APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. CURRY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Plaintiff, as the successor in interest to the original fee simple owners and the beneficiary of a trust, filed a two-count complaint in ejectment and declaratory judgment, respectively, seeking to recover seven parcels of property within a five-acre school site which defendants were abandoning for public school use. The trial court granted summary judgment in favor of defendants on both counts. On appeal, plaintiff contends that the trial court erred because (1) the property in issue should revert to him since defendants acquired, pursuant to the 1952 condemnation proceeding, only an easement or fee simple determinable title for school purposes and (2) the 1952 judgment order was void for want of jurisdiction over the original owners and trustee in the eminent domain proceeding. (Ill. Rev. Stat. 1951, ch. 110, par. 138.) We affirm. The necessary facts are contained within our discussion of plaintiff's individual contentions on appeal.
We first address plaintiff's contention with respect to the quantum of estate acquired by defendants in the 1952 condemnation proceeding. Plaintiff's argument is twofold: (1) At the time of the condemnation proceeding, the applicable case law and relevant statute did not even allow school trustees to acquire fee simple title in an eminent domain proceeding; and (a) although a relatively recent case would allow trustees to take fee simple title if they so desire, the trustees in the instant case never manifested a desire to do so. Defendants argue that the law as it existed in 1952 did bequeath the power upon school trustees to acquire fee simple title and that defendants here manifested the requisite intention and acquired a fee simple, as evidenced by the language in the petition to condemn and the resulting jury verdict and judgment order.
The threshold question before us is whether school trustees were empowered in 1952 to take property for school purposes in fee simple absolute in an eminent domain proceeding. Correct disposition of this question requires our review of the applicable case law, which we will discuss in chronological order.
In Superior Oil Co. v. Harsh (N.D. Ill. 1941), 39 F. Supp. 467, affirmed (7th Cir. 1942), 126 F.2d 572, plaintiff, the lessor of the record title holder, sued to enjoin defendants, school trustees and four persons interested in an oil and gas lease executed by the trustees, from operating an oil well upon a schoolhouse site. The owners of the record title paid all taxes, and there was no evidence of a deed passing from them to the trustees. The issue in the case was whether the trustees were vested with a fee simple title such that they would have title to the oil and gas, or whether they acquired an easement or fee simple determinable which would have limited their use of the property to school purposes only.
The court first sought to determine the authority defendants derived from the controlling 1881 statute. The statute provided that school trustees could acquire real estate for the use of the township for school purposes. It further provided that they could acquire property for the purpose of a schoolhouse site either with or without the owner's consent.
Although no formal condemnation proceedings had been instituted, the court found that the school authorities had acted informally pursuant to their powers under the statute and further that defendants had not proven that title was acquired by adverse possession.
"The title of the school trustees was the statutory title granted by the legislature, title by acts of eminent domain, a taking with consent of the owners for the use of the inhabitants of the township for school purposes. It would not alter the legal situation if the taking was without Fitzgerald's consent. The statute gave the trustees the right to take with or without his consent. There is no evidence that the school trustees procured any other kind of title or that they ever made any claim to any other kind of title and, under the statute, they could by their acts obtain only such title as was necessary for the statutory purposes, that is, conduct of the school. They derive all authority from the statute and can exercise no power not expressed thereby. Stevenson v. School Directors, 87 Ill. 255, 257; Clark et al. v. School Directors, 78 Ill. 474, 476; School Directors, etc. v. Fogleman, 76 Ill. 189, 191; Potter v. Board of School Trustees, 10 Ill. App. 343, 345. Their title was merely the right to use the property for school purposes; there is no justification for its extension by implication. In Miller v. Commissioners, 278 Ill. 400, at 406, 116 N.E. 178, 181, it is said: `The grant of power to take the land of an individual by the exercise of the right of eminent domain is strictly construed, and the extent of the estate which may be taken is no greater than is necessary for the public purpose to be served. Where the estate to be taken is not expressly defined, only such an estate will vest as is necessary to accomplish the purpose in view, and where an easement is sufficient for that purpose no greater estate can be taken.'
