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No. 2--01--1165

I. BACKGROUND

The instant case arises out of a dispute as to the ownershipof a parcel of land formerly used as a right-of-way by the UnionPacific Railroad Company (the railroad). Plaintiffs own a parcelof property adjacent to the right-of-way and operate a restaurantthere. The bank is located adjacent to the right-of-way.

Plaintiffs claim title to the property by virtue of theirpurchase of the land upon which their restaurant is situated. Plaintiffs purchased the property in 1994 from the Fishburn family. The description of the land contained in the deed stated "[t]henorth 1/2 of lot 3, lying east of the Chicago and NorthwesternRailroad Company right-of-way." In 1999, the Fishburns executed aquitclaim deed that specifically included "the land subject to theRight of Way granted to the Galena Union Railroad Company."Plaintiffs contend that their purchase from the Fishburns includedan interest in the right-of-way. They trace title, through aseries of mesne conveyances, to a grant made by Erastus Tefft toone of their predecessors in interest in 1850. Plaintiffscurrently use the property for ingress and egress, employeeparking, and the placement of a Dumpster.

The bank claims title by virtue of a purchase of the right-of-way from the railroad. In March 1999, the bank entered into acontract with the railroad to purchase the right-of-way. Therailroad provided the bank with a quitclaim deed. In 1849, Tefftgranted the right-of-way to the railroad's predecessor. Thus, thebank traces title back to Tefft as well. Since 1988, the bank hadbeen using the right-of-way for ingress and egress pursuant to alicensing agreement with the railroad.

On December 15, 1999, plaintiffs filed a complaint seeking,inter alia, a declaration that they were the owners of the right-of-way. The bank moved to dismiss pursuant to section 2--619 ofthe Civil Practice Law, interposing several affirmative defenses(735 ILCS 5/2--619 (West 2000)), and plaintiffs moved for summaryjudgment. The trial court granted partial summary judgment,finding that the deed from Tefft to the railroad's predecessor didnot convey a fee interest and that the railroad's grant to the bankconveyed nothing. The court then held an evidentiary hearing, thepurpose of which was to determine the boundaries of plaintiffs'property. Following this hearing, the court determined thatplaintiffs owned the right-of-way. This appeal followed.

II. ANALYSIS

Because this case comes to us following a grant of summaryjudgment, we conduct de novo review. Corona v. Malm, 315 Ill. App.3d 692, 694 (2000). Summary judgment is appropriate where nogenuine issues of material fact exist and the movant is entitled tojudgment as a matter of law. Stewart v. Jones, 318 Ill. App. 3d552, 557-58 (2001). The record must be construed strictly againstthe movant. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753(1999). The nonmovant need not prove its case; however, it mustset forth some facts that would arguably entitle it to prevail. Lutz v. Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 568(1990). Further, in resolving this appeal, we must construe aseries of deeds. The construction of a deed normally presents aquestion of law and is also subject to de novo review. TimothyChristian Schools v. Village of Western Springs, 285 Ill. App. 3d949, 954 (1996). However, where an ambiguity exists and extrinsicevidence is required to ascertain the intent of the parties, aquestion of fact exists, and we will disturb the decision of thefact finder only if it is contrary to the manifest weight of theevidence. Mayol v. Weiner Companies, Ltd., 98 Ill. App. 3d 985,987-88 (1981). With these standards in mind, we now turn to themerits of the bank's arguments.

Before turning to the merits, however, we note that, atseveral points in its brief, the bank attacks the sufficiency ofplaintiffs' complaint. The bank filed a motion in the trial courttitled "motion to strike or to make more definite and certain"attacking the sufficiency of the complaint. In this motion, thebank relied on section 2--615 of the of the Civil Practice Law. 735 ILCS 5/2--615 (West 2000). The bank subsequently answered thecomplaint. When a trial court denies a motion to dismiss acomplaint and a defendant files an answer, the defendant generallywaives any objection to defects in the complaint. People v.$1,124,905 U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill.2d 314, 333 (1997). Thus, by answering plaintiffs' complaint, thebank waived any objections regarding the sufficiency of thecomplaint, and we will not consider this issue.

