, if a cat-under the railroad were necessarily used

tle way was there provided and maintained, appellee would be satisfied, and would convey the right of way; and the north passageway was left as a neces

in passing from one part of his farm to another. The south opening connected the land lying cast of the track with a small pasture field lying west of the rail

sity, or for the convenience of the railway | road, which was separated from his re

company, and could ordinarily likewise be used by appellee as a passageway for his stock. That the parties acted in conformity with the contract as thus shown,

!

until appellant sought and obtained the

maining land, on the west side of the track, by a hedge fence. The north nas. sageway connected the land lying east of the railroad with another pasture also lying west of the track. Between these

right to fill in a part of the north pas- | pastures, west of the railroad, was a culti

sageway, in 1889, seems established by this record. The contract, as alleged and proved, therefore, is as certain and as capable of enforcement as if the size, nature, and location of the passageways had been definitely inserted in the contract.

It is contended that the contract of July 20, 1870, under which appellee claims, right to the south passageway, if established, cannot be enforced against appellant, for the reason that it, through Mr. Cable, in 1877, purchased the railroad in good faith, for value, and without notice of said contract, or of the rights claimed by appellee thereunder. The law is well settled in this state, as generally elsewhere, when not changed by the recording

vated field. The only access. unless through this field, between one of said pastures and the main farm was by the south opening, and from the other by the north passageway It appears that shortly after the railroad was completed and in operation, in 1871, probably, the hedge on the right of way having been cut down, appellee with the brush made a fence on each side of the right of way,leaving openings for unobstructed passage through each of such passageways. It is shown by two of appellee's witnesses that in 1878, when appellant fenced the road, a year and more after its purchase, some of this brush fence was remaining, and, while much dilapidated, and insuficient to turn stock, was visible. Under | for governmental purposes, is not "an incorpo

rated town," within the meaning of Rev. St.
c. 24, art. 11, § 5, which allows the formation of
mu
municipal corporations ons in territory which "is not
included within the limits of any incorporated
town, village, or city."

2. Act March 26, 1869, which conferred certain police powers on the board of auditors of the town of Thornton, and authorized the commissioners of highways in that town to con

struct, improve, and repair roads and bridges by special assessment, did not change said town from a township into an incorporated town.

Appeal from circuit court, Cook county. Quo warranto proceeding by the people of the state of Illinois, on the relation of Joel M. Longenecker, state's attorney, against the village of Harvey, (so called,) the inhabitants thereof, Peter B. Lamb, president thereof, and George L. Wilcox, Charles E. Howard, George W. Stiles, John W. Kerr, Fred J. Colby, and Fred Greiner, trustees thereof. The information was dismissed, on demurrer to the replication, and the relator appeals. Affirmed.

his contract appellee was restricted in his use of these openings to passageways for his stock, and that he made that use of them seems reasonably clear. Being fenced in with, and forming uninterrupted connection between, his fields, he had open, visible, and exclusive possession and use thereof for such purpose. We agree with the chancellor, that a purchaser of the railroad and right of way, seeing the mode in which appellee's land was fenced, and his use of the openings in the only way the owner of the adjacent lands, who had deeded the right of way, could nse them, and seeing that such passageways were not fenced up by the railroad, but left open for free and uninterrupted use by such adjacent owner, as a means of communication and passageway between his fields, would be put upon inquiry as to the right and title by and under which they were so used. No reasonable man would purchase under such circumstances without inquiry or investigation. It is familiar that if the facts and circumstances apparent were sufficient to put appellant, or Cable, through whom it purchased, on inquiry, appellant is chargeable with notice of all such inquiry would have shown. In Swan v. Railway Co., 72 Iowa, 650, 34 N. W. Rep. 457, the plaintiff granted the right of way across his land to a railway company on condition that it would construct and maintain a passway for cattle and teams under its track. The railway | April 10, 1872; alleging, among other

company constructed a passageway, as contemplated, and the plaintiff used it substantially 20 years. The railroad passed to the defendant under foreclosure sale. In a proceeding to restrain defendant from closing the passageway, it was insisted that the agreement was not binding on the purchaser. The court said "that its [the passageway's] occupancy by the plaintiff was sufficient to charge the defendant, a purchaser at judicial sale, with notice of the plaintiff's rights thereto arising from the agreement." See, also, McCann v. Day, 57 Ill. 101.

