Appeal from the Circuit Court of Lawrence County; the Hon.
Robert W. Whitmer, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
This case involves a 1974 action to quiet title to real property located in Lawrence County, Illinois. This is the second time the case has been before this court. On the first occasion, plaintiffs, Herbert L. and Betty Mahrenholz, appealed from a judgment against them on the pleadings and in favor of defendants, County Board of School Trustees of Lawrence County and Board of Education, Community Unit School District Number 20, Lawrence and Crawford Counties. This court reversed and remanded. (Mahrenholz v. County Board of School Trustees (1981), 93 Ill. App.3d 366, 417 N.E.2d 138.) On remand, the circuit court granted defendants' motion for summary judgment, and plaintiffs appeal. Defendants have filed no cross-appeal.
The pertinent facts prior to this court's 1981 remandment of this cause are sufficiently stated in the 1981 opinion of this court and need be only briefly summarized. According to the pleadings, the facts are as follows:
On March 18, 1941, W.E. and Jennie Hutton executed a warranty deed conveying certain land (hereinafter the Hutton School grounds) to the trustees of School District No. 1, the predecessors of defendants on this action. The deed provided: "This land to be used for school purposes only; otherwise to revert to Grantors herein." Subsequently, in July 1941, the Huttons conveyed a tract of real estate including the Hutton School grounds to Earl and Madeline Jacqmain, excepting from the conveyance the tract conveyed to the school trustees on March 18, 1941. W.E. Hutton died intestate on July 18, 1951, and Jennie died intestate on February 18, 1969. Plaintiffs' pleadings allege that W.E. and Jennie Hutton left as their only legal heir their son, Harry E. Hutton.
Defendant Community Unit School District No. 20, successor to the grantee, held classes in the Hutton School until May 30, 1973. After that date, the district has used the property for storage purposes only; however, a dispute exists as to the nature of property stored there.
By deed dated October 9, 1959, Earl and Madeline Jacqmain conveyed to plaintiffs over 390 acres of land which include the 40-acre tract from which the Hutton School grounds were taken. This deed excepted the Hutton School grounds but purported to convey the disputed future interest, as follows:
"Also, except the following tract of land which was on the 18th day of March, 1941, by the said grantors conveyed to the Trustees of Schools of District Number One (1) of the Town of Allison, in the County of Lawrence and State of Illinois, and described as follows:
and containing one and one-half (1 1/2) acres, more or less; Reversionary interest to Grantees; * * *."
By document dated May 7, 1977, and filed in the recorder's office of Lawrence County on September 7, 1977, Harry E. Hutton conveyed to plaintiffs all of his interest in the Hutton School property. In a document dated September 6, 1977, and filed in the recorder's office on October 4, 1977, entitled "Disclaimer and Release," Harry E. Hutton disclaimed and released any possibility of reverter, right of entry for condition broken, or similar interest, in favor of defendant County Board of School Trustees. This document recited that it was made for the purpose of releasing and extinguishing any right Harry E. Hutton may have had in the "interest retained by W.E. Hutton and Jennie Hutton, * * * in that deed to the Trustee's of School District No. 1, Lawrence County, Illinois dated March 18, 1941, and filed on the same date * * *."
In the trial court's order of March 21, 1979, dismissing plaintiff's third amended complaint, the trial court concluded that the March 18, 1941, deed created a fee simple subject to a condition subsequent followed by the right of entry for condition broken, rather than a determinable fee followed by a possibility of reverter.
Plaintiff appealed, and this court reversed and remanded, concluding that what the grantors intended to create was a fee simple determinable followed by a possibility of reverter. The Illinois Supreme Court denied defendants' petition for leave to appeal. In further proceedings before the trial court, the parties pursued discovery and defendants answered plaintiffs' third amended complaint. Defendants moved for summary judgment on various grounds, including that there was no genuine issue as to whether defendants were using the Hutton School property for school purposes.
Accompanying defendants' motion for summary judgment was the joint affidavit of James Courtney and William Waggoner, respectively superintendent and assistant superintendent of defendant Community Unit School District No. 20, stating that the affiants had read their respective affidavits filed in the circuit court on December 21, 1978, and that the statements of fact therein were true then and were still true.
In his 1978 affidavit, Mr. Waggoner stated that the school district used the Hutton School property for purposes other than the conducting of regular classes, "including particularly storage of furniture, building and maintenance [sic], cafeteria equipment, band risers and bulky items required by the District." Mr. Waggoner also stated that if there is a substantial increase in the school age population in the district in the near future, the school district might again conduct classes on the Hutton School property. Mr. Waggoner also stated that the building was kept locked and the lawn kept mowed. Several photographs accompanying the affidavits as exhibits were referred to in the affidavit as depicting the interior, exterior, grounds, and contents of the Hutton School building. The interior photographs show rows of desks, chairs with writing arms, and stacked construction materials.
Mr. Courtney stated in his 1978 affidavit that the school district was using most of the interior of the Hutton School building for storage, particularly of "school personal property." Mr. Courtney also stated that the school district continued to mow the lawn and pay for utilities for the building. Mr. Courtney also ...