Peoria & P.U. Ry. Co. v. Tamplin

• Decision Date: 15 May 1895
• Citation: 156 Ill. 285,40 N.E. 960
• Court: Illinois Supreme Court
• Parties: PEORIA & P. U. RY. CO. v. TAMPLIN et al.

156 Ill. 285

40 N.E. 960

PEORIA & P. U. RY. CO.

v.TAMPLIN et al.¹

Supreme Court of Illinois.

May 15, 1895.

Appeal from circuit court, Peoria county; N. W. Green, Judge.

Ejectment by Miranda Tamplin, George R. Tamplin, Emma Parr, John Tamplin, Mary S. Tamplin, and Cemma Shepherd against the Peoria & Pekin Union Railway Company. Plaintiffs obtained judgment. Defendant appeals. Reversed.

Stevens & Horton, for appellant.

J. A. Cameron and H. W. Wells, for appellees.

MAGRUDER, J.

This is an action of ejectment, begun on January 27, 1893, by Miranda Tamplin, the widow, and John Tamplin and others, the children and heirs, of one Benjamin Tamplin, deceased, who died on December 8, 1892, against the appellant company, to recover the possession of a strip of ground from 10 to 15 feet wide next to and outside of a fence built by the Tamplins to separate from the railroad tracks the portion of lots 9, 10, 11, 12, and 13, in block 1, Lower Peoria, occupied by them. The case was tried twice. Before the retirement of the jury on the first trial the suit was dismissed as to Miranda Tamplin, the widow, and the prosecution of it was continued in the names of the heirs. The first trial resulted in a verdict for plaintiffs, which was set aside, on motion of the defendant, in December, 1893. The second trial, in May, 1894, again resulted in verdict for the plaintiffs, finding them to be the owners in fee of the premises described in the declaration, and that the defendant was guilty of wrongfully taking and withholding the possession thereof from the plaintiffs. Motion for new trial was overruled, and judgment rendered in accordance with the verdict, and for costs against the defendant. The present appeal is prosecuted from such judgment.

Of the five lots above named, lot 9 is the most easterly and lot 13 the most westerly. All of them front south on Center street, each having a frontage of about 58 feet on said street and a depth to the north of about 225 feet; and the east line of lot 9 fronts on Hamilton street, its southeast corner being on the corner of Hamilton and Center streets, Hamilton street running north and south, and Center street east and west. Three railroad tracks run from the southwest to the northeast across said lots. The first is the main track of the Chicago, Burlington & Quincy Railroad Company; the next is the main track of the appellant company, originally known as the Peoria, Pekin & Jacksonville Railroad Company, lying south of the Chicago, Burlington & Quincy track, and parallel with it, and running from the southwest corner of lot 13 towards, and a little to the north of, the northeast corner of lot 9; the third track is a side track of the appellant, laid in November, 1891, parallel with, and south of, its main track, and running in the same general direction. Still further to the south, parallel with the side track in question, and running from the southwest to the northeast, is the fence which inclosed the premises of the appellees when this suit was begun. The portion of the fence passing through lots 9 and 10 is about 45 feet distant from the center of the Chicago, Burlington & Quincy track. The portion thereof passing through lots 11, 12, and 13 varies slightly from that distance. The distance between the main track of the Chicago, Burlington & Quincy Railroad Company and the main track of appellant is about 20 feet. The space between appellant's main track and the fence in question is about 23 feet, or perhaps a little more. When the side track was laid in this space, in November, 1891, the whole of the space was north and outside of the fence. There is something over 12 feet between appellant's main track and side track, and something over 9 feet between the side track and the fence. The strip in controversy, as we understand it, includes the side track and the space between it and the fence. The appellant company claims to own a piece of ground, running from the southwest to the northeast across said lots, which is 25 feet in width, the north line of which is about 20 feet south of the center of the Chicago, Burlington & Quincy track, and the south line of which is the fence of the appellees, and upon which have been located its main and side tracks, with the usual railroad ditch and embankment and other evidences of ownership.

