151 N.E. 284 | Ill. | 1926
Benjamin N. Branch, Jr., filed a bill in the superior court of Cook county for the partition of certain real estate described as lot A of Mandell Hyman's subdivision of the east half of the southwest quarter of section 20, township 39, north, range 13, east of the third principal meridian, between the complainant and the Central Trust Company of Illinois, who were alleged to be owners each of one-half of the property in fee simple. Besides the Central Trust Company, the Chicago Title and Trust Company, as executor and trustee under the will of Edmund A. Cummings, and several individuals, were made defendants under the allegation that they claimed some interest in the premises, the exact nature of which was unknown to the complainant, but that such interest, if any, was subject to the rights and interests of the complainant and the Central Trust Company. The Central Trust Company answered, admitting the allegations of the bill. The Chicago Title and Trust Company, as executor and trustee, and some of the individual defendants, answered, denying that the complainant and the Central Trust Company were the owners of the premises or that either of them was the owner of any interest therein, and averring that the defendants, except the Central Trust Company, by various conveyances had become, respectively, *434 the owners of different parts of the premises in severalty. The defendants not answering were defaulted, and the cause was referred to a master, who reported that neither the complainant nor the Central Trust Company had any interest in the premises and recommended that the bill be dismissed for want of equity. Objections of the complainant and the Central Trust Company to the report were overruled by the master, exceptions to the report were overruled by the court, and a decree was entered dismissing the bill for want of equity, from which the Central Trust Company has appealed.
It appears from the evidence that on June 9, 1892, Edward D. Mandell was the owner of the east half of the southwest quarter of section 20, township 39, north, range 13, east of the third principal meridian, and on that day he recorded a plat of a subdivision of the tract under the name of Mandell Hyman's subdivision. On July 16, 1892, he conveyed to the Chicago and Southwestern Railroad Company "a railroad right of way and depot grounds over and upon the whole of lot A of Mandell Hyman's subdivision of the east half of the southwest quarter of section twenty (20), township thirty-nine (39) north, range thirteen (13) east of the third principal meridian, situate in the town of Cicero, in the county of Cook and State of Illinois. To have and to hold said lot A for a railroad right of way and depot grounds unto said Chicago and Southwestern Railroad Company, its successors and assigns for so long as the same shall be used for a railroad right of way and depot grounds, subject, however, to the following rights, which are hereby expressly reserved to said grantor and his heirs and assigns and to the public, to-wit:
"First — To cross, open, extend, lay out and improve all streets now shown upon the recorded plat of said Mandell Hyman's subdivision west of the east line of Cicero avenue, over, under, above and across said lot A, both on, over and under the surface thereof at any and all times, all *435 of which rights also extend to and are hereby made to extend to the proper public authorities, who may open, extend and improve said streets.
"Second — If said company, its successors or assigns shall at any time abandon said railroad right of way and depot grounds over and upon said lot A, or shall use said lot A or attempt to use the same for another purpose than for said railroad right of way and depot grounds, then the right and privilege hereby granted to it and them shall thereby be forfeited and be of no further force and effect, and from henceforth said lot A shall revert to said grantor and to his heirs and assigns forever, and be held by him or them forever freed and discharged of and from the right hereby granted to said company."
The Chicago and Southwestern Railroad Company went into possession of lot A, a railroad known as the Chicago and Southwestern Branch was constructed on it throughout its length and was conveyed to the Chicago and Northern Pacific Railroad Company. All the property of the Chicago and Northern Pacific Railroad Company was sold under foreclosure proceedings, and in 1897 the title vested in the Chicago Terminal Transfer Railroad Company. In 1910 all the property of the Chicago Terminal Transfer Railroad Company was sold under a decree of foreclosure and the title vested in the Baltimore and Ohio Chicago Terminal Railroad Company. In 1922 the Baltimore and Ohio Chicago Terminal Railroad Company, having abandoned the use of lot A for railroad purposes, conveyed by quitclaim deed all interest in the lot to the Central Trust Company of Illinois as trustee, and the Central Trust Company, as trustee, conveyed one-half to Benjamin N. Branch, Jr., the complainant. Edward D. Mandell died in 1897, leaving a will, and in 1910 the trustees under his will, and his heirs and devisees, executed a deed of conveyance of lot A, subject to all rights of any railroad company or companies then occupying or having any interest in any part of the *436 premises, to Charles P. Walker, Jr. Walker conveyed to Edmund A. Cummings, who died in 1922, leaving a will, whereby he devised the premises to the Chicago Title and Trust Company as trustee. The other defendants, except the Central Trust Company, derive their title through the Chicago Title and Trust Company as trustee.
