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obligations of a contract with them. The act of 1879 was a general public law, under which the charters of villages might be changed by reducing their corporate limits and under which petitioners had a right to effect that object and detach their lands. But there is a material difference between rights based upon contract and rights based upon statute. There is no vested right in a public law which is not in the nature of a private grant. "However beneficial an act of the legislature may happen to be to a particular person, or however injuriously its repeal may affect him, the legislature would clearly have the right to abrogate it." (Dobbins v. First Nat. Bank, 112 Ill. 553.) The repeal could not impair vested rights acquired under it, but a party can have no vested right to be within or without the limits of a municipal corporation. Acts creating, governing or changing municipal corporations are not in the nature of contracts or private grants. Such corporations are created for the public good in the administration of local government, and the legislative control over them is not of the same character as over private corporations. (Dillon on Mun. Corp. sec. 29.) They may be created, changed, divided or destroyed, as, in the legislative judgment, the public good may require, and, except as restrained by the constitution, the power of the legislature over them is supreme. This has been the rule in this State from the beginning of judicial decisior. All municipal corporations are subject to legislative control, and may be changed, modified, enlarged, restrained or abolished to suit the exigencies of the case. (Coles v. Madison County, Breese, 154; Bush v. Shipman, 4 Scam. 186; People ex rel.v. Wren, id. 269; Holliday v. People, 5 Gilm. 214; People v. Brown, 83 Ill. 95.) The only restriction on the power of the legislature is, that under the present constitution no local or special law shall be passed incorporating cities, towns or villages or changing or amending their charters. The legislature may, by general law, fix the boundaries of municipal corpora
tions and extend or restrict them, as may be deemed best for the public good. Whether petitioners' lands shall be included in a municipal corporation is purely a legislative question, depending upon the legislative judgment as to the public requirements. The legislature may declare the conditions and circumstances under which lands shall be included in villages or disconnected from them, and if the petitioners' lands should be disconnected, the former limits might be restored the next day by a general law. There was nothing in the nature of a contract in the act of 1879, and petitioners had acquired, and could acquire, no property right under it. The legislature, therefore, had full power to repeal it and to make the act of 1901 applicable to pending proceedings.
The petitioners are not entitled to the writ, and it is denied.
192 72 1. CLOUD ON TITLE-complainant must prore possession. A bill to 199 1374
remove a cloud from title can only be maintained where the com192 72 plainant is in possession when the bill is filed, or the premises are 210 1638 vacant; and if possession is alleged it must be proved. 192
2. EVIDENCE—what does not sustain allegation of possession by tenant. 72 213 1 24 An allegation of possession by tenant is not established by proof 214 1 76 of such possession up to a time nearly two years before the bill
was filed; nor can any presumption of a continuance of possession arise where the tenant himself testifies that he occupied the premises “from October, 1896, until April or May, 1898,” which latter date was nearly two years before the bill was filed.
3. SAME-in chancery, allegations neither admitted nor denied must be proved. Failure of the defendant in a bill to remove a cloud from title to deny the complainant's allegation of possession by tenant at the time of filing the bill does not relieve the complainant from the necessity of proving such allegation.
APPEAL from the Circuit Court of Cook county; the Hon. A. N. WATERMAN, Judge, presiding.
GAGE & DEMING, for appellants.
M. B. & F. S. LCOMIS, for appellees.
Mr. JUSTICE MAGRUDER delivered the opinion of the court:
This is a bill in chancery, filed on March 20, 1900, by the appellees against the appellants to set aside a tax deed, and remove the same as a cloud upon the title to certain property, claimed to be owned by the appellees.
The bill alleges, that the appellees here, complainants below, were, at the time of the filing of the bill, in the actual possession of the premises through their tenants. The point is made by the appellants, that there is no proof in the record sustaining this allegation in the bill in regard to possession. The allegation is material. A bill to remove a cloud from title can only be maintained, where the complainant is in possession of the premises, or where the premises are vacant or unoccupied. The possession must exist at the time of the filing of the bill, or the premises must be vacant or unoccupied at the time of the filing of the bill. If the jurisdiction of the court is based upon the fact, that, at the time of the filing of the bill, the complainant is in possession of the property, the bill must allege such possession, and the complainant must prove it. The fact of such possession must be proven as alleged, and the burden of proving it is upon the complainant in the bill. (Johnson v. Huling, 127 Ill. 14; Glos v. Randolph, 133 id. 197; Glos v. O'Toole, 173 id. 366; Glos v. Goodrich, 175 id. 20; Glos v. Beckman, 183 id. 158).
In the case at bar, the proof does not sustain the alle. gation of the bill that the complainants were in possession of the premises at the time when the bill was filed. There is proof, tending to show that one Fred G. Nixon was in possession of the premises from October, 1896, to
May, 1898, as the tenant of the appellees. But there is no proof, that Nixon was in possession of the premises, as the tenant of appellees, at the time when this bill was filed on March 20, 1900.
It is said by counsel for appellees that, where there is proof of the possession of land at a particular time, there is a presumption of the continuance of such possession thereafter. It is, therefore, argued that, inasmuch as the appellees were in possession by their tenant in May, 1897, and up to May, 1898, they will be presumed to have continued such possession up to March 20, 1900, when the present bill was filed.
Undoubtedly, it is a general rule that, when a state of things is once established by proof, the law presumes that such state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question. (1 Greenleaf on Evidence, pars. 41, 42; Glos v. Randolph, 138 Ill. 268). In White v White, 105 Ill. 313, this court said, in arguendo, that, where a person was in possession of land in 1812 and in 1843, "there might be a presumption therefrom of a continuance in possession, and that he was in possession at any subsequent time.”
The presumption, however, thus referred to, only con. tinues to exist until the contrary is shown. In the present case, one of the appellees, Samuel Kemp, testifies that the appellees were in possession of the premises in question in the spring and summer of 1897, through their tenant, Nixon. He testifies that Nixon was there then, and after that, but that he could not say how long after that he continued to be there. It is doubtful whether the testimony of Samuel Kemp, standing alone, would give rise to the presumption that the possession, to which he referred, continued up to the time of the filing of the bill. (Glos v. Perkins, 188 Ill. 467). But Nixon himself was examined as a witness, and the following is the material part of his testimony upon this subject:
Q. “Was this a lease under which you occupied said property?
A. "Yes, sir.
Q. “From what time until what time did you occupy those premises?
A. “From October, 1896, until April or May, 1898.”
This statement, made by Nixon, can mean nothing else than that his occupancy ended in April or May, 1898. As he was in possession under a lease from October, 1896, until April or May, 1898, according to his own statement, the inference is inevitable that he was not in possession after the latter date. In view of the fact, that he himself limits the period of his occupancy to the period between October, 1896, and May, 1898, the presumption does not obtain that bis possession continued until March 20, 1900.
Counsel for appellees lay stress upon the fact that the allegation in the bill, that the complainants were in possession when it was filed, is not denied by the defendants in their answer. The difficulty, however, cannot be thus relieved, because the rule is well settled that, in a chancery proceeding, all material allegations of the bill, neither admitted nor denied by the answer, must be proved by the complainant. (Glos v. Randolph, 133 Ill. 197; Davis Paint Co. v. Metzger Oil Co. 188 id. 295).
It is not necessary to consider the other questions involved in the case. The fact of possession by the complainants at the time of the filing of the bill being material and jurisdictional in its character, the absence of proof in regard to the existence of such possession at that time is fatal to the correctness of the decree entered by the court below.
Accordingly, the decree of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remarded.