Carter Oil Co. v. Welker

• Decision Date: 13 October 1938
• Docket Number: No. 1-D.,1-D.
• Citation: 24 F. Supp. 753
• Parties: CARTER OIL CO. v. WELKER et al.
• Court: U.S. District Court — Eastern District of Illinois

24 F. Supp. 753

CARTER OIL CO. v. WELKER et al.

No. 1-D.

District Court, E. D. Illinois.

October 13, 1938.

Gunn, Penwell & Lindley, of Danville, Ill., for plaintiff.

Acton, Acton & Baldwin and Allen, Dalbey & Foremon, all of Danville, Ill., for defendants.

LINDLEY, District Judge.

The first question presented is that of the proper construction of the deed of Illinoi W. Hess, predecessor in the chain of title, to John F. Welker, July 25, 1912, to the Eastern Illinois and Peoria Railroad Company. The grantor was then the owner of the Northeast Quarter of the Northwest Quarter of Section 18, Township 7 North, Range 3 East of the 3rd P. M., in Fayette County, Illinois. On that date she executed and delivered the deed to the railroad company reciting that "in consideration of the benefits accruing to her by reason of the construction and operation of the railroad upon said land and of the sum of $250 in hand paid * * * she does hereby convey and warrant to Eastern Illinois and Peoria Railroad Company * * * as and for its right-of-way, a strip of land 100 feet wide, being 50 feet wide on each side of a line that has been surveyed and located across and upon * * *" the quarter section above described, "containing in all 3.34 acres more or less." Plaintiff insists that by said conveyance the railroad company received as grantee only a license to use the strip as a right-of-way. The defendants contend that, properly construed under the Illinois statute, the deed conveyed a title in fee simple.

By the Illinois statute (Ill.R.S.1937, chap. 30, § 12), it is provided that every estate, where 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 does not appear to have been granted, conveyed or devised by construction or operation of the law. In Illinois a railroad company is granted, by Ill.R.S.1937, chap. 114, § 20, sub. 3, power "to purchase, hold and use all such real estate and other property as may be necessary for the construction and use of its railway, and the stations and other accommodations necessary to accomplish the object of its incorporation, and to convey the same when no longer required for the use of such railway." Under this statute the Supreme Court has held that a railroad company receiving a conveyance of land for right-of-way in lieu of title by virtue of condemnation proceedings, in the absence of limitation, takes not a limited title but an estate in fee simple. Spierling v. Ohl, 232 Ill. 581, 83 N.E. 1068, 13 Ann. Cas. 430.

Under the first mentioned statute it is held that to create a limited estate there need be no express words of limitation but that it is sufficient if it appear by necessary implication that an estate less than a fee-simple estate was granted, Lehndorf v. Cope, 122 Ill. 317, 13 N.E. 505, and that the estate granted may be limited by construction or operation at law as well as by express words, Stoller v. Doyle, 257 Ill. 369, 100 N.E. 959. But it is the law of Illinois that where it can, without violating a settled rule of law, the court will refuse to tie up property; that it will, therefore, in case of doubt, adopt the construction that will give an estate of inheritance to the first taker, Webbe v. Webbe, 234 Ill. 442, 84 N. E. 1054, 17 L.R.A.,N.S., 1079; and that in ascertaining a grantor's or testator's intent, the court will be disposed to adopt such a construction as will give an estate in fee simple to the first donee, Giles v. Anslow, 128 Ill. 187, 21 N.E. 225. The Supreme Court has held further that though the intention of the parties will control, it is the intention apparent and manifest in the instrument, construing each clause, word and term involved according to its legal import and giving to each, thus construed, its legal effect. Lehndorf v. Cope, supra. Thus it is the policy of the Illinois courts that an estate granted shall be deemed to be an estate in fee simple unless limiting and qualifying words of proper legal effect disclose a contrary intention. Hempstead v. Hempstead, 285 Ill. 448, 120 N.E. 782; Melies v. Beatty, 313 Ill. 418, 145 N.E. 146; Mills v. Teel, 245 Ill. 483, 92 N.E. 310.

