Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Fred L. Wham, Judge.
Before SPARKS, MAJOR, and KERNER, Circuit Judges.
This appeal is from a decree of the District Court permanently enjoining appellants from drilling or endeavoring to drill for oil upon certain described premises, title to which the court found to have been in appellee's lessors subject to an easement for a public highway at the time of the execution of an oil and gas lease to appellee.
The question presented by the appeal is the construction of a certain instrument executed December 29, 1932, which appellants contend conveyed the fee simple in the strip involved, and which appellee construes strues as merely a dedication of an easement for public highway purposes, leaving the fee simple interest in its lessors.
The instrument in question was as follows:
"State of Illinois "Department of Public Works and Buildings.
"Dedication of Right of Way for Public Road Purposes.
"This Indenture Witnesseth, That the Grantors, Jennie Brauer and Samuel C. Brauer, her husband * * * for and in consideration of the sum of * * * $425 in hand paid by the County of Fayette acting by and through the Board of Supervisors or on its behalf, the receipt whereof is hereby acknowledged, and the benefits resulting from the maintenance of the public highway herein referred to, do, by these presents, hereby grant, convey and dedicate to the People of the County of Fayette, * * * for the purpose of a public highway, a tract of land situated * * * and described as follows:
"Certain tracts of land * * * (1) (the East 180 feet of * * * containing 5.35 acres) and also (2) a strip of ground 80 feet in width, being 40 feet on each side of the following described line: * * * "
In 1933 a gravel road was constructed by the authorities of Fayette County across the land in question, and in 1933 and 1934, dirt and gravel were taken by them from the portion of the tract adjoining the road for building and repairing highways nearby. In August, 1936, the Brauers executed and delivered an oil and gas lease to appellee's assignor covering a 120-acre tract of land which included the tract involved in the earlier instrument. Both instruments were duly recorded. In September, 1937, the Board of Supervisors of Fayette County authorized the execution of a similar oil and gas lease to appellant Myers, which appears to cover that portion of the tract involved in the first instrument which lay alongside the road, and was known as the borrow pit. The lease was executed and delivered on the same day, and in June, 1938, Myers assigned part of his interest under it to appellant Dickerson. In March, 1938, the Brauers executed and delivered a quitclaim deed for the real estate described in appellants' lease to the People of the County of Fayette, and in July, appellant Dickerson prepared to drill for oil and gas on the premises, whereupon appellee filed its bill of complaint praying an injunction to restrain appellants from drilling on the premises leased to appellee and for damages for the trespass and for clouding appellee's title in the lease, and to compel them to remove their drilling apparatus from the premises.
The court concluded that the instrument of December 29, 1932, from the Brauers to the People of the County was intended to be and was a dedication for the purpose of a public highway and granted to the public only an easement for such purpose and did not convey the fee in the real estate or the oil and gas located thereon or thereunder; that it did not vest any right, title or interest in the real estate in the County for the reason that the conveyance to the People of the County was not in effect a grant to the County, the grantee not being legally capable of taking title to real estate; that after its execution, the fee simple title to the premises remained in the Brauers who could execute a valid oil and gas lase at all times; that their quitclaim deed subsequently executed to the people of the County was ineffective to alter the interest of appellee under its lease; that appellants' lease was invalid and unenforceable; that their drilling for and removal of oil and gas from the premises would cause appellee irreparable damage for which there was no adequate remedy at law; that appellants were not entitled to the ...