Turpin v. the Baltimore

• Decision Date: 20 November 1882
• Citation: 1882 WL 10470,105 Ill. 11
• Parties: VIRGINIUS A. TURPIN, Receiver,v.THE BALTIMORE, OHIO AND CHICAGO RAILROAD COMPANY.
• Court: Illinois Supreme Court

105 Ill. 11

1882 WL 10470 (Ill.)

VIRGINIUS A. TURPIN, Receiver,

v.THE BALTIMORE, OHIO AND CHICAGO RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

Appeal from the Superior Court of Cook county; the Hon. ROLLIN S. WILLIAMSON, Judge, presiding.

This was an action of ejectment, brought by Turpin, receiver of the Fidelity Savings Bank and Safe Depository, against the Baltimore, Ohio and Chicago Railway Company, to recover the right of way used and occupied by the latter, being a strip of land sixty-six feet wide, and being thirty-three feet in width on each side of the center line of its roadway, such strip being a part of lots 11 and 13, of Seip's subdivision of the west half of the north-west quarter of section 25, township 38 north, range 14, east of the third principal meridian, running diagonally across said premises in a north-westerly and south-easterly direction. The case was tried by the court below without a jury, and a judgment for the defendant. The plaintiff appealed.

It appears that lots 11 and 13 are part of six lots in a thirty-acre tract; that one Platt owned an undivided one-third of the thirty acres, of which lots 11 and 13 are a part, one Field owned another undivided one-third, and Chauncey T. Bowen owned the other undivided one-third.

Plaintiff's title was derived as follows: Warranty deed from Bowen to Henry H. Honore, dated May 1, 1874, recorded May 19, 1874, conveying an undivided one-third of lots 11 to 16; trust deed from Honore to George W. Smith, to secure $15,000 purchase money, conveying an undivided one-third of lots 11 to 16, dated May 1, 1874, recorded May 19, 1874; indorsed on said trust deed is an agreement, dated September 11, 1874, between Charles C. Abell, described as owner of lots 11 and 13, and Bowen, described as holder of the notes mentioned in said trust deed, that the lien of the trust deed be assigned to, and rest upon, said lots 11 and 13, and the other lots be relieved therefrom; quitclaim deed from Honore to Charles C. Abell, dated May 13, 1874, recorded same day, conveying an undivided one-third of lots 11 to 16, subject to said trust deed; quitclaim deed from Platt and wife, and Field and wife, to Abell, dated September 11, 1874, and recorded November 24, 1874, conveying lots 11 and 13; decree of sale and foreclosure in the Superior Court of Cook county upon bill, Turpin, Receiver, (holder of the notes secured by the above trust deed) v. Honore et al.; deed from Franklin Denison, master in chancery, to Turpin, receiver, etc., dated October 29, 1879, recorded November 5, 1879, made on sale under said decree conveying lots 11 and 13. Plaintiff derived his title to the notes secured by said trust deed from Honore to Smith, through the Fidelity Savings Bank and Safe Depository.

The defendant never received any grant of the property, or of any easement in it, from any one. Its claim of right is chiefly under a contract, under seal, made May 13, 1874, between Bowen and one Snyder, of the first part, and the Baltimore, Pittsburg and Chicago Railway Company, Illinois division, of the second part, that then being the name of defendant, its name having since been changed to its present one, under the statute of this State. By this contract the parties of the first part agreed to convey to the railway company a right of way for its railroad through section 31, township 38 north, range 15 east; also, twenty acres additional in said section 31 and in section 32, and the railway company agreed to erect on said premises and contiguous grounds, a round-house and terminal division machine, repair and car shops, the shops to be built of first-class brick or stone, with iron or slate roof, and to cost $200,000. At the end of the contract, and after the attestation clause, occur these words: “It is understood that the right of way east of Stony Island avenue is to be procured free of cost to the party of the second part, except through one ten-acre tract, which is to be paid by the party of the second part, the right of way west of Stony Island avenue to be procured by the party of the second part at its own expense; and the party of the second part further agrees to locate a station between Seventy-ninth and Eighty-first streets, for local passenger trains.”

