livered to appellee a warranty deed convey- the temporary injunction herein was served ing the premises in controversy to appellee, upon appellants. It was also shown that on the consideration for the conveyance being the 2d day of March, while one of appellee's $16,000. It was provided in the deed that employés was engaged in clearing the land possession should be given to the grantee on of brush, appellant William H. Anderson apMarch 1, 1915. proached him and ordered him off the land, and when he refused to leave said to him: "Do you know I can take a gun right out here and shoot you? I have got the law on my side and can take a gun right out here and shoot you." William H. Anderson testified that some time during the month of October, 1914, he had another conversation with Renwick about the 78 acres; that he said to Renwick, "You have sold that 80 up there?" and Renwick replied, "Yes, I thought I would sell it, because there would be trouble over it after I was gone;" that he (Anderson) said, "Well, don't you remember what the bargain was when I tiled out that 80?" and that Renwick replied: "Yes, I know I told you if you would tile it out you could have it for the same rent you was paying, and I always intended it to go to Bess, but I have changed my mind now. I ain't going to give it to her. If I owe you anything for them tile, I will pay you." Anderson testified that he got up and left acre. the house without saying anything further and has not talked to Renwick since about the matter. The evidence offered on behalf of appellee tends to show that the rental value of the land in controversy in 1909 was about $5 per acre, and that since that time there has been a gradual increase in the rental value, until in 1914 the rental value of the 78 acres was $7 or $8 per acre. The evidence offered on behalf of appellants, on the other hand, tends to show that $3.50 was a fair rental value in 1909, but that since that year the rental value has increased at least $3 per the alleged contract by the clear and unequivocal proof required. It is therefore unnecessary to consider any of the other questions raised. It is not necessary to analyze or discuss the evidence. A mere statement of the proof made is sufficient to disclose that the findAppellant Bessie Anderson testified that ing of the chancellor is correct. The evidence she last talked to her father when the deed on the part of appellants, standing alone, to appellee was signed, on October 2, 1914; is not sufficient to establish the existence of that she went to her parents' home intending to protest against her father selling the 78 acres; that while she was there her father and a notary entered the house with a document, which the notary laid on the stand and told her father to sign; that her father signed the instrument, and she asked him if it was a deed, but received no answer; that she protested and said it was not right, that it was not fair that he should sell that land, that he had always told her that she was to have that piece of land when he was through with it, and that she did not think he had any right to sell it; that her father said, "You have repudiated me," to which she replied, "I never repudiated you." On December 2, 1914, two notices were served upon appellant William H. Anderson, notifying him that his lease to the 78 acres in controversy would be determined on March 1, 1915, and that he should quit and deliver up possession of the premises on that date. One of the notices was signed by the appellee, and the other by Thomas Renwick. Shortly after March 1, 1915, employés of appellee entered upon the land and started to clear the land of brush and fallen trees and to build a fence between the 78-acre tract and the land of appellant Bessie Anderson on the west. The proof shows that the posts for the fence were set in cement, and that after appellee's employés had quit work for the day appellants proceeded to pull up the posts which had been set that day. This continued for three days, appellee's workmen replacing the posts and appellants removing them, until Ample grounds were shown for the issu- (275 Ill. 477) VAUGHAN'S SEED STORE v. SIMONINI. (No. 10789.) (Supreme Court of Illinois. Oct. 24, 1916. Rehearing Denied Dec. 8, 1916.) 1. MASTER AND SERVANT 351-WORKMEN'S COMPENSATION-EXTRAHAZARDOUS EMPLOY MENT. Workmen's Compensation Act, § 1 (Hurd's Rev. St. 1913, c. 48, § 126), gives to all employers in the state the right to elect to pay compensation to their employés according to the provisions of the act. Section 3 (section 128) provides that in certain enumerated extrahazardous occupations, it shall be presumed that the employer has elected to come under the act, and if he elects not to do so, he is denied the defenses of assumption of risk, contributory negligence, and negligence of fellow servants in actions by his employés for injuries. Held, that the voluntary election under section 1 applies to all employés in any branch of the employer's business, but the presumed election under section 3 applies only to those employés engaged in an extrahazardous occupation, so that a farm hand emmade no election under the act and which operployed on the farm of a corporation which had ated a warehouse and office in the city cannot recover compensation for injuries received while doing ordinary farm work, though the corporation's employés in the city might be within the terms of the act. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 351.