in this particular. There was proof of but the one assault with intent to commit rape, shown by the testimony of the complaining witness to have been on August 17. Other acts the evidence of which is complained of were acts of taking indecent liberties, prior and subsequent to the act charged in the eighth and ninth counts of the indictment. Under the authority of People v. Duncan, supra, it was not error to refuse to require the election before the taking of proof. [3] Concerning the contention that the court erred in admitting testimony as to previous acts of lewdness and taking indecent liberty, we are of opinion that such cannot be sustained. Proof of acts of indecent liberties was made before the counts charging such were nolled. Proof of acts of lewdness, showing a course of conduct leading up to the assault, was competent, not for the purpose of proving distinct offenses, but for the purpose of showing the relations that existed between the parties and a course of conduct of plaintiff in error leading up to the act complained of. People v. Duncan, supra; People v. Gray, supra. It is earnestly insisted that, while this may be the rule in a case where the assault is without force on a female child under the age of consent, it does not apply where the proof shows that the assault was with force and against her will, and that under that state of proof the crime was the same as common-law rape and evidence of previous acts of lewdness or taking indecent liberty is incompetent. This is not, however, the rule as laid down in People v. Gray, supra, and cases cited. No such distinction is there drawn, and, indeed, where statutory rape is charged, an element of the crime lies in the fact that the female child is too young to consent. If in law she cannot consent, we are unable to see wherein the use of force changes the character of the charge from statutory rape to the common-law crime. As said in People v. Gray, supra: "On reason and by the great weight of authority, in a prosecution for rape of a female under the age of consent, other acts of sexual intercourse between the same parties are admissible as corroborating the prosecuting witness' testimony concerning the particular act relied upon for conviction." This being the rule as to the admissibility of evidence of other acts of sexual intercourse, we can see no good reason why prior acts of lewdness and taking indecent liberty may not be shown. [4-6] Counsel for plaintiff in error also contend that it was error to admit testimony of subsequent acts of lewdness. It was held in Crane v. People, supra, which was a charge of adultery, that acts subsequent to the one relied upon may be proved as characterizing the acts and conduct of the parties complained of as constituting the partic ular offense charged; and it was said in People v. Gray, supra, that no difference exists between those cases where the charge is adultery and where it is rape of a female child under the age of consent. Moreover, it cannot be said, on the record in this case, that had the testimony of such specific acts of lewdness not been admitted, the verdict of the jury would have been different. The proof in this case fully justified the verdict, not only from the clear and unshaken statement of the complaining witness, but from the testimony and circumstances tending to corroborate her, including the testimony of the physician who made a physical examination of her after the time of the alleged assault. As was said in People v. Karpovich, 288 Ill. 268, 123 N. E. 324: "Crimes of this character are usually committed under circumstances that do not admit of corroborative testimony by eyewitnesses." The circumstances here tend to corroborate the complaining witness. The fact, which is not denied, that she was very frequently in the company of the plaintiff in error, that he stood in loco parentis to her, that he frequently took her into the fields and garden to work with him, affording opportunity to commit the crime, tended to lend credence to her story. The people's witness Genevieve Van Eppen, who was the complaining witness' teacher, testified that on one occasion when the plaintiff in error appeared at the school building the complaining witness clutched her by the arm and appeared to be frightened. It would be unreasonable to assume that this child could detail so many facts and circumstances surrounding the alleged previous acts of lewdness-many of which circumstances are not denied, though the acts themselves are-if her story was fabricated. The jury were fully justified in returning a verdict of guilty. [7, 8] It is also contended that it was error to permit Mrs. Strevor to testify concerning the complaint made to her of the alleged act. The record shows that this statement was made on October 17, 1920, which was two months after the alleged assault; but the evidence also shows that it was within four days after the complaining witness left the home of plaintiff in error and went