Tallman v. Eastern Illinois & Peoria R. Co.

• Decision Date: 13 May 1942
• Docket Number: No. 26518.,26518.
• Citation: 379 Ill. 441,41 N.E.2d 537
• Court: Illinois Supreme Court
• Parties: TALLMAN et al. v. EASTERN ILLINOIS & PEORIA R. CO.

379 Ill. 441

41 N.E.2d 537

TALLMAN et al.

v.EASTERN ILLINOIS & PEORIA R. CO.

No. 26518.

Supreme Court of Illinois.

March 17, 1942.

As Modified on Denial of Rehearing May 13, 1942.

Action by G. L. Tallman and others against the Eastern Illinois & Peoria Railroad Company to quiet title to oil and gas underlying a strip of land in Fayette County. From a decree for defendant, the plaintiffs appeal.

Reversed and remanded with directions.

SHAW, J., dissenting.Appeal from Circuit Court, Fayette County; F. R. Dove, Judge.

Walter Davison, of Mattoon (L. G. Owen, of Tulsa, Okl., of counsel), for appellants.

Paul J. Wimsey, of Chicago, Robert G. Burnside, of Vandalia, and Acton, Acton, Baldwin & Bookwalter, of Danville (W. M. Acton, of Danville, of counsel), for appellee.

GUNN, Justice.

This action was instituted by appellants, G. L. Tallman, L. R. Tallman and the Carter Oil Company against Eastern Illinois and Peoria Railroad Company, appellee, to quiet title to oil and gas underlying a strip of land in Fayette county. The circuit court held that appellee was the owner in fee simple of the land in controversy and appeal is brought directly to this court because a freehold is involved. The case was tried upon a stipulation of fact and involves the construction of the following deed:

‘Right of Way Deed.

‘This indenture witnesseth, That D. E. Withers, and his wife, Nancy A. Withers, of the County of Imperial, in the State of California, owner of the parcels of land herein below described in consideration of the benefits accruing to them by reason of construction and operation of a railroad upon said land, and the sum of Eight Hundred & no/100 Dollars, in hand paid, the receipt whereof is hereby acknowledged, does hereby convey and warrant to Eastern Illinois and Peoria Railroad Company, a corporation, organized and existing under the laws of the State of Illinois, as and for its right of way, a strip of land One Hundred (100) feet wide, being Fifty (50) feet wide on each side, of a line that has been surveyed and located across and upon the following described real estate, to-wit: Over and across the South West quarter of the South West quarter of the North West quarter Section Seventeen (17); Also the South East quarter of the North East quarter and the West half of the North East quarter of Section Eighteen (18) all in Township Seven (7) North, Range (3) East of the 3rd. P.M. Containing in all Eight and Sixteen (8.16) hundredths acres, more or less.

‘Also if ground is taken before present corn on Right of Way, matures Company shall pay for corn so taken in proportion to balance of corn in field. Situated in the County of Fayette, in the State of Illinois, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this State. $612.00 of the above consideration is for land taken and $188.00 is for removal of buildings and Twenty-five (25) apple trees.

‘This deed is given to correct error in description of former deed, dated August 5th, 1912. Recorded in Book No. 198 of deeds, page 398.

‘Witness our hands and seals this 24th day of October, A. D. 1912.

‘D. E. Withers (Seal).

‘Nancy A. Withers (Seal).’

The stipulation also agrees that appellants had acquired the rights of the grantors and that the only question in the case is one of construction as to whether or not such deed conveyed a mere easement or right of way, or a fee-simple title to the land as therein described.

Thus the question is one of construction. Hereafter in referring to the estate, as claimed by appellants, we will for convenience designate it as an easement, and as to the estate claimed by appellee as fee simple in land. The deed involved is in statutory form, concerning which a number of well-established rules of construction have been laid down by this court. The cardinal and all-important one is to ascertain the intention of the parties, and such deed should be so construed as to carry out the intention as gathered from the entire instrument, and the purpose, if legal, should be carried into effect so as not to defeat the manifest intention (Magnolia Petroleum Co. v. West, 374 Ill. 516, 30 N.E.2d 24, 136 A.L.R. 372;Woods v. Seymour, 350 Ill. 493, 183 N.E. 458) and every word and clause within the instrument should be considered, and if possible given effect. Lehndorf v. Cope, 122 Ill. 317, 13 N.E. 505; Woods v. Seymour, supra.

