| Ill. | Apr 17, 1905
delivered the opinion of the court:
We are of opinion that the court did not err in excluding the proceedings before the justice of the peace for two reasons: First, because there was no notice of the proceeding given to the owner of the land; and second, because the report of the commissioners, as we think, shows that they did not take into consideration or assess or estimate the damages on the tract of land in controversy, and that whatever effect could be given to a proceeding such as that, however regular upon its face, it is quite clear that the proceeding in question could not have been given the effect of conveying either title or color of title.
The contention of appellant that the act of incorporation of the Carthage and Burlington Railroad Company authorized it to proceed under the act of 1845, designated as chapter 92 of the Revised Statutes of 1845, and that that act did not require notice to the land owner, cannot be admitted. To so hold would, we think, force us to hold that the statute itself was unconstitutional and void.
As early as 1871 the question of the effect of the act of 1845, and its requirement with reference to notice, was considered by this court in Peoria and Rock Island Railway Co. v. Warner, 61 Ill. 52" date_filed="1871-09-15" court="Ill." case_name="Peoria & Rock Island Railway Co. v. Warner">61 Ill. 52. In that case the railroad company had taken possession of certain lands of plaintiff for right of way, and plaintiff brought an action of trespass. The railroad company attempted to justify by setting up a proceeding similar to the one in question, but did not in the plea aver notice to the land owner. The plea was demurred to and the demurrer sustained. In that case it was held that while the act of 1845 remained in force, in so far as it was applicable to matters falling within it, it was modified by the act of 1852, which was amendatory of it; and it was also held that, even without the amendment of 1852, the provisions of the act itself implied that notice should be given to the land owner. We are not prepared to depart from the law as laid down in that case; and in addition to what is there said we may say that before the proceeding here in question was begun, the act of March 8, 1869, from which a quotation is made in the statement of this case, was in full force and was an amendment to the act of 1852, and by its express provisions made the provisions of the act of 1852 applicable to all proceedings for condemnation of lands by any railroad company theretofore or thereafter incorporated, except where the proceedings had been already commenced. The proceeding in question had not been commenced when that amendment was made, and as the act of 1852 expressly required notice by personal service upon resident owners and notice by publication to non-resident owners, the proceeding in question was fatally defective.
The contention of appellant that by the act incorporating the Illinois and Southern Iowa Railroad Company that company was expressly authorized to proceed under chapter 92 of the Revised Statutes of 1845, (being the act of 1845,) and that the act incorporating the Carthage and Burlington Railroad Company conferred upon it all the powers of the former company, and that therefore the Carthage and Burlington Railroad Company, by special grant, was authorized to proceed under the act of 1845 unaffected by the act of 1852, cannot be admitted. We very much doubt that when the act incorporating the Carthage and Burlington Railroad Company was passed and the provision giving it the same powers as the Illinois and Southern Iowa Railroad Company was placed in the charter of the said Carthage and Burlington Railroad Company, the legislature intended to or had in mind the provision with reference to condemnation, for in the act incorporating the Carthage and Burlington Railroad Company it is expressly provided in relation to the acquirement of right of way and lands for other purposes, that “said company may proceed to condemn the same by virtue of any public law of this State.” With that provision in its charter it might proceed under so much of the act of 1845 as was in operation and as modified by the act of 1852, and the two acts made ample provision for the proceedings necessary to acquire such lands as were needed for railroad purposes.
The contention that to apply the acts of 1852 and of 1869 would be in violation of the charter contract between the Carthage and Burlington Railroad Company and the State is, as we think, unsound and cannot be allowed to prevail. The provision relates to the procedure for the acquirement of the right of way and the lands necessary for the use of the railroad company, and can be looked upon in no other light than supplying a remedy. It did not affect the right of the railroad company to exercise the powers and functions given it by its charter, the main purpose of which was to construct and operate a railroad, but, according to the contention of appellant, designated a certain statute under which it might proceed to acquire property from the individual owners for its use. The power of the State to alter the remedy granted in certain cases has long been recognized and seems to be fully established upon the highest authority. (Cooley’s Const. Lim.—yth ed.—405, 406.) And in Mississippi Railway Co. v. McDonald 12 Heisk. 54, the Supreme Court of Tennessee had the identical question before it, and it was there held that the provision in the charter prescribing the manner in which it might take lands for its purposes only gave a remedy which might be altered by the legislature.
