constitutional by this court, park districts have been established, bonds issued and important rights have accrued. "When statutes have long been treated by the courts as constitutional and important rights have been based thereon, the courts may thereafter refuse to consider their constitutionality." Richter v. Burdock, 257 Ill. 410; Gregory Printing Co. v. Deloney, id. 399; Marshall v. Silliman, 61 id. 218.

For the reasons given, the judgment of the circuit court of St. Clair county will be affirmed

Mr. JUSTICE DUNN, dissenting.

Judgment affirmed.

THE CITY OF LINCOLN, Appellee, vs. THE CHICAGO AND ALTON RAILROAD COMPANY, Appellant.

Opinion filed April 23, 1914.

This case is controlled by the decisions in City of Lincoln v. Chicago and Alton Railroad Co. 262 Ill. 11 and 98.)

APPEAL from the County Court of Logan county; the Hon. CHARLES J. GEHLBACH, Judge, presiding.

W. A. COVEY, (SILAS H. STRAWN, of counsel,) for appellant.

URI KISSINGER, City Attorney, (HUMPHREY & ANDERSON, of counsel,) for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court:

The city of Lincoln passed an ordinance in March, 1913, for paving about two blocks of Pulaski street with brick. A petition was filed in the county court of Logan county to pay for said improvement by levying a special assessment on the property benefited. On a hearing before the court

without a jury, legal propositions having been presented as to the admission of evidence, a judgment of confirmation was entered, from which the Chicago and Alton Railroad Company, one of the property owners assessed, appealed.

This improvement is referred to in the opinion of this court in City of Lincoln v. Chicago and Alton Railroad Co. 262 Ill. 98. The questions as to the publication certificate, the assessment of the property of a street car company occupying one of the streets crossed by this improvement, whether witnesses should be permitted to testify on the question of benefits to the property of appellant here assessed, as to the value of that property for any purposes for which it could be used, the conclusions of the witnesses as to the comparative benefits, and the right to levy an assessment against the property used for park purposes, as shown in the record, are identical with those raised and passed on by this court in the case last referred to and in the case of City of Lincoln v. Chicago and Alton Railroad Co. 262 Ill. 11. Under the rulings in those cases the evidence as to the benefits to the 100-foot strip of right of way included in the assessment should have been restricted to the special and peculiar use for which the property was devoted, and the evidence as to the benefits to the strips used for a lumber yard and for a park should have been governed by the rules laid down in those cases, as should also the testimony of the witnesses with reference to the amount that the property assessed would be benefited. We deem it unnecessary to repeat here the citation of authorities or a discussion of the legal principles therein set forth. The judgment of the county court must be reversed and the cause remanded. Reversed and remanded.

EDWIN F. BAYLEY et al. Trustees, Appellees, vs. George NICHOLS, Appellant.

Opinion filed April 23, 1914.

1. PARTITION—evidence of a parol partition must be clear and satisfactory. A parol partition, followed by possession by the tenants in common of the parts allotted to them severally, is sufficient to protect each in his several shares set off to him by the agreement although it does not pass the legal title; but the evidence of the parol partition must be clear and satisfactory.

2. SAME―when court of equity will not enforce an alleged parol partition. A court of equity will not enforce an alleged parol partition as to a tract of land even though it is clear that the parties, before purchasing the property, contemplated a division according to the proportion of the consideration paid by each, where it is equally clear that their plan was changed after the property was acquired, so that each held an undivided interest in the tract.

3. SAME when party is liable to account for rental value of illegal structure. The fact that a pier, constructed at the joint expense of tenants in common of a lot bordering on Lake Michigan, is an illegal structure as against the State, does not entitle one tenant in common to appropriate to himself the rent of the pier nor excuse him from liability for the rental value of the other cotenant's share, as such matter is not based upon any contract prohibited by statute or declared illegal by law.

4. SAME-rule where one tenant in common has made improvements. In partition, if one of the tenants in common has made an improvement, the court, if possible, will allot the portion improved to the one making the improvement without taking into account its value, or, upon a sale, may allow the increased value of the premises caused by the improvement.