Lot A is a narrow strip of ground extending through the half quarter section from Austin avenue (or Sixtieth avenue) on the east to Lombard avenue on the west, and is about half way between Sixteenth street and Twenty-second street, on the north and south, respectively. It is 66 feet wide, except about 250 or 300 feet at the east end, where the width expands to about 160 feet at the greatest width. The Chicago and Northern Pacific Railroad Company went into possession of the railroad which was constructed by the Chicago and Southwestern Railroad Company and ran its trains over that railroad until the foreclosure, in 1897. Upon the conveyance to it the Chicago Terminal Transfer Railroad Company went into possession of the property and operated its trains over the railroad track. The operation of trains over the track was discontinued before 1900. There has never been any structure on the road except the single railroad track and a depot building. After 1899 no repairs were made on the railroad track. The rails rusted, the ties rotted, the ballast disintegrated and the road was overgrown with weeds. The depot was occupied as a residence. The Chicago and Southwestern Railroad Company and its successors were in the continuous and exclusive possession of the road from July 16, 1892, until about April 15, 1922. They listed and scheduled the Chicago and Southwestern Branch for taxation for the years 1893 to 1921, inclusive, as railroad track. The State Board of Equalization assessed the Chicago and Southwestern Branch as railroad track for each of those years. Taxes were extended against it as railroad track, and the taxes so levied during that time were paid by the Chicago and *437 Southwestern Railroad Company and its successors. The Baltimore and Ohio Chicago Terminal Railroad Company removed the rails and ties between February 6, 1922, and April 15, 1922. On February 6, 1922, the trustees of the town of Cicero passed an ordinance giving the Baltimore and Ohio Chicago Terminal Railroad Company the right to operate and lay tracks upon Fifty-sixth avenue south of Sixteenth street for switching purposes, upon the condition, among others, that the railroad company should, within fifteen days after the passage, approval and acceptance of the ordinance, take up and remove all tracks, rails, ties and other equipment of the railroad then lying within the town of Cicero and west of the east line of Fifty-sixth avenue, and should immediately abandon such portion of its right of way as lay west of South Fifty-sixth avenue and cease to use any portion of such right of way for the operation of trains, the ordinance to become effective after its passage and approval, provided the company should accept it in writing within sixty days after its passage. Within sixty days after the passage of the ordinance it was accepted in writing by the railroad company, and the railroad company removed all its rails, ties and other railroad material from that portion of its right of way lying west of South Fifty-sixth avenue, including lot A. In 1909 David B. Lyman, as trustee, began a suit against the Suburban Railroad Company and the Chicago Terminal Transfer Railroad Company for the purpose of having the right of way granted to the Chicago and Southwestern Railroad Company in section 21 decreed to be terminated and vested in the complainant as trustee, free of any claim of the railroad companies. In that case the Chicago Terminal Transfer Railroad Company filed a cross-bill, which set up the ordinance of the town of Cicero granting a right to the Chicago and Southwestern Railroad Company to construct and operate the Chicago and Southwestern Branch, setting up, also, certain leases to the Suburban Railroad Company for the operation of passenger *438 trains over the Chicago and Southwestern Branch, and alleging that the Suburban Railroad Company had failed and refused to operate trains, and that under the suit brought by Lyman, unless trains were operated over the Chicago and Southwestern Branch the Chicago Terminal Transfer Railroad Company would be deprived of and lose a part of its right of way constituting the Chicago and Southwestern Branch. On June 9, 1914, Maclay Hoyne, State's attorney of Cook county, filed a petition for leave to file an information in the nature of quo warranto against the Baltimore and Ohio Chicago Terminal Railroad Company for illegally maintaining, without any warrant or charter for so doing, railroad tracks upon the streets and highways of the town of Cicero. In opposition to this application the respondent, the Baltimore and Ohio Chicago Terminal Railroad Company, filed the affidavit of its general attorney, Jesse