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No. 9. It is insisted that under this instruc- meridian, that quarter section was taken into tion the jury was not directed to determine drainage district No. 3 by the commissioners the damages from the evidence, but was per- and was classified and assessed, and the mitted to give appellee such sum as it owner has since that time paid all assessthought he was entitled to, regardless of the ments on the land. Hammond mutual drainevidence. While the instruction is open to age district of the town of Unity, in Piatt criticism, its infirmities are not of a kind county, and the towns of Lowe and Loving. that were likely to be prejudicial or harm-ton, in Moultrie county, was organized in ful, but were of that technical character 1889. The southeast quarter of section 30 contemplated by section 700, Burns 1914, adjoins the Hammond mutual drainage disfor which a reversal is inhibited.

trict. In 1902 the owner of the quarter sec. We might add that it appears from the tion laid a tile drain therein, connecting with record, by implication at least, that appel- the ditches of the Hammond mutual drainage lant did not regard the verdict as excessive, district, and in August, 1914, the commissionas no such ground appears in his motion for ers of the latter district, under the authornew trial.

ity of section 42 of the Farm Drainage Act, Finding no error in the record, the judg- made an order annexing the quarter section ment below is affirmed.

to the Hammond mutual drainage district

and proceeded to classify it and levy an asFELT, C. J., IBACH, P. J., and CALD- sessment upon it. Thereupon an informa. WELL, BATMAN, and DAUSMAN, JJ., con- tion in the nature of quo warranto was filed

in the circuit court of Piatt county on the

relation of Louie H. Ennis, the present own(276 111. 516)

er of the land, calling upon the commissionPEOPLE ex rel. ENNIS V. DICK et al. ers of the Hammond mutual drainage dis(No. 11042.)

trict to show by what authority they exer(Supreme Court of Illinois. Dec. 21, 1916. Re- cised jurisdiction over the quarter section of hearing Denied Feb. 9, 1917.)

land in controversy. Pleas and replications DRAINS en 15 - ASSESSMENT - ESTOPPEL were filed, which need not be noticed because STATUTE.

Under Farm Drainage Act (Hurd's Rev. St. it was stipulated that the parties might in1915–16, c. 42, § 117) $ 42, providing that the troduce on the trial any evidence competent owners of land outside of a drainage district | under any plea or replication properly pleadmay connect with ditches of the district already ed. On a trial judgment was rendered in made, by the payment of an assessment as if originally included, and that if landowners shall favor of the defendants, the information was 80 connect they shall be deemed to have volun- dismissed, and the relator appealed. tarily applied to be included, and their lands benefited shall be treated as other lands in the the Hammond mutual drainage district could

The only question in the case is whether district, where the relator's predecessor in title, although then a member of one drainage dis annex the land in controversy, which was trict, connected her drain with another district, already a part of drainage district No. 3. she voluntarily applied to have the land includ. It was stipulated that all the proceedings in ed, and she and the relator, are estopped to the organization of both districts were reguclaim that the district was without authority to grant such application, and the land may be lar and the proceedings for taking the reassessed by each district for the benefits con-lator's land into each of said districts were ferred through its drains.

{Ed. Note. -For other cases, sce Drains, Cent. regular, but the relator claims that the proDig. $$ 7-10; Dec. Dig. Om 15.)

ceedings of the Hammond mutual drainage Farmer, J., dissenting.

district for taking her land into the district

were not lawful because her land was alAppeal from Circuit Court, Piatt County : ready a part of drainage district No. 3. George A. Sentel, Judge.

