Clokey v. Wabash Ry. Co.

• Decision Date: 21 October 1933
• Docket Number: No. 21968.,21968.
• Citation: 353 Ill. 349,187 N.E. 475
• Parties: CLOKEY v. WABASH RY. CO. et al.
• Court: Illinois Supreme Court

353 Ill. 349

187 N.E. 475

CLOKEY

v.WABASH RY. CO. et al.

No. 21968.

Supreme Court of Illinois.

Oct. 21, 1933.

Error to Circuit Court, Macon County; James S. Baldwin, Judge.

Suit by May L. Clokey against the Wabash Railway Company and another. To review a decree dismissing the bill, complainant brings error.

Affirmed.C. C. Martin and F. R. Wiley, both of Decatur, for plaintiff in error.

Charles C. Le Forgee, Thomas W. Samuels, and Charles Y. Miller, all of Decatur (N. S. Brown, of St. Louis, Mo., and Herbert Haase, of Chicago, of counsel), for defendants in error.

HERRICK, Justice.

The plaintiff in error, May L. Clokey (hereinafter referred to as the complainant), filed her amended bill in the circuit court of Macon county against the Wabash Railway Company and the Illinois Power & Light Corporation, defendants in error (hereinafter referred to as the defendants), alleging, amongst other things, that she was the owner in fee simple of lots 113 to 136, inclusive, in Wabash place, according to a plat recorded in Book 149, at page 502, of the records of Macon county, Ill.; that the defendant the Wabash Railway Company was erecting a fence, contrary to law and without authority, along the section line, which is the center of the street commonly known as East Herkimer street; that the railroad company had erected a gate at the west end of the street and closed the south half of the street or road to the complainant and the general public by means of the gate and fence; that the fence constitutes a nuisance to the complainant and all other owners of lots in Geddes suburb (Wabash place) and to the general public; that the defendant the Illinois Power & Light Corporation has erected, and is maintaining, poles and wires in or near the center of the aforesaid public road and street contrary to law and without authority, and that the poles and wires are a nuisance to the complainant and all other lot owners in Geddes suburb (Wabash place) and to the general public; that the nuisances are causingthe complainant and other lot owners irreparable injury and should be abated; that the complainant has asked the defendants to remove such obstructions; that the defendants have severally refused, and she prays for an injunction against the defendants restraining and enjoining each of them from maintaining such gates, poles, wires, and power line on the strip of land designated as East Herkimer street or East Grand avenue, and from further closing the alleged public road with fences, poles, wires, and other obstructions.

An answer was filed by the defendants to the amended bill. The answer in substance denied the averments of the bill; denied that the strip of land designated as East Herkimer street was a street; set up a conveyance by Josiah Clokey, as executor, to the Wabash Railroad Company, predecessor of the Wabash Railway Company, by deed on December 26, 1904, of certain premises, including the strip in dispute, being the twenty-foot strip south of the center section line and being the south twenty feet of the alleged tract or street designated as Herkimer street; that the railroad company took possession of said property, and from thence hitherto it and its successor, the Wabash Railway Company, has been in the open, notorious, visible, continuous, adverse uninterrupted, and exclusive possession of the same, and during all that time has paid the taxes on the land. A decree was entered dismissing the amended bill for want of equity. The writ of error in this cause is sued out to review the action of the trial court.

The land in dispute is a strip of land twenty feet wide off the north end of the northwest quarter of the southeast quarter of section 12. It appears that one James Geddes was originally the owner of the two forty-acre tracts. He died testate on or about the 24th day of January, 1895. His will was admitted to probate in the probate court of Macon county on the 29th day of January, 1895, and letters testamentary were issued to Josiah M. Clokey as the sole executor of the will. By the third clause of his will the executor was authorized and empowered to sell all the real estate of the deceased testator except some city lots which are not involved in this proceeding. The will conferred on the executor the right to sell the real estate at public or private sale, at such time or times, and upon such term or terms, and in such manner, as to the executor might seem proper, but none of the real estate should be sold by the executor until three years after the expiration of the date of the death of the testator. The executor was further authorized, in his discretion, to subdivide the real estate, or any part thereof, into such parts, pieces, or parcels as he may deem best, with full power to have executed and recorded a plat or plats of such subdivision. On or about the 1st day of April, 1903, Clokey caused a survey and plat to be made by G. V. Loring, the then county surveyor of Macon county, of the south portion of the southwest quarter of the northeast quarter of section 12, which subdivision was designated ‘Geddes suburb.’ The plat, with the certificate of the county surveyor, was filed in the office of the recorder of Macon county on the 11th day of April, 1903. The plat as recorded therein and the certificate of the county surveyor are as follows:

Image 1 (3.91" X 3.1") Available for Offline Print

‘April 1st, 1903.

