Superior Oil Co. v. Harsh, Civ. No. 141-D.

• Court: U.S. District Court — Eastern District of Illinois
• Writing for the Court: LINDLEY
• Citation: Superior Oil Co. v. Harsh, 39 F.Supp. 467 (E.D. Ill. 1941)
• Decision Date: 01 July 1941
• Docket Number: Civ. No. 141-D.
• Parties: SUPERIOR OIL CO. v. HARSH et al.

39 F. Supp. 467

SUPERIOR OIL CO. v. HARSH et al.

Civ. No. 141-D.

District Court, E. D. Illinois.

July 1, 1941.

W. B. Wagner and J. P. Adoue, both of Houston, Tex., and Charles Wham and John P. Wham, both of Centralia, Ill., for plaintiff.

Russell Wilson, of Centralia, Ill., and Acton, Acton, Baldwin & Bookwalter, of Danville, Ill., for defendants.

LINDLEY, District Judge.

Plaintiff sues to enjoin defendants from operating an oil well upon the schoolhouse site located in the southwest corner of a tract of 12.17 acres, which latter tract is part and parcel of a larger one of 149 acres upon which plaintiff has an oil and gas lease from the record holder of the title. Defendants include the three school trustees and Harsh, Minton, Jobe and Somers, all interested in a later oil and gas lease of the school site executed by the trustees. Plaintiff relies upon the record title in its grantor. Defendants insist that the trustees are vested with complete title to the school site, which includes approximately six-tenths of an acre, either by virtue of (1) a deed from the prior owner now lost or (2) a presumption of an ancient grant arising from the circumstances involved; or (3) adverse possession. Plaintiff replies that the possession relied upon has not been adverse or hostile in the degree required by the statutes of Illinois to establish title against the record title owner; that there is no evidence of a lost deed and nothing to justify a presumption of an ancient grant; that if the trustees ever procured any title, it was a limited one which did not include the oil and gas and that defendants, now drilling on the school site, are trespassers.

The specific tract of 12.17 acres upon which the school site is located originally belonged to Stephen Fitzgerald and then to his sons, Charles, Edward and John, then, subsequent to 1887, to Charles and Edward, until partition of the estate between them in 1892. About 1886 School District 5, now known as 95, was organized, the effective proceedings apparently being completed on April 5, 1886, by the Board of Trustees, of which Charles was then president. The Board at that time acted favorably upon the petition of John and others for formation of the District. Sometime in 1886 a small schoolhouse had been erected in the extreme corner of the tract at a cost of $377. Bills for construction were paid in August and September, 1886. After completion of the building, a water well was driven, and a coal shed and two outside toilets were erected near the schoolhouse. These buildings have ever since been kept in repair and used by the District in the maintenance of a country school. They have been used also for only the additional and incidental purposes contemplated by the then controlling statute, Chap. 122, Cothrans 1881 Ill.Rev.Stats. Sec. 39, providing that the trustees "may grant the temporary use of school-houses, when not occupied by schools, for religious meetings and Sunday Schools and for literary societies and for such other meetings as the directors may deem proper."

Some time after erection of the buildings, fences were built on the north and east sides of the site, — apparently by the landowner, to restrain his live stock from entering upon the school yard, and the evidence does not disclose that the trustees took any part in their construction or maintenance. Many years ago they disappeared. However, it seems that brush has grown irregularly along and near the sides of the site and defendants, subsequent to commencement of the controversy between the parties, caused a survey to be made, fixing the boundary lines upon the uncertain and indefinite evidence of the growing shrubs and brush, placing monuments at the corners. A public road on the south and a private one on the west abut the site.

There is no deed of record to the trustees, indeed, no proof that a deed for the school site was ever executed. During the entire existence of the District, the site has not been excepted from the tract on the tax books, and the owners of the record title of the larger tract have paid the taxes assessed against all of it including that part occupied by the school. The taxes paid have included those for maintenance of this school, and, these under the statutes, have been collected by the treasurer for the trustees. There is no evidence of any controversy between the School District and the owners as to title to the school site until after the discovery of oil in this territory and the drilling of wells by plaintiff under its lease.

The records of the trustees disclose an attempt to organize the District in 1874 and its culmination in 1886, upon the petition of John Fitzgerald and others. At a meeting of the Board held April 5, 1886, at which Charles Fitzgerald, president, presided, the Board ordered that the petition be granted. On April 16, 1886 the Board found that the objectors had failed to perfect any appeal. On April 12, 1887, Charles Fitzgerald's term of office having expired, the treasurer was instructed by the Board to notify the owner of the land on which the school site was located "to make proper deed" to the Board and on April 7, 1890, the Trustees directed that the president of the Board "see an attorney" and learn what proceedings could be had "to secure title to the schoolhouse site" in District 5.

There was no evidence of execution or delivery of a deed or of further action looking to procurement of a conveyance. Defendants offered the testimony of a former director of the District, to the effect that he had received from a predecessor certain records which he kept in his house; that amongst these was a paper marked "deed"; that he never examined it and did not know its contents and that later the records were destroyed by fire. There is no evidence that this paper was a deed; that it was ever executed, or that it included a conveyance of this or any other land. In this situation, the record is wholly insufficient to support a finding that any formal title by way of deed was ever conveyed to the trustees. As said in Shipley v. Shipley, 274 Ill. 506 at 513 to 515, 113 N.E. 906, parol testimony regarding a deed's existence and contents must be clear and convincing. Every principle of public policy demands that proof of its former existence, its loss and its contents must be conclusive before a court will be justified in recognizing title, depending upon parol testimony, to property which the law requires shall pass only by deed or will. The Illinois court announced that proof of the contents must be so clear and positive as to leave no reasonable doubt of the substance of the material parts of the paper, and commented that it is futile if there is no evidence as to whether the paper bore a seal. The evidence before the court was not clear as to the conditions and provisions of the deed or as to what land was included; consequently, the court held the evidence insufficient to establish a deed. So here, no presumption or inference arises from the fact that a paper bearing the word "deed" was at one time amongst certain records of the school directors, who in Illinois have no title to school property. Carter Oil Company v. Liggett, 371 Ill. 482, 21 N.E.2d 569.

Plaintiff's oil and gas lease from the record owner was dated December 22, 1938. Under it the plaintiff has drilled and completed sixteen producing oil wells so located as adequately to drain all land included in the tract upon which the school site is located. On September 17, 1940, the trustees executed and delivered to Minton and Jobe a lease for the oil and gas in the school site. This lease was recorded March 4, 1941, after plaintiff had drilled and completed the first well upon the premises leased to it. Minton and Jobe have assigned to Harsh, with certain reservations. The consideration for the later lease was $10 in cash with the further agreement to pay $90 and deliver a royalty interest in the oil produced. The $90 was to be paid after the title in the trustees should be established. Obviously the latter recognized the dubious character of their title as they stipulated that the lessees assume the obligation "to clear the title" without expense to the District. Following this, on March 5, 1941, Harsh procured the survey heretofore mentioned and still later entered upon the...