Appeal from the Circuit Court of Kane County. No. 99-CH-946 Honorable Patrick J. Dixon, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
The circuit court of Kane County entered summary judgment quieting title in a parcel of real estate in favor of plaintiffs, Luis Diaz, Virginia Diaz, and Manuel Diaz. Defendant Home Federal Savings and Loan Association of Elgin (the bank) now appeals. The bank maintains that plaintiffs failed to show that they possessed an interest in the property in question, that the bank in fact held title to the parcel, and that plaintiffs' claim was barred by several statutes of limitations. For the reasons that follow, we affirm.
The instant case arises out of a dispute as to the ownership of a parcel of land formerly used as a right-of-way by the Union Pacific Railroad Company (the railroad). Plaintiffs own a parcel of property adjacent to the right-of-way and operate a restaurant there. The bank is located adjacent to the right-of-way.
Plaintiffs claim title to the property by virtue of their purchase of the land upon which their restaurant is situated. Plaintiffs purchased the property in 1994 from the Fishburn family. The description of the land contained in the deed stated "[t]he north 1/2 of lot 3, lying east of the Chicago and Northwestern Railroad Company right-of-way." In 1999, the Fishburns executed a quitclaim deed that specifically included "the land subject to the Right of Way granted to the Galena Union Railroad Company." Plaintiffs contend that their purchase from the Fishburns included an interest in the right-of-way.
They trace title, through a series of mesne conveyances, to a grant made by Erastus Tefft to one of their predecessors in interest in 1850. Plaintiffs currently use the property for ingress and egress, employee parking, and the placement of a Dumpster.
The bank claims title by virtue of a purchase of the right-of-way from the railroad. In March 1999, the bank entered into a contract with the railroad to purchase the right-of-way. The railroad provided the bank with a quitclaim deed. In 1849, Tefft granted the right-of-way to the railroad's predecessor. Thus, the bank traces title back to Tefft as well. Since 1988, the bank had been using the right-of-way for ingress and egress pursuant to a licensing agreement with the railroad.
On December 15, 1999, plaintiffs filed a complaint seeking, inter alia, a declaration that they were the owners of the right-of-way. The bank moved to dismiss pursuant to section 2--619 of the Civil Practice Law, interposing several affirmative defenses (735 ILCS 5/2--619 (West 2000)), and plaintiffs moved for summary judgment. The trial court granted partial summary judgment, finding that the deed from Tefft to the railroad's predecessor did not convey a fee interest and that the railroad's grant to the bank conveyed nothing. The court then held an evidentiary hearing, the purpose of which was to determine the boundaries of plaintiffs' property. Following this hearing, the court determined that plaintiffs owned the right-of-way. This appeal followed.
Because this case comes to us following a grant of summary judgment, we conduct de novo review. Corona v. Malm, 315 Ill. App. 3d 692, 694 (2000). Summary judgment is appropriate where no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Stewart v. Jones, 318 Ill. App. 3d 552, 557-58 (2001). The record must be construed strictly against the movant. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999). The non-movant need not prove its case; however, it must set forth some facts that would arguably entitle it to prevail. Lutz v. Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 568 (1990). Further, in resolving this appeal, we must construe a series of deeds. The construction of a deed normally presents a question of law and is also subject to de novo review. Timothy Christian Schools v. Village of Western Springs, 285 Ill. App. 3d 949, 954 (1996). However, where an ambiguity exists and extrinsic evidence is required to ascertain the intent of the parties, a question of fact exists, and we will disturb the decision of the fact finder only if it is contrary to the manifest weight of the evidence. Mayol v. Weiner Companies, Ltd., 98 Ill. App. 3d 985, 987-88 (1981). With these standards in mind, we now turn to the merits of the bank's arguments.
Before turning to the merits, however, we note that, at several points in its brief, the bank attacks the sufficiency of plaintiffs' complaint. The bank filed a motion in the trial court titled "motion to strike or to make more definite and certain" attacking the sufficiency of the complaint. In this motion, the bank relied on section 2--615 of the of the Civil Practice Law. 735 ILCS 5/2--615 (West 2000). The bank subsequently answered the complaint. When a trial court denies a motion to dismiss a complaint and a defendant files an answer, the defendant generally waives any objection to defects in the complaint. People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 333 (1997). Thus, by answering plaintiffs' complaint, the bank waived any objections regarding the sufficiency of the complaint, and we will not consider this issue.
We also note that the bank complains that the trial court entered summary judgment regarding its nonownership of the parcel prior to determining plaintiffs' interest in the parcel. We see neither prejudice nor error in the trial court's decision to proceed in this manner. The trial court merely simplified and defined the issues likely to arise at the evidentiary hearing. Had the bank successfully controverted plaintiffs' claim of title at the hearing, it is apparent that plaintiffs would not have prevailed in the cause.
The bank first contends that the trial court erred in granting summary judgment in plaintiffs' favor for three reasons. First, the bank argues that plaintiffs have not shown that they hold title to the parcel. Second, in a related argument, the bank contends that plaintiffs have not demonstrated that they hold title superior to the bank's. Third, the bank takes issue with the trial court's determination that the railroad abandoned the right-of-way. In order to resolve this appeal, we must address three main issues: (1) what interest, if any, plaintiffs hold to the parcel, (2) ...