When drainage district No. 3 was organized, Information in the nature of quo war a main tile was laid from the southwest ranto on the relation of Louie H. Ennis corner northeast through the quarter section, against John W. Dick and others. From a which connected with the main ditch of disjudgment for defendants, dismissing the in-trict No. 3, and numerous lateral tiles were formation, the relator appeals. Affirmed.

laid connecting with this main tile. The Thomas J. Kastel, State's Atty., and Carl tile drain laid by the owner of the land in Reed, both of Monticello, and Redmon, 1902 started at a point in the northwest Hogan & Redmon, of Decatur, for appellant. quarter of the quarter section and extended James L. Hicks and W. Thomas Coleman, south and southwest to a tile in the highway both of Tuscola, for appellees.

adjoining the quarter section, which through

intermediate tile connected with the ditch o: DUNN, J. Drainage district No. 3 of Uni- the Hammond mutual drainage district. ty township, in Piatt county, was organized This tile furnished drainage to about 60 in 1886 under the Farm Drainage Act. In acres of the quarter section all the time. 1887, upon the petition of the owner of the The evidence shows that the general slope of southeast quarter of section 30, township 16 the land, except a small part in the northnorth, range 6 east of the third principal Jeast corner, was toward the southwest, and

that when the land was flooded the surface, act his land was included in two districts, water ran to the southwest corner and final- and the relator, who is his successor in title, ly reached the Hammond mutual drainage cannot complain. No conflict of jurisdiction district's ditch through the tile laid by the has arisen between the two drainage disowner of the quarter section and its connec-tricts. Each can make assessments only for tions.

the benefits conferred on the land by, the Section 42 of the Farm Drainage Act pro- drainage through the drains of that district. vides that the owners of land outside of If any conflict of jurisdiction should arise drainage districts organized under that act between the two districts as to this land, it may connect with the ditches of the district can be determined when it arises. already made by the payment of such amount The judgment of the circuit court will be as they would have been assessed if original. affirmed. ly included in the district, and that if indi Judgment affirmed. vidual landowners outside of the district shall so connect they shall be deemed to FARMER, ... dissenting. have voluntarily applied to be included in the district, and their lands benefited by such

(276 Ill. 556) drainage shall be treated, classified, and tax- CHICAGO DRY KILN CO. v. INDUSTRIAL ed like other lands in the district. It is un

BOARD et al. (No. 10911.) der the authority conferred by this section

(Supreme Court of Illinois. Dec. 21, 1916. that the respondents acted, and no question

Rehearing Denied Feb. 9, 1917.) is made as to the regularity of the proceed- 1. MASTER AND SERVANT 373—WORKMEN'S ings; but the appellant insists that two

COMPENSATION ACTS "ARISING OUT OF drainage districts cannot at the same time EMPLOYMENT WITHIN THE ACT." have jurisdiction over the same land, and

A watchman employed in a planing mill, that the fact that her land was already in- whose employés would, independent of election,

fall within Workmen's Compensation Act (Laws cluded in a drainage district precluded the 1913, p. 339, 8 3b), and be entitled to compensaHammond mutual drainage district from an- tion, if injured while protecting the property at nexing it to that district. The cases of Bish- the plant from suspected persons, received an

injury arising out of an employment within such op v. People, 200 Ill. 33, 65 N. E. 421, People section, and was entitled to compensation. V. Crews, 245 Ill. 318, 92 N. E. 245, and

[Ed. Note.-For other cases, see Master and People v. Lease, 248 Ill. 187, 93 N. E. 783, Servant, Dec. Dig. 373.) are relied upon to sustain this position, and 2. MASTER AND SERVANT W417(7) WORKthey state that two municipal corporations MEN'S COMPENSATION ACTS DECISIONS OF cannot exercise jurisdiction over the same


The decision of the Industrial Board that territory, for the same purpose, at the same

an employé was injured by accident arising out time. In those cases, however, the contro- of the employment, if there is competent or legal versy arose between the drainage districts evidence to support it, cannot be reviewed, as

it is not the court's province to pass upon and unwilling landowners over whom juris- weight or sufficiency of evidence. diction was sought to be acquired and exer

[Ed. Note.-For other cases, see Master and cised against their consent, or between con- Servant, Dec. Dig. Om417(7).) testing drainage districts. This case pre Cooke, J., dissenting. sents a different situation. By connecting

Error to Circuit Court, Cook County; Osthe drains of this quarter section with those of the Hammond mutual drainage district car M. Torrison, Judge. and through them carrying the drainage of

