Warren v. Lower Salt Creek Drainage Dist. of Logan Cnty.

• Court: Illinois Supreme Court
• Writing for the Court: THOMPSON
• Citation: Warren v. Lower Salt Creek Drainage Dist. of Logan Cnty., 316 Ill. 345, 147 N.E. 248 (Ill. 1925)
• Decision Date: 11 April 1925
• Docket Number: No. 16144.,16144.
• Parties: WARREN et al. v. LOWER SALT CREEK DRAINAGE DIST. OF LOGAN COUNTY et al.

316 Ill. 345

147 N.E. 248

WARREN et al.

v.LOWER SALT CREEK DRAINAGE DIST. OF LOGAN COUNTY et al.

No. 16144.

Supreme Court of Illinois.

Feb. 17, 1925.

Rehearing Denied April 11, 1925.

Petition by Frank Warren and others against the Lower Salt Creek Drainage District of Logan County, Ill., for an order of dissolution. From order dismissing petition, petitioners Wilson R. Beaver and others appeal.

Affirmed.

Stone, J., dissenting.

Appeal from Logan County Court; Lawrence B. Stringer, Judge.

Anderson & Mangas, of Lincoln, for appellants.

Evan Worth and Harold Trapp, both of Lincoln, and Lyman Lacey, Jr., of Havana, for appellee.

THOMPSON, J.

In June, 1921, Lower Salt Creek drainage district, in the county of Logan, was duly organized under the provisions of the Levee Act (Smith-Hurd Rev. St. 1923, c. 42). In June, 1923, a petition was filed in the office of the clerk of the county court praying that the proposed work be abandoned and the district dissolved in accordance with the provisions of section 44 of said act. After a hearing on the sufficiency of the petition the county court entered an order dismissing it on the ground that the petitioners were not the owners of a majority of the lands within the drainage district. This appeal is prosecuted to review that order.

About 1,600 acres of the 11,000 acres within the district are in the possession of life tenants. The remainders following these life estates are contingent, and there is no specific conveyance of the fee. The principal question presented for decision is whether such a life tenant is the owner of the entire acreage within the meaning of the word ‘landowner,’ as used in the Levee Act, so that, for the purpose of determining whether more than one-half of the lands in the district are represented, his signature to a petition represents the acreage in which he holds a life estate.

This proceeding is brought under the latter part of section 44 of the Levee Act as it read prior to the amendment of 1923 (Laws 1923, p. 329). It then provided:

‘And at any time before the contract for the construction of the proposed works shall have been made, upon presentation to the county court of a petition signed by a majority in number of all the landowners of such district, and owning more than one-half in area of the lands in the district to which the petitioners belong, praying that the whole system of proposed works may be abandoned and the district abolished, the court shall enter upon its record an order granting the prayer of such petition,’ etc.

[1][2] The word ‘owner’ is nomen generallissimum, and its meaning is to be gathered from the connection in which it is used and from the subject-matter to which it is applied, and when used in a statute the obvious nature and purpose of the statute may indicate its meaning. Coombs v. People, 198 Ill. 586, 64 N. E. 1056;Guild v. Prentis, 83 Vt. 212, 74 A. 1115, Ann. Cas. 1912A, 313;Merrill Railway & Lighting Co. v. City of Merrill, 119 Wis. 249, 96 N. W. 686. While the meaning may vary according to context and subject-matter, when applied to real estate without any qualifying words the word ‘owner,’ in common as well as legal parlance, means an owner in fee simple. Bowen v. John, 201 Ill. 292, 66 N. E. 357;Jarrot v. Vaughn, 2 Gilman, 132;Illinois Mutual Fire Ins. Co. v. Marseilles Manf. Co., 1 Gilm. 236;Johnson v. Crookshanks, 21 Or. 339, 28 P. 78. The word ‘owner,’ as used in the Local Improvement Act has been held to mean an owner in fee simple. Merritt v. City of Kewanee, 175 Ill. 537, 51 N. E. 867. One having a life estate in lands is an owner of land, and may be counted as one in determining whether a majority in number of the landowners have signed the petition. Cosby v. Barnes, 251 Ill. 460, 96 N. E. 282.

[3][4][5] But manifestly a life tenant is not the owner of all the land in which he owns a life estate. This being true, the signature of the life tenant does not by itself represent the land in which he holds the life estate (Mayor of City Baltimore v. Boyd, 64 Md. 10, 20 A. 1028;Colquitt v. Stevens, 111 Ark. 314, 163 S. W. 1141); but where the life tenant and the person or persons in whom the fee is vested as remaindermen or reversioners sign the petition the lands are represented, and the full acreage may be counted in determining whether more than one-half in area of the lands is represented by the petitioners (Hull v. Sangamon River Drainage District, 219 Ill. 454, 76 N. E. 701). An assessment for the betterment of lands is not a tax (Carlyle v. Bartels [No. 16247, Ill.] 146 N. E. 192), but it is an incumbrance, the discharge of which must be apportioned ratably between the life tenant and the remainderman (Huston v. Tribbetts, 171 Ill. 547, 49 N. E. 711,63 Am. St. Rep. 275;Lantz v. Caraway, 180 Ind. 484, 103 N. E. 335,50 L. R. A. [N. S.] 32). Since the assessment is against the property, and not against the owners of the property (City of Chicago v. March, 251 Ill. 298, 96 N. E. 250), it would be manifestly unfair to permit one of the owners to bind the property without giving the other owners an opportunity to exercise their judgment and discretion in the matter. A life tenancy is of uncertain duration, and in most cases the reversioner or remainderman would represent much the larger part of the benefits to be derived from a permanent improvement. This being true, the reversioner or the remainderman would be charged with the larger part of the burden of paying the assessments, and he ought to have the right to say whether he is willing to have the improvement made and the consequent costs made a lien on his interest in the property.

[6] Since the lands are not represented until the petition has been signed by the person or persons owning them in fee, it is clear that the signature of the life tenant alone does not represent any portion of the acreage in which he holds a life estate. He has a limited interest in the entire tract, but he does not own in fee simple any part of the tract. For the purpose of determining whether the lands are represented, the acreage involved cannot be divided in accordance with the expectancy of the life tenant. For instance, if A. has a life estate in 60 acres of land, and B., C., and D. own the remainder in fee, the signature of A. alone will not represent any of the acreage, but the signature of A. and B. will represent one-third of the acreage, because their combined estates amount to an estate in fee in one-third of the lands. Hull v. Sangamon River Drainage District, supra. Under the example, the combinations A. B., A. C., and A. D. each own an undivided one-third interest in the land in fee, and each combination can sign for 20 acres. Merritt v. City of Kewanee, supra.

[7] Under no theory advanced by appellants can it be held that the landowners owning more than one-half in area of the lands in the district singed the petition to abolish the district, and it follows that the petition was properly dismissed.

The judgment of the county court is affirmed.

Judgment affirmed.

STONE, J. (dissenting).

I do not agree with the conclusion reached in the foregoing opinion. In the first place, it is by no means true that when applied to real estate the word ‘owner’ at all times means an owner in fee simple. It is generally held that the term ‘landowner’ has no fixed meaning in the law, but must be construed in the light of the use and purpose to which it is put in an enactment. Coombs v. People, 198 Ill. 586, 64 N. E. 1056;Chiesa v. Des Moines, 158 Iowa, 343, 138 N. W. 922,48 L. R. A. (N. S.) 899;Tompkins v. A. & K. R. Co., 21 S. C....