Keen v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 17 January 1946
• Docket Number: No. 29113.,29113.
• Citation: 392 Ill. 362,64 N.E.2d 499
• Parties: KEEN et al. v. CLEVELAND, C., C. & ST. L. RY. CO. et al.
• Court: Illinois Supreme Court

392 Ill. 362

64 N.E.2d 499

KEEN et al.

v.CLEVELAND, C., C. & ST. L. RY. CO. et al.

No. 29113.

Supreme Court of Illinois.

Nov. 21, 1945.

Rehearing Denied Jan. 17, 1946.

Appeal from Circuit Court, Wabash County; Roy E. Pearce, judge.

Action by Helen B. Keen and others against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and others, involving the ownership of the oil and gas under a strip of ground occupied by defendant named as its right of way and seeking to enjoin defendants from drilling or operating oil wells on the land involved and for an accounting for oil which had been produced therefrom. Decree for plaintiffs and defendants appeal.

Reversed and remanded with directions.

P. J. Kolb and Walter F. Kolb, both of Mt. Carmel, Maynard H. Motz, of East Alton, and A. K. Swann, of Evansville, Ind. (S. C. Murray, of Chicago, of counsel), for appellants.

George W. Lackey, of Lawrenceville, and Charles A. Orr and Maurice Weinberger, both of Kansas City, Mo., for appellees.

SMITH, Justice.

This is an appeal from a decree of the circuit court of Wabash county. The controversy involves the ownership of the oil and gas in and under a strip of ground occupied by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, as its right of way through a part of the west half of section 9, township 2 south, range 13 west, in Wabash county. The plaintiffs, who are appellees here, are the heirs at law and devisees of Ornamil H. Keen, deceased. They claim title under him, as such heirs and devisees.

The defendants, who are appellants here, claim title under two deeds executed by Ornamil H. Keen to the Cairo & Vincennes Railroad Company. The appellant Cleveland, Cincinnati, Chicago & St. Louis Railway Company claims title in succession as grantee of the Cairo & Vincennes Railroad Company. The New York Central Railroad Company is the operating lessee of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Appellant F. W. Olin is the owner of an oil and gas lease executed by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and the New York Central Railroad Company, under which he had drilled certain oil wells upon the strip of land involved and is producing oil therefrom. The other defendants are alleged to be purchasers of oil produced from said land by Olin.

It was alleged in the complaint that the defendants claimed title under a deed executed by Ornamil H. Keen to the Cairo & Vincennes Railroad Company on January 4, 1872. It was further alleged that said deed conveyed only an easement for the construction, maintenance and operation of a railroad over the lands involved. To the complaint appellants filed an answer in which they not only claimed title under the deed from Ornamil H. Keen dated January 4, 1872, but also under a prior deed executed by Keen to the Cairo & Vincennes Railroad Company on October 12, 1867. They alleged that the railroads acquired the land as successors in title of the grantee in that deed; that said deed was ratified and any prior defaults thereunder were waived by the deed of January 4, 1872. To this answer appellees filed a reply. In their reply they alleged that the deed of October 12, 1867, contained a provision that if the grantee therein named ‘fails to complete its railway through said lands within three years from the date hereof, then the title to said real estate is to revert and reinvest in the grantors.’ They then alleged that there was a breach of this provision; that the railroad was not completed within three years from October 12, 1867, and that because of such default the title reverted to, and reinvested in, the grantors in said deed. In the reply appellees again alleged that the deed of January 4, 1872, conveyed only an easement.

The prayer of the complaint was that the oil and gas lease, executed by the railroad companies to Olin, be cancelled; that appellants be enjoined from drilling or operating oil wells on the land involved, and that they be required to account to appellees for all oil which had been produced therefrom. Upon a hearing, a decree was entered granting the prayer of the complaint. Appellants, who were the defendants in the court below, perfected the appeal to this court for the purpose of reversing that decree.