The only title upon which the plaintiffs below (appellees here) sought to recover is a title alleged to have been acquired by an adverse possession of 20 years of the premises in controversy. They introduced no deed of lots 9 and 10; and the only deed of lots 11, 12, and 13 produced by them is a deed dated April 27, 1869, executed by Thomas H. Powers and wife to Benjamin V. Tamplin, conveying so much of said lots 11, 12, and 13 ‘as lies on the lower side and southeast of the Toledo, Peoria and Warsaw, the Peoria, Pekin and Jacksonville, and the Chicago, Burlington and Quincy (formerly Peoria and Oquawka) Railroads, and the right of way belonging to the same.’ What title Powers had is not shown. To show title on its part, the defendant below (appellant here) introduced a deed dated August 2, 1864, executed by Benjamin V. Tamplin and his wife to the Peoria, Pekin & Jacksonville Railroad Company (whose successor the appellant is), conveying, in consideration of $700, ‘part of lots numbered nine (9) and ten (10) in block number one (1) in the town of Lower Peoria, beginning at the northeast corner of said lot number nine, and extending thence southwesterly to the west line of said lot ten (10), with a width of twenty-five feet, lying adjoining and parallel with the land of the Chicago, Burlington & Quincy Railroad, the nearest part of the land herein conveyed being twenty feet distant from the center line of said C., B. & Q. Railroad, being part of the same land deeded by George Woodruff to Miranda Tamplin, who in this deed relinquishes all her right, title, and interest therein.’ This deed was acknowledged by Tamplin and his wife on September 5, 1864, and recorded on September 8, 1864. It was, of course, unnecessary for the defendant to trace title to lots 9 and 10 any further back than Benjamin V. Tamplin and his wife, because the plaintiff also claimed under said Tamplin by reason of a title by adverse possession of 20 years, alleged to have been acquired by Tamplin in his lifetime. Defendant then introduced a deed dated December 3, 1864, executed by Edward J. Cowell and Mary R. Cowell, his wife, conveying, in consideration of $330, ‘parts of lots numbered eleven (11) and twelve (12) and thirteen (13) in block numbered one (1) in Lower Peoria, being a strip of ground twenty-five (25) feet in width running across each of the above-mentioned lots, parallel with and adjoining the ground owned by the Chicago, Burlington and Quincy Railroad Company, beginning on the southeasterly side of said Chicago, Burlington and Quincy Railroad Company's land, at a distance of twenty (20) feet from the center line of said road, and extending southeasterly twenty-five (25) feet.’ This deed was acknowledged by the grantors on the day of its date, and recorded on the next day. The defendant then showed title in Edward J. Cowell by a regular chain of conveyances from the government.

It would seem as though the title thus shown by the defendant established its ownership of the land, unless the plaintiffs could sustain their claim that their ancestor had acquired title after executing the deed of 1864 by an adverse possession of 20 years. But counsel for appellees make certain objections to the deeds of appellant which require notice. The circumstances under which the deed of 1864 from Tamplin and his wife to appellant's predecessor was executed are these: In 1864 the main track of the Chicago, Burlington & Quincy Railroad Company was already laid across the lots in question. Thomas S. King, the chief engineer who constructed the Peoria, Pekin & Jacksonville Railroad, conducted the negotiations for the purchase from Benjamin V. Tamplin of a strip of ground 25 feet wide adjoining the land of the Chicago, Burlington & Quincy Company on the south, and running parallel with the track of that road from the southwest to the northeast. He says that Tamplin and his wife claimed, in 1864, to own that part of the lots lying southeasterly of the Chicago, Burlington & Quincy track and 20 feet from it; that they ‘claimed to own to within 20 feet of the center of the C., B. & Q. Railroad tracks as then located and used’; that he had understood the land of the Chicago, Burlington & Quincy Company to extend 25 feet from the center of its track, and accordingly had drawn the deed to be signed by Tamplin without the clause, ‘the nearest part of the land herein conveyed being 20 feet distant from the center line of said C., B. & Q. Railroad’; but that on account of Tamplin's claim that such land extended only 20 feet from the center line of the track, and in order to settle the matter, and end the negotiation, he inserted the clause just quoted in the deed while he and Tamplin were upon the ground examining the boundaries; so that the northern line of the strip 25 feet wide then purchased was 20 feet from the center of the Chicago, Burlington & Quincy track, and the southern line of said strip was 45 feet from the center of said track. If this explanation is correct, the southern line of the strip then bought of Tamplin is substantially one with, and the same as, the fence of the appellees as at present located. Counsel for appellees contend that the word ‘railroad’ in the clause above quoted does not mean railroad track, but railroad right of way, so that the nearest part of the land conveyed, or the northern or northeasterly line of the 25-foot strip, would be distant 20 feet from the center line of the Chicago, Burlington & Quincy right of way. It is then claimed by counsel that the right of way was only 40 feet wide, and that 33 feet thereof were north of the center of the track, and...