ings of the village of Anchor is north of the railroad. Different parts of block 3 have been occupied by various tenants since the making of the original plat and a halfdozen or more buildings have at different times been erected on the premises. Some have burned down, others have been removed, and at the time of the commencement of the suit there were three buildings on the east side of the block, all fronting on the streets on the outside of the block. The southwest part of the block was occupied by a lumber yard, having an office at the west end. For many years an elevator stood on the railroad right of way at the northeast corner of lot 23, and on that corner was the elevator office. Connecting this office with the sidewalk on Second street was a walk made of boards in the usual manner of street crossings, with slanting boards at either edge. Who made this walk does not appear, but it is not claimed that it was made by any public authority. This elevator burned down some years ago. At the southwest corner of the block on the right of way is another elevator, which was built many years ago and is still in operation, having its office on lot 22. On what is now lot 23 there was a lumber yard for many years. This lumber yard was not fenced, and there were no fences on the block until the lumber yard in the southwest corner was fenced some years ago, substantially on the west line of the north and south alley and the south line of the east and west alley. During all this time the block has been owned by Daniel B. Stewart and Arthur D. Stewart, the appellants, except lot 8, which was at one time owned by Matthew Martin, who conveyed it to Arthur D. Stewart in April, 1910. The buildings were occupied by tenants for business purposes, except that at one time the appellant Arthur D. Stewart had a dwelling house there. The buildings all faced on East street, Second street or Third street. Persons having occasion to go to the lumber and coal sheds to transact business with the occupants of the

premises, or to the elevator or grain offices, constantly traveled over the unoccupied portion of the block. Four telephone poles have been placed in the alley, and the consent of the highway commissioners was asked and given to place them there. No other act tending to show recognition of the alley as a highway by any public official appears in the record. It may be said that the public has traveled over the ground at will for many years without objection or interruption by the owner. The travel was not confined exclusively to the alley or the main driveway or the regular track, but people drove across lots without regard to the line of the alley. The evidence is that the use was wholly permissive. The tenants of the premises, and those dealing with them, traveled over this ground to the places where the business of the tenants was transacted, and the track, such as it was, was made by them. No work was ever done upon the alleged alley, of any character, by any person. While there was a defined track, the travel was not confined to this track but was wherever persons desired to go. For a time the office of the lumber yard was on lot 10, fronting on East street, and people coming from the east drove across lot 9 and west to the lumber yard. There is nothing to indicate that the appellants or their tenants had any reason to suppose that anyone claimed a right to travel over the road. They did not prevent the public from traveling over the block wherever they desired to go, but the use by the public was not as a matter of right as a public highway, but by license of the owner. A mere permissive use cannot create a prescriptive right, and no inference adverse to the owner can be drawn from mere travel across unenclosed land by the public without objection. (Warren v. Town of Jacksonville, 15 Ill. 236.) To create a highway by prescription it is necessary that the use shall be under a claim of right, adverse, open, notorious, exclusive, continuous and uninterrupted for the statutory period. (Doss v. Bunyan, 262

Ill. 101.) The prescription for a highway is not sustained by the evidence.

The decree will be reversed and the cause remanded, with directions to dissolve the injunction and dismiss the bill so far as the alleged alley is concerned, and affirmed as to East street.

Reversed in part and remanded, with directions.

IRA M. COBE, Plaintiff in Error, vs. FREDERICK H. BARTLETT, Defendant in Error.

Opinion filed October 27, 1915–Rehearing denied Dec. 10, 1915.

I. APPEALS AND ERRORS-rule where Appellate Court reverses with a finding of facts. Where the Appellate Court reverses a judgment as a result of finding the facts in controversy different from the finding of the trial court and recites in its judgment the facts so found, such finding is by statute made conclusive, and the Supreme Court can only inquire whether the law was properly applied to the facts so found.

2. SAME a finding of an ultimate fact may require an application of rules of law. A finding of an ultimate fact frequently requires the application of rules of law, and thus, in a sense, becomes a mixed question of law and fact; but such finding is none the less a finding of an ultimate fact.