5. SAME―when co-tenant is not entirely relieved from liability to account for rental value of pier. Where one tenant in common erects a pier at his own expense, for which he receives rent, the fact that the pier was partly burned, so that it was a losing venture to him and his estate, does not entirely relieve his estate from liability to account for the rent received up to the time of the fire, even though his estate may be entitled to a credit for interest on the investment during such period.

6. PLEADING general rule as to setting up defenses of laches and Statute of Limitations. Ordinarily the defense of laches must be set up by plea or answer, and the defense of the Statute of Limitations must be relied upon by demurrer or answer.

7. SAME―when advantage of the Statute of Limitations may be taken by demurrer. Where a bill shows delay and sets up causes and excuses for it, or where the bar appears on the face of the bill and the facts stated show that none of the exceptions in the Statute of Limitations take the case out of the bar, advantage of the statute may be taken by demurrer.

APPEAL from the Circuit Court of Cook county; the Hon. JESSE A. BALDWIN, Judge, presiding.

BEACH & BEACH, for appellant.

Kales, Kelly & HALE, for appellees.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

This is a suit brought in the circuit court of Cook county by the appellees, as trustees of the estate of Jonathan Clark, deceased, against the appellant, George Nichols, for partition and accounting, in which the chancellor, upon a hearing of exceptions to the report of a master in chancery, confirmed the report, granted the relief prayed for in the original bill and dismissed the cross-bill filed by appellant.

The facts appearing from the evidence are as follows: In 1888 Jonathan Clark and the defendant, George Nichols, contemplated purchasing the block west of Lake avenue between Seventy-fifth and Seventy-sixth streets, in Chicago, and the land east of Lake avenue opposite the block, extending to Lake Michigan. Clark was to pay five-sevenths and Nichols two-sevenths of the purchase price, and the understanding was that they were to have the property in the same proportions, Clark to have five-sevenths and Nichols two-sevenths. The purchase price was not fully paid and the property was conveyed to Clark on December 31, 1888, for convenience. The same day Clark made a deed to Nichols of four lots in the block west of Lake avenue, composing the south two hundred feet of the block, and

the undivided two-sevenths of the shore lot lying east of Lake avenue. It was not acknowledged until March 5, 1889, and was not delivered until January 14, 1895, when it was recorded. In 1889 Clark and Nichols jointly constructed a pier at Seventy-sixth street, extending about four hundred feet into the lake, at the south end of the shore lot. Clark paid five-sevenths of the cost of the pier and Nichols two-sevenths, and soon afterward Nichols built a bath house on the pier, and has since used the pier as a bathing resort or bathing beach in connection with the south part of the shore lot and beach and has received the income and profits from the use of the pier. Nichols built a fence extending north about two hundred feet from the south end of the shore lot, but the fence was not on the east line of the avenue nor upon the dividing line between the north and south parts of the lot. It was about twenty-five or thirty feet east of Lake avenue, and he hired a team and man to scrape sand from the street upon the shore lot and against the fence, bracing and protecting the fence so as to prevent invasion by the waters of Lake Michigan, and Clark paid for the lumber for the fence. There was some accounting for sand sold by Nichols, but there never was any general accounting between Clark and Nichols. In 1893 Clark wrote to Nichols, saying that it was about three years since they had a settlement and suggesting that there ought to be one, and that he ought to be consulted as he had paid fivesevenths of the cost of the pier and had paid for a car-load of lumber, and all that he saw was the two hundred feet of fence in front of Nichols' own lot, and in that letter he asked for a statement of affairs. In the year 1895 Clark constructed at his own expense a pier at Seventy-fifth street on the north end of the property, extending into the waters of Lake Michigan, and he used that pier for a bathing beach resort until his death, in 1902. That pier was destroyed by fire in 1904, except the part near the shore, on which the tenant of the complainants built a bath house, and they