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07/26/95 DEPARTMENT CONSERVATION STATE ILLINOIS v.

July 26, 1995

THE DEPARTMENT OF CONSERVATION OF THE STATE OF ILLINOIS, FOR AND IN BEHALF OF THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CURTIS FAIRLESS AND GLADYS GENEVIEVE FAIRLESS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Johnson County. No. 92-MR-14. Honorable Terry J. Foster, Judge, presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Goldenhersh delivered the opinion of the court: Maag, P.j., and Hopkins, J., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiff, the Department of Conservation of the State of Illinois, for and in behalf of the People of the State of Illinois, brought this action in ejectment against defendants, Curtis Fairless and Gladys Genevieve Fairless, seeking to eject defendants from certain parcels located in Johnson County. The circuit court of Johnson County, following a bench trial, entered judgment in favor of plaintiff, finding that plaintiff's predecessor in title had been in possession of the subject parcels at the time of their conveyance to plaintiff; that plaintiff's predecessor in title could have maintained an action in ejectment against defendants and that this right passed with title to plaintiff; and that defendants failed to prove an interest in the land which is higher and better than plaintiff's and thus plaintiff was entitled to possession of the subject parcels.

On appeal, defendants contend that the trial court erred in ejecting defendants from the subject parcels because plaintiff's predecessor, Southern Railway Company (hereinafter Southern Railway), did not have fee simple title in the property and was not in possession at the time of the conveyance to plaintiff by quitclaim deed. We affirm.

I

On October 15, 1990, Southern Railway, through a deed of donation to the People of the State of Illinois, Department of Conservation, conveyed to plaintiff all of Southern Railway's "existing legal or equitable right, title and interest, including mineral rights, of, in and to the right of way, real property along grantor's former Harrisburg to Karnak Line." The deed specifically conveyed the Johnson County segment which includes the five parcels of property claimed by defendants. The five parcels are a portion of a railroad corridor which at one time stretched from Cairo to Danville. The Cairo and Vincennes Railroad began using the five parcels as a railroad right-of-way in 1872. The railroad obtained the deed to parcel 1 from Levi Dunn, who owned property in the quarter section (the southeast quarter of Section 33) in which the railroad located its right-of-way. However, the deed from Levi Dunn purports to convey property in the southwest quarter of Section 33, which property was not owned by Levi Dunn. Originally, the railroad had no deed to parcel 2, only having possession. Title to parcel 2 was claimed by possession for approximately 120 years by successive railroads. Parcels 3, 4, and 5 were obtained in fee simple through deeds from the owners of the property in the quarter sections in which the railroad located its right-of-way. The entire railroad corridor has been included in several railroad-to-railroad conveyances. In 1913 the Cairo, Vincennes and Chicago Railway Company (successor to Cairo and Vincennes Railroad) conveyed the railroad corridor to the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. The Cleveland, Cincinnati, Chicago and St. Louis Railway Company conveyed the railroad corridor to Consolidated Rail Corporation in 1976. In 1982, Consolidated Rail Corporation conveyed the railroad corridor to Southern Railway. Sometime between the summer of 1988 and May 1990, Southern Railway ceased rail traffic along the railroad and removed the railroad tracks. On October 15, 1990, Southern Railway, through a deed of donation, conveyed to plaintiff its right-of-way along the railroad corridor from Harrisburg to Karnak. On January 9, 1991, the deed was recorded in Johnson County, as well as Saline, Williamson, and Pulaski Counties.

Over a period of years, defendants acquired the property through which parcels 1 through 5 of the railroad right-of-way traverses. Defendants obtained parcel 1 by warranty deed dated January 29, 1949. On October 3, 1964, defendants acquired by warranty deed parcel 2. On August 30, 1968, Gladys Genevieve Fairless obtained parcel 3 as a joint tenant with her parents, who have predeceased her. Defendants claim title to only the east half of parcel 3. Defendants obtained the southeast portion of parcel 4 through a 1971 warranty deed. Defendants make no claim to any part of parcel 5.

In May 1990, after Southern Railway completed the removal of the railroad tracks, defendants erected a fence across the right-of-way which had been used by the railroad at defendants' northern property line in parcel 1 and across a portion of parcel 5 because it was a convenient place for the fence to connect to the centerline of parcel 4. These fences consisted of steel posts with strands of barbed wire and a "no trespassing" sign with defendant Curtis Fairless's name and address on it. Defendants cleaned up the right-of-way roadbed in parcels 1 and 2 and sowed it in grass. In September 1990, defendants cleaned the east half of the right-of-way in parcel 3 and erected a fence along the top of the hill and took out the fence along the east line of the right-of-way which had been used by the railroad and put in a crossing. Defendants also cleaned the east half of the right-of-way in parcel 4 to the middle of the right-of-way. Defendants have grazed animals on the subject property since the time rail traffic ended and the tracks were removed.

On February 20, 1992, plaintiff filed a complaint for ejectment against defendant Curtis Fairless. Gladys Genevieve Fairless was added as a party defendant on September 3, 1993. In its complaint, plaintiff alleged that it was entitled to possess parcels 1, 2, 3, 4, and 5 on January 7, 1991, by virtue of a deed of donation which quit-claimed the interest of Southern Railway to plaintiff.

On June 18, 1993, the parties filed an agreed statement of facts. A bench trial was held on January 28, 1994, and a supplemental agreed statement of facts was filed by the parties. The trial court issued its judgment on April 19, 1994, finding that plaintiff was entitled to the possession of parcels 1, 2, 3, 4, and 5 as described in the complaint. The description in plaintiff's complaint was based upon the Railroad Valuation Map.

The trial court further found that "although Plaintiff has never been in possession of any of the parcels since it acquired title, its predecessor, Southern Railway Co. was in possession until May, 1990, when Defendants took possession after Southern Railway removed the tracks." The court noted that Southern Railway paid the real estate taxes assessed on the parcels from 1983 through 1990, and Consolidated Rail Corporation, Southern Railway's predecessor, also paid the taxes from 1979 through 1982.

Concluding that plaintiff's grantor had been in possession, the court found that defendants' entry onto the parcels before plaintiff acquired title did not preclude the bringing of the ejectment action. Further, the court found that defendants did not show any authority to support their contention that Southern ...


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