We also note that the bank complains that the trial courtentered summary judgment regarding its nonownership of the parcelprior to determining plaintiffs' interest in the parcel. We seeneither prejudice nor error in the trial court's decision toproceed in this manner. The trial court merely simplified anddefined the issues likely to arise at the evidentiary hearing. Had the bank successfully controverted plaintiffs' claim of title atthe hearing, it is apparent that plaintiffs would not haveprevailed in the cause.

A. Title

The bank first contends that the trial court erred ingranting summary judgment in plaintiffs' favor for three reasons. First, the bank argues that plaintiffs have not shown that theyhold title to the parcel. Second, in a related argument, the bank contends that plaintiffs have not demonstrated that they hold titlesuperior to the bank's. Third, the bank takes issue with the trialcourt's determination that the railroad abandoned the right-of-way. In order to resolve this appeal, we must address three main issues:(1) what interest, if any, plaintiffs hold to the parcel, (2) whatinterest, if any, the bank holds, and (3) whether any question ofmaterial fact exists as to whether the railroad abandoned theright-of-way.

In an action to quiet title, a plaintiff must prevail on thestrength of its own title, rather than merely on defects in adefendant's title. Lakeview Trust & Savings Bank v. Estrada, 134Ill. App. 3d 792, 812 (1985). However, a plaintiff need notestablish perfect title to the property. Reynolds v. Burns, 20Ill. 2d 167, 193 (1960). Where a plaintiff demonstrates less thanperfect title, the title held by the defendant may be considered,and the plaintiff may still prevail if able to demonstrate superiortitle. Wilder v. Finnegan, 267 Ill. App. 3d 422, 425 (1994). Aplaintiff is barred from maintaining a quiet title action onlywhere it can show no title whatsoever in the property at issue. Marlow v. Malone, 315 Ill. App. 3d 807, 812 (2000).

The trial court correctly determined that plaintiffsdemonstrated title in the parcel sufficient for them to prevail ontheir motion for summary judgment. The trial court held anevidentiary hearing and considered extrinsic evidence on thispoint; thus, we will apply the manifest weight standard to thetrial court's construction of the deed. Mayol, 98 Ill. App. 3d at987-88. Whether an ambiguity exists, however, remains a questionof law. Foxfield Realty, Inc. v. Kubala, 287 Ill. App. 3d 519, 523(1997). Our interpretation comports with that of the trial court;thus, we would affirm even on a less deferential standard ofreview.

Plaintiffs trace title to the property through a series ofmesne conveyances to Erastus Tefft. Tefft was also the grantor who conveyed the right-of-way to the railroad's predecessor ininterest. Thus, we must construe the deed given by Tefft to theplaintiffs' predecessor in interest.

In construing a deed, our primary goal is to ascertain theintent of the parties. Lakeland Property Owners Ass'n v. Larson,121 Ill. App. 3d 805, 809 (1984). To determine the parties'intent, a court must analyze "the specific words used inconjunction with the circumstances under which they were drafted." Warren-Boynton State Bank v. Wallbaum, 123 Ill. 2d 429, 436 (1988). Relevant circumstances include " 'the state of [the testator's]property, his family, and the like.' " Warren-Boynton State Bank,123 Ill. 2d at 436, quoting Armstrong v. Barber, 239 Ill. 389, 404(1909). The document must be considered as a whole. Warren-Boynton State Bank, 123 Ill. 2d at 436. Further, "[n]o oneclause, phrase or sentence determines the intent" of the parties,and "[n]one of the words are [to be] considered meaningless orrepugnant or surplusage." Warren-Boynton State Bank, 123 Ill. 2dat 436. Where the parties' intention is not clear, a court mustturn to rules of construction to aid the inquiry. Warren-BoyntonState Bank, 123 Ill. 2d at 436. Consistent with the principle thatthe relevant circumstances under which a grant was made must beconsidered (Warren-Boynton State Bank, 123 Ill. 2d at 436), weapply the principle of contractual interpretation that paroleevidence is admissible to determine if a latent ambiguity exists(see American National Bank & Trust Co. of Chicago v. OlympicSavings & Loan Ass'n, 60 Ill. App. 3d 722, 724-25 (1978)(construing a lease)).