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. CONSTITUTIONAL LAW 208(7)-DISCRIMI-[aged by a superintendent, who lives there and NATION-WORKMEN'S COMPENSATION ACT. keeps a separate account of the products To construe Workmen's Compensation Act, & raised and expenses incurred upon the farm. 3 (Hurd's Rev. St. 1913, § 128), as applying to all the business of an employer, any part of The products raised are the usual farm prodwhose business was extrahazardous, would ren- ucts and various seeds, bushes, and trees, der the act unconstitutional as discriminating some of which are delivered to the retail against him in that part of his business not ex-store of the company, and some are sold and trahazardous. [Ed. Note. For other cases, see Constitutional delivered from the farm to purchasers. A Law, Cent. Dig. §§ 654-656; Dec. Dig. separate account of receipts of such farm products from the farm is kept, as well as 208(7).] Error to Circuit Court, Cook County; Os-separate accounts of receipts from other car M. Torrison, Judge. Proceedings under the Workmen's Compensation Act by Anchise Simonini, opposed by Vaughan's Seed Store, employer. The award of the Industrial Board was set aside by the circuit court, and the claimant brings error. Affirmed. Samuel G. Hamblen, of Chicago, for plaintiff in error. Henry W. Magee and E. W. Adkinson, both of Chicago, for defendant in er ror. DUNN, J. The circuit court of Cook county having set aside an award of the Industrial Board allowing compensation to Anchise Simonini against Vaughan's Seed Store and certified that the cause was one proper to be reviewed by the Supreme Court, the claimant sued out a writ of error to reverse the judgment. The only question argued is the jurisdiction of the Industrial Board, and the facts, so far as material to this question, were stipulated. farms owned by the corporation. The plaintiff in error began working for the defendant in error about January, 1914, on the farm as a farm hand, doing teaming mostly, and received $12 a week for his services. He and one other workman on the farm did most of the teaming, each ordinarily driving two horses in the nursery part of the farm, doing such hauling and other work as they were instructed to do, and acting as hostlers for the horses. The applicant was never required to and never did leave the farm in the course of his duties, and on or about August 16, 1914, while at work in a stable on the farm attending the horses, was kicked by one of them on his right leg and injured. The defendant in error has not filed with the Industrial Board any notice of its election either to provide and pay compensation under the provisions of the Workmen's Compensation Act or to the contrary, and was therefore not subject to the jurisdiction of the Industrial Board unless it was engaged in an occupation, enterprise, or business mentioned in paragraph (b) of section 3 of that act and declared to be extrahazardous. It is insisted that it is so engaged within the first, fourth, and eighth clauses of that paragraph, which declares the provisions of section 3 are applicable to— "an employer engaged in any of the following oc- of any warehouse or general or terminal store- Vaughan's Seed Store is a corporation organized under the laws of the state of Illinois for the purpose of growing, buying, and selling seeds, plants, bulbs, nursery stock and agricultural implements, buying, building, and operating greenhouses, and carrying on and doing a general seed, agricultural implement, farming, and florist business in all its branches everywhere, and the acquiring, holding, mortgaging, and conveying of estate incidental thereto. It maintains a salesroom at No. 31 West Randolph street, in the city of Chicago, for the purpose of retailing and wholesaling its goods, and has an office there, where it keeps its records and books of account. In the building is a freight elevator with corrugated iron doors and caged in with iron network, which is subject to the provi- The plaintiff in error argues that the desions of an ordinance of the city of Chicago fendant in error was maintaining a structure, known as the "Building Code," for the regu- that is, a greenhouse, on the farm; that it lating and placing of elevators and the safe was operating a warehouse, that is, the guarding of individuals. It also owns and storeroom where it kept its farm products, operates a private storeroom or warehouse seeds, shrubs, and trees, at No. 803 West Ranfor the purpose of storing farm products, dolph street, in Chicago; and that it was enseeds, shrubs, and trees at No. 803 West gaged in an enterprise where municipal ordiRandolph street, in Chicago. At Western nances were imposed for regulating machinSprings, in the southwest part of Cook coun-ery for the protection and safeguarding of ty, outside the limits of Chicago, it owns, employés and the public, that is, it had a operates, and farms about 120 acres of land as a truck garden, farm, and nursery, on which are greenhouses, storehouses, barns, and stables. The work on the farm is man freight elevator in its store at No. 31 West Randolph street, in Chicago, which was subject to the ordinances of the city of Chicago for the regulating and placing of elevators. the specified extrahazardous occupations, and provide that in any action to recover damages against such an employer it shall not be a defense that the employé assumed the risk or that the injury was caused by the negligence of a fellow servant or by the contributory negligence of