Donahue v. Illinois Cent. R. Co.

• Decision Date: 03 April 1897
• Parties: DONAHUE v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

165 Ill. 640

46 N.E. 714

DONAHUE

v.ILLINOIS CENT. R. CO.

Supreme Court of Illinois.

April 3, 1897.

Error to circuit court, McLean county; Thomas F. Tipton, Judge.

Action in ejectment by Timothy Donahue against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

Thompson & Donahue, for plaintiff in error.

Williams & Capen, for defendant in error.

CARTER, J.

This is a writ of error to the circuit court of McLean county, brought to reverse a judgment for the defendant in an action of ejectment. The suit was brought by plaintiff in error to recover the east 50 feet of lot 44, and the east 50 feet of lot 42, on the west side of the railroad of defendant in error, in the west 50 feet of lot 37 on the east side of said railroad, all in section 10, township 23 N., in McLean county. Defendant in error was in possession, claiming the land as a part of its right of way. It was agreed that in 1853 these strips were a part of a larger tract, and belonged to three persons by the name of Hodges, and that that year defendant in error, by proper proceedings in the McLean circuit court, condemned for its right of way a strip through said larger tract, of the width of 200 feet, and made payment therefor, of which strip the pieces in controversy were a part. Soon after (the precise year not being shown), defendant fenced its track, by erecting fences on either side thereof, 50 feet from the center line. These fences were maintained there, on the east side until the fall of 1882, and on the west side until the fall of 1885. The Hodges retained possession of the remaining strips of 50 feet, the property in dispute, and conveyed them with other lands, and they passed by mesne conveyances to plaintiff; the successive grantees from the Hodges taking and maintaining possession thereof, and using and cultivating these strips as parts of the larger tracts to which they were attached, up to the railroad fences. This possession was continued by the Hodges and subsequent grantees for nearly 30 years upon the one side, until 1882, and upward of 30 years on the other, until 1885, when the defendant moved its fences 50 feet further out, and took in the strips as a part of its right of way, as before stated. In 1878, long after the 20-years statute of limitations had run against appellee, the Hodges tract was subdivided into lots, as an addition to the city of Bloomington, and a survey and plat of the same was made by the county surveyor, which was recorded in 1881. This plat showed the right of way of the defendant through the tract to be 100 instead of 200 feet wide. Lots 37, 42, and 44, of which the strips in controversy appear to form a part, were created and designated by this plat. The map or plat of record with the condemnation proceedings, however, showed the right of way was 200 feet wide. While there is evidence tending to show that the defendant company, in 1870 or 1872, put in short posts, painted white, at certain road or street corners, on the outer lines of the right of way of 200 feet in width, as condemned, still, from the evidence and agreed facts, it is clear that plaintiff and his grantors had been in the open, exclusive, and adverse possession of the property, claiming to own it for more than 20 years, when defendant moved out its fences, and took possession of the land in 1885, and that at that time its right therein was barred by limitation. In this respect the case does not materially differ from Railroad Co. v. Houghton, 126 Ill. 233, 18 N. E. 301, Railroad Co. v. O'Connor, 154 Ill. 550, 39 N. E. 563, and Railroad Co. v. Moore, 160 Ill. 9, 43 N. E. 364.

It is, however, contended by defendant that, at the time of the commencement of the suit, it had been in possession, under claim and color of title made in good faith, for more than seven successive years, and had during all that time paid all taxes legally assessed on said lands, and was therefore entitled, under the statute, to be adjudged the legal owner; and this defense seems to have been sustained by the circuit court. Plaintiff does not dispute that defendant took actual possession of the lands, respectively, in the fall of 1882 and in 1885, and continued in such possession until this suit was brought by him, in the fall of 1895; but he contends (1) that defendant did not have such possession under claim and color of title made in good faith, and (2) that it did not during such possession pay all taxes legally assessed upon the premises for seven successive years.

The strips in question were assessed for taxes as parts of the lots of which they appeared to form a part; that is, the lots were assessed, and these strips were parts of them, and these taxes seemed to have been paid by the owners of the lots. It was proved by the plaintiff that he paid the taxes on lots 37, 42, and 44 from 1882 to 1895, inclusive, and he gave in evidence tax receipts showing such payment except for the years 1888 and 1892. The defendant company paid none of these taxes so assessed, but did pay 7 per cent. of its gross earnings, under the provisions of its charter, which it claims included all taxes which were or could be lawfully assessed against the property. The charter of defendant in error (Laws...