It is the contention of appellants that the Cairo & Vincennes Railroad Company acquired fee-simple title to the strip of land in question under the deed of October 12, 1867; that the provision in said deed, providing that if the railroad was not completed within three years from the date thereof, was a condition subsequent which required for its exercise a declaration of forfeiture and a re-entry by the grantors. They further contend that at the time be second deed was executed on January 4, 1872, the only right the grantor in that deed had in the land was the right to declare a forfeiture and, upon such declaration being made, to a reversion and the right of re-entry; that by the execution of the second deed on January 4, 1872, the grantor, Ornamil H. Keen, who was then the sole owner of the right to declare a forfeiture and to re-enter upon said lands, waived the right of forfeiture and re-entry. They further claim that entirely aside from any rights which the Cairo & Vincennes Railroad Company acquired under the deed of October 12, 1867, it acquired fee-simple title to the strip of land involved under the deed of January 4, 1872, and that the Cleveland, Cincinnati, Chicago & St. Louis Railway Company is now the owner of the right of way, in fee simple, under its deed from the Cairo & Vincennes Railroad Company. The deed of January 4, 1872, covered, in part, the lands described in the deed of October 12, 1867, and also included other lands. It covered all the land involved in this suit.

Appellees contend that the provision in the deed of October 12, 1867, requiring the completion of the railroad within three years, was a conditional limitation; that upon the failure of the grantee to complete the railroad within three years from the date of that deed, the lands reverted to, and the title reinvested in, the grantors without any declaration of forfeiture, re-entry or other action on their part; that there having been a failure to complete the railroad within the time limited by that deed, the railroad companies claiming under the Cairo & Vincennes Railroad Company have no title, and that said deed must be wholly disregarded. They further contend that the second deed, executed by Ornamil H. Keen to the Cairo & Vincennes Railroad Company, on January 4, 1872, only conveyed an easement for right of way and did not operate as a conveyance in fee simple so as to convey the oil and gas in and under said strip of land.

Considerable portions of the briefs on both sides have been devoted by counsel to the question of whether the provision in the deed of October 12, 1867, that if the railroad was not completed within three years the estate should revert to, and reinvest in, the grantors, was a conditional limitation, upon the violation of which the title would revert and reinvest in the grantors without a declaration of forfeiture and a re-entry or other action on their part, or whether it was a condition subsequent which would require a declaration of forfeiture and re-entry to terminate the estate. Much space is also devoted to the question of whether there is sufficient evidence in the record to show that the railroad was not constructed within the period limited by said deed. From the fact that two deeds were executed conveying the same land, the inference, at least, arises that the construction of the railroad was temporarily abandoned after the first deed was made, and that when it was determined to go ahead with the project the new deed was procured because of the forfeiture provision in the prior deed. But, be that as it may, as we view the record, those questions are not decisive and may be entirely disregarded. In the view we have taken of the case it will be necessary to consider only the estate conveyed by the second deed. That deed, in so far as material, is as follows: ‘Ornamil H. Keen of the County of Wabash and State of Illinois, for and in consideration of the advantages which may result to the public in general, and myself in particular, by the construction of The Cairo & Vincennes Railroad, and for the purpose of facilitating the construction and completion of said work, and in further consideration of One Dollar, in hand paid by the Cairo & Vincennes Railroad Company, do hereby release, relinquish and forever quitclaim to the said company, a piece of land one hundred feet in width, being fifty feet on the east side, and fifty feet on the west side of the center of the line heretofore surveyed and established by the Illinois Southern Railroad Company for so much of said Cairo & Vincennes Railroad as may pass through the following described land, lying and being in the County of Wabash and State of Illinois, to-wit: * * * and as I believe that the construction and operation of said Railroad will be a personal as well as public benefit, I hereby release and relinquish all claim for damages, by reason of the location, construction and operation of said Railroad, through or upon any part of the real estate or land described as aforesaid.’

Appellees concede that this deed purports to convey ‘a piece of land one hundred feet in width’, and that it is not, upon its face by words, limited to the conveyance of an easement for a railroad right of way. They claim, however, that certain clauses contained in the deed indicate an intention to convey only an easement and not the feesimple title.

It will be noted that this deed is in form a statutory quitclaim deed. The rule is that a quitclaim deed is as effective to convey fee-simple title as a warranty deed, unless it appears from the deed itself that it was intended to convey a lesser estate. Morris v. Goldthorp, 390 Ill. 186, 60 N.E.2d 857; Il...