#### Frank X. Werling et al. v. Emily E. Ingersoll et al.

Opinion filed October 19, 1899.

This case is controlled by the decision in City of Chicago v. McQraio, 75 Ill. 566, which holds that the State of Illinois is not the owner of the strip of land ninety feet wide along and contiguous to the south margin of the Illinois and Michigan canal through section 10.

Appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.

Lincoln & Stead, for appellants.

Per Curiam:

This is an action of trespass, instituted in the circuit court of LaSalle county by Emily E. Ingersoll and George Ingersoll, appellees, against Frank X. Werling and Eugene Smith, appellants, to recover damages for removing the fences and entering the close of appellees.

*26The declaration consists of one count. It alleges, in substance, that the defendants, (appellants,) with force and arms, on, to-wit, the thirteenth day of November, 1897, and on divers other days, broke and entered certain closes of the plaintiffs, (appellees,) situate in the county of LaSalle, and then and there removed and destroyed, to-wit, one hundred and fifty rods of fence, of the value of $1000, and other wrongs then and there did against the peace of the People, etc., and to the damage of the plaintiffs of $1000. To this declaration no formal pleas were filed. By stipulation all questions of pleading" are waived, and it is agreed that any and all evidence competent to establish a cause of action or a defense shall be treated in the same manner, and be given the same force and effect, as though all proper pleas had been filed and properly pleaded.

Under the stipulation the issues in this case are limited, and confined to a single question, viz.: Is the State of Illinois the owner of a strip of land ninety feet in width along and contiguous to the south margin of the Illinois and Michigan canal, through section 10? If the State is the owner of this ninety-foot strip, it is stipulated and agreed that this suit cannot be maintained. If the State is not the owner of this ninety-foot strip, it is stipulated and agreed that appellants were guilty of a trespass.

A jury was waived and the case was submitted to the court for trial without a jury. The findings of the court below were in favor of the appellees, and judgment was rendered in their favor against appellants. The present appeal is prosecuted from such judgment.

In City of Chicago v. McGraw, 75 Ill. 566, this court decided that the State is not the owner of the strip in question, ninety feet wide. We refer to that case for the reasons given in support of the conclusion so reached. It is unnecessary to repeat those reasons here.

The judgment of the circuit court is affirmed.

Judgment affirmed.