to that of Oscar Ramer. The rule is that in this class of cases it may be shown by the testimony of third persons that the prosecutrix made complaint to them, provided such complaint is made as soon as practicable or without any inconsistent delay. There is no set rule, however, as to what shall constitute an inconsistent delay. In this case the complaining witness was in the home of plaintiff in error and under his physical control. Moreover, it is shown by her testimony that he had threatened to do her bodily injury if she made complaint of his conduct. There appears to have been (133 N.E.) no sufficient reason why this girl could have been expected to make complaint prior to her leaving the home of plaintiff in error. We are of opinion, therefore, that under the record in this case the delay in making this statement was not inconsistent. The circumstances in which the prosecutrix was placed and the fear under which she was laboring negative such inconsistency. The court, therefore, did not err in admitting the testimony of such statement. the argument is that, since the counts for taking indecent liberty were nolle prossed, the purpose and effect of the proof should have been limited to that of showing the relations of the parties merely, and that this was not done. It is sufficient to say that no such instruction was offered on the part of plaintiff in error, and it is not the duty of a court to prepare and give instructions of its own motion, although it may properly do so in some instances. If counsel desired the benefit of an instruction of this character, they should have presented one to the court. There appears to have been no motion to limit the testimony pertaining to previous acts of taking indecent liberty that was offered under the first seven counts of the indictment prior to their having been nolle prossed. [9] It is also contended that it was error to refuse the motion of plaintiff in error to require the production of the prosecuting witness for interview. It appears that the complaining witness was produced and told that she could talk to counsel for plaintiff in error or not, as she saw fit, and that counsel for plaintiff in error was not permitted to question her out of the hearing of the [12] Counsel complain of the refusal of sheriff and the state's attorney. It was the court to give to the jury the sixth reheld in People v. Duncan, supra, that the fused instruction. By this instruction the fact that neither the accused nor his coun-jury were told, in substance, that the prosesel had opportunity to interview the prosecuting witness, in a case of this character, was not ground for a continuance, and that the court was not required to enter an order requiring her to be produced for the purpose of granting an interview. In this case the in the fact that counsel were not permitted interview was granted, and we see no error to interview her alone. [10] Counsel further contend that conviction in this case of assault with intent to commit rape cannot be sustained, for the reason that the facts show, if taken to be true, that the crime of rape, and not of assault with intent to commit rape, was proven. The test in this class of cases is whether or not the evidence shows plaintiff in error to be guilty of the crime charged, and the fact that the evidence proving him so guilty may also prove an offense of greater magnitude is not a variance between the proof and the indictment upon which the verdict is based. Proof of the crime of rape also involves proof of an assault with intent to commit rape, and, though it be conceded that in this case the proof does show the crime of rape, such does not make void the conviction of the crime charged. People v. Karpovich, supra. cution having elected to rely for conviction upon the assault which they allege defendthe middle of August, unless they believed ant made upon the complaining witness about from the competent evidence, beyond all reasonable doubt, that he did the act complained of, with the intent charged, they should find the defendant not guilty, no matter how many other assaults may have occurred upon the prosecutrix on other days or dates and no matter what acts of obscene conduct and indecency occurred between the prosecutrix and the defendant on other days or dates. This instruction was marked "Refused," as having been covered. An examination of the given instructions shows that the last instruction given for the plaintiff in error informed the jury that the charge was limited to the crime of assault with intent to commit rape about the middle of August, 1920, and, if they had any reasonable doubt in their minds as to the guilt of the defendant on that charge, they should acquit him. The refused instruction merely stated in another form the substance of the given instruction. An examination of this record, which is of some length, discloses that there is no [11] It is contended that the court erred reversible error contained therein. The in not giving to the jury an instruction limit-judgment of the circuit court will therefore ing and regulating the proof offered by the be affirmed. people as to taking indecent liberty, and Judgment affirmed. (301 111, 362) (Supreme Court of Illinois. Dec. 22, 1921. Rehearing Denied Feb. 15, 1922.) 