#### Illinois Central Railroad Company, Appellant, v. N. S. McDaniel, Appellee.

(Not to be reported in full.)

Appeal from the Circuit Court of Jasper county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed May 25, 1916.

Statement of the Case.

Action of forcible entry and detainer by Illinois Central Railroad Company, plaintiff, against N. S. McDaniel, defendant, to recover a plot of ground 16x 24 feet on which a coal shed was located. From judgment for defendant, plaintiff appeals.

It was contended by plaintiff that its way lands in Rose Hill on the west side of the track, which runs north and south, consisted of a strip of land 90 feet wide and 1,000 feet long, beginning at the northeast corner of the northwest quarter of the southeast quarter of section 30, township 8 north, range 10 east, and extending south. The coal shed in question was 758 *2835/10 feet south of the north end of said strip of land and 33% feet west of the center of its track.

The north 758 5/10 feet of said premises claimed by plaintiff as its way lands on the west of said track were located in the Village of Bose Hill. The remainder of said strip lay south of the original Town of Bose Hill. Defendant did not question the claim of plaintiff to that part of said strip that lay in said Village of Bose Hill, but claimed that the way lands of said plaintiff south of said original Town of Bose Hill were only 33% feet in width, and that the coal shed in question was not on the right of way of-plaintiff. That part of the strip claimed by plaintiff as its way land which lay south of Bose Hill was not inclosed by a fence, but plaintiff contended that it, and those through whom it claimed, had been in possession of said premises for more than twenty-five years.

Sometime prior to the institution of these proceedings, defendant’s coal shed was located somewhat east and north of its present location, and as then located was partly on said strip of 33% feet adjoining the main track of plaintiff’s right of way, and which defendant conceded was a part of plaintiff’s lands.

Plaintiff insisted on defendant paying rent on said ground, the amount demanded being $10. Defendant testified that he stated to the agent of plaintiff that a part only of said shed was on its right of way, and that he was therefore willing to pay but $5. Plaintiff accepted the $5 in settlement therefor. Thereafter defendant moved his said shed west and south so that no part of it was on said strip of 33% feet immediately adjoining the main track of said railroad on the west and south of said original Town of Bose Hill.

The evidence on this controverted question as to whether or not plaintiff was in possession of the strip of ground on which defendant removed his shed was sharply conflicting.

*284Abstract of the Decision.

1. Forcible entry and detainer, § 86 * —when evidence sufficient to sustain finding that railroad company not in possession of land. In an action of forcible entry and detainer by a railroad company to recover possession of a plot of land on which a coal shed was located, where the evidence was conflicting, it was held sufficient to sustain a finding that plaintiff was in possession of the strip of land on which the shed was located.

2. Forcible entry and- detainer, § 77*—when deeds admissible to show that occupant of land did not talce possession without title. In an action of forcible entry and detainer by a railroad company to recover possession of vacant and unoccupied lands, deeds of such land to defendant are admissible to show that defendant had not taken possession without title.

3. Forcible entry and detainer, § 90*—when instruction properly modified. An instruction in an action of forcible entry and detainer that “if the jury believe from a preponderance of the evidence that the defendant entered wrongfully and without lawful right and then kept the plaintiff from regaining possession, it is sufficient to sustain this action,” held properly modified by adding the words “or title” after the words “lawful right.”

4. Instructions, § 126*—when abstract instruction properly refused. An instruction that is abstract in form and argumentative is properly refused.

5. Instructions, § 131*—when requested instruction omitting essential element properly refused. A requested instruction omitting an essential element of the case is properly refused.

6. Instructions, § 19*—when requested argumentative instruction properly refused. A requested instruction that is argumentative and misleading is properly refused.

7. Instructions, § 137*—when instruction presenting theory of case proper. A party is entitled to an instruction presenting his theory of the case, if it is supported by evidence.

George W. Fithian, for appellant; John G. Brennan, of counsel.

Emery Andrews and Raymond G. Real, for appellee.

*

See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Boggs

delivered the opinion of the court.