Appeal from the Circuit Court of Champaign County; the Hon.
George S. Miller, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Plaintiff brought this action against defendant in ejectment and in forcible entry and detainer. The trial court found for defendant on all counts of plaintiff's second amended complaint, holding that defendant was an assignee of a valid commercial easement in gross. In the alternative, the court held that recitals in the deeds under which plaintiff took title estopped it from maintaining this action against defendant. The court also granted defendant's request for a declaratory judgment declaring that defendant has a perpetual easement on the subject property.
The defendant and the Illinois Central Railroad entered into an agreement dated January 24, 1955. By the terms of the agreement, the railroad granted the defendant a license to run its power lines and any necessary poles along its right-of-way. The agreement was terminable on 90 days' written notice by the railroad. A new license agreement was entered into by the railroad and defendant on August 31, 1967, to accommodate defendant's new 138 kilovolt lines. The terms of the new agreement were virtually indistinguishable from the previous agreement.
On May 16, 1979, the railroad executed and delivered four quitclaim deeds to plaintiff, who was acting as trustee for trust Nos. 030-626-089 and 030-742-902. Each of the four quitclaim deeds contained the following reservation:
"Grantor reserves the right for the continued maintenance, replacement and use of all existing conduits, sewers, water mains, gas lines, electric power lines, wires and other utilities and easements on said premises whether or not of record, including the repair, reconstruction and replacement thereof and Grantee agrees not to interfere with the rights herein reserved or any facilities used pursuant thereto."
Defendant and the railroad entered into a "Longitudinal Easement Agreement" on July 28, 1980. The railroad granted defendant a perpetual easement for the purpose of constructing, operating and maintaining its power lines. The agreement specifically included any of defendant's existing facilities installed on the railroad's right-of-way. The easement was to take effect upon approval by the Commerce Commission and payment by defendant of the final installment under the contract.
The Commerce Commission approved the agreement in an order dated October 29, 1980. A check for the final installment was delivered by defendant to the railroad on December 22, 1980. The "Longitudinal Easement Agreement" was recorded on April 27, 1981.
The railroad executed and delivered four additional quitclaim deeds to plaintiff as trustee for the aforementioned land trusts on December 9, 1980. Each of those deeds contained the following two reservations:
"Grantor reserves for itself, its successors and assigns, an easement for its poleline together with all appurtenant fixtures necessary thereto as now located on, over and across the premises, with all reasonable right of entry for the purpose of constructing, replacing, repairing and maintaining the same, to have and to hold for as long as required for Grantor's purposes.
GRANTOR reserves the right for the continued maintenance, replacement and use of all existing conduits, sewers, water mains, gas lines, electric power lines, wires and other utilities and easements on said premises whether or not of record including the repair, reconstruction and replacement thereof and Grantee agrees not to interfere with the rights herein reserved or any facilities used pursuant thereto."
The real estate which is the subject of the dispute is a strip of land approximately 1,505.53 feet by 75 feet, lying between the Illinois Central Gulf railroad tracks and U.S. Route 45 in the southern portion of the city of Champaign.
Plaintiff, as trustee of the land trusts, filed a two-count complaint on November 10, 1981. Count I was an action for ejectment, and count II was an action in forcible entry and detainer. The complaint was later amended to include four counts, two in ejectment and two in forcible entry and detainer. Defendant answered, denying that plaintiff's interest in the property was paramount to defendant's interest and raised five affirmative defenses. An additional affirmative defense was allowed by leave to amend granted July 9, 1982.
A hearing was held on July 9, 1982, and the trial court took the matter under advisement. On August 12, 1982, the trial court found for the defendant on all counts of plaintiff's complaint and granted defendant's request for declaratory judgment declaring that defendant had a perpetual easement for maintenance and repair of its lines and poles on the subject property. Plaintiff's motion for reconsideration was denied and plaintiff appeals.
Four main issues are presented on appeal: (1) Did the trial court err in considering extrinsic evidence in interpreting the terms of the deed; (2) were defendant's pleadings sufficient to raise the existence of an easement in gross; (3) what interest, if any, was reserved by the railroad in its deeds to plaintiff and ...