APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
512 N.E.2d 118, 159 Ill. App. 3d 419, 111 Ill. Dec. 214 1987.IL.1164
Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.
JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER
Plaintiff, The Penn Central Corporation (Penn Central), brought an action against defendant, Commonwealth Edison Company (Edison), to quiet title to a strip of land located in Will County, Illinois. The trial court granted Penn Central's motion for summary judgment and denied Edison's cross-motion for summary judgment. Edison appeals.
The strip of land in dispute was originally conveyed to the Oswego and Indiana Plank Road Company (Oswego) pursuant to an indenture executed by Mary Bevington. The Bevington deed was recorded on February 27, 1854, in the office of recorder of deeds of Will County. Oswego has been succeeded in turn by the Joliet and Northern Indiana Railroad Company, the Michigan Central Railroad Company and Penn Central.
Edison is the record owner of two tracts of land directly abutting to the north and south, respectively, the strip of land in dispute. After Penn Central removed the railroad lines running over the strip of land, Edison filed an affidavit with the recorder of deeds, Will County, seeking to have the Will County tax assessor tax Edison on the strip of land.
On July 30, 1985, Penn Central filed a complaint against Edison to quiet title to the strip of land. The trial court granted Penn Central's motion for summary judgment; finding that the deed between Mary Bevington and Oswego conveyed a fee simple interest and that Penn Central is the successor in interest and title to the rights of the Oswego and Indiana Plank Road Company in the subject property.
Edison argues on appeal that the Bevington deed conveyed only an easement for railroad purposes to Penn Central's predecessor in interest. Edison claims that the language in the Bevington deed "for the purpose of enabling said Company to construct their said Road" establishes that only an easement for railroad purposes was conveyed and that it was the intention of the parties to convey only an easement for railroad purposes. Edison also claims that the use of the words "over," "across," and "through" in the deed, the lack of words of inheritance, and the lack of language indicating that a fee is being conveyed support their claim that the deed only conveyed an easement.
The Bevington deed provides in relevant part:
"Whereas the said party of the second part is desirous of constructing a Rail Road under this charter, over that portion of said Road extending Eastwardly from the City of Joliet, in Will County to the boundary line between the States of Illinois and Indiana.
This Indenture therefore Witnesseth, that for the purpose of enabling the said Company to construct their said Road, and also in consideration for the sum of Eight hundred dollars, Lawful money, in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, released and conveyed, and by these presents, do grant, bargain, sell, release and convey to the said party of the second part, their successors and assigns, Forever, all and each of these certain pieces and parcels of land . . ..
. . . A strip of land one hundred (100) feet wide being fifty (50) feet on each side of the centre [ sic ] line of the Rail Road of said Company as now surveyed and located so far as center line around, over and through said tracts, ...