the employé. These provisions cannot be extended to apply to causes of action not having any connection with the extrahazardous occupations mentioned. If a man who was engaged in the business of a building contractor in Chicago, and who had elected not to provide and pay compensation according to the provisions of the act should also be conducting a dry goods store in Rockford, and should be sued by a clerk in the store for an injury caused by the negligent arrangement of the stock of goods, the contributory negligence of the clerk, his assumption of the risk or the negligence of a fellow servant causing the injury would constitute a defense; for this would not be an action against an employer engaged in a hazardous occupation. [1] The Workmen's Compensation Act is elective on the part of the employer. By the first section any employer is authorized to elect to provide and pay compensation for accidental injuries sustained by any employé arising out of and in the course of the employment according to the provisions of the act, and thereby relieve himself from any liability for the recovery of damages except as provided by the act. His election is entirely voluntary. He has entire freedom of choice whether his relation to his employés and their mutual rights and liabilities shall continue under the common-law system or shall be such as are established by the act. If he does not elect the new system his rights under the old are not affected, and he is subject to the same liabilities and entitled to make the same defenses as before the passage of the act. This applies to all employers except those engaged in an occupation, enterprise, or business declared by section 3 of the act to be extrahazardous. Such employers have not the free election given to others, but are presumed to elect the new system, and, [2] To give the act any other interpretaif they do elect the old, retain it, not in its en- tion would be to render it unconstitutional. tirety, but at the cost of surrendering that The dry goods merchant who, having no other part of it which permitted the defenses of business, had not elected to provide and pay assumed risk, injury by the negligence of compensation according to the provisions of fellow servants, and contributory negligence. the act, would not be deprived of these comThe injury sustained by the plaintiff in error mon-law defenses, and it would not be a reawas not one arising out of or in the course of sonable classification to allow such defenses any employment declared to be extrahazard-to one merchant and deny them to another, ous. His employment was not different from under precisely the same circumstances, bethat of the ordinary farm laborer. His in-cause the latter was also engaged in an extrajury arose out of and in the course of that employment, but had no connection with the business of maintaining a greenhouse or operating a warehouse, or with any enterprise where a municipal ordinance regulated machinery. To sustain the jurisdiction of the Industrial Board it is therefore necessary to hold not only that the defendant in error was engaged in a hazardous occupation, but that the presumption of an election to provide and pay compensation according to the provisions of the Workmen's Compensation Act, arising out of such hazardous occupation, applied not only to such hazardous occupation, but also to all the business of such employer. Assuming, but not deciding or intimating, that maintaining and using the greenhouse, storehouse, and elevator was engaging in an extrahazardous business, we shall consider the latter proposition only, whether the provisions of the Workmen's Compensation Act applied to all the business of the employer, without reference to its connection with the particular extrahazardous business. The authority to elect given by the first section of the act extends to every employer in the state. This section refers to the person, and not to the business, and the election by the employer subjects him to the act together with all his employés. The third section refers primarily to the business, and not to the person of the employer. Its provisions expressly apply only to employers engaged in hazardous occupation elsewhere. The reasonable interpretation of paragraph (b) of section 3 is that the provisions of paragraph (a) shall only apply to an employer engaged in the extrahazardous occupations mentioned, so far as such extrahazardous occupations are concerned. The object of section 3 was the better protection of employés exposed to greater danger by reason of their employment in these extrahazardous occupations, and it was not intended that employers engaged in such extrahazardous occupations should for that reason be subject to any greater liability to their employés not engaged in such occupations than other employers under the same circumstances. The defendant in error was not an employer of the plaintiff in error in any of the extrahazardous occupations mentioned in section 3, and plaintiff in error was not exposed to any of the dangers arising from such extrahazardous occupations. Whether or not the defendant in error, as to any part of its business, was subject to the provisions of the Workmen's Compensation Act, it was not subject to such provisions so far as the plaintiff in error was concerned. The injury to the plaintiff in error was not within the jurisdiction of the Industrial Board, and the judgment of the circuit court setting aside the award was right, and is affirmed. Judgment affirmed. (275 111. 