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Mcmillin v. Economics Laboratory





Appeal from the Circuit Court of Will County; the Hon. Thomas W. Vinson, Judge, presiding.


Rehearing denied October 11, 1984.

Henry C. McMillin, Barrdy B. Reddy, and Eleanor H. Bennett, plaintiffs, filed suit against the defendant, Economics Laboratory, Inc., a Delaware corporation, for declaratory judgment, injunctive relief, ejectment and damages for a continuing trespass upon plaintiffs' real estate resulting from the defendant's construction and maintenance of a railroad spur track thereon. The defendant filed a complaint against William M. Gibbons, who is trustee for the property of the Chicago, Rock Island and Pacific Railroad Company, hereinafter referred to as the Rock Island Railroad, for indemnification of damages, if any were awarded to the plaintiffs. After bench trial the court found legal title to the real estate in question to be vested in the plaintiffs and awarded nominal damages of $1. The trial court denied all other relief prayed for by plaintiffs and further denied relief to the third-party plaintiff, Economics Laboratory.

The factual situation from which this appeal emanated is somewhat involved; however, from the evidence adduced at trial, it is undisputed that the real estate in question is a strip of land 50 feet wide and 1 7/8 miles long. It consists of rough terrain, is unimproved and unfenced. A rough roadway is on the property as well as a number of large water-filled holes. With the exception of a small garden planted on it by Charles McMillin shortly after he purchased the property, it was never utilized for any other purpose by the McMillin family. This strip of land lies south of and adjoins the south right of way of the land of the third-party defendant, Rock Island Railroad. The spur track being complained of was constructed to run from the Rock Island right of way across the strip claimed by the plaintiffs, then across other land to the industrial plant site of the defendant Economics Laboratory.

For purposes of this appeal the pertinent portion of the history of the strip of land which plaintiffs claim to own commenced in the year 1939. In that year Charles McMillin, father of the plaintiffs, purchased the land and thereafter paid property taxes on it until his death in 1955. Charles McMillin died intestate and left as his heirs Fannie McMillin, his wife, and three children, the plaintiffs Henry C. McMillin, Barrdy B. Reddy and Eleanor H. Bennett. In 1968 the decedent's widow conveyed her interest in the real estate to the aforenamed children. The children, being the plaintiffs, have at all times since they acquired the real estate paid the taxes on it.

The evidence further established that in 1968 the plaintiffs, for consideration, granted a pipeline easement to Caterpillar Tractor Company. Previously, in approximately 1963, the plaintiffs, for consideration, granted the use of the real estate for a period of one year to a business known as Construction Aggregates Corporation. During this one-year period, Construction Aggregates attempted to bar access to the real estate by installing a chain across the only accessible entrance way, which was at the west end of the real estate. Construction Aggregates also posted a "No Trespassing" sign at this location.

All the plaintiffs are nonresidents of the State of Illinois, and none of them ever resided in the Joliet area, where the real estate with which this case is concerned is located. At the time of this trial Henry resided in Michigan, Barrdy in Florida, and Eleanor in Pennsylvania. Throughout the years, the plaintiff Henry C. McMillin, and on several occasions the husband of the plaintiff Barrdy B. Reddy, would drive by the real estate and on a number of occasions would refasten the cable across the Bush Road access and would repost the "Keep Out" or "No Trespassing" signs. It was in 1980 that the plaintiffs first learned that a railroad spur track had been constructed across the strip of real estate. After discovering the spur track the plaintiff Henry C. McMillin, his brother-in-law and apparently Barrdy B. Reddy, went to the plant of the defendant Economics Laboratory and complained of the spur track and attempted to discuss the matter. Their complaint was forwarded to the legal department of the corporate headquarters of the defendant. Not hearing from anyone associated with the defendant, the plaintiff McMillin twice attempted to talk by telephone to the president of the defendant corporation in an an effort to get together with someone and in his words "make a deal." He first talked to a lady secretary and later to a member of the defendant's legal department; however, neither call resulted in the obtaining of any acts on the part of the defendant pertaining to negotiations aimed at settling the dispute.

In 1971 the defendant Laboratory purchased a plant site (70 acres) which is located south of the strip of real estate which the plaintiffs claim to own. Upon this site a plant and other facilities were constructed. The plant manufactures solvents such as soaps, detergents and degreasers. Some of the products manufactured by the defendant require the shipping or transportation of highly reactive chemicals which are difficult, hazardous and expensive to ship by truck, and consequently such chemicals are transported by tank railroad cars across the spur track. The spur track is used to transport approximately 70 cars per month to and from the plant of the defendant. At the time of the trial of this case, the defendant employed approximately 500 people.

