The Chicago v. Smith

• Decision Date: 30 June 1875
• Citation: 78 Ill. 96,1875 WL 8428
• Parties: THE CHICAGO AND ALTON RAILROAD COMPANYv.IRWIN Z. SMITH.
• Court: Illinois Supreme Court

78 Ill. 96

1875 WL 8428 (Ill.)

THE CHICAGO AND ALTON RAILROAD COMPANY

v.IRWIN Z. SMITH.

Supreme Court of Illinois.

June Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

This was an action of ejectment, by Irwin Z. Smith against the Chicago and Alton Railroad Company, to recover certain real estate occupied by the defendant as a right of way. The opinion of the court states the facts of the case sufficiently to an understanding of the points decided.

Mr. WM. J. TEWKESBURY, for the appellant.

Messrs. GILLESPIE & SMITH, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This case was previously before this court, and is reported in 67 Ill. 191. It was there held, that the action of ejectment for the recovery of this land could be maintained. It was also held, that appellee had shown a title in fee, and he produced and read in evidence, on the trial in the court below, the same title.

On the trial in the court below, appellant introduced the publisher of the newspaper in which the notice was published, and he testified to its publication as required by the statute, and it is contended that, from it and the subsequent proceedings of the commissioners, the title of not only Matthew Kerr, but of those holding in remainder, was vested in the railroad company. As Matthew Kerr died in 1857, and his life estate thereby terminated, it is wholly unimportant to inquire whether the company acquired his title or not, as in this proceeding it can have no effect.

The controlling question in the case is, whether the notice of the intended application to the Governor for the appointment of three commissioners to appraise the land was such as to operate upon or bind those holding the remainder in fee. The notice is alone to Matthew Kerr. Elizabeth Kerr and Mary K. Knox are not named in it. The notice names Matthew Kerr as the owner of this land and another tract. Some of the tracts described are stated to belong to unknown persons, and some to heirs. But it is now insisted that the charter did not require the owner to be named in the notice, and that naming Kerr was unnecessary and an useless act, which in nowise affected the sufficiency of the notice to third persons not named therein. The requirement of the charter under which this notice was given, is this: “Notice by publication in some newspaper in St. Clair county shall be first given for thirty days to the owners or occupiers, or unknown owners, as the case may be, of the intention on the part of the said corporation to apply to the Governor for the appointment of commissioners, as herein provided,” etc.

A fair and reasonable construction of this provision manifestly requires that the notice shall be given specifically to the owner or occupier, if known. If not, then to unknown owners by that designation. Had a general notice, naming no person, been intended, very different language would have been employed. It would have been to all persons having an interest, or all persons desiring to contest the proceeding, or other general terms. But here there are three classes of persons named who must be notified. First, owners; second, occupiers; and third, unknown owners. The persons occupying the land could be known by going on the premises and making inquiry. That was easy and simple, and none could be misled. The owners could generally be ascertained by examining the record of deeds for the land. But if, on inquiry, it was found that the last grantee of record was dead, and the names of his heirs were unknown, and could not be learned, then they could have been described as unknown owners. This was manifestly the intention of the law-makers in adopting this statute.

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