7. Equity 232-Demurrer to bill setting forth various claims for relief overruled if any of classes are proper for jurisdiction and consideration by court of equity. When a bill sets forth various claims for relief in a court of equity, and the defendant files a general demurrer, the demurrer should be overruled if any of the claims therein set forth be proper for its jurisdiction and consideration. 8. Appeal and error 762-Brief of appel lees should not restate case. 1. Adverse possession 58-Under 20-year statute must be hostile to all others. Under Limitations Act, § 1, adverse possession sufficient to defeat legal title must be hostile in its inception and in its character, and must so continue uninterrupted for 20 Where brief of appellant fully states the years, and the occupation must be with the intention of claiming the fee against the true case, it is improper, under rule 15 (111 N. E. owner and all other persons; an actual, visi-viii) for each of two appellees to again state the case in their briefs. ble, and exclusive possession without such assertion of ownership being insufficient. 2. Mines and minerals 48-Coal, limestone, and other minerals in place are "land." Coal, limestone, and other minerals in place are "land" and are attended with all the attributes and incidents peculiar to the ownership of land. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Land.] Appeal from Circuit Court, La Salle County; Samuel C. Stough, Judge. Bill by Joseph H. Kinder and others against the La Salle County Carbon Coal Company and others. Decree of dismissal, and complainants appeal. Reversed and re manded. Gerald G. Barry, of Chicago, James H. 3. Mines and minerals 47-Title to minerals Rennick, of Toulon, and Woodward & Hibbs, of Ottawa, for appellants. distinct from title to surface may be proven in same way as title to surface. Title to minerals distinct from title to surface of land may be proven in exactly the same way as title to the surface. 4. Mines and minerals 49-Title to mineral stratum can be shown by adverse possession, but, where separate estates are created, each is incapable of possession by occupancy of the other. Title to mineral stratum may be shown by proof of adverse possession, but, where by a severance, separate estates are created which are held by separate distinct titles, each estate is incapable of possession by the mere occupancy of the other. Clarence Griggs, of Ottawa, Coleman & Coleman, of La Salle, Louis E. Hart, of Chicago, and Walter Panneck, of La Salle (John E. Coleman, of La Salle, and Louis E. Hart, of Chicago, of counsel), for appellees La Salle County Carbon Coal Co. and Matthiessen & Hegeler Zinc Co. Clarence T. Morse, of Chicago, and McDougall & Chapman, of Ottawa, for other appellees. THOMPSON, J. The common source from which all parties to this litigation claim title to the lands in question is James Cowey, who obtained title to said lands by mesne convey 5. Equity 239-Demurrers to bill admit ances from the United States and who was truth of facts alleged. Demurrers to bill admit facts alleged to be true. 6. Mines and minerals 49-Title by adverse possession to minerals held sufficiently pleaded. Allegations in a bill to quiet title that since specified date plaintiffs and their predecessors "have been in the actual, visible, hostile, exclusive, continuous, and open possession under claim of ownership of and under color of title to all the clay, sand, gravel, lime, rock, and other stone and ledges on, in, and underlying all of the premises, and have openly, notoriously and continuously dug and quarried gravel and stone commercially and extensively from the premises during all of said time as such owners," held sufficient to plead complainants' title to such minerals by adverse possession, without an elaborate statement of evidentiary facts on which title for adverse possession is based; such allegations being statements of fact, and not mere conclusions of law. the owner in fee simple at the time the deeds in question were made. By a deed dated March 25, 1867, he severed the underlying mineral estate in the land from the surface estate in the land, and conveyed by warranty deed to the Chicago Coal Company, a corporation, "all the bituminous or stone coal, together with the right to mine the same," and by the same instrument quitclaimed “all the right in or title to the oil and minerals, of every description, underlying the above and foregoing described lots, tracts, and parcels of land." Appellees by mesne conveyances now claim the estate conveyed to the Chicago Coal Company. Subsequently, by a warranty deed dated May 17, 1869, Cowey conveyed a part of said lands to James