Proceedings by W. W. Jackson, employé, the land to that district's ditch, the landown the Chicago Dry Kiln Company, employer.

for workman's compensation, opposed by er is deemed in law to bave voluntarily ap- Certiorari to review decision of the Indusplied to have the land included in the district. trial Board awarding compensation. To reAppellant has obtained the benefit of the view a judgment of the circuit court condrainage of her land to some extent through firming the award, the employer brings erthe ditches of the district for which she has

Affirmed. not paid, and to the extent that her land is benefited it ought to be assessed by the dis Adams, Crews, Bobb & Wescott, of Chitrict. By the voluntary application to be in- cago, for plaintiff in error. George E. Gorcluded in the district the owner of the land man, of Chicago, for defendants in error. is estopped to claim that the district was without authority to grant the application, in CRAIG, C. J. Defendant in error W. W. clude the land, and assess it for the benefit it Jackson (hereinafter called the “applicant") has received. By an application formally was an employé of plaintiff in error (heremade by the owner and allowed, th land inafter called the "company') as a night was annexed in 1887 to drainage district No. watchman. The company was engaged in 3, and by another application made by the drying lumber and operating planing mills, owner the same land was annexed in 1914 to its plant covering several blocks in the city the Hammond mutual drainage district. The of Chicago. There were also on the premises owner could not complain that by his own of the company several buildings occupied


For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
114 N.E.-64

by tenants, one of the buildings being oc, the applicant was not totally disabled or cupied by Anderson & Shumaker as a black- incapacitated, that the alleged injuries did smith shop. Applicant's duties required him not arise out of the course of his employ. to watch the property of the company, and ment, and that his present alleged incapacity in so doing to make the rounds of the prem- did not result from the alleged accident. The ises of the company and the premises of the Industrial Board rendered its decision find. respective tenants, including Anderson & ing that both the parties to the proceeding Shumaker, every hour. In so doing he was were at the time of the accident operating required to walk about four blocks and was under and subject to all the terms and prorequired to "pull" eleven "boxes” located in visions of the Workmen's Compensation Act, various parts of the premises of the com- that the accident for which compensation pany, one being in the shop of Anderson & was claimed arose out of and occurred in the Shumaker. The applicant had been employ- course of the applicant's employment, that ed as watchman for the company about five his wages for the purpose of the proceeding years, and on May 29, 1914, went to work were $15 per week, and that he was then as usual about 6 o'clock p. m. In making totally and permanently disabled. The board his rounds, when he arrived at the black-confirmed the decision of the committee of smith shop he found three men there--Hard, arbitration, except that it ordered that after King, and Miller, employés of Anderson & the expiration of the 416 weeks, for which Shumaker. King asked permission to leave the applicant was to be paid at the rate of his motorcycle in the blacksmith shop. Ap- $7.50 a week, he should receive from the plicant apparently was not acquainted with company an annual pension of $249.60, pay. King, but was assured by the other two that able in installments of $20.80 per month, for he was an employé, and gave his consent. the remainder of his life, being 8 per cent. King tossed him a dime, which fell to the of the total amount which would have been ground, and the applicant picked it up. Ap- due him had death resulted from the acciplicant went on about his duties, and in dent. The company then filed a præcipe making the next round of the premises re with the clerk of the circuit court of Cook turned to the blacksmith shop about 7 o'clock. county for a writ of certiorari to the InKing was inside. Applicant again returned dustrial Board, which was issued and serv. to the blacksmith shop about 8 o'clock. At ed upon the secretary of the board. On July this time the door of the blacksmith shop 8, 1916, the court entered a judgment apwas locked and King was outside in the proving and confirming the finding of the Instreet or alley with his motorcycle. Appli-dustrial Board and certified that the cause cant unlocked the blacksmith shop and went was one proper to be reviewed by the Suinside and hid the lock, with the intention, preme Court, and the company sued out this as he stated, of changing the lock or put writ of error. ting another one on the door. He returned Two points are raised in the briefs: (1) to the blacksmith shop again about 9 o'clock. The injury the applicant received did not King, who in the meantime had become in- arise out of and in the course of his emtoxicated, demanded the lock from applicant, ployment in a business or enterprise under and upon applicant's refusal to give it to him the Workmen's Compensation Act; (2) the struck at the applicant, who punched or injury of the applicant did not arise out of struck at King with a cane which he car- the course of his employment. ried and broke it. During the scuffle, ap [1] It appears that the company had never plicant, in trying to get away through the elected to come under the provisions of the door and prevent King from getting the lock, Workmen's Compensation Act and would not as he claimed, caught his foot on the sill be subject to its provisions unless the comand fell and received the injuries complained pany was engaged in one of the occupations of, which consisted of a fracture of the neck or businesses enumerated in paragraph "b" of the thigh bone.