The bank argues that the deeds in the chain of title linkingplaintiffs to Tefft specifically exclude the right-of-way from theconveyances. For example, the deed from Tefft to his successor ininterest describes the property conveyed as "[a]ll of that certainpart [of the lot] which lays east of the line of the Chicago &Galena Rail Road." Subsequent deeds contain similar descriptions. The bank contends that the "lays east of" language demonstratesthat this conveyance specifically excludes any interest in the landused by the railroad. We disagree. As we will explain below, therailroad right-of-way constituted an easement. Thus, the questionbefore us is whether Tefft and the subsequent grantors intendedthat the fee interest underlying the easement pass with the balanceof the property or if they intended to retain an interest in theproperty themselves.

Regarding this point, the deed is ambiguous. The originaldeed includes in the description the following:

"Together with all and singular the hereditaments andappurtenances thereunto belonging or in any wise appertainingand the reversion and reversions remainder and remaindersrents issues and profits thereof and all the estate righttitle interest claim or demand whatsoever of the said party ofthe first part either in Law or Equity of in and to the abovebargained premises with the hereditament and appurtenances." (Emphasis added.)

Considering this passage, particularly the emphasized language, inthe context of the facts surrounding the conveyance, it isambiguous as to whether Tefft intended to include his interest inthe land underlying the railroad's right-of-way in the grant.

If Tefft had intended to retain a fee interest in the landunderlying the right-of-way, he would have been left with a pieceof property that was being used exclusively by the railroad. Giventhe operation of the railroad, no other use could be made of theparcel. Further, it is also unlikely that he would have retaineda fee interest in the land in contemplation of the railroadeventually abandoning the easement. The land underlying theeasement is an irregularly shaped parcel with dimensions of 10.85feet by 66 feet by 45 feet by 74.7 feet. As such, it would havehad little, if any, value to Tefft as an independent parcel. Thus,we conclude that, in light of the facts surrounding the conveyance,Tefft intended to include his interest in the land underlying theeasement in the conveyance to plaintiffs' predecessors.

The bank counters, "Illinois case law holds that this languageis merely surplusage and does not convey any interest in land atall." The bank's position suffers from two fatal flaws. First, itignores the similarly well-established principle that courts shouldavoid construing a deed so that any portion of it is renderedmeaningless. Warren-Boynton State Bank, 123 Ill. 2d at 436; Dolleyv. Powers, 404 Ill. 510, 512-13 (1949). Second, and morefundamentally, the bank misconceives the enterprise upon which weare embarked. Our usual goal in interpreting a deed is toascertain the intent of the parties (Lakeland Property OwnersAss'n, 121 Ill. App. 3d at 809), not defeat it. Documents likedeeds, wills, and contracts are sui generis, and they must beinterpreted on their own terms. Thus, whether our supreme courtinterpreted language in a deed making reference to tenements,hereditaments, and appurtenances to not encompass a grantor's feeinterest in an adjacent parcel in, for example, St. Louis BridgeCo. v. Curtis, 103 Ill. 410 (1882), is largely irrelevant. Whatever the supreme court concluded about the deed that was beforeit in St. Louis Bridge Co. says little about the deed we are calledon to interpret, particularly given that each such transactionoccurs in a different factual context. Blindly applyinginterpretations from other cases to construe deeds and likeinstruments may just as well defeat the intentions of the partiesas advance them.

We observe that the bank does not attempt to establish acustom or usage that such terms did not encompass interests likethat held by Tefft in the right-of-way. If the parties hadcontracted with such a usage in mind, the usage would be relevantto interpreting the deed. See Katz v. Brooks, 65 Ill. App. 2d 155,159-60 (1965). The bank presents no evidence of such a usage, theexistence of which is a question of fact. Clark v. General FoodsCorp., 81 Ill. App. 3d 74, 79 (1980). Further, it would have beenimpossible for Tefft and his grantee to have had in mind themeaning set forth in the cases the bank relies on in support ofthis argument, as the earliest one was decided approximately 30years after the conveyance occurred.

