PEOPLE v. PFUHL

sonal note became due Mr. and Mrs. Kozla

13

loan unless $50 paid him by Carlson for legal, his clients and converted to his own use the services in preparing a contract for the Ce- money intrusted to him to loan depends dar Rapids work was paid out of that loan; largely upon the testimony of Mrs. Kozla and that he never heard of a feed store on the respondent. north side in connection with the loan until that under the rule announced by this court Counsel for respondent insists the hearing before the grievance committee in cases of this character, to justify the deof the Chicago Bar Association. He denied struction of a lawyer's professional life by telling Mrs. Kozla there was an abstract in his disbarment the proof must be clear and connection with the loan or that the abstract satisfactory not only as to the act charged, was in a book in his office. He denied telling but also as to the motive, and in this case Mrs. Kozla his note was as good as money. it is claimed there is no preponderance of He further testified that, according to his evidence on the side of the relator but that it best recollection, about the time his first per- is equally balanced; the merits of the conMrs. Kozla and respondent, which is conflicttroversy depending upon the testimony of ing. It does not necessarily follow that where one party testifies to one state of facts and another to a contradictory state of there can be no preponderance of testimony. facts the evidence is equally balanced or that If there appears to be inherent evidences of the truth of one statement and the contradictory statement is unreasonable or carries with it suspicion, doubt, and disbelief as to its sincerity and truth, it would be entitled to little or no credit and weight. Respondent is a lawyer of 16 years' experience. Mrs. Kozla is a Bohemian. She came to this country when 2 years of age and attended a Bohemian school a short time when very young. She can read English a little and write her own name, but her understanding of the English language is limited, and it is apparent iar with such business transactions as loanthat she and her husband are quite unfamiling money on real estate security. The extent of Mrs. Kozla's knowledge appears to have been that she considered a first mortgage on real estate good security, but she appears to have been entirely ignorant of the nature and form of a mortgage or of an abstract of title to real estate. She only knew that she was willing to loan the little mon

called together to see him and Kozla told him his note was due and he had not paid it. Respondent replied he was in no position then to pay it, but promised to do so. Kozla charged respondent with fooling him and his wife, charged that he knew where the borrowers were, and if he could not get the money from them he could borrow it from some one else. Respondent denied that he charged or received any compensation for the loans made for the Kozlas. He testified he never examined the records to ascertain if there were any chattel mortgages or liens against the property he took the bill of sale for; that it was intended the property should remain in the possession of the owners, and that he never recorded the bill of sale because he knew the property was to be taken out of the county, and that he explained the matter to Mrs. Kozla.

The agent of the owner of the building where respondent's office was testified that property, including a desk and papers, was taken out of the office of respondent on a bill of sale or distress warrant for the rent which was unpaid and was stored in a basement, and it was not very well preserved or protected, and he thought some of the things taken decayed or were destroyed.

this subject.

In rebuttal, Mrs. Kozla denied all conver-ey they had on the security of a first mortsation or statements respondent testified he gage on real estate, and it is apparent she had with or made to her concerning Carlson depended upon respondent to attend to get& Schultz and the machinery. She testified ting the mortgage on property owned by the the first she ever heard of a chattel mortgage | borrower and accepted his statement upon or bill of sale was at the hearing before the grievance committee of the bar association. spondent was not aware of her lack of knowlIt is inconceivable that reShe denied respondent ever talked to her edge of such business transactions and of her about hunting for Schultz & Carlson, and it dependence upon him. About the time the was admitted she would deny all conversa- $1,000 loan was supposed to have been made tions testified to by respondent except as tes-respondent was, according to his own testified to, in substance, by her when previous- timony, financially embarrassed. ly on the witness stand.

His expla

Eugene Shubart testified he knew a man is not satisfactory. His description of the nation of the loan and the security he took by the name of Carlson; that Carlson owed men to whom he claims to have loaned the him some money but disappeared and he was money, at first without any security, and the unable to locate him; that while he was security he afterwards took, according to his trying to find his whereabouts he communi- own story, shows such lack of care and incated with the respondent, who said he was terest in protecting his clients as to deprive also looking for Carlson, and they agreed his statements of any credit. He claimed the if either located him the other should be $1,000 was first loaned to Schultz on his pernotified. Whether the charge in the information Schultz was he was a contractor and had sonal note, and that all he knew about that respondent betrayed the confidence of some machinery for use in that work. He

MAIN ST.