of section 3 of the act (Laws of 1913, p. 339). Commencing June 6, 1914, a week after the It is conceded by counsel for the company accident, the company paid the applicant that the business of the company in operatcompensation at the rate of $7.50 a week ing drying kilns and a planing mill is one for a period of 41 weeks and then refused of the occupations which would involuntarily to continue making further payments. He come under the act, and as we understand then filed his application for an adjustment the argument of counsel there is no quesof claim with the Industrial Board. A com- tion that one of the employés engaged in the mittee of arbitration was appointed, as pro-planing mill, for example, would be entitled vided by the act, which heard the evidence to recover compensation under the act in of both parties and rendered its decision case of injury. The claim is that the duties finding that the applicant was entitled to of employment of the applicant in this case recover from the company $7.50 a week for are not of such a nature as to entitle him to a period of 416 weeks and was entitled to a compensation under the act in case of an pension of $10 a month thereafter during injury. Under the holding of this court in life. The company filed with the Industrial the recent case of Vaughn's Seed Store v. Board its petition for review of the decision Simonini (No. 10789) 114 N. E. 163, the mere

occupation or business which might be un., pensation for the reason that the injuries der the act does not entitle a person work. complained of did not arise out of and in ing for the employer to recover compensation the course of his employment, but by reason for injuries where he is injured in the course of something that happened outside such emof his employment in another business con- ployment. In this case the Industrial Board ducted by the employer or in some employ- found to the contrary, and, as above pointed ment remote from and having no connection out, the facts and circumstances under which with the hazardous occupation. As to wheth- the action arose seem to entirely justify the er the employé claiming compensation for conclusion arrived at by the board that the injuries under the act is engaged in a line of applicant, as a watchman and in the course employment that entitles him to such com- of his employment as such watchman, was pensation depends to some extent on the par- injured while performing the duties as such ticular facts of each individual case. In for the company. Suburban Ice Co. v. Industrial Board, 274 [2] The second point urged for reversal, Ill. 630, 113 N. E. 979, where a teamster was that the injury to the applicant did not in the employ of a concern engaged in mak- arise out of and in the scope of his employing ice and in delivering ice and fuel and ment, is based upon the assumption that the whose duty it was to handle ice and coal and applicant received his injury by reason of care for the horses used by the company on doing something outside of the scope of his premises adjacent to the ice plant, it was held employment; that is, undertaking to watch that his duties were of such a nature and so the motorcycle of King and that King gave related to and connected with the occupa- him a dime for so doing. Whether the aption of the company as to bring both em- plicant was injured by reason of guarding ployer and employé within the provisions of his employer's property as he was hired to the Workmen's Compensation Act.

do and which injury would be one arising It is stated by counsel for the company in out of or in the scope of his employment, the argument that:

or was injured by reason of having under"If a watchman, being engaged in protect- taken to guard the motorcycle of King, ing the property of his employer from thieves, which was something outside of his employis injured, no one would contend the injury did ment, was a question of fact to be determin. not arise out of the employment."

ed from the evidence by the Industrial It seems to be conceded by counsel for the