B. Barton, stating under oath that the Northern Pacific Railroad Company operated freight trains on the Chicago and Southwestern Branch until the purchase of the property by the Chicago Terminal Transfer Railroad Company, on July 1, 1897; that the latter company and the Baltimore and Ohio Chicago Terminal Railroad Company had in succession, since the first day of July, 1897, transacted and performed all of the freight traffic business of the Chicago and Southwestern Branch that had been offered to them or that could be secured by them, and had not transacted any freight business between Fifty-sixth avenue and Harlem avenue on the Chicago and Southwestern Branch for the sole reason that they could not secure any freight business to perform thereon; that the rails and other parts of the railroad had never been removed by either of the railroad companies nor abandoned by them in any other sense than that they could not secure business to transact thereon. On November 4, 1913, the Baltimore and Ohio Chicago Terminal Railroad Company filed its bill in the United States district court for the northern district of *439 Illinois against the town of Cicero, alleging, among other things, the construction of the Chicago and Southwestern Branch by the Chicago land Southwestern Railroad Company, the ordinance of the town of Cicero granting the right to construct and operate the railroad, the successive conveyances from the Chicago and Southwestern Railroad Company and its grantees to the complainant, and alleging, also, that on October 27, 1913, the board of trustees of the town of Cicero passed an ordinance attempting to annul and rescind the ordinance granting the Chicago and Southwestern Railroad Company the right to construct and operate the Chicago and Southwestern Branch; that certain persons had torn up the railroad tracks of that branch where the same crossed Fifty-seventh and Fifty-eighth avenues; that the complainant sent its employees to replace the tracks, but they were driven from its private property by the police officers of the town of Cicero, and praying that the ordinance of October 27, 1913, be declared null and void and that the town of Cicero be enjoined from interfering with complainant in the re-laying of any of its railroad tracks along the right of way within the town of Cicero. On April 4, 1916, a decree was entered in the cause, finding that an ordinance was passed by the board of trustees of the town of Cicero on November 10, 1913, repealing the ordinance passed on October 27, 1913, and reviving the ordinance of August 2, 1890, permitting the Chicago and Southwestern Railroad Company to construct and operate the Chicago and Southwestern Branch, and taxing the costs against the defendant.
The appellant claims that the decree in the present case should be reversed for the reasons (1) that Mandell's deed to the Chicago and Southwestern Railroad Company conveyed an estate upon condition subsequent, and that no forfeiture having been declared or re-entry made by Mandell in his lifetime or by his heirs after his death, the deed of his trustees and heirs conveyed no title or right of any kind to *440 Walker, and the remote grantees of Walker have no interest in the land; (2) that the appellant has acquired title under the twenty-year Statute of Limitations; (3) that the appellant has acquired title under the Statute of Limitations by seven years' possession with payment of taxes under color of title; (4) that the decree does not find and declare the interests of the parties. The appellees, (except Branch,) on the other hand, contend that Mandell's deed was not a conveyance of the land upon a condition subsequent but merely a grant of an easement in the land so long as it should be used for a railroad right of way and depot grounds, leaving the fee in the grantor subject to the easement, and upon the abandonment of the use of it for such purposes the right of the grantee ceased by the terms of the grant, and the grantor or his heirs or grantees, being owners of the fee, held the land free from the easement. As to the Statute of Limitations, the appellees (except Branch) contend that it has no application, because the possession of the Chicago and Southwestern Railroad Company and its successors in title was at no time adverse to the title of Mandell and the successors to his title, since it was always under the claim only of a right of way for railroad purposes and not of an ownership in fee. The appellees (except Branch) also contend that since neither the complainant nor the Central Trust Company has any interest in the land, they have no right to call on the court to find the interests of the other parties to the suit.
