Appeal from the Circuit Court of Bureau County; the Hon.
HOBART W. GUNNING, Judge, presiding. Affirmed.
This is an appeal from an order of the Circuit Court of Bureau County granting leave to petitioner, Department of Public Works and Buildings of the State of Illinois, to amend its petition for condemnation, to correct the legal description of a certain tract. The order further found that defendants-appellants are not the owners of a certain triangular tract of land containing approximately 2.7 acres (which tract was included in the original petition for condemnation). The trial court denied a motion for a new trial in the cause.
The action for condemnation was filed on August 30, 1967, in furtherance of construction of Interstate 180 in Bureau County, Illinois. The petition named the defendants William Klinefelter and A. Cecelia Klinefelter as the record owners of tract numbered F-4 and F-4 Access. Listed in the petition as "others interested" were Einer C. Swenson, Trustee under the will of Florence Swenson; and Conrad and Sheila Swenson (whom the petition designated as "persons having a possible interest by virtue of boundary line dispute"). On May 16, 1968, plaintiff filed a motion for leave to amend the petition for condemnation and for correction of the legal description of Tracts F-4 and F-4 Access which involved the 2.7 acres. The motion also requested the dismissal of Einer C. Swenson, Trustee, and Conrad and Sheila Swenson as parties defendant. The Swensons filed an answer to such motion in which they concurred in such motion to amend and to dismiss the Swensons, but set forth in their answer that Klinefelters had no interest in the 2.7-acre tract as such 2.7-acre tract was the property of Einer C. Swenson, Trustee. Defendants-appellants, Klinefelter, moved to strike the answer of Swenson. As a result of the motions the issue was raised as to whether or not the Klinefelters were the owners of the 2.7-acre tract.
On November 26, 1968, an order was entered in the trial court finding that the Klinefelters had no interest in the 2.7-acre tract. The order made no finding as to who actually did own the 2.7-acre tract, but merely found that the Klinefelters did not own such tract. The evidence presented in the cause disclosed that the Klinefelters claimed title to the 2.7-acre tract by reason of a deed from John E. Nordstrom and wife dated February 28, 1949. The deed contained the following description:
"The East Half of the Northwest Quarter of the Southwest Quarter of Section 24, in Township 15 N., R. 9 E. of the 4th P.M.;
"The East Half of the Southwest Quarter of said Section 24; and
"Forty-two (42) acres off of the North end of the West Half of the Southeast Quarter of said Section 24, excepting therefrom the following:
"a. All that part thereof lying North of the public highway, containing ten and one-half (10 1/2) acres, more or less, and heretofore deeded to Alba Miller, by deed recorded in Book 125 of Deeds at page 172, in the Recorder's Office of Bureau County, Illinois; and also
"b. Seven (7) acres off of the South side thereof, as particularly described in deed heretofore executed by Bessie O. Smith dated May 20, 1922, and recorded in said Recorder's Office in Book 197 of Deeds at page 395, and also
"c. All that part thereof lying East of the public highway running Northerly and Southerly over, through and across the East side of said West Half of said Southeast Quarter of said Section Twenty-four (24);
"subject to all rights of way thereon, thereover and thereacross;
"all of said real estate conveyed consisting of 123.5 acres, more or less, and being situated in the County of Bureau, in the State of Illinois."
There is no issue as to the correctness of the exceptions "a" and "b" for the ten and a half and seven acres shown respectively in the deed. Exception "c" is the exception involving the 2.7 acres in question in the instant case. A plat of the area admitted in evidence showed the Klinefelter tract with the road branching off from the old Route 29 going north and south along the easterly side of the Klinefelter tract and continuing in a southwesterly direction along the south side of the Klinefelter tract. It is asserted that if 10 1/2 acres were taken from the general description under exception "a" and seven acres under exception "b" and the acreage under exception "c," this would leave 24.5 acres to go along with the 100-acre additional tract covered by the deed. It is thus contended that this would only leave 121.8 acres which was less than the "123.5 acres more or less" referred to in the deed. It is also noted that if the 2.7-acre tract was added to the Klinefelter tract, the Klinefelters would have 124.5 acres or 1 acre more than described in the deed, where the acreage was described as "123.5 acres more or less."
It was also shown at the hearing that the Klinefelters had paid the 1966 taxes on property described ...