‘I hereby certify that I have surveyed for J. M. Clokey, executor of the last will and testament of James Geddes, deceased, the south part of the southwest quarter of the northeast quarter of section twelve (12), in township sixteen (16), north, and range two (2) east of the third principal meridian, in Macon county, Illinois, and have subdivided the same into five lots as shown in the above plat.

G. V. Loring, County Surveyor.'

Subsequently lots 2 and 3 were conveyed by Clokey to Alice Phillips on the 19th day of March, 1904. She in turn conveyed lot 2 on January 28, 1905, to Warren T. Durfee, and on the date last named also conveyed lot 3 to W. Frank Godwin. On March 7, 1906, Clokey, as such executor, conveyed lots 4 and 5 to Godwin and Durfee. On May 2, 1905, Loring, who was still the county surveyor of Macon county, made a survey and plat of lots 2, 3, 4, and 5 of Geddes suburb, which plat was filed for record in the recorder's office on the 9th day of June, 1905. This resurvey and certificate were designated as Wabash place. The plat is as follows:

Image 2 (4.82" X 3.18") Available for Offline Print

‘Decatur, Illinois, May 2, 1905.

‘I hereby certify that I have surveyed for W. Frank Godwin, Warren T. Durfee, the following described land, viz.:

‘Beginning at the southwest corner of the northeast quarter of section twelve (12), town sixteen (16) north, range two (2) east of the third (3rd) P. M., in the county of Macon and State of Illinois; thence north on the quarter section line ten hundred five and 1/2 (1005 1/2) feet; thence easterly six hundred seventy-five (675) feet; thence south four hundred eighty-four (484) feet to a point five hundred twenty-one and 25/100 (521.25) feet north of the east and west quarter section line; thence easterly six hundred seyenty-five and 2/10 (675.2) feet to the east line of the west half of said north-east quarter section; thence south on said line five hundred twenty-one and 1/10 (521.1) feet to the east and west quarter section; thence west on said quarter section line thirteen hundred fifty and 4/10 (1350.4) feet to the place of beginning, and have subdivided the same into lots, streets and alleys as shown on the above plat.

‘G. V. Loring,

‘Surveyor of Macon Co., Illinois.’

The certificate does not describe any land in the northwest quarter of the southeast quarter of section 12.

In the purported deed of dedication accompanying the plat last named, Durfee and Godwin described the property so subdivided by the same description as herein last above set forth. None of this property at the time it was platted and surveyed was located in the city of Decatur, but was located in the town of Decatur, and is situated about two or three miles east of the business center of the city of Decatur.

The shops of the then Wabash Railroad Company (now the Wabash Railway Company) were in 1904, and for many years prior thereto, located at Decatur. In 1904, and for several years immediately preceding, a movement was on foot to move the shops from Decatur to Bement, and the railroad company had gone to the extent of purchasing land in the neighborhood of Bement for the purpose of establishing its shops at that point. A great many of the public-spirited citizens, including Josiah M. Clokey, and the Chamber of Commerce of Decatur, were very active in the movement to induce the Wabash Railroad Company not to remove the shops from Decatur but to retain them there. This movement originated as early as 1899. The record showed two letters written by Clokey to the vice president and general manager of the Wabash Railroad Company urging that the company retain its shops at Decatur; that the agitation with reference to the shops being moved to Bement was doing great injury to the city and the community and was preventing persons from investing in real estate on account of the possible decrease in values which might be occasioned by the removal of the shops from the city. In 1903, or in the early part of 1904, a ninety-day written option was given by Clokey, as executor, to the Chamber of Commerce of the city of Decatur to purchase seventy acres of land belonging to the Geddes estate for the sum of $200 per acre for the purpose of locating the Wabash Railroad shops thereon. This land included, with other lands, the strip of land in controversy. Subsequently, on the 26th day of December, 1904, Clokey, by his executor's deed of that date, conveyed to the Wabash Railroad Company, for the consideration of $14,000, the seventy acres of land owned by the Geddes estate. The deed was...