It follows that the title acquired by the trustees at the inception, being one acquired by eminent domain, a taking with the owner's consent, under a statute giving the right to use the property for school purposes, no title to anything other than that necessary to enjoyment of what was contemplated by the statute, namely, use for school purposes, was included, and that the trustees were without the right to lease the school site for oil and gas purposes." 39 F. Supp. 467, 470-71.
However, in Miner v. Yantis (1951), 410 Ill. 401, 405, 102 N.E.2d 524, 526, the court stated that trustees "may, by proper grant, take title in fee simple absolute to real estate to be used for school purposes." In Miner, plaintiffs sought to set aside a deed to a school site granted to defendant on the grounds that they still held title to the land in question. Defendants maintained that the school trustees had taken title in fee simple by adverse possession. The court held that the elements of adverse possession had not been met although it would have been possible for school trustees to have acquired a fee by that method.
The court discussed the holding of the earlier case of Superior Oil Co. v. Harsh (E.D. Ill. 1941), 39 F. Supp. 467, affirmed (7th Cir. 1942), 126 F.2d 572 (discussed supra):
"The court held that, inasmuch as the land was taken by the exercise of the right of eminent domain, only such an estate vested as was necessary to accomplish the purpose in view, and since an easement was sufficient to accomplish this purpose no greater estate vested, and the trustees were without the right to lease the school site for oil-and-gas purposes. This holding is in accord with the general rule of law recognized in Illinois that the grant of power to take the land of an individual by eminent domain is strictly limited to the taking of such an estate as may be specifically authorized by the statute itself, or if the estate is not specifically defined by the statute, then the limitation is to such an estate as is absolutely necessary to the purpose in view. (Miller v. Comrs. of Lincoln Park, 278 Ill. 400; Tacoma Safety Deposit Co. v. City of Chicago, 247 Ill. 192.) The holding in the Superior Oil Co. case, therefore, is limited to cases where the trustees enter upon land with permission of the owner or acquire title by eminent domain." 410 Ill. 401, 406, 102 N.E.2d 524, 526-27.
Furthermore, in Miner, as in Superior Oil Co., there was no showing in the record that formal condemnation proceedings had been instituted. However, it was presumed that defendants acted informally pursuant to their authority under the eminent domain statute in force and therefore their rights were subservient to that of the record owner.
In the year following the Miner decision, the Federal District Court for the Eastern District of Illinois decided Kelly v. Bowman (E.D. Ill. 1952), 104 F. Supp. 973, affirmed (7th Cir. 1953), 202 F.2d 275. In Kelly, the school trustees had filed a condemnation action in 1906 to take certain lands for a school site. In 1952, the school trustees abandoned the use of the site for school purposes and sold their interest to one of the defendants.
The controlling statute which was similar in substance to the ones in Superior Oil Co. and Miner provided inter alia:
"`The site * * * shall be the school house site for such district; and said district shall have the right to take the same for the purpose of a school house site either with or without the owner's consent by condemnation or otherwise.'" 104 F. Supp. 973, 974.
"There is no intention expressed by the legislature in this Act for the school district to obtain a fee simple title. It is quite clear that the Legislature intended that the Trustees were to exercise their rights of eminent domain in obtaining the school site for school purposes only." 104 F. Supp. 973, 974.
The court felt compelled to hold as it did by virtue of the earlier decisions in Superior Oil Co. and Miner. The reasoning of those two cases dictated the finding that the trustees held only an easement and when they abandoned the use of the property as a school site, the property reverted to plaintiffs, holders of the record title.
In 1955, our supreme court decided City of Waukegan v. Stanczak (1955), 6 Ill.2d 594, 129 N.E.2d 751. There the city of Waukegan had formally condemned certain lands for a school building pursuant to the power granted them by a special city charter. The judgment order specifically vested a fee simple title in the city. The original owner contended on appeal that the property ...