#### City of Lincoln, Appellee, v. St. Louis, Springfield & Peoria Railway Company, Appellant.

(Not to Tbe reported in full.)

Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed April 21, 1916.

Statement of the Case.

Action by the City of Lincoln, plaintiff, against the St. Louis, Springfield and Peoria Bailway Company, defendant, to recover a penalty for obstructing a public street in such city by constructing and maintaining a fence therein. From a judgment for the city in the Circuit Court, after appeal from a justice of the peace, filing the fine at ten dollars, defendant appeals.

King & Miller, for appellant; George W. Black, of counsel.

Uri Kissinger, for. appellee.

*

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

Mr. Presiding Justice Eldredge

delivered the opinion of the court.

*153Abstract of the Decision.

Municipal corporations, § 875 * —when evidence sufficient to show right to use of land for street. In an action by a city to recover a penalty for obstructing a public street by the erection and maintenance of a fence thereon, where it appeared that former owners of land abutting on such street constructed a fence twenty feet distant from the border line of the street and such strip was taken control of by the city and used as a part of the street, with the acquiescence and consent of the owners for thirty-eight years, until defendant re-established a fence on the former line, evidence held sufficient to sustain a finding that the city had acquired a right to use this strip for street purposes by the use thereof for more than fifteen years under Rev. St. ch. 121, sec. 1 (J. & A. ¶ 9628).