Board. If there is competent or legal evi. company that the duties of the applicant dence to support the decision of the board, required him, among other things at least, it is not within the province of the court to to guard the property of the company against pass upon its weight or sufficiency. Parkfires and trespassers. Such an employment er-Washington Co. v. Industrial Board, 274 is not without its hazards and dangers. It 11. 498, 113 N. E. 976; Armour & Co. v. Inmust be assumed that the duties of the ap-dustrial Board, 273 Ill. 590, 113 N. E. 138. plicant were necessary to the protection of the if the applicant had undertaken to watch company's property or he would not have been the motorcycle for the owner thereof and employed for that purpose, and in such em had received his injuries in attempting to ployment he would run the risk of being sub-prevent some one from stealing it, or otherject to assault and injury in protecting the wise because of his undertaking to watch property of the company—and that was, in the motorcycle, a different question would fact, what happened in this case according arise. But such is not the case. There was to the finding of the Industrial Board. In evidence to sustain the finding of the Inthe case of Anderson v. Balfour, 2 I. R. 497, dustrial Board, which was, in effect, that a gamekeeper was attacked by poachers and

even though the applicant had agreed to wounded. It was held that he was entitled watch King's motorcycle, and such agreeto recover under the Workmen's Compensa- ment was outside the scope of applicant's tion Act of Great Britain, from which the

employment, such agreement had terminated Illinois act was taken. In the case of Nesbit at the time the accident occurred, as the tesv. Bayne & Burn, 2 K. B. 689, Nesbit was timony showed conclusively that King had employed as a cashier, and in the perform- taken the motorcycle from the blacksmith ance of his duties, while carrying a large shop and had it out in the street at the sum of money and going by train to his em-time of the accident, and that the alleged ployer's colliery, was shot and killed. The

understanding between applicant and King court held that the risk of being attacked with reference to watching the motorcycle by reason of carrying large sums of money had no bearing upon the case, and that the was incidental to his employment and that altercation between King and the applicant the murder was an accident which arose out in which applicant was injured came about of his employment. To the same effect is Challes v. London & Southwestern Ry. Co., of the movements of King and taking meas

by reason of applicant becoming suspicious 2 K. B. 154.

ures to keep him out of the blacksmith shop. A number of cases are cited by counsel for

For the reasons given, the judgment of the company.

Without commenting upon the circuit court will be afirmed. them, it is sufficient to say that it was held

Judgment affirmed. by the court in each of those cases that the employé was not entitled to recover com. COOKE, J., dissenting.

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1276 111. 438)

edged the will or was present when witnesses HUTCHISON et al. v. KELLY et al. signed in attestation. (No. 11073.)

[Ed. Note.-For other cases, see Wills, Cent. (Supreme Court of Illinois. Dec. 21, 1916. Re- Dig. $$ 700, 703, 710; Dec. Dig. 302(1). hearing Denied Feb. 9, 1917.)

Appeal from Circuit Court, McLean Coun1. WILLS 107-EXECUTION-ALTERATION.

ty; Sain Welty, Judge. The fact that one clause of a will was writ Proceedings by Elizabeth Hutchison and ten in ink of a different color from the rest of others to probate a will, opposed by G. F. the will does not of itself constitute an altera- Kelly and others. From decree for contesttion, and is not evidence of an alteration requiring explanation by extrinsic evidence.

ants, proponents appeal, Reversed and re[Ed. Note.-For other cases, see Wills, Cent. manded, with directions. Dig. $8245–248; Dec. Dig. m107.)

Herrick & Herrick, of Clinton, and W. B. 2. ALTERATION OF INSTRUMENTS 27(1)

Leach, of Bloomington, for appellants. De PRESUMPTION.

An alteration in a written instrument raises Mange, Gillespie & De Mange, Sterling & no presumption of law as to when it was made Whitmore, and W. W. Whitmore, guardian or against the validity of the instrument. ad litem, all of Bloomington, for appellees.

[Ed. Note. For other cases, see Alteration of Instruments, Cent. Dig. $8 230-239; Dec. Dig. m27(1).)