From the foregoing it necessarily follows that if language contained in an instrument has a well-known meaning and significance in law, it will be presumed such meaning was in the minds of the parties using it, unless a contrary intent is made manifest by other language in the deed. These rules have been applied to deeds in the statutory form because of the requirements of sections 9 and 13 of the Conveyances Act. Ill.Rev.Stat. 1941, chap. 30, pars. 8 and 12. Section 9 provides in substance that a deed in the statutory form using the words ‘conveys and warrants' without words of inheritance, shall be deemed a conveyance in fee simple, with covenants of seisin, against encumbrance, and of warranty. Section 13 provides that every estate in lands so conveyed (without words of inheritance) shall be deemed a fee-simple estate of inheritance if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised, by construction or operation of law. The rules of construction pointed out apply to such deed, and not to deeds where words of inheritance are used, as the latter will be construed in accordance with the common law. Bear v. Millikin Trust Co., 336 Ill. 366, 168 N.E. 349, 73 A.L.R. 173.

The application of this statute is the point around which the principal argument of both parties revolves. The claim of appellee is that the deed in question granted and conveyed certain described land, and that the words ‘as and for its right of way’ did not amount to a limitation by express words, but should be entirely disregarded as a mere declaration of purpose or object having no legal effect. On the other hand, appellants contend a fee-simple estate in the described land was not conveyed because the language of the deed as a whole brings it within the exception contained in section 13, ‘if a less estate * * * do not appear to have been granted, conveyed or devised by construction or operation of law,’ and thereby conveys an easement of right of way and no more. This leads us to determine what is meant by ‘estate.’

An estate in land means the property one has in lands, tenements or hereditaments (Whitehead on Real Estate, sec. 10); it signifies the conditions or circumstances in which the tenant stands as to his property. 1 Bouy.Law Dict., Rawle's Third Revision, p. 1075; 2 Blackstone, 103; 1 Preston on Estates, 20; Ball v. Chadwick, 46 Ill. 28. An estate of inheritance in real estate, whether it be corporeal or incorporeal, is a freehold estate. Oswald v. Wolf, 126 Ill. 542, 19 N.E. 28; 1 Preston, 214. Incorporeal or intangible rights in or growing out of land have applied to them the same idea of duration or quantity that is applied to corporeal hereditaments. Oswald v. Wolf, supra. The grant of a right of way is an easement, and if in fee the grantee takes an ‘estate’ in fee in such right of way as an incorporeal hereditament. Wiggins Ferry Co. v. Ohio & Mississippi Railway Co., 94 Ill. 83; Oswald v. Wolf, supra; Texas Co. v. O'Meara, 377 Ill. 144, 36 N.E.2d 256. Under the law of Illinois there may be created an estate in fee simple in the easement as well as in all of the land to which an easement may attach.

The deed in this case contained the words ‘convey and warrant’ and was in statutory form, and, unless limited in some way, granted a fee-simple estate in the subject matter described. The statute, in providing a deed in such form shall be deemed to convey a fee-simple estate, is subject to two exceptions: (a) if a less estate be not limited by express words; (b) (if a less estate) ‘do not appear to have been granted * * * by construction or operation of law.’ The deed under consideration contains words describing a subject matter which if used separately could each describe a different estate, one of which would be an easement, and the other the fee simple of land contained in the description. In short, if the words ‘a strip of land’ were absent from the conveyance an easement in fee would pass to the grantee without question; whereas, on the other hand, if all reference to right of way were eliminated a fee simple in the land would result under the authority of Spierling v. Ohl, 232 Ill. 581, 83 N.E. 1068,13 Ann.Cas. 430. Under such circumstances to assume as a matter of law the deed in question grants land, and that all references to ‘right of way’ are mere declarations of purpose, completely disregards language which constitutes an equally valid grant of a less estate, viz.,-an easement, if the land described is considered as that upon which the easement may be enjoyed and used. It would assume the result by assuming the major premise. We cannot make such an assumption until we have ascertained what ‘estate’ in lands the parties intended to convey, giving due regard to the applicable rules of construction. To do this we must ascertain whether words are used in the deed bringing it within the statute ‘if a less estate * * * do not appear to have been granted * * * by construction or operation of law.’

Upon examination of the deed involved the repeated use of the words ‘right of way’ attracts attention. First, the parties convey and warrant ‘as and for its right of way’; and following the description of the land there is a provision concerning unmatured crops ‘on the right of way.’ A right of way has been designated as an easement. Cook County v. Chicago, Burlington & Quincy Railroad Co., 35 Ill. 460;Kuecken v. Voltz, 110 Ill. 264; Oswald v. Wolf, supra. The words ‘right of way’ denote a tenure by which land is held; they are...