(dissenting).
Disposition of this appeal turns on the evidence of adverse possession.
As the majority opinion points out, under Illinois law each fact essential to the establishment of twenty years’ adverse possession must be proven by him who claims title by adverse possession. No presumption exists in his favor.1 The rule which recognizes a presumption of adverse holding following twenty years open, continuous, notorious possession, which prevails in Wisconsin2 and many other states, does not prevail in Illinois. We must, and do assume, that the adverse claimant must show (a) possession, (b) for twenty years, (c) possession must be open and notorious, (d) continuous, and (e) adverse.
I think the burden has been met and all the elements necessary to a showing of title through adverse possession are here present. To support this conclusion, I point to and rely on:
(1) Possession has been open and notorious. A public school building has been built thereon, and a public school has been conducted therein.
(2) The possession has been continuous, and not merely for twenty years, but for over fifty years.
(3) It has been adverse all the time.
Only as to requirement (3) can there be controversy. In other words, if the claim of adverse possession fails, at all, it must be because the proof is not conclusive on the adverse character of the possession.
My inquiry then is narrowed to a study of the adverse character of defendants’ occupancy.
The facts which impel me to the belief that defendants’ possession was adverse are:
(a) The long, continuous, undisputed occupancy, I find difficult to explain except on the theory of hostility to the title owner.
While no presumption in Illinois arises by reason of the length of possession, this fact colors the evidence. It carries factual, as distinguished from statutory, or legal presumptive weight. To illustrate, twenty years’ possession with no rent or use payment, would carry some factual implications in any case. The same kind of possession, without rent for 150 years would result in a stronger reaction as to adversity of said possession. In fact, it would seem to me conclusive. Here there was possession for more than fifty years. Not one, but three, different record title owners permitted and acquiesced in defendants’ occupancy without charging one dollar of rent. Overwhelming are the deductions from such thoroughly established fact.
(b) The property was enclosed by a fence, trees, and hedge. Even more important was the fact that the record title owner erected the fence which separated the school from the rest of his farm. His affirmative action was significant.
Often an adverse claimant erects, the fence to enclose the land he claims, but seldom do we find the record title holder, himself, building the fence which separates his farm from the adverse claimant’s land. The difference, in probative value, is that which may be found in an admission over a self-serving declaration.
(c) Defendants paid no rent for the premises. Many are the legitimate deductions which rise from fifty years of occupancy without payment of rent.
(d) Well-nigh conclusive is the effect of the evidence which shows adverse claimant’s expenditure of money sufficient to build a school house on the lot adversely claimed.
We may doubt the sufficiency of evidence of occupancy to conclusively establish adversity, which is passive, quiet, and not especially public in character, involving no outlay of money for improvements, though it be for a period of twenty years. We may say such possession is not conclusive on the issue of adversity, but rather presents a jury question on a controverted issue of fact.3
But when we substitute for the foregoing, possession for fifty years instead of *576twenty, the possessor’s expending money (the larger the more significant) to erect a building on the premises, the question is quite different. Then add acquiescence by the title holder, evidenced by his building a fence to separate his farm from the lot occupied by the school district, and on which a school house is built, and finally, add to the foregoing the element of utmost publicity of said occupancy, by the adverse claimant, and we have the present case. Such a situation, in my opinion, demands a directed verdict, or a finding by the court, of adverse holding.
It is quite impossible for me to reconcile plaintiff’s right to go upon the property now, and take possession of it with all its improvements, with these facts. Taking possession of it for the purpose of drilling a well thereon, to discover, or pump, oil is founded on no greater right (but is budded upon the same evidentiary foundation) as its right to take over the school house. If defendants have failed to establish adverse possession, their right to their school house (as well as to the oil) is gone. For the significance of a rejection of adverse possession applies to the surface and to the improvement built thereon, the same as to the oil beneath the surface. Yet it shocks my sense of justice to deny the school district the right to its school house which it built and has publicly, notoriously, and continuously used for over fifty years. The fight for the oil may not carry the same warmth of feeling but it rests on exactly the same ground as the title to the land upon which the school- house stands. The issue of adversity and the evidence in support thereof, are the same in either case.
Against these impressive facts, I find no contrary evidence, save the asserted payment of taxes and a burden of proof. The evidence, it seems to me, fails to show plaintiff or its predecessors paid taxes on this lot after defendants built their school house thereon. There is nothing included in the tax receipts for improvements on the lot. From this fact, I assume that the tax receipt was but a copy of the predecessor’s receipts and did not except this small tract acquired by the defendants from the larger forty acre tract. The land was only worth a few dollars an acre, and the town officer neglected to make the exception. True, the matter of the tax payment is not satisfactorily clear, but the failure to include in the tax receipts, the improvements, is the most significant fact bearing on this issue.
It is unfortunate that no living witness was found who could, by competent evidence, establish the circumstances under which the school district went into possession of this lot. Neither party can be blamed for this state of the record. Lap_se of time only, is responsible. It is to meet just such situations that the doctrine of title by adverse possession was evolved. One state after another enacted laws which sought to settle disputes over title, to which there were no end. Statutes of repose (now adverse possession) they were called. But, alas, there can be no repose or quiet title where the itching palm and the lure of profits incident to the discovery of oil, tempt the get-rich quick seeker to chance a law suit for high stakes.
I think the judgment should be reversed.
Town of Kaneville v. Meredith, 351 Ill. 620, 184 N.E. 883; Jacobi v. Jacobi, 345 Ill. 518, 178 N.E. 88; Duncan v. Abell, 340 Ill. 613, 173 N.E. 59; Sundstrom v. Village of Oak Park, 374 Ill. 632, 30 N.E.2d 58, 131 A.L.R. 1465.
Wollman v. Ruehle, 104 Wis. 603, 606, 80 N.W. 919.
Duncan v. Abell, 340 Ill. 613, 173 N. E. 59; Burns v. Curran, 282 Ill. 476, 118 N.E. 750; Carroll v. Rabberman, 240 Ill. 450, 88 N.E. 995; Rush v. Collins. 366 Ill. 307, 8 N.E.2d 659.