Further facts as well as other matters which occurred at trial will be set forth as the same become pertinent to the determination of the issues presented in this appeal.

• 1 We first direct our attention to the argument of the defendant-cross-appellant, Economics Laboratory, that the plaintiffs failed to prove that they had title to the property in question. It is apparent that defendant does not deny that in the 1930's Charles McMillin was the successful bidder for the property at public auction. It is the defendant's contention, however, that at the time Charles McMillin received a deed from the Chicago and Illinois Valley Railroad Company, the law of our State required prior approval of sale from the Illinois Commerce Commission and such approval was not obtained and hence the sale was void. In support of this contention the defendant relies on the statutory language in section 27 of "An Act concerning public utilities" (Ill. Rev. Stat. 1939, ch. 111 2/3 par. 27) and the cases of National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 383 N.E.2d 919, and Chicago & North Western Ry. Co. v. Illinois Commerce Com. (1970), 130 Ill. App.2d 352, 264 N.E.2d 745. The factual situations presented in the cited cases are in no way similar to those presented in the instant case; however, we quarrel not with the defendant's statement that the purpose of the statutory requirement that approval by the Commerce Commission of a sale of the property of a public utility is to assure that the public interest in the use of the property is protected when the utility attempts to dispose of it. We are, however, of the opinion that the defendant's argument as to Commerce Commission approval or lack of approval in the instant case is indeed tenuous. While an approval or consent of the Commerce Commission was not sought nor received which specifically described and related to the property in question, the Commerce Commission was not only involved in the sale but in fact directed that the Chicago and Illinois Valley Railroad dispose of the property. On May 14, 1934, pursuant to a Commerce Commission order, the railroad (C. & I.V.), a predecessor in the chain of title to the plaintiffs, discontinued its operation between Joliet and Depue, Illinois, and surrendered all its franchises except its corporate charter. On July 13, 1934, the Commerce Commission by order authorized the railroad (C. & I.V.) to dispose of its assets, one of which is the property claimed by the plaintiffs. To now hold that the deed received by Charles McMillin many years ago is void because approval of his purchase of the property was not obtained from the Commerce Commission when that regulatory body authorized and directed its sale would result in an absurdity. A former member of the Bar of Illinois, Abraham Lincoln, in describing a certain judge, said that he would hang a man for blowing his nose in the street, but he would quash an indictment if it failed to specify which hand he blew it with. In short, this court will not elevate meaningless technicalities over substance.

The plaintiffs claim, and rightfully so, that even if their father's deed to the property was insufficient, they are nevertheless the rightful owners by virtue of adverse possession. The plaintiffs' claim is predicated upon the statutory provisions relating to seven years' payment of taxes with color of title and possession. Ill. Rev. Stat. 1983, ch. 110, par. 13-109, effective July 1, 1982.

• 2, 3 The defendant attacks the plaintiffs' claim of possession because the property was not fenced, no improvements were made on it, and it was unoccupied and was visited by the plaintiffs at only irregular intervals. Enclosure of land is not necessary to constitute possession. (Kerr v. Hitt (1874), 75 Ill. 51; McLean v. Farden (1871), 61 Ill. 106.) The plaintiffs posted "No Trespassing" signs and attempted to prevent invasion of their property by barring the only entrance to it by the use of a steel cable. The possession necessary to constitute adverse possession is not required to be fuller than the character of the land admits. (Chicago Title & Trust Co. v. Darley (1936), 363 Ill. 197, 1 N.E.2d 846.) Our supreme court has stated:

"Neither actual occupancy, cultivation nor residence is necessary to constitute actual possession of land. Where property is so situated as not to admit of permanent useful improvements, the continued claim of the party, evidenced by public acts of ownership such as he would exercise over property which he claimed in his own right and would not exercise over property which he did not claim, may constitute actual possession." Burns v. Curran (1918), 282 Ill. 476, 480, 118 N.E.2d 750, 752. See also Gochenour v. Logsdon (1940), 375 Ill. 139, 30 N.E.2d 666.

• 4 The record discloses that the plaintiffs or one of them viewed the property, reattached the steel cable and reposted the "No Trespassing" sign when as nonresidents they came to Illinois, which was almost yearly. It is noted that the spur track was discovered by the plaintiffs some years after it had been constructed; however, the nature of the land, its terrain and inaccessibility required a physical walk on the property before there could be an awareness of the spur track. The plaintiffs demonstrated their claim of dominion and ownership by granting for a consideration a year's use of it in 1963 to a business known as Construction Aggregates Corporation, and in 1968 for consideration they granted a pipeline easement to Caterpillar Tractor ...

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