448) BURNS v. CURRAN et al. (No. 10823.) (Supreme Court of Illinois. Oct. 24, 1916. Rehearing Denied Dec. 8, 1916.) 1. EJECTMENT 86(2)-RIGHT OF ACTIONTITLE FROM COMMON SOURCE. In ejectment for swamp land described in a quitclaim deed from a county, it was not necessary to show that the county had title, in making a prima facie case by proof of possession under a deed; and it is only where the plaintiff does not show possession in himself or a predecessor in title that he must trace his title to a common source or to the government. [Ed. Note. For other cases, see Ejectment, Cent. Dig. § 243; Dec. Dig. 86(2).] 2. PUBLIC LANDS 59 SWAMP LANDS TITLE-SHOWING OF CHARACTER. Under Act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519, investing the state with a title to all swamp and overflowed land therein, and the state's grant of such land to the counties, nothing more than proof that land was overflowed land, part land and part water, was necessary to invest the county with the title, and it was not necessary to show that the land had been classified as swamp land. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 184, 185; Dec. Dig. 59.] 3. PUBLIC LANDS 61(11)-SWAMP LANDS -DEED OF COUNTY BOARD-SUFFICIENCY. A quitclaim deed of overflowed land, executed by the chairman of the county board of supervisors, reciting the authority given by the board, and that it was in execution of such authority, was sufficient. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 208; Dec. Dig. 61 (11).] 4. EJECTMENT 95(1)-POSSESSION-RECOV ERY. 9. ABANDONMENT 5-Burden of PROOF. In ejectment, where plaintiff proved a prima facie title, it was incumbent upon the defendant, on a claim of abandonment, to make it affirmatively appear that such title had been abandoned by leaving the land with no intention of returning. [Ed. Note.-For other cases, see Abandonment, Cent. Dig. §§ 7-9; Dec. Dig. 5.] Appeal from Circuit Court, Peoria County; Clyde E. Stone, Judge. Ejectment by Frank S. Burns against W. R. Curran and others. Judgment for defendants on a directed verdict, motion for a new trial overruled, and plaintiff appeals. Reversed, and cause remanded. Keithley & Keithley, of Peoria, for appellant. Stevens, Miller & Elliott, of Peoria, and Ralph Dempsey, of Pekin, for appellees. CARTWRIGHT, J. The appellant brought this action of ejectment against the appellees to recover possession of the west half of section 5, township 6, range 6, in Peoria county. The defendants jointly pleaded not guilty. One of the defendants, the Banner Special drainage and levee district, filed a separate plea, alleging that by virtue of a quitclaim deed dated August 1, 1912, executed by the defendant W. R. Curran and wife, it became the owner and possessed of a strip 200 feet wide extending across said land, and became the owner of a perpetual easement in the same for the construction of its ditches, and it disclaimed all other interest in the Ejectment is a possessory action, and pos-premises. The defendant W. R. Curran filed session, even without a deed, is presumptive evidence of a fee, and sufficient in ejectment to warrant a recovery, unless defendant shows a better title. [Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 280, 282, 283, 285-294; Dec. Dig. ~95(1).] 5. EJECTMENT 16-POSSESSION- CONVEY ANCE. Plaintiff in ejectment could recover possession of the land of which he took actual possession without any conveyance. [Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 30-41; Dec. Dig. 16.] two separate pleas, one of the 20-year and the other of the 7-year statute of limitations. The cause came to trial before a jury, and at the conclusion of the evidence offered by the appellant the defendants offered no evidence, but asked the court to direct a verdict of not guilty. The motion was sustained, the direction given, and a verdict entered accordingly. The motion of appellant for a new trial was overruled, and judgment was entered on the verdict. The plaintiff offered, and the court admit6. EJECTMENT 16 - POSSESSION - CONVEY-ted in evidence, three quitclaim deeds exeANCE-EXTENT. Where plaintiff in ejectment had deeds under which he took possession of parts of the land, his possession was coextensive with the descriptions in the deeds. [Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 30-41; Dec. Dig. 16.] 7. PLEADING 129(2) — ADMISSIONS-PLEA OF NOT GUILTY IN EJECTMENT. In ejectment, the defendants by their plea of not guilty admitted that they were in possession of the land when the suit was begun. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 271, 273; Dec. Dig. 129 (2). 8. ABANDONMENT 3-INTENT. cuted to him-one from Jonathan S. Purple strung two wires around about an acre in the southwest quarter, and the tenant cleared The question of abandonment is one of in- from 3 to 5 acres in the northwest quarter tention, to be determined from the evidence; by clearing off the driftwood, logs, and and there is no abandonment, unless the prem- stumps, and the tenant planted these two ises are left with an intention of not again as-portions of the premises in corn. The possuming possession. [Ed. Note. For other cases, see Abandon- session was taken by virtue of the three quit ment, Cent. Dig. § 2; Dec. Dig. 3.] claim deeds. The plaintiff also offered in ev idence, and the court admitted, the record of in execution of the power, which was suffithe board of supervisors of Peoria county cient. The court erred in excluding that showing