Nor do we think a reasonable construction and reading of the report of the householders made to the justice of the peace show or tend to show that the land involved in this suit was taken into consideration by them. If it was, it is clear that they did not determine what, if any, damages the owner was entitled to for or on account of it. As we construe that report, it expressly points out that it estimates and fixes the damages for the one hundred-foot strip of right of way and for the “Y” at Carthage, and for no other lands.
If we were willing to admit the contention of appellant that this proceeding should have been received in evidence, we would still feel constrained to hold that it was neither evidence of title nor of color of title such as would support any claim asserted by appellant, under the Statute of Limitations, to the land. The effect of such proceedings and the denial of the proposition that they constitute color of title were fully discussed and considered in the case of Converse v. Calumet River Railway Co. 195 Ill. 204" date_filed="1902-02-21" court="Ill." case_name="Converse v. Calumet River Railway Co.">195 Ill. 204, and the authorities relied upon by appellant were there brought to the attention of the court, were considered, distinguished, and held not applicable under the sixth section of our Limitation act. We deem it unnecessary, in view of the full consideration there given the question, to further discuss it here.
About the year 1869 the right of way of appellant’s road was fenced and the strip in question was not included within its enclosure, and the possession by appellant of the one hundred-foot strip of right of way that was within its fences did not carry with it possession of land lying outside of that enclosure and claimed by it as against an adverse claimant who was in actual, open, notorious and hostile possession for more than twenty years. If the proceeding under which the appellant claims had been not only formal, but valid, and it had acquired the fee to the land, appellee and his grantors could have, by placing the same within .their enclosure and holding it for twenty years under claim of right, acquired title under the limitation laws of this State. Illinois Central Railroad Co. v. Moore, 160 Ill. 9" date_filed="1895-10-11" court="Ill." case_name="Illinois Central Railroad v. Moore">160 Ill. 9; Illinois Central Railroad Co. v. Houghton, 126 id. 233; Donahue v. Illinois Central Railroad Co. 165 id. 640; Illinois Central Railroad Co. v. Wakefield, 173 id. 564.
Appellant suggests that the evidence in the record does not make it clear that appellee and his grantors had adverse possession of the land for twenty years. That appellee’s grantor had his farm fenced in the spring of 1874, and that he and his tenants, from that time to the time the appellant moved its fence out and included this strip, had the exclusive use and control of it as part of the general farm is not questioned. The only point made is, that the particular time appellant moved its fence out, whether in 1893 or 1894, is made doubtful by the witnesses. We think not, however. Upon that question two witnesses testified, both called by appellant. The first was Joseph Noble, who stated that he was foreman of the Carthage branch of appellant’s road from 1868 to two years ago; that the fence along the right of way of appellant’s road, fifty feet each side from the center of the main track, was built in 1868 or 1869, and remained in that same position until the year 1894. Appellant also introduced as a witness James Johns, its section foreman, who testified that he assisted Noble in moving the fence from the right of way out across the strip in question, and that it was done in the year 1893 or 1894. Noble states expressly that it was done in 1894, and ten years prior to the time that he was testifying as a witness, and we do not think there is any room for doubt upon that question of fact.
As appellant had neither title nor color of title by virtue of the proceeding before the justice of the peace the question of the payment of taxes was not material, and it was not error for the court to refuse to admit in evidence the tax receipts; nor was it error to refuse to admit mortgages made by appellee to a third party after he had become the purchaser of the land in 1901, in which there was reserved from the operation of the mortgages “the land owned by said companies and occupied by them for depot grounds and switch yards of the said quarter section,” (referring to appellant and the Toledo, Peoria and Western Railroad Company,) as there was no description of any land in the mortgage, and if the recitals could operate by way of estoppel it could only be so where there was such description as identified the particular land in question. (24 Am. & Eng. Ency. of Law,— 2d ed.—66.) But in the case at bar the rule of estoppel by recitals had no place. The mortgages were to one Mack, a resident of Carthage, who was a stranger to this proceeding, and the appellant was likewise a stranger to the mortgages. Recitals in deeds and conveyances may operate as an estoppel to the parties to such deeds and in favor of those claiming in privity of title with them, but cannot be invoked by a stranger to such conveyance who is claiming by an independent and hostile title. 1 Greenleaf on Evidence, sec. 211; 24 Am. & Eng. Ency. of Law, (2d ed.) 61; Stalford v. Goldring, 197 Ill. 156" date_filed="1902-06-19" court="Ill." case_name="Stalford v. Goldring">197 Ill. 156.
The holdings of the court on the propositions of law were in keeping with the view we have expressed concerning this case, and there was no error committed by the court in that regard.
The judgment of the circuit court is affirmed.
Judgment affirmed.