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03/19/89 Richard Urbaitis Et Al., v. Commonwealth Edison Et Al.

March 19, 1989

RICHARD URBAITIS ET AL., PLAINTIFFS-APPELLANTS

v.

COMMONWEALTH EDISON ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

540 N.E.2d 352, 185 Ill. App. 3d 616, 132 Ill. Dec. 612 1989.IL.353

Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG and McLAREN, JJ., concur. JUSTICE LINDBERG, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiffs, a group of property owners, appeal from the trial court's dismissal of their second amended complaint, which sought to quiet title and to prevent trespass to a strip of land 100 feet in width commonly known as the former Chicago, Aurora and Elgin Railway right-of-way located in Geneva, Illinois. Both plaintiffs and the defendants, Commonwealth Edison (Edison) and its successor in interest, Kane County Forest Preserve District (District), claim title to this strip of land through a deed executed in 1909 by Benjamin W. Dodson.

Initially, defendants moved to dismiss the first amended complaint for failure to state a cause of action. Relying on this court's decision in Schnabel v. County of Du Page (1981), 101 Ill. App. 3d 553, the trial court held that the heirs of Benjamin Dodson, not the adjoining landowners, would hold title to the abandoned right-of-way. The trial court dismissed the first amended complaint, reasoning that, even if the Dodson deed (deed) granted only an easement for right-of-way purposes and assuming the abandonment of the right-of-way use, plaintiffs would not have acquired title to the 100-foot strip of property (subject property).

Thereafter, plaintiffs located the surviving heirs of Benjamin Dodson and purchased their interests in the subject property. A second amended complaint was then filed alleging that plaintiffs had title both as adjoining landowners and as successors to Benjamin Dodson's interest.

Each of the defendants then moved to dismiss the second amended complaint alleging the plaintiffs' failure to state a cause of action. The trial court construed the nonspecified motions to be section 2-615(e) motions (Ill. Rev. Stat. 1985, ch. 110, par. 2-615(e)) for judgment on the pleadings and dismissed the second amended complaint with prejudice without an evidentiary hearing. The court below found that as a matter of law, the Dodson deed conveyed a fee simple estate to the railroad rather than a right-of-way easement and entered an order dismissing the second amended complaint. This appeal followed. We reverse and remand for an evidentiary hearing as hereinafter provided.

Whether the Dodson deed conveyed a fee simple or a right-of-way easement is critical in this case. If a fee simple was conveyed by said deed, this interest passed down to the various owners, ending in Edison and District; on the other hand, if only a right-of-way easement was granted by the Dodson deed, the ownership of the subject property would vest in the plaintiffs, as successors of the Dodson heirs.

On appeal, plaintiffs raise three issues, namely: (1) the trial court erred in granting judgment on defendants' motion attacking the pleadings because there were issues of material fact to be determined; (2) the trial court erred in finding the Dodson deed conveyed a fee simple estate rather than a right-of-way easement; and (3) public policy prohibits or disfavors the creation or conveyance of a fee simple estate in a narrow strip of land to a railroad. Because of our decision regarding the first issue, it is not necessary to address the other issues raised.

Since the trial court entered judgment in favor of the defendants pursuant to the motions of the defendants, which were construed as motions pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), it first becomes necessary to examine in detail the facts alleged in the second amended complaint. Plaintiffs allege that they are owners of residential properties in the City of Geneva which abut the subject property, which is a 100-foot by 2,713-foot strip of land formerly used as an interurban railroad right-of-way. The railroad ceased operation of the railroad in 1946 and thereafter conveyed its interest in the subject property to Western United Gas and Electric Company. Defendant Commonwealth Edison Company is the successor in interest to the Western United Gas and Electric Company and presently uses the subject property for its overhead power transmission lines. Defendant Kane County Forest Preserve District claims the right to use the disputed strip of land for a bike path by virtue of a perpetual easement granted to it by Edison in 1986.

It is further alleged that the subject property runs in an east-west direction from East Side Drive to Illinois Route 25 in the City of Geneva. The property is accessible at either end, i.e., the west opens onto the intersection of Route 25 and Dodson Street, and the east end opens onto East Side Drive, which is a public north-south street.

Originally, the subject property was a part of a larger tract owned by Benjamin Dodson. On May 24, 1909, the Chicago, Wheaton and Western Railway Company filed a condemnation action in the county court of Kane County seeking to condemn certain properties for a proposed right-of-way to connect the City of Geneva with the Chicago, Wheaton and Western Railway branch at West Chicago. The condemnation complaint stated in pertinent part:

"Your petitioner further shows that it had located its right-of-way, over, upon and across the lands and premises hereinafter described, and that said lands are necessary for the construction and maintenance of its railroad as aforesaid, and your petitioner now seeks to acquire for the purpose of building, constructing, operating and maintaining its said railroad with its said ...


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