HOTEL

PORCH

NORTH

James McFarlan, from the time the east- | in front of said lot, about on the south ern part of the village was platted until his line as platted. There is testimony to the death, in 1882, with the possible exception of effect that the original owner used this prop2 or 3 years in the early 60's, resided on lot erty in front of the picket fence for piling 4 in said new plat. In 1877 he deeded said ties and for several years as a woodyard. At lot 4 to his brother, B. P. McFarlan, who that time this space was often designated as deeded it in 1879 to Matilda McFarlan, the "McFarlan's front yard." In 1882, shortly wife of said James. The year after her hus- before his death, he built a summer house band's death she deeded the lot, with the or pavilion on the bluff fronting on the Ohio exception of a strip off the north side there- river, and since that date this tract of of, which is not included in this litigation, ground here in dispute, from where the pickto her daughter, Elizabeth Poor, reserving a et fence was located to the bluff, including life interest in herself. In March, 1890, Mrs. this pavilion, has been used by the owners Poor and her husband deeded that portion | (including defendant in error) and the guests of the lot she owned to William P. Warford, of the hotel as a lawn or park in connecand he conveyed it in August of the same tion with the hotel. Defendant in error, year to James B. and Laura McFarlan. By when she first purchased the place, set out said last-named grantees it was conveyed to from 15 to 20 trees, which are still growing Jane A. Crozier, and November 19, 1891, she on this land, and has had laborers cut the conveyed it to defendant in error, Sarah E. grass and care for the property, including Rose. The deeds, starting with that to War- the repair of the pavilion, until the dispute ford, described the land as lot 4 in the new between her and the village authorities, beplat of the village of Elizabethtown, "extend-ginning in 1913. She leased this property ing from First street to the water's edge of also for 2 years, between 1891 and 1893, for the Ohio river." On said lot 4 is situated a piling ties. The following plat, which is aphotel, which has been conducted as such by proximately correct, will assist in understanddefendant in error since she purchased the ing the character of the property in dispute lot, and for some years before it was ap- and its surroundings: parently rented by her for the same purpose. Said lot is bounded on the west by Main street, and on the east by an alley. Between the southerly line of said lot 4, as shown by the plat, and the water's edge of the Ohio river, is a strip of land which at the broadest portion on the west side is about 132 feet in width, and narrows rapidly toward the eastern portion of the lot. We judge from the evidence that this strip is a bluff of rock, and for most of the entire distance along the front of lot 4 is a steep or abrupt bluff. Just how high it is is not clear from the evidence. In low water from the top of this bluff to the water's edge is ordinarily about 32 feet, the beach proper from the foot of the bluff to the water being inIcluded in this distance. In high water the river sometimes comes to the top of the bluff, and in very high water runs over it. On the west side of this lot is a gulch, or ravine, coming within a few feet of the corner of the lot, and there is another gulch, or ravine, on the east side, about at the opening of the alley there located. The land is apparently lower at the edge of the bluff than Counsel for plaintiffs in error contend that where the house is located, and we infer this property was dedicated by the original from the evidence that it slopes gradually owner, when he platted it, as a street from downward from the house, both towards the the south line of lot 4 as platted, to the wabluff and towards the gulches on either side. ter's edge, and it is also claimed that all the There is evidence tending to show that the other property similarly shown on the plats original owner had fences extending along along the river bank, both in the old and the each side of lot 4 to the water's edge, but new plats, was dedicated for the same purthat they were washed away by high wa- pose, and that the public authorities have ter in the early 60's. Since that time the accepted this dedication. For many yearsevidence shows these fences have only ex- doubtless from the time the village was first, tended to the south end of the lot as orig-platted-there has been a wharf boat on the inally platted, and for a long time, until river's edge, to be used by the steamers on within 3 or 4 years ago, a picket fence stood the Ohio river for landing and for taking on