Kinder, and by a similar deed he conveyed the remainder of the lands to William Burrell, excepting and reserving to himself "all bituminous or stone coal and other minerals, as well as all petroleum oil in, upon, or underlying said premises above described, togeth For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (133 N.E.) er with the right to mine and raise the [rial to the public authorities for the improvesame." Appellants are the successors in title to the Kinder and Burrell interests. Appellees claim that the word "minerals," used in the first deed, included the limestone, gravel, sand, and other similar minerals found in the lands. Appellants claim that the deed conveyed to appellees' predecessors in title the coal underlying the lands and the oil and other minerals underlying the coal, but that it conveyed nothing above the stratum of coal. Appellants filed their bill in the circuit court of La Salle county to remove as clouds upon their title all the claims of appellees and to quiet their title. They also claim title by adverse possession under sections 1 and 6 of the Limitations Act. General and special demurrers filed to the bill by appellees were sustained, and a decree was entered dismissing the bill for want of equity. This appeal is prosecuted to review that decree. ment and repair of highways; that during all these years since 1869 appellees and their predecessors in title who were in any way interested in or claimed any right or title to the portion of underlying minerals which had been severed from the surface estate knew that appellants and their predecessors in title were in possession of the quarries and were extensively quarrying and selling the sand, gravel, and limestone, and that appellees, from time to time throughout all of said period, purchased large quantities of the sand, gravel, and limestone from appellants and their predecessors in title, knowing at all times that appellants were quarrying and taking the same from the lands in question, and that appellants were claiming to be the actual and exclusive owners, in fee simple, of all the sand, gravel and limestone on and in the premises, and that appellants claimed the same as constituting a part of the surface estate of the lands described in the deeds through which appellants and appellees claim title. The bill alleges that appellants and their predecessors in title have been in the actual, visible, open, adverse, and exclusive possession, as owners in fee simple, of said [1-4] Under section 1 of the Limitations lands from 1866 down to and including the Act (Hurd's Rev. St. c. 83) adverse possession present time, including in and claiming as a sufficient to defeat the legal title must be part of their dominant estate and surface hostile in its inception and in its character right the title to and possession of all clay, and must so continue uninterruptedly for 20 sand, gravel, shale, limestone, and other years. There must be an assertion of ownstones and ledges in place, lying and being ership which is hostile to all others and therein, and comprising the surface of. the which shall continue during the whole period land; that during all of the time since 1869 of 20 years. To constitute an adverse posses. they and their predecessors in title have been sion it is not only necessary that there in the actual, visible, hostile, exclusive, con- should be an actual, visible, and exclusive tinuous, and open possession, under claim of possession, but that possession must be comownership, of and under color of title, to all menced and continued under a claim of right the clay, sand, gravel, lime, rock, and other to hold the land against him who was seized. stone and ledges on, in, and underlying all of The occupation must be with the intention of the premises, and have openly, notoriously, claiming the fee against the true owner and and continuously dug and quarried gravel and all other persons. Morse v. Seibold, 147 Ill. stone, commercially and extensively, from the 318, 35 N. E. 369; Haley v. Johnson, 292 Ill. premises during all of said time as such own- 525, 127 N. E. 139. Coal, limestone, and others; that the surface of the premises consists er minerals in place are land and are atof loose loam and clay underlaid by sand, tended with all the attributes and incidents gravel, shale, and limestone, which limestone, peculiar to the ownership of land. Title to in places, is a few feet under the loam and at minerals, distinct from title to surface of many other points comes to the top and is ex- land, may be proven in exactly the same way posed and can only be taken from the land by as title to the surface. Catlin Coal Co. v. means of open quarrying, which open quar- Lloyd, 176 Ill. 275, 52 N. E. 144. Title to the rying will totally destroy the surface estate mineral stratum may therefore be shown by in removing the substances; that the coal proof of adverse possession, but the difficulty and other minerals, if any, on the