As a result of these underlying principles, in Board of Supervisors of Warren County v. Patterson, 56 Ill. 111, where the deed recited that the grant was "for a court house and other county buildings", the court held that the clause did not limit the title conveyed to less than a fee simple and did not limit or restrain the power of alienation by the supervisors. The court commented that the deed conveyed the absolute fee; that had the grantors in the deed imposed as a condition that the property should be used for a specific purpose and for no other purpose, they might have invoked the power of a court of equity to prevent any other use but that the language of the conveyance was not sufficient to constitute such a condition precedent. Later, in Tinker v. Forbes, 136 Ill. 221, 26 N.E. 503, the court dealt with the effect of words contained in a deed of a certain interest in the grantor's water power on a river and certain specific real estate as follows: "also, for the purpose of locating proper water wheel and races to draw said water, the east half of a certain other lot." page 506. The court held that the deed conveyed the fee in such half-lot and not a mere easement, saying: "What effect, then, is to be given to the words, `for the purpose of locating proper water wheel and races to draw said water?' It is plain that they do not constitute a condition, as there is no provision for re-entry for condition broken, nor is there anything in the instrument indicating an intention on the part of the grantor that the appropriation of said premises to any other purpose should have the effect of defeating the estate granted. Nor can said language be construed as a covenant on the part of the grantees to use the property granted for the purpose indicated, and none other. No terms are used by which a covenant is ordinarily expressed, nor are there any negative words forbidding the appropriation of the property to other purposes."

In Downen v. Rayburn, 214 Ill. 342, 73 N.E. 364, 3 Ann.Cas. 36, the deed construed conveyed to the trustees of a certain church a certain lot or tract of land "to be used as a church location * * * to have and to hold the said premises as above described * * * unto the said party of the second part and their successors in office forever." After reasserting the rule that in construing a deed containing restriction as to use of property all doubts should be resolved in favor of the free use of the property, the court said: "It will be noticed that the words in question, `to be used as a church location,' stand alone, and that the words `upon condition' are not used in connection therewith. That is to say, it is not stated in the deed that the premises are conveyed upon condition that they are to be used as a church location. Nor is there any provision in the deed for re-entry by the grantor in case of a breach of the covenant, if it be a covenant, that the premises are to be used as a church location. Kew v. Trainor, 150 Ill. 150, 37 N.E. 223; Star Brewery Co. v. Primas, supra 163 Ill. 652, 45 N.E. 145; Gallaher v. Herbert, 117 Ill. 160, 7 N.E. 511. In Gallaher v. Herbert, supra, we said (page 169, 7 N.E. 511): `In the construction of deeds courts will always incline to interpret the language as a covenant, rather than as a condition. Board of Education v. Trustees, 63 Ill. 204. There is nothing in the form of the language here employed to indicate that it was intended the conveyance was upon a condition subsequent. The words "upon condition," do not occur, and there are no other words of equivalent meaning. There is no clause providing that the grantor shall re-enter in any event, and these are the usual indications of an intent to create a condition subsequent.'"

Many cases were reviewed but the court adhered to its previous holdings in construing the deed to convey a fee simple title.

In Weihe v. Lorenz, 254 Ill. 195, 98 N.E. 268, Justice Dunn speaking for the unanimous court, held that a deed conveying a certain tract, describing it by metes and bounds, followed by this clause, "I also give ten feet wide adjoining on the south of this tract, or the strip between this tract and the alley I gave in my deed of September 3, 1881, to John Lorenz, for alley purposes" page 269, conveyed the fee and that the words "for alley purposes" did not limit the estate granted.

The power of railroads to purchase property and acquire the same in fee being recognized in the Illinois statute, the Supreme Court has followed the foregoing rules in interpreting deeds to railroad companies. Spierling v. Ohl, 232 Ill. 581, 83 N.E. 1068, 13 Ann.Cas. 430. In Noyes v. St. Louis, A. & T. H. R. Co., Ill.1889, 21 N.E. 487, plaintiff conveyed to a railroad company by warranty deed, "for a right-of-way", a strip of land 100 feet in width, the center line being the center line of the company's track. Thereafter, in the same instrument, it was recited that "the above tract is granted to the said companies for the erection and maintenance thereon of a freight house * * * and for such other general railroad purposes as may be necessary and expedient for said company." The express consideration was $1.00 and the benefits accruing from the erection and maintenance of said improvements. The strip was subsequently abandoned by the railroad, so far as railroad purposes were concerned, and the grantor sued to recover possession of the premises on the behalf that the property was conveyed as an easement or as a fee with condition subsequent. The court overruled this contention and held the conveyance one in fee simple, saying page 488:

"It is urged that the grant is subject to a...