DUNN, J. Abram Kelly, of McLean coun3. ALTERATION INSTRUMENTS


ty, died December 29, 1915, and an instru. QUESTIONS FOR JURY-ALTERATION OF WRIT- ment purporting to be his will was presented TEN INSTRUMENTS.

in the county court for probate. Probate The question as to when, by whom, and with was refused, and upon appeal was also rewhat intent a change in a written instrument was made is one of fact, to be submitted to the fused in the circuit court, and the proponents jury.

have appealed to this court. [Ed. Note.-For other cases, see Alteration of Abram Kelly was 86 years old when he Instruments, Cent. Dig. 88 264–270; Dec. Dig. died. The will purported to have been exe30.]

cuted January 2, 1913. He was then living 4. ALTERATION OF INSTRUMENTS On 27(2)

in Bloomington, having moved there in 1907 BURDEN OF PROOF-EXPLANATION.

One claiming the benefit of a written instru- from Heyworth. He returned to Heyworth ment must explain an alteration therein, and if in the fall of 1913 and lived there until he it is suspicious in appearance and not satisfac-died. The will bore his genuine signature torily explained, the conclusion of fact as to its and the following attestation clause was atinvalidity follows against the instrument, although the appearance of the instrument alone tached to it: may furnish a satisfactory explanation without “The above instrument, consisting of two extrinsic evidence.

sheets, was now here subscribed by A. Kelly, [Ed, Note. For other cases, see Alteration of the testator, in presence of each of us, and was Instruments, Cent. Dig. 88 240, 241, 243-247; at the same time declared by him to be his last Dec. Dig. On 27(2).]

will and testament, and we at his request sign 5. WILLS 302(4) - EXECUTION – ALTERA

our names hereto in his presence as attesting

witnesses. Ed. Wise, of Heyworth. TION. Even if different parts of a will were writ

"Edward Ryburn, of Heyworth." ten at different times, this would constitute no The signatures to the attestation clause evidence of an alteration, unless there is some circumstance creating suspicion that the alter- It was proved on the trial, and was not dis

were the genuine signatures of the witnesses. ation might have been made after execution.

[Ed. Note.-For other cases, see Wills, Cent. puted, that at the time of the execution of Dig. § 704; Dec. Dig. Om302(4).)

the paper Kelly was of sound mind. There 6. WILLS 302(1)–EXECUTION ATTESTA. is an irreconcilable conflict in the testimony TION CLAUSE.

of the subscribing witnesses as to the cir. The attestation clause is prima facie evi- cumstances under which the signatures were dence of the due execution of the win.

[Ed. Note.--For other cases, see Wills. Cent. attached to the paper. The witness Ryburn Dig. 88 700, 703, 710; Dec. Dig. Om 302(1).] testified that he was in the Heyworth State 7. WILLS C.378 - PROBATE_REVIEW_TRIAL Bank on January 2, 1913, for the purpose of ON APPEAL EVIDENCE.

making a deposit of rent which he had reWhile proponents are confined in the county ceived the day before, when J. P. Shelton court to the subscribing witnesses, yet in the (who wrote the will, was named executor circuit court, on appeal, they may prove the execution of a will by any evidence competent in thereof and was cashier of the bank) asked chancery for that purpose.

him to sign a will as witness. Shelton step[Ed. Note. For other cases, see Wills, Cent. ped out of the bank to get another witness Dig. 88 844-847; Dec. Dig. 378.]

and brought Ed Wise in, and the three went 8. Wills M302(1)-EXECUTION-EVIDENCE. to the back room of the bank, where Kelly A will, written all in the same hand, al

Shelton said: though by different colored inks, and attested by two credible witnesses, who certified that tes “This is Mr. Kelly's will and be wishes you as tator signed and acknowledged in the manner witnesses, and he must sign in your presence required by law, and one of whom made declara- and you must sign in his presence and in the tions under oath to the circumstances required presence of each other.” for admission of the will to probate, was enti

Kelly signed the will in the presence of tled to probate, although the other attesting witnesses repudiated his attestation, saying he had both witnesses, and the witnesses signed in not read it, and denied that testator acknowl- his presence and in the presence of each oth


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