premises with respect to getting title of such an estate lie far below the surface of the land and far by adverse possession is found in the difbelow the sand, gravel, shale, and limestone ficulty of getting and proving actual possesand can only be removed by mining; that sion. By a severance separate estates are they have continuously and openly and ex- created which are held by separate and distensively quarried at many and divers places tinct titles, and each estate is incapable of in all of the premises, commercially and un-possession by the mere occupancy of the othder claim of ownership, the sand, gravel, and er. Renfro v. Hanon, 297 Ill. 353, 130 N. E. limestone, and have sold the same to all per- 740; 2 Corpus Juris, 71; 1 R. C. L. 738. sons wishing to buy, including hundreds of customers in and about the premises and in the city of La Salle, lying adjacent thereto, and have sold large quantities of the mate [5] Under these authorities it follows that the chancellor erred in sustaining the demurrers and in dismissing the bill, if the bill alleges facts which the demurrers admit to be true, sufficient to show title by adverse to title by adverse possession is based, and possession to the sand, gravel, limestone, and simplicity in pleading demands that such other similar minerals. Appellees contend particularity be avoided. that the allegations of the bill, the substance of which we have set out in an earlier paragraph, are conclusions of law, and not state ments of fact which are admitted by the demurrers. In the Encyclopedia of Pleading and Practice, vol. 21, p. 718, it is said: "No certain rule can be formulated for distinguishing averments respecting titles that are regarded as merely averments of legal conclusions from those that are regarded as traversable facts. For a full discussion of this subject reference is made to another article." [7] When a bill sets forth various claims for relief in a court of equity, and the defendant files a general demurrer, the demurrer should be overruled if any of the claims therein set forth be proper for its jurisdiction and consideration. Barr v. Barr, 273 Ill. 621, 113 N. E. 36. While the allegations of fact in this bill, which covers 49 pages of the typewritten record and of the printed abstract, are so hedged about with immaterial averments, argumentative statements and conclusions of the pleader that it is difficult to sort them out, and while the chancellor should have ordered much of this immate The article to which reference is made is found in volume 12 of the same work, atrial matter stricken from the bill, there are page 1045. The full discussion is: In Dibble v. Winter, 247 Ill. 243, 93 N. E. 145, it was contended that an allegation in the bill that the testator died "leaving him surviving as his heirs at law and next of kin his two sisters," was a conclusion of law, and not a statement of fact. There we said: "Whatever may be the holding in other jurisdictions, we are disposed to hold, on principle as well as under the authorities of this state, that the allegation in question is a state ment of fact and not a conclusion of law." sufficient allegations of fact to require the circuit court to retain jurisdiction and consider the cause on its merits. The object of a pleading of any kind is to state the facts upon which the legal rights of the parties depend, and nothing more. [8] Counsel for certain appellees have filed a brief of 85 pages, and counsel for other appellees have filed a brief of 33 pages. The one brief is a mere repetition of the other, stated in somewhat different language. Leave was given to file the separate brief on the representation that the interests of the two groups of appellees were conflicting, but, this permission gave them no right to restate and reargue the points where their in terests were the same. There is a full statement of the case in appellants' brief and a complete restatement of it in each brief filed by appellees. Rule 15 (111 N. E. viii) provides that the brief of appellant shall contain a short and clear statement of the case, and that the brief of appellee in a case of this kind shall adopt this statement without repetition unless it is inaccurate or insufficient, and, if it is, appellee may in his statement point out such inaccuracy or insufficiency. The rule is clear and ought not to require elaboration, but the court has been In Towle v. Quante, 246 Ill. 568, 92 N. E. compelled to call attention to its violation on 967, we said: a number of occasions, and its views, to a certain extent, have been expressed in the following cases: Thomas v. First Nat. Bank, 213 Ill. 261, 72 N. E. 801; Kelly v. Fahrney, 239 Ill. 317, 87 N. E. 1112; Yeates v. Illinois Central Railroad Co., 241 Ill. 205, 89 N. E. 338. The decree is reversed, and the cause is remanded to the circuit court of La Salle county, with directions to overrule the general demurrer and for further proceedings. Reversed and remanded, with directions. |