We are of opinion that the court had jurisdiction to protect appellee in the enjoyment of his rights under his contract. High, Inj. §§ 868, 895; Deere v. Cole, 118 | III. 165, 8 N. E. Rep. 303; Railway Co. v. Hay, 119 111. 493, 10 N. E. Rep. 29; Morrison v. King, 62 III. 30; Green v. Green, 34 III. 320.

Other errors are assigned, which we have carefully examined, but do not deem it necessary to discuss. We are of opinion that appellce has shown himself entitled to the equitable relief granted by the decree, and the same will accordingly be affirmed.

(142 111. 573)

PEOPLE ex rel. LONGENECKER, State's
Attorney, v. VILLAGE OF HARVEY et al.1
(Supreme Court of Illinois. Oct. 31, 1892.)
MUNICIPAL CORPORATIONS-TOWNS AND TOWN-

SHIPS.

1. A town created under township organization, being merely an involuntary organization

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

The other facts fully appear in the following statement by WILKIN, J.:

This is a quo warranto proceeding, to test the legality of the organization of the village of Harvey, in Cook county, this state. By plea to the information, respondents set up the organization of said village, under sections 5, 6, and 7 of article 11 of the general act for the incorporation of cities and villages, approved

things, that the territory so organized was not at the time “included within the limits of any incorporated town, village, or city. To this plea the relator filed a replication, alleging that before the organization of said village, and prior to March 26, 1869, the county of Cook had adopted township organization, under the laws of this state, and that the town of Thornton became duly organized as one of the towns of said county, "with the power and rights and officers provided by law for towns in counties under township organization.” It then sets up an act of the legislature in force March 26, 1869, entitled "An act to confer additional powers on the board of auditors of town accounts and the commissioners of highways of the town of Thornton, in thecounty of Cook." This act, which is set out at length in the replication, conferred on said board of auditors certain police powers within said town, such as prohibiting by ordinances gaming, granting licenses for the sale of intoxicating liquors, appointing policemen, prescribing their duties, etc. It authorizes the commissioners of highways in said town to construct, improve, or repair highways, streets, bridges, or causeways by special assessment, and for levying and collecting the same. The replication further avers that, long prior to the organization of said village of Harvey, said board of auditors had, in pursuance of said act, passed a code of ordinances for the government of said town of Thornton, which ordinances are set out at length. It concludes as follows: “And that by virtue of said act, together with the general laws of this state aforesaid, the town of Thornton became and was, in the year

James K. Marsh, for appellant. Lau- | pellee would not be expected to know the

NEW, J. This is an action for damages. The appellee recovered judgment in the Clark circuit court against the appellant. The complaint is in one paragraph, and, omitting the heading andsignature, reads | In the case of Railroad Co. v. Chester, 57 negligently and carelessly run its training he found the door of the stable open

of cars over its road? Or in what did the carelessness and negligence of the appellant consist, of which the appellee complained?" Thus it will be seen that to allege that the appellant negligently and carelessly ran its train over the appellee's mule, causing the damage, is a sufficient allegation.

The next question presented is the overruling of appellant's demurrer to the complaint. The court properly overruled said demurrer. A complaint to recover for personal injury or damage to property is sufficient to withstand a demurrer when it charges the act which resulted in the injury as having been carelessly and negligently done, without alleging the specific actsconstituting the negligence. Railroad Co. v. Wynant, 100 Ind. 160; Kessler v. Leeds, 51 Ind. 212; Railroad Co. v. Chester, 37 Ind. 297; Duffy v. Howard, 77 Ind. 182; Railway Co. v. Jones, 108 Ind. 551, 9 N. E. Rep. 476.

