No. 49—2319.

#### John D. Caton v. Charles Bent et al.

An action by appellant, Catón, against the appellees, Bent and five others, to recover damages for an alleged injury to plaintiff’s property. The declaration contains but one count? in a plea of trespass on the case as it is stated ; but in the body of it is stated a cause of action in trespass to certain described real estate, situate upon the dock of the Illinois & Michigan Canal, in the city of Chicago, the plaintiff averring possession, and that defendants unlawfully entered and tore down a fence thereon, also that they dumped divers large quantities of mud taken from the canal upon the same. The same count also sets up that plaintiff was the owner of divers articles and kinds of goods and chattels, among which was a steam engine, which were then upon said premises, which, by the unlawful acts of the defendants in dumping said mud on said premises, became covered or spattered with the same and thereby injured. The case was tried before a jury upon pleas of defendants denying their guilt, and when the plaintiff had introduced his evidence *653and rested, the court, on motion of defendants’ counsel, excluded all of plaintiff’s evidence from the jury, who returned a verdict for defendants, on which judgment passed and plaintiff appealed to this court, assigning that ruling for error. In order to recover as respects the real estate it was indispensable to plaintiff’s case that he prove possession; and as respects the goods and chattels it was indispensable to prove that plaintiff had some property, general or special, in such giods and chattels, or some of them, at the time of the alleged injury. As plaintiff failed to prove these essential elements of his case the action of the court below was proper.

Judgment affirmed.

Judge below, Sidney Smith.

Attorneys, for appellant, Mr. Chas. E. Towns ;

for appellees, Messrs. Campbell, Hamilton & Custer, and Messrs. Swift & Campbell.

Opinion filed April 28, 1886.

Opinion by McAllister, J.