10

우

우

RIVER

ROCK PLATEAU

and putting off passengers and freight. That that injunction is not the proper remedy. wharf boat is now located from 150 to 200 Where a municipality, undertakes to take feet west of Main street. Many years ago, possession of a street to which it has no at varous times, the wharf boat was located right the proper remedy is a bill for injuncat the southern end of Dunn street, some of tion. City of Peoria v. Johnston, 56 Ill. 45: the testimony tending to show that it was McIntyre v. Storey, 80 Ill. 127; Lowery v. only located at Dunn street at times of high City of Pekin, 186 Ill. 387, 57 N. E. 1062, 51 water. The testimony is to the effect that L. R. A. 301; Waller v. Village of River Forwhen it was located at that point the pas-est, 259 Ill. 223, 102 N. E. 290. sengers often traveled to and from the wharf [2] Did the original owner, when he made boat across this portion of the bluff over the the new plat, including the property here in strip of property here in dispute. There is question, intend to dedicate this strip, and evidence also that tends to show that wagons that east of it, as a street for public use? and drays drove over it at such times, and Counsel for plaintiffs in error insist that unthat at various other times before defendant der the reasoning of this court in Godfrey in error took possession of this property, v. City of Alton, 12 Ill. 29, 52 Am. Dec. 476, wagons and buggies had driven over it. Village of Brooklyn v. Smith, 104 Ill. 429, There is also evidence to the effect that the 44 Am. Rep. 90, Owen v. Village of Brookoriginal owner (McFarlan) had refused per- port, 208 Ill. 35, 69 N. E. 952, and other like mission to the general public to drive over it cases, the original owner, when he platted with teams and wagons, but told one of the this property on the bank of a navigable rivwitnesses that, considering who he was, he er, must be held to have intended to dedicate would allow him to drive over it for a spe- the vacant space between the front of the cific purpose. When Mrs. Rose purchased lots and the river for public use. Counsel this property the former owner definitely told | for defendant in error contend that this vaher that she owned and was deeding the land to the water's edge. Beyond question, since she purchased this property, she has always claimed to own to the water's edge. While there is testimony to the effect that since that time people have driven over it with drays, wagons, or buggies, there is also a great amount of testimony by many witnesses that Mrs. Rose and her daughter had repeatedly refused permission to people to drive over the strip on the bluff in dispute, and had attempted in every way to exercise jurisdiction over it, except to inclose it, and that some 10 or 12 years before this litigation was instituted she extended the boundary fence on the eastern portion of the lot by wire to the bluff. The then president of the village board ordered the wire taken down, but it is manifest that Mrs. Rose still claimed the entire authority over it, for shortly thereafter she built a wall of rock a few feet west of the eastern side of the disputed strip, which made it practically impossible for any team to drive across the bluff. There is testimony, too, that this portion of the lot was so steep, containing several ledges which dropped rapidly toward the gully on the east, that it was almost impossible to draw a heavy load up or down that portion of the disputed strip. Mrs. Rose, as already stated, had kept in repair the summer house or pavilion on the top of the bluff. In 1913 she attempted to repair this again, and the city authorities interfered. Out of that dispute grew litigation which is still pending. In 1914 the village authorities attempted to tear down the wall of rock across the eastern portion of this disputed strip, and as a consequence of what then took place several persons were arrested. This proceeding was immediately thereafter instituted.

cant property in front of the lots as platted was not marked by the word "street," or any other words to indicate it was intended to dedicate it to the public, and therefore, under the decisions of this court in City of Chicago v. Drexel, 141 Ill. 89, 30 N. E. 774, Mason v. City of Chicago, 163 Ill. 351, 45 N. E. 567, Birge v. City of Centralia, 218 Ill. 503, 75 N. E. 1035, and Poole v. City of Lake Forest, 238 Ill. 305, 87 N. E. 320, 23 L. R. A. (N. S.) 809, it cannot be said, from the plat alone, that the original owner intended to dedicate this to public use. It may be urged, in support of plaintiffs in error's contention, that unless this space between the river and the blocks in the new plat was intended as a public way, it would be impossible to have access to lot 12, and that certain other lots in the plat could otherwise only be reached by means of a narrow alley, while, on the other hand, it is urged that the configuration of the ground is such that this strip between Pearl and Dunn streets could not be considered a street for practical use on account of the character of the bluff at that point.

At

The records of Hardin county were destroyed by a fire which consumed the courthouse and contents in 1884, including the two plats of the village of Elizabethtown. the time Mrs. Rose purchased this property there were no plats of record as to said village or its lots. The village authorities in 1894 commenced proceedings in the circuit court, and after taking evidence restored, by a decree of that court, the old and new plats, as heretofore set out. The testimony taken at that time in no way referred to or designated by name the strip of property here in dispute, or any of the strip in front of the property as platted in both the old and new plats. There is, however, testimony of wit

[1] Counsel for plaintiffs in error argue nesses in the record that all of this property

114 N.E.-2