Superior Oil Co. v. Harsh

KERNER, Circuit Judge. This appeal involves a controversy over the right to oil from 6/10 of an acre of land in White County, Illinois. The determinative question is one of title since both parties base their claims upon leases executed by different lessors as the owners of this particular piece of property. Jurisdiction of the cause rests upon diversity of citizenship. The Superior Oil Company, a California corporation, brought this suit against the defendants to enjoin them from drilling an oil well upon 6/10 of an acre known as the school house site, located in the southwest corner of a tract of 12.17 acres which was part of the 149 acres upon which the plaintiff had an oil and gas lease from one Helen M. Ford, the record fee owner. Three of the defendants are the school trustees and the other four are men interested in a later lease of the school site executed by the trustees. The defendants’ answer to the suit was that their lease was valid because the trustees had title by (1) adverse possession for fifty-five years and (2) the presumption of an ancient grant. The district court, after a hearing, made special findings of fact, stated its conclusions of law thereon and entered a decree for the plaintiff holding its lease valid and the lease from the Trustees of Schools invalid and enjoined the defendants from using the land in question for oil and gas purposes. The defendants’ appeal is from this adverse decree. The controlling facts are not in dispute. Plaintiff’s lessor, Helen M. Ford, is the record title owner of the 12.17 acres of land which include the school house site of 6/10 of an acre. Originally, this specific tract of 12.17 acres belonged to Stephen Fitzgerald and then to his three sons, Charles, Edward, and John. After 1887 the land was owned by Charles and Edward, until the partition of the estate between them in 1892. The chain of title of this land, now in Helen M. Ford’s name, is unbroken. On October 5, 1873, School District 5, now known as 95, was defectively organized. The defect was not cured until April of 1886 when the Board of Trustees, headed by Charles Fitzgerald, acted favorably upon a petition of John Fitzgerald and others for the proper formation of the district. Prior to 1886 the small school house had been erected in the extreme southwest corner of the 12.17 acre tract at a cost of $377. The construction costs were paid in the summer of 1886 and that fall the school opened for its first term. Since that time the building has been used continuously as a school and the district has kept it and the other usual country school house appurtenances in repair. At no time in the long time preceding the dispute did the trustees make any effort to set off the now claimed site from the rest of the 12.17 acre tract, and at no time prior to September 17, 1940, did any hostility exist between the trustees and Helen M. Ford or her predecessors in title as to the title, occupation and use of the school buildings and the premises for such school purposes. The record owner once built a fence along the north and east sides of the present school house site in order to keep his live stock from roaming upon the school playground, but that has long since disappeared. The school trustees took no part in either its construction or maintenance. The only line of demarcation is brush growing irregularly along the old fence line and it is that which the defendants fixed upon as the boundary when they first made a survey sometime after the start of the controversy. During the entire existence of the School District the site has not once been excepted from the tax books. The owners of the larger tract have always paid the taxes assessed without excepting the part occupied by the school. Among these very taxes have been those for the maintenance of the school and under the statutes they have been collected by the treasurer for the trustees. There is no deed of record to the trustees and no proof that one for the site was ever executed. It is true that the trustee records show that in 1887 the Board instructed its treasurer to notify the owner of the site “to make proper deed” to the Board and that in 1890 the president of the Board was directed “to see an attorney” and learn what proceedings could be had “to secure title to the school house site” in District 5, but the record is entirely bare of any evidence that a deed was executed and delivered; there is no showing of any other action toward obtaining a conveyance. A former director of the Board did testify that he had received certain records from his predecessor among which was an envelope marked “Deed”, but that he had never examined the contents of the envelope before the envelope was destroyed by a fire. [574] Upon these facts, defendants claim there should be the complete defense of a presumption of an ancient grant in fee title to the trustees, as well as the defense of the statute of limitations because of adverse possession. Doctrinally speaking, there is a distinction between these two defenses which is recognized by the courts of Illinois (Trustees of Schools v. Lilly, 373 Ill. 431, 26 N.E.2d 489) and by text-writers. Tiffany on Real Property, 2d Ed., 1920. Under most factual circumstances, however, in disputes between private parties the consequences of either theory are the same. The presumption of an ancient grant is not one of law; it is rather a rule of evidence which depends upon questions of fact. Actual proof of the execution of a conveyance is not necessary. The presumption may be made when the facts are such that a conveyance might have been executed and the presumption of its execution would solve the difficulties arising from the lack of proof of execution. In other words, it is an inference that under the facts it is reasonable that the individual must be rightfully in possession under a lost grant. The defense of the statute of limitations because of adverse possession is of a different nature. Under it, when a party has been in possession of land under a claim of ownership for more than twenty years, the statute (Ill.Rev.Stat.1941, Ch. 83, § 1) bars the true owner from dispossessing the claimant, though his'possession may have been wrongful and without right. There is no presumption of the rightfulness of the claimant's possession: he prevails only because the true owner has not seasonably asserted his right of ejectment. We do not believe that the facts of this case will support a presumption of an ancient grant in fee title to the trustees. Without resorting to the presumption, there are no difficulties which the facts and the reasonable inferences from them will not explain. In our case the school house was built upon land of men interested in the establishment of the school. In every conveyance made since that day, the school house site has been always included in the land conveyed and the taxes paid have always been paid by the record title owner upon the assessments made on the whole tract, without exception for the land in use for educational purposes. It seems inescapable that the school was upon the site with the permission of the title owner and in subordination to the claim of his .fee title. The instructions of 1887 and 1890 contained in the reports of the Board do not weaken the conclusion. There are no entries as to any steps taken in furtherance of these instructions (themselves separated by three- years). In fact, several years after the last instruction, the record title owners did not join the trustees in the partition suit of 1892 although the school house site was part of the land involved. Everything is consistent with the record title owner’s continued ownership and the trustees’ use as permissive and in submission to that superior title; nothing is shown which will justify defeating her title by a presumption of an ancient grant. Nor have the defendants established the defense of the statute of limitations based upon adverse possession. Adverse possession can not be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive, and unequivocal. Zirngibl v. Calumet Dock Co., 157 Ill. 430, 448, 42 N.E. 431; Siegle v. Criss, 312 Ill. 617, 144 N.E. 307; New York Central R. R. Co. v. Kinsella, 324 Ill. 339, 155 N.E. 284; Jones v. Scott, 314 Ill. 118, 145 N.E. 378 and Town of Kaneville v. Meredith, 351 Ill. 620, 624, 184 N.E. 883. The doctrine is to be construed strictly, Horn v. Metzger, 234 Ill. 240, 245, 84 N.E. 893, and no presumption is indulged in the claimants. Theiner v. Speckin, 290 Ill. 181, 187, 124 N.E. 826. “To constitute possession that is adverse and sufficient to defeat the claim of the holder of the legal title * * * the possession must be hostile in its inception.” Leonard v. Leonard, 369 Ill. 572, 576, 17 N. E.2d 553, 555. We have already held that the trustees’ original possession was in submission to the title of the real owner and consequently such possession was not hostile or adverse. And where the possession has been consistent with, or in submission to the title of the real owner, nothing but a clear, unequivocal and notorious disclaimer and disavowal of the title of such owner, will render the possession, however long continued, adverse. Rigg v. Cook, 4 Gilman 336, 9 Ill. 336, 351, 46 Am.Dec. 462. There was no such disclaimer by the school authorities until the discovery of oil, when they made the lease now used as a defense. We therefore must hold the defendants’ defenses do not defeat the plaintiff’s lessors record title [575] and the District Court properly granted plaintiff’s prayer for relief. The decree is affirmed.