We have carefully examined the instructions given by the court, and find that they were extremely clear, and charged the law in the case fully. Counsel for appellant particularly call our attention to instructions 4 and 5, offered by appellant, and refused by the court, and insist that the court erred in refusing to give the same to the jury with other in- | structions given by the court. These in- | structions are as follows: “(4) If the plaintiff knowingly and consentingly permitted his mule to habitually run at large in the immediate vicinity of the place where it was killed by defendant's train, be is himself not free from negligence, and is not entitled to recover in this action." (5) “The jury are instructed that the plaintiff cannot recover damages in this ense for the mule killed if the evidence shows that the mule was at large upon the streets of the city of Jeffersonville at the time it was killed, notwithstanding it had escaped from the control of the plaintiff without his fault, unless the board of commissioners had by proper order authorized the running at large of such animals, and that said order was in force at the time said animal was killed."

and his mule gone, there being nothing to show, and he was wholly unable to ascertain, how said door had been opened, and how said mule had escaped. Upon search being made, he found his mule on said Broadway street, where it had been killed by appellant's train of cars. The appellant's railroad track runs along and over said street, passing near to appellee's home. Said street is unimproved at the point where the mule was killed, being used by footmen, but not for wagons. Near this point on said street there is a bridge or trestle about 40 or 50 feet long and 6 or 7 feet high, said bridge being about 100 yards north of the Jeffersonville, Madison & Indianapolis crossing. The track is straight. The evidence further shows that the appellant's train that killed said mule left Jeffersonville at 2:45 in the morning; that before reaching said Jeffersonville, Madison & Indianapolis crossing the train was stopped, and the whistle sounded for the crossing. It was then put in motion, passing over the track in the direction of said bridge or trestle at the rate of 7 or 8 miles an hour to the point on said street where the mule was struck, about 10 or 12 feet south of the south end of the bridge, without again sounding the whistle or ringing the bell. The engineer testified that the night was dark, and drizzling rain. That he was at his post of duty on the engine when the animal was struck. The windows of the engine cab were closed, but that he was enabled to see in front of his engine by means of the front window and headlight, but that he could not and did not see the mule until he was within 10 or 12 feet of

it, and then he could not stop the engine in time to avoid killing it. That his train was a passenger train, and, seeing and believing he could not prevent the collision, and believing it was best to knock the mule off the track, for his own safety and the safety of the passengers, he did so. It is further disclosed by the evidence that said railroad company is by an ordinance of said city forbidden to run its trains or cars through said city at a greater rate of .

In order to determine whether said in-speed than six miles an hour; and said

struction should have been given, we must examine the evidence. The following facts are disclosed by the evidence: The appellee's mule was killed by the appellant's train of cars on the 31st day of May, 1889, on Broadway street, in the city of Jeffersonville, Ind. That at the time it occurred the appellee lived on or near said || street in sald city. On the previous day the appellee had driven his said mule from Corydon, Ind., to his home in Jefferson- |ing at such times watched by one of his

ordinance also provides that said company shall not suffer or permit the whistle of any locomotive to be sounded while in said streets, but in all cases the bell shall be rung when the train is about to start and while running in said streets. There was some evidence showing that the appellee had at times prior to said 31st day of May, 1889, allowed his mule to graze on the commons near said railroad track, be

ville, a distance of about 30 miles. When

children. However, the evidence clearly

he reached home about 6 o'clock in the

shows that said animal was not running

evening he was sick, and immediately | at large with appellee's knowledge at the

went to bed, leaving his mule to be cared

for by his wife. That she at once securely fastened said mule in the stable situated near his house, where he had been in the habit of keeping it, by placing across the doorway on the inside a wooden bar; then closed the door, and fastened it by placing the hoop on the door over the staple, and a wooden peg through the staple. On the following morn

time it was killed, but, on the contrary, he had taken every precaution that a man of ordinary prudence would take to securely fasten said animal in his stable, and that it escaped without his knowledge or fault, and wandered along said street to the place on said track where it was killed This being so, the fourth instruction asked by the appellant was properly refused.

The fifth instruction asked the court to