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01/22/87 John D. Sowers Et Al., v. Central Gulf Railroad

January 22, 1987

JOHN D. SOWERS ET AL., PLAINTIFFS-APPELLANTS

v.

ILLINOIS CENTRAL GULF RAILROAD COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

503 N.E.2d 1082, 152 Ill. App. 3d 163, 105 Ill. Dec. 76 1987.IL.43

Appeal from the Circuit Court of Jasper County; the Hon. Michael R. Weber, Judge, presiding.

APPELLATE Judges:

JUSTICE JONES delivered the opinion of the court. HARRISON, J., concurs. JUSTICE WELCH, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES

The plaintiffs filed the instant quiet title action seeking a declaration that certain deeds to a railroad company, the defendant's predecessor in title, conveyed an easement only, which had been terminated by abandonment. The trial court granted judgment on the pleadings for the defendant railroad, finding that the deeds conveyed fee simple title to the property in question. On appeal by the plaintiffs, we affirm.

In about 1877 the Grayville & Mattoon Railroad Company built a railroad in Jasper County which was later acquired by the defendant, Illinois Central Gulf Railroad Company. The railroad was subsequently abandoned between the city of Newton and the northern edge of Jasper County. It is the property formerly used by the railroad as its right-of-way between these two points that is the subject of the plaintiffs' quiet title action.

The trial court's determination regarding whether the railroad had a fee simple interest or an easement only in the subject property depended, as ours must, upon a construction of the deeds by which the railroad's right-of-way was acquired. There are 28 deeds involved in this appeal, 27 of which are substantially identical except for minor variations and except for the legal descriptions, names of grantors, dates, and similar information particular to each parcel. The 27 similar deeds, omitting these variations, read as follows:

"THIS INDENTURE, Made this the day of , 187 , by and between party of the first part, and the GRAYVILLE & MATTOON RAILROAD COMPANY, party of the second part,

WITNESSETH, That the said party of the first part, for and in consideration of the advantages which may and will result to the public in general, and to the party of the first part in particular, by the construction of the GRAYVILLE & MATTOON RAILROAD, and also in consideration of the sum of Dollars to the said party of the first part, paid by the said party of the second part, the receipt of which is hereby acknowledged, has sold, remised, released and conveyed to said Grayville & Mattoon Railroad Company, their successors, assigns, or transferees, a strip of land wide, through, across, over and upon the following described tract of land, lying and being in the County of Jasper and State of Illinois, viz.:

together with the timber, stone or other materials upon the same . The said strip of land, feet in width, being the same on which the said party of the second part has surveyed and located, and are about to construct their Railroad, as the same has been surveyed and located, together with the said timber, stone and other material upon the same and to the same belonging,

TO HAVE AND TO HOLD the same unto the party of the second part, their successors, transferees or assigns, to their sole use and benefit for the purpose aforesaid, free from all claim of Homestead under the laws of this State, or right as Dower, forever. IN TESTIMONY WHEREOF, have hereunto hand and seal, this the

day of , A.D. 187 ." (Emphasis added.)

The remaining deed is in a similar form and reads as follows:

"THIS INDENTURE WITNESSETH THAT The Grantors, George W. Sutton and Viola, his wife of the in the County of Jasper and State of Illinois for and in consideration of the sum of Thirty Dollars in hand paid, CONVEY and WARRANT to the Peoria Decatur and Evansville Railway Company of the County of and State of Illinois the following described Real Estate, to-wit:

Thirty-Three (33) feet in width over and across the West side of the South East quarter of the South West quarter of Section Thirty (30) Town Eight (8), North Range Ten (10) East Third (3) P.M. being the right of way, as now occupied by said Railway Company,

situated in the County of Jasper, in the State of Illinois, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption laws of this State.

DATED this Ninth day of August A.D. 1883." (Emphasis added.)

In urging that these deeds be construed as the grant of an easement only and not a fee simple, the plaintiffs contend that certain provisions of the deeds, as emphasized in the above quotations, evidenced an intent by the grantors to convey a surface use only of the subject property rather than an interest in fee. It is settled that the cardinal and all-important rule in construing such deeds is to ascertain the intention of the parties. The deeds should be construed so as to carry out this intention as gathered from the instruments as a whole, and every word and clause within the instruments should be considered and, if possible, given effect. Keen v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1945), 392 Ill. 362, 64 N.E.2d 499; Tallman v. Eastern Illinois & Peoria R.R. Co. (1942), 379 Ill. 441, 41 N.E.2d 537.

The plaintiffs assert preliminarily that the 27 similar deeds were not in statutory form and thus were not intended to convey fee simple title. As noted by the trial court, the policy of law set forth by section 13 of the Conveyances Act (Ill. Rev. Stat. 1877, ch. 30, par. 13, now Ill. Rev. Stat. 1985, ch. 30, par 12) is to vest each grantee with fee simple title unless a contrary intent is clearly expressed. (See Hempstead v. Hempstead (1918), 285 Ill. 448, 120 N.E. 782.) Section 9 of the Act (Ill. Rev. Stat. 1877, ch. 30, par. 9, now Ill. Rev. Stat. 1985, ch. 30, par. 8), to which the plaintiffs refer, provides in substance that a deed using the words "convey and warrant" shall be deemed a conveyance in fee simple. This section, however, is to be construed with section 13 (Tallman v. Eastern Illinois & Peoria R.R. Co. (1942), 379 Ill. 441, 41 N.E.2d 537), which provides:

"Every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law." (Emphasis added.) (Ill. Rev. Stat. 1877, ch. 30, par. 13, now Ill. Rev. Stat. 1985, ch. 30, par. 12.)

Thus, while the deeds in question do not contain the words "convey and warrant" so as to be a conveyance in fee simple under section 9, use of the granting language "conveyed" results in a presumption under section 13 that a fee simple estate was intended absent limitation to a lesser estate by express words or construction of law. This court, then, must consider every word and clause within the instruments to determine whether a grant of less than a fee simple estate was intended. Keen v. Cleveland, Cincinnati, Chicago & St. ...


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