Illinois Cent. R. Co. v. Houghton

• Decision Date: 27 September 1888
• Parties: ILLINOIS CENT. R. CO. v. HOUGHTON et al.
• Court: Illinois Supreme Court

126 Ill. 233

18 N.E. 301

ILLINOIS CENT. R. CO.

v.HOUGHTON et al.

Supreme Court of Illinois.

September 27, 1888.

Appeal from circuit court, McLean county; OWEN T. REEVES, Judge.

Williams & Capen, for appellant.

A. E. De Mange, for appellees.

BAILEY, J.

This was an action of ejectment, brought by the Illinois Central Railroad Company against Stephen Houghton and James Houghton, to recover two strips of land, each 50 feet in width, the one 70 and the other 80 rods in length, being a part of section 22, township 23 N., of range 2 E., in McLean county, and adjoining, the one on the east and the other on the west, the strip of land 100 feet in width heretofore occupied by the plaintiff as its right of way. The trial, which was had before the court without a jury, resulted in a finding and judgment in favor of the defendants, and the plaintiff brings the record to this court by appeal.

On the 29th day of April, 1852, as seems to be conceded, William Walker was the owner in fee of the 80-acre tract which includes the two tracts in controversy. The plaintiff's proof of title consists of a deed executed by said Walker and wife, dated April 29, 1852, conveying to the plaintiff ‘for the purpose of constructing, maintaining, and operating thereon a single or double track railroad, with all its necessary appurtenances, and for all uses and purposes connected with the construction, repair, maintenance, and complete operation of said railroad, the right of way over and through said tract,’ said right of way to comprise land of the width of 100 feet on each side of said railroad; to have and to hold the same to the plaintiff and its successors and assigns forever, ‘for all lawful uses and purposes incident to a full and indefeasible title in fee-simple, or in any way connected with the construction, preservation, occupation, and sole enjoyment of said road and lands, of the width aforesaid.’ The deed also contained a covenant on the part of the plaintiff to erect and maintain such lawful fences as would divide the lands occupiedby the plaintiff from the adjoining lands on each side, and as far as possible prevent intrusion upon or passage across the lands and railroad occupied by the plaintiff. It appears that the plaintiff, shortly after the execution of this deed, erected substantial post and board fences, so as to inclose its right of way of the width of only 100 feet, leaving the two strips of land now in controversy outside of its fences. Walker joined his farm fences with the fences inclosing the railroad, and occupied and used said two strips of land the same as he did the residue of his farm; and the evidence tends to show that he did so claiming to be the owner. Said land was partly under cultivation, partly in grass, and in part covered with timber, and Walker cut some of the timber and grazed and cultivated the land not covered with timber, and continued in possession of the land as a part of his farm until November 28, 1855, at which time he conveyed it to George and James Park; said conveyance being by its terms made ‘subject to the right of way of the Illinois Central Railroad Company, as heretofore deeded by said party of the first part to said railroad company.’ George and James Park went into possession under said deed, and used the land the same as Walker had done. James Park died, and John E. Park, his sole heir at law, conveyed his interest in the farm to George Park, by deed dated March 18, 1869. George Park continued in possession until 1871 or 1872, when he died, leaving several heirs. On the 28th day of June, 1873, the administrator of George Park sold and conveyed that portion of the farm west of the railroad to Stephen Houghton in pusuance of an order of the county court of McLean county, and prior to making such sale the administrator had the land surveyed up to the railroad fence, and sole it all to Houghton by the acre. Houghton and his son James took immediate possession of the land under said deed, and have ever since been in possession of the same, claiming to own it. They have also during the same time been in possession of the strip of land on the east said of the railroad as tenants of the heirs of George Park, having rented that portion of the farm east of the railroad. The railroad fences remained where they were originally built from 1853 down to some time in the year 1886. On several occasions during that time, fire from the railroad engines burned down portions of said fences, and also destroyed the cross-fences and crops on the land in controversy, and the plaintiff on each occasion rebuilt the railroad fences, and paid the adjoining proprietors the damages done upon said lands. In 1886 the plaintiff took down said railroad fences, and erected new fences 50 feet further from its railroad track; thus entering and taking possession of the land in controversy. Stephen Houghton thereupon brought his action of forcible entry and detainer, and recovered possession of said land, and then the plaintiffs brought this suit.

By the declaration the plaintiff claims an estate in fee, and as the evidence tends only to establish the plaintiff's title to an easement in the premises sued for in the nature of a right of way, it is urged that no recovery could be had, upon the principle...