the report of the committee of the deed. judiciary of that board, to whom was refer- [4-7] Ejectment is a possessory action, and red the petition of the plaintiff for a quit-possession, even without a deed, is presumpclaim deed to the southwest quarter of sec- tive evidence of a fee, and is sufficient, in an tion 5, recommending that he be given a quit- action of ejectment, to warrant a recovery unclaim deed; also a resolution of the board less the defendant shows a better title. Doe adopting the report and instructing the ex dem. Herbert v. Herbert, Breese, 354, 12 chairman of the board to execute and deliv- Am. Dec. 192; Barger v. Hobbs, 67 Ill. 592; er to the plaintiff a quitclaim deed for the Keith v. Keith, 104 Ill. 397; Gordon v. Dickicounty of Peoria for the swamp land men- son, 131 Ill. 141, 23 N. E. 439; Harrell v. Entioned and particularly described in the pe- terprise Savings Bank, 183 Ill. 538, 56 N. E. tition. The plaintiff then offered a quitclaim 63; Coombs v. Hertig, 162 Ill. 171, 44 N. E. deed executed by the chairman of the board 392; Chicago Terminal Transfer Railroad Co. of supervisors, dated December 15, 1898, of v. Winslow, 216 Ill. 166, 74 N. E. 815; Glanz the southwest quarter of section 5, reciting v. Ziabek, 233 Ill. 22, 84 N. E. 36. The plainthat it was the same land that was sold by tiff could recover possession of the two piecthe county of Peoria to John D. Hamaker, es of land of which he took actual possesas would more fully appear upon page 108 sion without any conveyance; but, having of volume B of the Supervisors' Record of deeds under which he took possession of Peoria county. The deed also recited that it parts of the land, his possession was coexwas given in pursuance of authority granted tensive with the description in the deeds. by and instructions received from the board Scott v. Delany, 87 Ill. 146; Johns v. Mcof supervisors of Peoria county on Decem- Kibben, 156 Ill. 71, 40 N. E. 449. A party ber 13, 1898, as would more fully appear by who enters into possession of land under a the record of said board. The deed was ob- conveyance from a party having no title to jected to because there was no showing of ti- convey, or under a paper purporting to be a tle in or possession by the chairman of the deed without a seal, is presumed to enter acboard, or title or possession in Peoria coun- cording to the description of such conveyty, and no showing that the land had been ance or paper, and his occupancy of part, legally classed as swamp land. The court claiming the whole, is construed as a possessustained the objection and excluded the sion of the entire tract which the instrument deed. purports to convey. Barger v. Hobbs, su[1-3] It was not necessary to show that the pra. The deeds from John S. Purple and county of Peoria had title. If that were so, wife, Sarah L. Hamaker, and Ella H. Gleissit would have been necessary to show that ner and husband marked out the extent and the grantor of Peoria county, and his gran- boundaries of plaintiff's claim, and in law tor, had title, and so on back to the govern- his possession was possession of the west ment, which is never required in making a half of section 5. After taking possession prima facie case by proof of possession un- the plaintiff acquired the other deed from der a deed. It is only where the plaintiff the county of Peoria, which also defined his does not show possession in himself or a possession of the southwest quarter, whether predecessor in title that he must trace his it conveyed a good title or not. The plaintiff title to a common source of title, or to the showed a prima facie title, and that was sufgovernment. Where there is no proof of pos- ficient to warrant a recovery, where the desession, and no proof of title from a common fendants showed no title whatever. Fisk v. source, the plaintiff must prove title from Hopping, 169 Ill. 105, 48 N. E. 323. The dethe government. Krause v. Nolte, 217 Ill. fendants by their plea of not guilty admit298, 75 N. E. 362, 3 Ann. Cas. 1061. But that ted that they were in possession of the land rule did not apply to this case, because pos- when the suit was begun. So far as appearsession was proved. Neither was it neces-ed when the court directed a verdict, they sary to show that the land had been classi- were mere intruders upon the possession of fied as swamp land. The state was invested the plaintiff. with the title to all swamp and overflowed [8, 9] It is argued that the court was jusland within its boundaries by the act of Con- tified in directing a verdict, because the gress of 1850, and all swamp and overflowed plaintiff abandoned the possession which he lands were granted to the counties within took in 1894. He testified that he was not their borders by the state in 1852. Wabash, on the land again until between 1896 and St. Louis & Pacific Railway Co. v. McDougal, 1900, when he saw the wire fence that was 113 Ill. 603. This land was overflowed land built in 1894, and again just before the suit -part land and part water-and nothing was begun. This did not prove an abandonmore than proof of that fact was necessary ment destructive of the prima facie title, to invest Peoria county with the title. The which had been proved. The question of deed was executed by the chairman of the abandonment is one of intention, to be deterboard of supervisors, but it recited the au- mined from the evidence, and there is no thority given by the board, and that it was abandonment unless the premises are left |