154 Ill. 550 | Ill. | 1895
That the plaintiff below has a perfect title to the fee of the premises in controversy is admitted by the stipulation of facts. All that the defendant claims is, that he held that title subject to an easement in it for right of way for its railroad. The first question suggested upon a consideration of the facts agreed upon by the parties is, has the defendant shown any title whatever to such an easement over this land? Its deed from Harbord did not, by its description, state out of what part of the tract the two hundred feet for right of way should be taken, nor did it convey, as is sometimes done, a certain number of feet on either side of the center of the track. Therefore, until the grantee, by some act on its part, other than the mere location of its track, designated the land claimed by it under the deed, no easement was acquired over any particular land. But when the company came to assert its rights under its deed it took no possession of this piece of land, nor, so far as the agreed facts show, did it in any way indicate that it claimed an easement over it. The deed itself did not specifically convey this fifty feet, nor did the grantee, in exercising its rights under it, assert any title whatever thereto, but, on the contrary, in taking possession under its deed excluded it, — fenced it out of its right of way. There is nothing in the facts of the case tending to show that it, by act or declaration, construed its deed to include this land for more than thirty years after its date and taking possession under it. “Where a deed conveying land is of doubtful construction as to the boundaries, the construction given by the parties themselves, as shown by their acts and admissions, is deemed to be the true one, unless the contrary be clearly shown.” (Leonard v. Clark, 1 Metc. 378.) We are at a loss to perceive how it can be maintained that an easement over the land in suit was acquired by the defendant.
But waiving this view of the case, the judgment below is right. Assuming that a right of way was acquired by the defendant to the premises in controversy under its deed from Harbord of April 29, 1852, the controlling question in the case is, had the plaintiff below acquired a good title, as against such right of way, under the twenty years’ statute of limitations, at the time the defendant took possession, in 1886. If he had, his right to use that title, in this form of action, to regain possession is clear, and the case, in all its material facts, is like Illinois Central Railroad Co. v. Houghton et al. 126 Ill. 233, and must be controlled by the decision in that case.
It is said the Houghton case “differs from this, in that there, at the time the railroad company built its fence, Walker claimed, when he joined his fence to it, that he , owned up to the fence, and that by a compromise with the railroad company the line was established at the fence; also, that Park’s administrator had the land surveyed up to the fence, and sold it by the acre according to that measurement, and the court, from these facts, held that the possession was adverse.” There is nothing in the Houghton case to show that Walker claimed to own to the railroad fence except by his acts, and certainly nothing to indicate that by compromise between him-and the company the line was established at the fence. As shown by the opinion in that case, no such fact entered into its consideration and decision. While it did appear there that the land was sold by the administrator of Park to Houghton to the fence, that sale was not made until June, 1873, — less than fourteen years prior to the bringing of that suit. Hence that fact was not, as also appears from the opinion, the basis of the decision. It was insisted in that case, as it is here, that the Statute of Limitations did not run against appellant, because, its right of way being but an easement and the fee remaining in its grantor and his subsequent grantees, who had a lawful right to any possession and use of the land consistent with the company’s exercise of its right to the easement, there was no hostile or adverse occupancy,— and that, in the most favorable view of the case to appellant, is the controlling- question here. We did not then, nor do we now, ignore the general rule that where an easement exists over land, the owner of the servient estate may occupy and use the premises as he pleases, so long as he does not interfere with the use of the ease-' ment, and therefore such occupancy and use are never adverse. The exercise of the. one right in such a case is consistent with the existence and exercise of the other.
But we held in the Houghton case, upon the authorities cited and for the reasons given in the opinion, that, in view of the peculiar character of the easement which this appellant acquired in the land covered by its right of way, the case was not within that rule, and we said : “While we are not disposed to hold that the deed from Walker to the plaintiff conveyed to the plaintiff an estate in fee in the right of way, it is clear that it conveyed an estate which, so far as the right of possession for railroad purposes is concerned, had most of the qualities of the fee. The right of possession thereby conveyed was exclusive, and was wholly inconsistent with the subsequent possession of the land, or any part of it, by the grantor or his assigns for purposes of grazing or agriculture, or as a part of the farm to which it originally belonged.” After a careful re consideration of the question we can discover no sufficient reason for departing from the conclusion there announced. To say that to enclose the right of way of a railroad with farm lands, cultivate and pasture the same, and use it in all respects as the lands with which it is enclosed, for agricultural purposes, does not impair its use by the railroad for right of way, is, to our minds, absurd. While the argument of counsel proceeds upon the assumption that the two uses are not incompatible with each other, the facts clearly prove that the railroad company had a very different understanding. For more than thirty years it abandoned all use of the land, fenced it out of its right of way, and allowed it to remain in the exclusive possession and use of the owner of the fee. When it desired to use it, it attempted to exclude the owner of the servient estate from the same. It is not denied that if the controversy between these parties had been as to the ownership of the fee simple title to the premises, plaintiff’s possession would have been a complete bar, under the Statute of Limitations, to any right in the defendant, and we are at a loss to perceive how, under the facts of the case, it is less so as against the claim to a mere easement. See Peake v. Nace, 2 Whart. 123; Galveston v. Williams, 69 Tex. 449.
In any view which can be taken of the case the judgment of the circuit court is right, and should be affirmed.
Judgment affirmed.