The grant to a railroad company of a right of way over, through and upon land described does not convey the fee to any part of the land described but only the right to use the land for railroad right of way purposes. (Wiggins Ferry Co. v. Ohioand Mississippi Railway Co.
The second case cited required the construction of a deed by which Stephen A. Douglas conveyed to the Illinois Central Railroad Company, "for the purpose of constructing, maintaining and operating thereon a single or double-track *442 railroad, with all its necessary appurtenances, and for all uses and purposes connected with the construction, repair, maintenance and complete operation of said railroad, the right of way for the same over and through the following tracts or parcels of land situate, lying and being in the county of Cook and State of Illinois: * * * To have and to hold the same unto the said Illinois Central Railroad Company, their successors and assigns forever, for all lawful uses and purposes for which the right of way could have been obtained in pursuance of the charter of said company." It was held that the railroad company did not acquire a fee in the land by the deed in question but only the right to use the land described perpetually for railroad right of way purposes; that the interest which the appellee acquired in the strip was absolute for the purposes for which it was acquired so long as it was used for railroad right of way purposes, and that the exclusive possession of the land was necessarily vested in the railroad company to fulfill the object of the grant.
These cases make it clear that in this State a grant of a right of way to a railroad company does not convey a fee in the land but conveys an easement, only; and the same view has been expressed by the courts of other jurisdictions. (East AlabamaRailway Co. v. Doe,
Section 13 of article 2 of the constitution provides that the fee of land taken for railroad tracks without consent of the owners thereof shall remain in such owners subject to the use for which it is taken. The easement acquired by the railroad company ceases upon abandonment by the company, and the owner of the fee, or his heirs or grantees, may recover by ejectment the possession of the land in which the right of way had existed. (Chicago and Eastern Illinois Railroad Co. v. Clapp,
There is no occasion to discuss the questions argued by the appellant of the difference between conditions subsequent and conditional limitations and their effect upon the estate conveyed and the power of the grantees of the reversioner to declare a forfeiture. There was no forfeiture of any right. The easement expired by its own limitation when the land was no longer used for a railroad right of way and depot grounds, and the owner of the fee became entitled to the possession.
The appellant has cited the cases of Lyman v. SuburbanRailroad Co.
The appellant's claim of title under the Statute of Limitations is based upon the argument that upon the cessation of the running of trains over the railroad track in 1898 the right of possession accrued to Mandell's heirs or devisees and that the Statute of Limitations began to run against them from that time. The running of the Statute of Limitations depends upon actual possession under a claim of ownership which has been visible and notorious, exclusive and continuous, during the full period of limitation fixed by the statute, and it must also have been hostile or adverse during all that time. (Zirngibl v. Calumet and Chicago Canal and Dock Co.
If the railroad company, upon ceasing to run trains over the track, were to be regarded in law as no longer using the land for a railroad right of way and depot grounds, this fact, alone, would not change the character of its possession and make such possession adverse. Its claim, so far as made known, was the same as before the trains ceased running, — a railroad right of way under the Mandell deed subservient to the title of the grantor. It insisted upon such title, and no more, when it listed its right of way for taxation; when it insisted in theLyman case, in 1909, by its cross-bill, that it would be deprived of a part of its right of way unless trains were operated over it; when it opposed, in 1914, the filing of an information in the nature of quo warranto for the illegal maintenance of railroad tracks on the streets of the town of Cicero on the ground that it had performed all the freight traffic business which it had been offered or which it could secure; and when, in 1913, it filed a bill to enjoin the town of Cicero from enforcing an ordinance rescinding the ordinance granting it the right to construct and operate its railroad and from interfering with the relaying of its railroad tracks on its right of way in the town of Cicero. All of these acts indicate the claim of the railroad company to a railroad right of way and its intention to preserve the easement but do not indicate any purpose to make any claim as owner of the fee.
The appellant has no right to complain that the court did not declare the interests of the parties to the suit in the land. The decree found that the complainant and the appellant had no interest in the land, and when it had done so it did not concern them what the interest of anybody else in the land might be. There could be no partition of the land under the bill, and it was properly dismissed for want of equity.
The decree is affirmed.
Decree affirmed. *449