Mitchell v. Chicago, B.&Q. Ry. Co.

• Decision Date: 04 December 1914
• Docket Number: No. 9502.,9502.
• Citation: 106 N.E. 833,265 Ill. 300
• Court: Illinois Supreme Court
• Parties: MITCHELL et al. v. CHICAGO, B. & Q. RY. CO.

265 Ill. 300

106 N.E. 833

MITCHELL et al.

v.CHICAGO, B. & Q. RY. CO.

No. 9502.

Supreme Court of Illinois.

Oct. 16, 1914.

Rehearing Denied Dec. 4, 1914.

Appeal from Circuit Court, Rock Island County; R. W. Olmsted, Judge.

Ejectment by Phil Mitchell and others against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.Walker, Ingram & Sweeney, of Rock Island, and Wm. D. Barge, of Chicago (C. M. Dawes and J. A. Connell, both of Chicago, of counsel), for appellant.

J. T. Kenworthy and S. R. Kenworthy, both of Rock Island, for appellees.

CARTWRIGHT, C. J.

This suit in ejectment was begun in the circuit court of Rock Island county by Phil Mitchell, William C. Wadsworth, and Mary H. Wadsworth, executors of the will of Philemon L. Mitchell, deceased, against the appellant, the Chicago, Burlington & Quincy Railway Company. The declaration alleged possession of lots 3 and 4 in block 1 in old (or original) town of Stephenson, now the city of Rock Island, and title in fee, and that the defendant entered into possession and unlawfully withheld the possession thereof. The plea was not guilty and the case was tried without a jury. During the trial it appeared that William C. Wadsworth died before the suit was begun, and the appellees, Phil Mitchell and Mary H. Wadsworth, were continued as plaintiffs. Lots 3 and 4 have a frontage of 160 feet on the south side of First avenue, in the city of Rock Island, formerly known as Mississippi, Water, or Front street, and there was no evidence that the defendant had interfered with the possession of the lots or claimed any title thereto, but the suit was brought to recover a portion of First avenue of which plaintiffs claimed to own the fee subject to the public easement, on the ground that they had title to the center of the street. There was a street on the west side of lot 4, and the plaintiffs claimed title to the center of that street. The court found the issue for the plaintiffs and entered judgment in their favor for a part of the avenue 200 feet long east and west, 106 1/2 feet wide on the west end, and 88 1/2 feet at the east end, in front of lots 3 and 4 and extending to the center of the other street.

A history of the laying out and planting of the town of Stephenson is contained in the opinion in Davenport & Rock Island Bridge Railway & Terminal Co. v. Johnson, 188 Ill. 472, 59 N. E. 497. That was a suit to enjoin the building of a railroad embankment along the Mississippi river, with railroad tracks thereon in the street, by a corporation which had not obtained, by condemnation or otherwise, any right to appropriate the land for railroad purposes. It was there decided that when the town of Stephenson was laid out and platted the fee of the street remained in the county of Rock Island, and that the owners of lots fronting on the south side of the street owned the fee to the center of the street subject to the public easement, and decress granting the relief prayed for were affirmed.

[1][2][3] The plaintiffs introduced evidence to prove a connected chain of title from the United States to Philemon L. Mitchell, and also evidence of his last will and testament directing the plaintiffs, as executors, to sell and convey his real estate and to distribute the proceeds. Both parties offered evidence of the payment of taxes; the payments proved by the plaintiffs being of taxes on lots 3 and 4, and the payments proved by the defendant being of taxes on the railroad property in the street. Objections were made to the various items of evidence concerning title and payment of taxes, but, on each objection being made, the ruling was reserved and no ruling was afterward made, so that no ruling of court on the admission of evidence can be considered, and the only question before us is whether the competent evidence sustains the judgment. The evidence for the plaintiffs that the taxes had been paid on lots 3 and 4 was incompetent on the issue being tried, because the plaintiffs were not in actual possession of the premises in question and they were not vacant and unoccupied during the period for which taxes were paid. The evidence of payment of taxes by the defendant was incompetent for want of any color of title to the fee; the paper title being to an easement only. No objection to the evidence of record title in the plaintiffs is pointed out in argument except as to a matter of description in one deed, which we do not regard as well founded, and our conclusion is that the plaintiffs proved ownership of the fee in the street adjacent to the lots to the center thereof, covering the portion of the street in controversy. It is not claimed that the plaintiffs could not maintain the suit by virtue of the will if Philemon L. Mitchell owned the fee at the time of his death, in 1895.

The defense made at the trial was that the action was barred by the statute of limitations of 20 years, under the following state of facts: In 1856 the city council of the city of Rock Island passed an ordinance granting to the Rock Island & Peoria Railroad Company permission to construct, maintain, and use one railroad track through and along Water street over the premises in question, and in 1857 that corporation entered upon the premises and built its railroad, which has been in operation since that time. That corporation was called, at different times, Rock Island & Peoria Railroad Company and Rock Island & Peoria Railway Company; the words ‘railroad’ and ‘railway’ being used to designate the same corporation. The premises granted by the ordinance were occupied and used for railroad track and railroad purposes by that corporation until 1877, when the entire railroad, branches, tracks, right of way, depot grounds, and other lands and property were sold under a decree of the Circuit Court of the United States for the Northern District of Illinois on the foreclosure of mortgages made by the corporation. The sale was approved, and on December 12, 1877, the master in chancery of said court conveyed the property sold to the Rock Island & Peoria Railway Company-a corporation then recently organized. The grantee entered into possession and operated the railroad. On each transfer possession was taken by the purchaser, and the railroad was continuously operated over the premises from the time of the first entry, in 1857, up to the commencement of this suit, on December 21, 1910. The Rock Island & Peoria Railway Company occupied and used the premises and track from the date of the deed to it up to the year 1898, when the defendant acquired the track and premises by an exchange of tracks, as hereinafter stated, and entered into the possession and use thereof. On May 26, 1869, the city council of the city of Rock Island passed an ordinance granting to the Rockford, Rock Island & St. Louis Railroad Company the right to construct, maintain, and use double tracks in the street, and also granted the said company grounds for depot and other railway purposes not included in the premises in controversy, for which the railroad company was to pay $200 annually to the city. In 1870 the Rockford, Rock Island & St. Louis Railroad Company entered upon the street and constructed its double tracks, which have been possessed and used ever since that time for railroad purposes. That corporation operated the railroad, and on July 13, 1875, the Circuit Court of the United States for the Northern District of Illinois entered a decree of foreclosure against that corporation with an order of sale of its property by the master in chancery of the court to satisfy the same. The master in chancery made the sale to Heyman Osterburg, trustee for the bondholders, and conveyed the same to him on May 18, 1876. On the same day Osterburg conveyed the railroad and property to the St. Louis, Rock Island & Chicago Railway Company, which leased the railroad to the Chicago, Burlington & Quincy Railroad Company. In 1898 the St. Louis, Rock Island & Chicago Railway Company, and its lessee, the Chicago, Burlington & Quincy Railroad Company, and the Rock Island & Peoria Railway Company, desired to make a trade or transfer of tracks for their mutual interest and convenience, and agreed that the Rock Island & Peoria Railway Company should transfer to the St. Louis, Rock Island & Chicago Railway Company, and its lessee, the Chicago, Burlington & Quincy Railroad Company, the main track in the street opposite lots 3 and 4, in consideration of which the defendant and its lessor were to turn over and transfer to the other corporation their two local tracks in front of these lots. The city council passed an ordinance for the transfer under a...