Illinois Cent. R. Co. v. Wakefield

• Decision Date: 18 June 1898
• Citation: 173 Ill. 564,50 N.E. 1002
• Parties: ILLINOIS CENT. R. CO. v. WAKEFIELD.
• Court: Illinois Supreme Court

173 Ill. 564

50 N.E. 1002

ILLINOIS CENT. R. CO.

v.WAKEFIELD.

Supreme Court of Illinois.

June 18, 1898.

Appeal from circuit court, McLean county; Colostin D. Myers, Judge.

Ejectment by John E. Wakefield against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boggs, J., dissenting.

Williams & Capen, for appellant.

Sample & Morrissey, for appellee.

WILKIN, J.

This is an action of ejectment begun by appellee against appellant in the court below, to recover a strip of land 50 feet wide and 50 rods long, lying parallel to and abutting upon the right of way of the appellant railroad company. To the declaration the defendant pleaded the general issue. By agreement of parties a jury was waived, and the case tried before the court. From a judgment in favor of plaintiff this appeal is prosecuted.

The evidence taken upon the hearing shows that the land in controversy is a part of a section donated to appellant by the state of Illinois, under the act of the legislature of February 10, 1851, granting to it its charter. The state derived title to the same from the general government by an act of congress of September 20, 1850 (9 Stat. 466), being ‘An act granting the right of way and making a grant of land to the states of Illinois, Mississippi and Alabama in aid of the construction of a railroad from Chicago to Mobile.’ Appellant, in 1852 or 1853, after filing a plat pursuant to the terms of its charter, showing its right of way, and reserving a strip 100 feet wide on each side of the center of its track, conveyed to Campbell Wakefield, father of appellee, the land abutting on the strip in controversy. About the same time it built a fence on its right of way on a line 50 feet distant from the center of its track. In 1885 it began the removal of the fence to the line 100 feet distant from the center of its track, where it has since remained and now stands in a partially completed condition. During the intervening 32 or 33 years between 1852 or 1853 and 1885 the 50 feet between the lines of the old and new fences was in the actual, visible, and exclusive possession of Campbell Wakefield, who farmed it in connection with his abutting land, and treated it as a part of his farm. It is to recover possession of that strip that this action is brought. A short time before the removal of the fence to the 100-foot line the section foreman of appellant informed Campbell Wakefield of the company's intention to make the removal, and he testifies that thereupon Wakefield went to his house, and shortly afterwards returned, saying, in substance, his deed did not give him the land; that he did not own it, and they might build the fence on the 100-foot line. The new fence was only partly built at that time, but about two years later work was again commenced, whereupon appellee, who, as the sole heir of Campbell Wakefield, had inherited the land, forbade the fence being built, and appellant desisted.

The position of appellant that the land was a part of its right of way, and as such declared by congress to be a public highway, and therefore the statute of limitations could not run against it, is untenable. By its charter it became the owner of the land in fee simple. It was not compelled to include it in its right of way nor to maintain it as such. The cases cited as supporting the position are inapplicable to the case at bar. This is not a question of a right of way through government land, as was the case in the authorities cited.

That Campbell Wakefield acquired title to this strip of land by adverse possession for more than 20 years cannot be denied. This question, and many others presented by this record, have been fully considered and decided in previous cases in which the appellant was a party, and the...