3. SAME what is a proper finding of an ultimate fact. A finding in the judgment of the Appellate Court reversing a judgment for the plaintiff in an action on a written contract, that the plaintiff "did not acquire the premises described in the contract sued on through foreclosure of the trust deed described in the contract and did not perform or fulfill the conditions of the contract to be performed and fulfilled by him, and the defendant * * * is not indebted to the plaintiff * * * under the contract sued on," is a proper finding of an ultimate fact.

WRIT OF ERROR to the Branch "B" Appellate Court for the First District;-heard in that court on appeal from the Municipal Court of Chicago; the Hon. JAMES C. MARTIN, Judge, presiding.

MILTON J. FOREMAN, JACOB Levin, Egbert RobertSON, and DAVID BLUMROSEN, (JOHN E. HOGAN, of counsel,) for plaintiff in error.

EDWARD P. Vail, John Lyle VETTE, and Donald P. VAIL, for defendant in error.

Mr. JUSTICE COOKE delivered the opinion of the court:

Ira M. Cobe, plaintiff in error, obtained a judgment for $25,144.14 against Frederick H. Bartlett, defendant in error, in the municipal court of Chicago, in a suit brought upon a written contract. This judgment was reversed by the Appellate Court for the First District with a finding of facts, and the record of that court is brought here for review by a writ of certiorari.

The proof discloses that on April 3, 1905, Bartlett, acting for the Northern Liquidation Company, bought from the Prudential Insurance Company the premises in the city of Chicago known as the Beveridge building and took title in the name of Benjamin H. Wallace, who had no beneficial interest in the property but who held the title either for Bartlett or the liquidation company. On that day Wallace executed and delivered to the insurance company his note for $60,000, secured by a first mortgage on the property, and also executed another note for $20,000, payable to his order and by him indorsed, and to secure the same executed and delivered a trust deed to the Chicago Title and Trust Company, trustee, to the same property, in which trust deed it was expressly recited that the same was subject to the first mortgage. The notes secured by the mortgage and trust deed were each due April 3, 1910. The insurance company held its note until maturity, but the note for $20,000 came into the possession of Bartlett and Clinton S. Woolfolk, the latter being an officer of the liquidation company. On November 27, 1905, Bartlett and Woolfolk sold the $20,000 note to Cobe, and the parties entered into

a written contract which recited the sale and delivery of the note, and wherein Bartlett and Woolfolk agreed that in the event of the foreclosure of the trust deed and Cobe acquiring the premises through foreclosure for a sum not exceeding the actual amount due as found by the decree, they would purchase the premises from Cobe immediately upon the expiration of the period of redemption and would pay Cobe therefor the amount required to redeem the premises on the last day of the period of redemption. Neither the $60,000 nor the $20,000 note was paid upon maturity. On April 12, 1910, the Assets Realization Company, which furnished the money wherewith the purchase of November 27, 1905, was made by Cobe, as the holder of the trust deed note, filed its bill for foreclosure. On September 30, 1910, a decree of sale was entered, and the premises were sold on October 28, 1910, by the master to Cobe. On May 21, 1910, the insurance company, as holder of the firs mortgage note, filed its bill for foreclosure and obtained a decree of sale October 29, 1910. The property was sold under this decree on November 26, 1910, to the insurance company. A master's deed was issued to Cobe under the Assets Realization Company's foreclosure, on January 30, 1912. In the meantime Bartlett acquired the title of the insurance company as the holder of the certificate of purchase under its foreclosure. The evidence tends to prove that this title was so acquired by Bartlett with the knowledge and consent of Cobe. On February 28, 1912, a master's deed was issued and delivered to the insurance company, which in turn executed and delivered a deed to the property to John W. Sturtevant, who was Bartlett's nominee under his contract with the insurance company for the purchase of its title. Immediately upon securing the master's deed on January 30, 1912, Cobe executed his deed to Bartlett and Woolfolk and made an unconditional tender of the same to them, and requested that they pay him the amount due under the contract entered into at the time of