The City of Quincy v. the Chicago

• Decision Date: 31 January 1880
• Citation: 94 Ill. 537,1880 WL 9985
• Parties: THE CITY OF QUINCYv.THE CHICAGO, BURLINGTON AND QUINCY RAILROAD CO
• Court: Illinois Supreme Court

94 Ill. 537

1880 WL 9985 (Ill.)

THE CITY OF QUINCY

v.THE CHICAGO, BURLINGTON AND QUINCY RAILROAD CO

Supreme Court of Illinois.

January Term, 1880.

APPEAL from the Circuit Court of Adams county; the Hon. JOHN H. WILLIAMS, Judge, presiding.

Mr. WILLIAM W. BERRY, for the appellant.

Mr. O. H. BROWNING, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of ejectment, brought by the City of Quincy against the Chicago, Burlington and Quincy Railroad Company, to recover certain streets in the city of Quincy upon which the railroad company had constructed its track, and which had been used by the company for many years.

The defendant filed a plea disclaiming any right, title or interest to a portion of the property described in the declaration, and that it had always been ready and willing to deliver plaintiff the possession thereof, and before the commencement of the suit tendered the possession thereof to plaintiff. As to the balance of the property a plea of not guilty was interposed.

On the trial before the court, without a jury, the court found for the plaintiff, as to the property embraced in the plea of disclaimer, and as to the balance of the property the court found in favor of the defendant, and rendered a judgment against the plaintiff for costs. To reverse this judgment the City of Quincy appealed to this court.

The defendant on the trial, to maintain the issue on its part, read in evidence an instrument of writing executed July 25, 1855, by and between the Northern Cross Railroad Company, of the first part, and the City of Quincy, of the second part, by which portions of certain streets were conveyed absolutely to the city, and the right to use parts of other streets, the streets now in question, was granted to the railroad company. The defendant also read in evidence a deed from the master in chancery of Knox county to the defendant. This deed was made under and by virtue of a sale made under a decree of the circuit court of Knox county foreclosing a mortgage given by the Northern Cross Railroad Company to Louis Van Hoffman and others, upon all the property it then owned and all that might be thereafter acquired. This mortgage bore date July 1, 1853.

It is first contended, by appellant, that whatever rights and privileges in the streets were granted to the Northern Cross Railroad Company were “particular and confined to the grantee alone.” There is nothing in the language of the deed made between the railroad company and the city of Quincy, under which the company now claims, which would justify the position taken. The deed is an ordinary instrument, under which the rights conferred are conveyed in plain language, such as is used in an ordinary conveyance. The authorities cited and relied upon have reference to personal easements in private property, and hence can have no application here. No private rights were involved. The law authorized the city to grant to the railroad company the right to use its streets for railroad tracks, and at the same time the law authorized one railroad company to acquire from another its road, right of way, property and franchises, and succeed to all its rights. The deed having been made under such circumstances, and containing no clause restricting the use of the streets to the Northern Cross Railroad Company, we perceive no reason why the defendant could not succeed to all the rights of the Northern Cross Railroad Company.

It is next urged that whatever rights and privileges in these particular streets the Northern Cross Railroad Company took by the grant, were terminated by the express provisions of the instrument itself.

That portion of the deed which relates to the property in question, including punctuations and beginnings of paragraphs, as is stated by appellee's counsel and not disputed, is as follows:

“In consideration whereof the said party of the second part hereby conveys to the said parties of the first part all that part of Front street which lies north of a line across the same fifty feet south of Oak street, * * * * to have and to hold the same...