Woodward Governor Co. v. City of Loves Park

• Decision Date: 12 November 1948
• Docket Number: Gen. No. 10267.
• Citation: 82 N.E.2d 387,335 Ill.App. 528
• Parties: WOODWARD GOVERNOR CO. et al. v. CITY OF LOVES PARK, WINNEBAGO COUNTY.
• Court: United States Appellate Court of Illinois

335 Ill.App. 528

82 N.E.2d 387

WOODWARD GOVERNOR CO. et al.

v.CITY OF LOVES PARK, WINNEBAGO COUNTY.

Gen. No. 10267.

Appellate Court of Illinois, Second District.

Nov. 12, 1948.

Appeal from Circuit Court, Winnebago County; Wm. R. Dusher, Judge.

Proceeding by the Woodward Governor Company, a corporation, and the Chicago & North Western Railway Company, a corporation, against the City of Loves Park, Winnebago County, Ill., to have about forty acres of land disconnected from the City of Loves Park. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment affirmed.T. O. Prather and Frederick H. Haye, both of Rockford, for appellant.

Charles S. Thomas, of Rockford, and Nelson Trottman, of Chicago, for appellees.

BRISTOW, Justice.

The plaintiffs herein sought by their proper petition to have about forty acres of land disconnected from the City of Loves Park which is situated in Winnebago County, Illinois. Section 7-42 of The Cities and Villages Act of 1941, Ill.Rev.Stat.1947, c. 24, § 7-42, which is the statutory basis for such relief, provides that the ‘owner or owners of record’ of any area of land consisting of one or more tracts within the corporate limits of a municipality which meets certain specifications as to the extent and location may be disconnected from the municipality by a petition filed in either the County or Circuit Court where the land is situated. The act provides that if the Court shall find the allegations of the petition true, the disconnection of the area shall be ordered. The Circuit Court on January 5, 1948, decided in favor of plaintiffs and ordered a disconnection of petitioner's property as prayed.

There is no controversy as to the facts. The Woodward Governor Company owns approximately twenty-five acres of land located within the corporate limits of Defendant City of Loves Park. The eastern boundary of their property abuts on the right of way of the Chicago and North Western Railway Company, the other petitioner. The latter tract of land embraces about fifteen acres.

The sole question for this Court's determination is whether the Chicago and North Western Railway Company is an ‘owner’ of the land they seek to have disconnected. Does the title that they hold to the real estate in question bring them within the meaning of the term ‘owner’ as contemplated by the Illinois Legislature when they enacted the aforementioned Section 7-42 of the Cities and Villages Act? The present railway Company are successors in title to the Kenosha and Rockford Railroad Company. Each of the deeds provided that the grantors do ‘give, remise, release, convey and quit claim to the Kenosha and Rockford Railroad Company for the purpose of constructing a railroad thereon and for all uses and purposes connected with the construction and use of said railroad, the right of way, use and occupancy for said railroad over and through the following land. (Description) * * * To have, hold and enjoy the land above described with the appurtenances unto the said party of the second part and their assigns forever, for any and all uses and purposes in any way connected with the construction, preservation, occupation and enjoyment of the said railroad provided, however, that if said railroad shall not be constructed over and through the said premises within five years or if the said party of the second part or their assigns shall at any time thereafter cease permanently to use said railroad so as to be constructed and the same shall be abandoned or the route thereof changed so as not be continued over said premises, then, in that case, the said land hereby granted shall revert to the said party of the first part, their heirs or assigns.’

Since the passage of the Cities and Villages Act in 1941, our reviewing courts have had no occasion to interpret the meaning of the words ‘owner or owners of record’. About fifty years ago the Illinois Appellate Court of the Third District, Vance v. Rankin, 95 Ill.App. 562, approached the question under consideration more nearly than any other authority in Illinois. We shall advert to it later.

I think we can agree at the outset that the Chicago and North Western Railway Company did not have a fee simple title to the land described in their amended petition, but that they had an easement to so much of the land as they found necessary to use. In the case of Illinois Central Railroad Co. v. Houghton, 126 Ill. 233, 18 N.E. 301,1 L.R.A. 213, 9 Am.St.Rep. 581, the railroad brought an ejectment proceeding, claiming that the following clause created a fee in the premises described therein: ‘for the purpose of constructing, maintaining, and operating thereon a single or double track railroad, with all its necessary appurtenances, and for all uses and purposes connected with the construction, repair, maintenance, and complete operation of said railroad, the right of way over and through said tract * * * for all lawful uses and purposes incident to a full and indefeasable title in fee-simple, or in any way connected with the construction, preservation, occupation, and sole enjoyment of said road and lands, of the width aforesaid.’ The Supreme Court therein held that the deed did not vest an estate in fee, and that it conveyed no more than an exclusive right to possession for certain purposes. Other cases in Illinois holding similarly are Walker v. Illinois Central Railroad Co., 215 Ill. 610, 611, 74 N.E. 812;Branch v. Central Trust Co., 320 Ill. 432, 151 N.E. 284;Joseph v. Evans, 338 Ill. 11, 170 N.E. 10;Magnolia Petrolium Co. v. West, 374 Ill. 516, 30 N.E.2d 24, 136 A.L.R. 372. The case of Tallman v. Eastern Illinois & Peoria Railroad Co., 379 Ill. 441, 41 N.E.2d 537, 540, uses the following language: ‘The words ‘right of way’ denote a tenure by which land is held; they are descriptive of the easement right, and not the land to which it is affixed. * * * We are of the opinion the description of the estate contained in the granting clause is that of a right of way easement, and not a fee-simple interest in the land within the described boundaries. Such construction gives effect to all of the words in the deed. Any other construction would require us to disregard words necessary to determine the estate granted.' It appearing, therefore, that the authorities having uniformly held that language similar to that employed in the deeds in question does not convey a fee simple title, it is the contention of the appellant that the North Western Railway Company is not the ‘owner’ of the lands described in their petition and therefore not entitled to the relief sought in their petition.

To throw some light upon the question as to what the legislature had in mind when they used the term ‘owner,’ appellant refers us to the case of Jarrot v. Vaughn, 2 Gilman 132,7 Ill. 132, which involved the construction of the statute which made provision that the owner of land from which timber was cut without his permission might have an action of debt against the person cutting the timber. The Court said that the word ‘owner’ had been repeatedly determined to mean a fee simple interest and any proof of a lesser estate would not meet the requirements of the statute. The appellant cites other cases which do not appear to be any more helpful.

The case principally relied upon by appellant is that of Warren v. Lower Salt Creek Drainage District, 316 Ill. 345, 147 N.E. 248, 249. In that proceeding the petitioner sought to dissolve a drainage district organized under the Levee Act. This act provided in order to obtain such relief that there be a petition signed by a majority in number of all ‘the landowners' of such district, and by those ‘owning’ more than one third in area of the lands in the district. One of the questions raised in that case was whether or not the holder of a life estate followed by a contingent remainder was a ‘land owner’ under the statute. In that connection the court had this to say: ‘The word ‘owner’ is nomen generalissimum, 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 Mfg. Co., 1 Gilman 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. 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 of 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.' Following this authority it is the contention of appellant that since the North Western Railway are only the owners of an easement and since they do not join with them in their petition the owners...