Thus, we conclude that plaintiffs, by virtue of the chain oftitle leading back to Tefft, have demonstrated that they hold titleto the right-of-way. As noted above, it is not necessary forplaintiffs to establish perfect title to the parcel. Reynolds v.Burns, 20 Ill. 2d at 193. However, where less than perfect titleis established, the title held by the defendant, if any, may beconsidered, and the plaintiff may still prevail if able toestablish superior title. Wilder v. Finnegan, 267 Ill. App. 3d422, 425 (1994). Hence, assuming without deciding that the titleexhibited by plaintiffs is less than perfect, we will examine theinterest the bank holds in the parcel.

We must begin this inquiry with another grant made by Tefft,this time to the railroad's predecessor in interest. The deed inquestion here provides:

"To all whom these presents shall come greeting: whereas the'Galena and Chicago Union Railroad Company' contemplateconstructing a railroad from Chicago to Galena now know yethat I, Erastus Tefft *** being desirous for the constructionof the said railroad in consideration of the premises and ofone dollar to me in hand *** have and by these presents togive, remise, relief, convey, and quitclaim to the Galena andChicago Union Railroad Company for the purpose of constructinga railroad thereon and for all uses and purposes connectedwith the construction and use of said railroad the right ofway for the said railroad over and through the followingdescribed tract, piece or parcel of land situate lying andbeing in the County Kane and State of Illinois bounded asfollows to viz:

One rod in width on each side of the centre line of theGalena and Chicago Union Railroad as located through thenorthwest corner of lot No.4, and a part of the north half oflot No. 3 in block 16 of the original town plat of the town ofElgin ***. To have, hold, and enjoy the land above describedwith the appurtenances unto the said Galena and Chicago UnionRailroad Company and their assigns forever for any and alluses and purposes in any was connected with the construction,preservation, occupation, and enjoyment of said railroad. Provided however that if the said railroad shall not beconstructed over and through said premises within two years orif the said Galena and Chicago Union Railroad Company or theirassigns shall at any time hereafter cease permanently to usesaid railroad to be constructed and the same shall beabandoned or the route thereof changed so as not to becontinued over said premises then and in that case the saidland hereby granted shall revert to the said grantor his heirsor assigns."

The bank contends that the deed created a fee simple determinable,leaving only a possibility of reverter in Tefft. We disagree with the bank and agree with the trial court. Read as a whole, the deedmakes apparent that the interest created in the Galena and ChicagoUnion Railroad Company was an easement.

A fundamental principle of construction is that a deed shouldnot be interpreted, to the extent possible, so that any portion isrendered meaningless or mere surplusage. Warren-Boynton StateBank, 123 Ill. 2d at 436. Construing this deed as creating a feesimple determinable violates this principle. It renders the terms"over and through" and "right-of-way" meaningless. An interestthat passes "over and through" necessarily passes over and throughsomething. If a fee had been created in the grantee, the right-of-way would, in fact, pass through nothing; it would simply beproperty held by the grantee. Further, the term "right-of-way" issynonymous with "easement." See Schnabel v. County of Du Page, 101Ill. App. 3d 553, 558 (1981); see also Penn Central Corp. v.Commonwealth Edison Co., 159 Ill. App. 3d 419, 423 (1987). Thatthe parties used these two phrases in the deed provides strongevidence that they intended to create an easement.

Conversely, construing the interest created as an easementleads to no similar problems. It is true that the last sentence ofthe above-quoted passage appears to create a possibility ofreverter in the grantor. While possibilities of reverter oftenfollow a fee interest (e.g., Mahrenholz v. County Board of SchoolTrustees of Lawrence County, 93 Ill. App. 3d 366, 371 (1981)), theymay follow other interests as well (see In re Estate of Bentley, 14Ill. App. 3d 630, 633 (1973) (observing that "future interests inpersonal property have been recognized in Illinois")). Easementsmay be held subject to future interests such as possibilities ofreverter and rights of reentry (Abrams v. Royse, 211 Ill. App. 3d283, 286 (1991); City of Urbana v. Solo Cup Co., 66 Ill. App. 3d45, 46 (1978)); hence, ascribing the intent to create such aninterest runs afoul of no rule of law.

