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BELUSKO v. PHILLIPS PETROLEUM CO.

September 12, 1961

MIKE ANTHONY BELUSKO, JR., AND ANNA CATHERINE BELUSKO, PLAINTIFFS,
v.
PHILLIPS PETROLEUM CO., A CORPORATION, AND PHILLIPS PIPE LINE CO., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Mercer, District Judge.

Plaintiffs, Mike Anthony Belusko, Jr., and Anna Catherine Belusko, prosecute this suit against the defendants, Phillips Petroleum Company, a Corporation, and Phillips Pipe Line Company, a Corporation, for an injunction and an accounting for damages allegedly sustained by plaintiffs as a result of a continuing trespass upon plaintiffs' land.

The facts are stipulated. The decisive issues upon that stipulation of fact grow out of the construction to be placed upon the language of an instrument denominated as a "Right of Way Contract" as follows:

    "For And In Consideration of the sum of Fifty &
  No/100 Dollars ($50.00) in hand paid, the receipt
  of which is hereby acknowledged, Elizabeth
  Mehlberg, a widow hereinafter referred to as
  Grantor, (whether one or more), does hereby grant
  unto Illana Company, a Delaware Corporation,
  hereinafter referred to as Grantee, its
  successors and assigns, the right to lay,
  maintain, inspect, alter, repair, operate,
  replace, remove and relay a pipe line, or pipe
  lines, for the transportation of oil and gas and
  products and by-products thereof, water and other
  substances, and such drips, valves, fittings,
  meters and other equipment and appurtenances as
  may be necessary or convenient (sic) for such
  operations under across (sic) the following
  described land in Montgomery County, State of
  Illinois, to-wit:
    "The West half of the Southeast Quarter of
  Section 22, Township 8 North, Range 5 West of the
  Third Principal Meridian
    "Pipe line to be at least 40' from running
  water spring.
    "Should more than one pipe be laid under this
  grant, at any time, an additional consideration,
  calculated on the same basis per lineal rod as
  the consideration hereinabove recited, shall be
  paid for each line so laid after the first line.
    "Grantee shall bury pipe lines below plow
  depth, in presently cultivated fields.
    "To Have And To Hold said easement, rights, and
  rights of way unto the said Grantee, its
  successors and assigns until said easement be
  exercised, and so long thereafter as the same
  shall be useful for the above named purposes.
    "It is understood that the person securing this
  grant is without authority from Grantee to make
  any agreement in respect of the subject matter
  hereof not herein expressed.
    "This agreement is binding upon the heirs,
  executors, administrators, successors and assigns
  of the parties hereto."

On and prior to January 23, 1939, Mrs. Mehlberg was the fee simple owner of the described premises. On that date, she executed the right of way contract as above set forth and then actually received the $50 consideration which is recited. The contract was duly signed and acknowledged by Mrs. Mehlberg and recorded in the Office of the Recorder of Montgomery County.

Between February, 1939 and October, 1939, Illana laid and constructed an 8-inch pipe line 72.9 rods in length across the premises. Thereafter, on December 13, 1939, Illana paid to Mrs. Mehlberg an additional consideration of $22.90 for the right to construct the line, plus the sum of $25.94 for damages to the land in the construction of the line. Upon receipt of the latter payment, Mrs. Mehlberg executed and delivered to Illana a receipt for damages which stated, in pertinent part, "receipt also includes payment in full for 22.9 rods at $1.00 per rod or $22.90." In addition, that receipt contains a description of the lands to which it related and, by specific reference, affirmed all conditions and terms of the original right of way contract and acknowledged that all such terms and conditions had been faithfully performed and kept by Illana in laying the pipe line across the premises.

On November 30, 1939, Illana assigned the right of way contract to Phillips Petroleum Company. On June 30, 1951, the latter assigned the contract to defendant, Phillips Pipe Line Company, which is hereinafter referred to as Phillips. Phillips is, and at all pertinent times has been, ...


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