The premises described in the body of the contract do not embrace the property in dispute, the former lying in sections 31 and 32, and the latter in section 25, but the right of way in dispute is embraced in the concluding clause, within the description, “east of Stony Island avenue,” the evidence showing that these two lots, 11 and 13, upon which the right of way is, lie east of Stony Island avenue.

The evidence shows this contract was executed in Baltimore; that its terms had previously been arranged in Chicago; that the defendant, being about to locate its line of railroad from the Indiana State line into Chicago, had three lines surveyed, and marked upon a map of the county, on which map were marked the subdivisions of the lands and the owners' names,--the central of which routes, as shown by the map, was the one now occupied by defendant as a right of way through said lots. Bowen having large real estate interests in the vicinity to be affected by the location of the road, was anxious the present route should be adopted, and an agreement was made in Chicago that the road should be so located, that the road should do the things mentioned above, and Bowen should procure and give defendant certain right of way, a portion of which was that in controversy. Bowen and Snyder then went on to Baltimore, and entered into the above contract of May 13, 1874. This contract was not recorded until December 21, 1876. The deed from Bowen to Honore, though dated May 1, 1874, was not acknowledged until May 16, and was delivered some time between then and May 19. Bowen testifies, that before selling the land to Honore he told him he had agreed to give the defendant the right of way across these lands, and that in buying he must let the company have the right of way across the land free of charge.

On September 11, 1874, there was a partition made of the thirty acres, between the three co-tenants, and Abell took the entirety of lots 11 and 13, and the indorsement above named, of September 11, 1874, was made on the trust deed, restricting its lien to lots 11 and 13. Bowen says this was done to enable him to fulfill his agreement to give defendant the right of way; that Abell consented to the division, and that the railway track which was then upon the land should remain, and the railroad should retain its right of way across the land, to carry out Bowen's agreement to furnish the right of way, and that to induce Abell to accept this division of the land, Bowen agreed to pay a debt of $2500 from Honore to Abell, to secure which he says the quitclaim deed from Honore to Abell was made, and that that deed was not an absolute conveyance, as it purports on its face.

The trust deed above mentioned, Bowen continued to hold until the winter of 1875 and 1876, when he sold the notes secured by it to the Fidelity Savings Bank, of which plaintiff was receiver. At this time John C. Haines was president of the bank, and he was told of the defendant being entitled to a right of way over the premises. The defendant went into possession of the premises under the contract with Bowen and Snyder, and completed the construction of its road-bed prior to September, 1874, and in that month its cars were running over the right of way, and have been ever since. It appears that the company has performed all the conditions of the contract of May 13, 1874, which were to be performed on its part. There is no contradictory evidence in the case. Messrs. DUPEE & JUDAH, for the appellant:

Title to real estate can only be obtained by deed. This is true of an easement, which has been defined as “a charge or burden upon one estate (the servient) for the benefit of another (the dominant.)” Bouvier's Law Dictionary; 1 Washburn on Real Prop. *397, 398; Goddard's Law of Easements, 2.

The right of way of a railroad over the land of another is an easement or a license. If an easement, it can rest only upon a grant by deed. 1 Washburn on Real Prop. *397, 398; Goddard's Law of Easements, 88, 89; 3 Kent's Commentaries, *453; Woodward v. Seeley, 11 Ill. 157; Forbes v. Balenseifer, 74 Id. 183; Kamphouse v. Gaffner, 73 Id. 453.

An easement can not be the subject of dedication unless it be to the whole public. Goddard on Easements, 263, and note; Vestry of Bermondsey v. Brown, 35 Beav. 226.

If the evidence exhibits any right to the premises in dispute, it is only a license for a right of way. Such license is revocable at will, even when valuable improvements have been made in contemplation of the enjoyment of the right. 1 Washburn on Real Prop. *398, et seq., and cases cited; 3 Kent's Commentaries, *452, and note; Goddard's Law of Easements, 472-475; Wood v. Leadbitter, 13 M. & W. 838; Jamieson v. Millimann, 3 Duer, 255; Morse v. Copeland, 2 Gray, 302; C. and I....