Furthermore, we do not find the language "[t]o have, hold, andenjoy the land *** forever" inconsistent with the intent to createan easement. While such language, standing alone, appears tocreate a fee, considering the passage as a whole, we conclude thatthis language is limited by the term "right of way." In the firstparagraph quoted above, the grantor purported to "give, remise,relief, convey, and quitclaim *** the right of way *** over andthrough the following described tract, piece or parcel of land." In Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 468-69 (1991),our supreme court rejected an argument that the term "right-of-way"limited the estate granted because it found that the parties hadused the term merely as a shorthand description of the land itself. Here, conversely, the inclusion of the term in the same sentencewith words of conveyance indicates an intent by the parties tolimit the estate. Thus, read in context, what the grantee acquiredto "have, hold, and enjoy" was an easement.

Thus, we conclude that the railroad held an easement in theparcel. We further conclude that the railroad abandoned thateasement. The abandonment of a railroad right-of-way for railroadpurposes results in the termination of the easement. Schnabel v.County of Du Page, 101 Ill. App. 3d 553, 558 (1981). The questionof abandonment turns on the intent of the holder of the easement. Department of Conservation ex rel. People v. Fairless, 273 Ill.App. 3d 705, 716 (1995). Mere nonuse, unless accompanied by theintent to abandon, is insufficient in itself to establishabandonment. Seymour v. Harris Trust & Savings Bank of Chicago,264 Ill. App. 3d 583, 596-97 (1994). However, nonuse is a relevantconsideration. Egidi v. Town of Libertyville, 251 Ill. App. 3d225, 232-33 (1993). An easement is abandoned "when nonuse isaccompanied by acts which manifest an intention to abandon andwhich destroy either the object for which the easement wasestablished or the means of its enjoyment." Schnabel, 101 Ill.App. 3d at 558.

In the instant case, three undisputed facts conclusivelydemonstrate that the railroad intended to abandon the easement. First, the railroad ceased operating trains on the easement late in1997 or early in 1998. Second, the railroad removed the tracksfrom the easement sometime in the middle of 1998. Third, therailroad attempted to convey a portion of the easement to the bank. The bank relies on Fairless, 273 Ill. App. 3d at 715-17, in arguingthat these facts are insufficient to conclusively show abandonment. In Fairless, however, the railroad owned the right-of-way inquestion in fee simple. Fairless, 273 Ill. App. 3d at 716. In thepresent case, the railroad held only an easement; hence Schnabel,101 Ill. App. 3d 553, provides sounder guidance. In Schnabel, thecourt relied on, inter alia, the three facts present in this casein determining that a railroad abandoned an easement as a matter oflaw. Schnabel, 101 Ill. App. 3d at 561. While Schnabel did relyon some additional facts, we find the facts present here sufficientto warrant summary judgment. Particularly, that the railroadattempted to alienate the easement is compelling evidence that itno longer intended to use it for railroad purposes. Because therailroad abandoned the easement and this was the only interest therailroad held, the bank took nothing by virtue of the quitclaimdeed from the railroad

Accordingly, we hold that plaintiffs established title in theparcel. The undisputed facts also show that the bank has nointerest in the parcel. Thus, the trial court committed no errorin determining that plaintiffs owned the property.

B. Statutes of Limitations

The bank contends that plaintiffs' claim is barred by threestatutes of limitations. First, the bank contends that section 13--114 of the Code of Civil Procedure (Code) (735 ILCS 5/13--114(West 2000)), which precludes reliance on documents predating aclaim by 75 years under certain circumstances, bars plaintiffs fromrelying on the Tefft deed to plaintiffs' predecessors in interest. Second, the bank contends the claim is barred by section 13--118 ofthe Code (735 ILCS 5/13--118 (West 2000)), which imposes a 40-yearlimitations period where a party and its predecessors can tracegood title back for 40 years. Finally, the bank asserts that anypossibility of reverter created by the Tefft deed to plaintiffs'predecessor was extinguished by section 4 of the Rights of Entry orRe-entry Act (765 ILCS 330/4 (West 2000)). We hold that none ofthese statutes bar plaintiffs' claim.

The plain language of section 13--114 conclusively forecloses the bank's argument. The section states that, among other things,no documents and instruments that were "executed, dated, delivered,recorded or entered into" more than 75 years before being offeredin support of a claim "shall adversely to the party or partieshereafter coming into possession of such real estate under claim orcolor of title *** be evidence or admissible in evidence or be heldor urged to make any title unmarketable in part or in whole, or berequired or allowed to be alleged or proved as a basis for anyaction, or any statutory proceeding affecting directly orindirectly the title to such real estate." 735 ILCS 5/13--114(West 2000). Our primary goal in interpreting a statute is toascertain the intent of the legislature. Vrombaut v. NorcrossSafety Products, L.L.C., 298 Ill. App. 3d 560, 562 (1998). Thebest indicator of the legislature's intent is, of course, the plainlanguage of the statute. People v. Bowden, 313 Ill. App. 3d 666,668 (2000).

Section 13-114 protects individuals who "hereafter [come] intopossession of such real estate under claim or color of title." Thus, to invoke this section, a litigant must satisfy twoconditions precedent: (1) it must be in possession of the property,and (2) the possession must be under claim or color of title. Ourreview of the record indicates that it is undisputed that the bankis not in possession of the property at issue. The concept ofpossession has plagued courts for years and prompted our supremecourt to make the following observation:

" 'It has frequently been said in reference to acts necessaryto constitute possession, that every case must rest upon itsown facts, and that it is difficult to state any general ruleas to what character of improvements or acts will besufficient for this purpose, and that the acts necessary toconstitute possession depend, to some extent, upon the natureand locality of the property, the use to which it may beapplied and the situation of the parties; that a variety ofcircumstances necessarily have to be taken into considerationin determining the question. Any acts of dominion exercisedover the property by the party claiming to hold title theretothat clearly indicate to others an appropriation thereof tothe purposes for which it may ordinarily be used are generallyregarded as sufficient. [Citations.]' " Klingel v. Kehrer, 81Ill. App. 3d 431, 437 (1980), quoting LeSourd v. Edwards, 236Ill. 169, 172-73 (1908).

Thus, possession is a fact-specific inquiry that must be undertakenin the context of the particular case. The undisputed facts inthis case show that, if anyone, plaintiffs are in possession of theparcel.

By affidavit, Luis Diaz averred that since his purchase of therestaurant he and his family have continually used the parcel foringress, egress, and parking and have maintained a commercialgarbage receptacle on it. In a counteraffidavit, Kenneth Moran,one of the bank's employees, stated that the bank has not taken anyaction to interfere with plaintiffs' use of the parcel. The onlyreasonable inference to be drawn from these facts, no matter howone defines "possession," is that the bank is not in possession ofthe parcel. Accordingly, the bank is not entitled to invokesection 13--144 of the Code as a bar to the current action.

Section 13--118 is similarly inapplicable to the case at bar. This section states, in pertinent part, that "[n]o action basedupon any claim arising or existing more than 40 years before thecommencement of such action shall be maintained in any court." 735ILCS 5/13--118 (West 2000). The claim plaintiffs advance did notarise more than 40 years prior to the date upon which they broughtit. It is undisputed that, until at least late in 1997, therailroad continued to use the easement. Because the railroad wasentitled to use the easement, plaintiffs could have brought anaction against no one while the railroad was doing what it wasclearly entitled to do. Thus, section 13--118 does not precludethe assertion of the claim.

The bank also contends that section 4 of the Rights of Entryor Re-entry Act bars the plaintiffs' claim (765 ILCS 330/4 (West2000)). This section provides that "[n]either possibilities ofreverter nor rights of entry or re-entry for breach of conditionsubsequent *** shall be valid for a longer period than 40 yearsfrom the date of the creation of the condition or possibility ofreverter." 765 ILCS 330/4 (West 2000). The bank contends thatthis provision renders ineffective the language in the deedcreating the right-of-way that states that the parcel shall revertto the grantor in the event the parcel ceases to be used forrailroad purposes. As we have previously determined, however, theinterest held by the railroad was an easement, which may terminateon its own terms when abandoned (see Schnabel, 101 Ill. App. 3d at558). Therefore, the existence or nonexistence of such a futureinterest is irrelevant, and the bank's assertion that this statutebars the current action is ill founded.

III. CONCLUSION

In light of the foregoing, the judgment of the circuit courtof Kane County is affirmed.

O'MALLEY and BYRNE, JJ., concur.