Turpin v. Baltimore, Ohio & Chicago Railroad

Mr. Justice Sheldon delivered the opinion of the Court : Had Bowen never conveyed to Honoré, and had he been himself the party plaintiff here, we should have no doubt that he could not maintain this action of ejectment. He 'would not have a right to the possession,—defendant would be lawfully in possession, having been let into the possession by Bowen, under a contract for the right of way, which has been fully performed on defendant’s part. In such a case, where the defendant’s possession is rightful, and the plaintiff is not wrongfully kept out of possession, it is very well settled by the decisions of this court that the action of ejectment can not be sustained. Stow v. Russell, 36 Ill. 23; Kilgour v. Gockley, 83 id. 112; Gridley v. Hopkins, 84 id. 532; St. Louis, Alton and Terre Haute R. R. Co. v. Karnes, 101 id. 403. The. position taken by plaintiff’s counsel is, that the possession of the defendant does not rest upon the written contract”of May 13,1874,—that its- rights rest solely upon verbal ¡momises of Bowen to give the right of way without consideration, amounting to no more than a parol license for a right of way, which is revocable at will. This position is based upon the assumption that the contract of May 13, 1874, does not contain any agreement to convey this right of way. It contains no such agreement in terms, but it does in effect. AYe consider such agreement to be embraced in the following words of the concluding clause of that contract, viz: “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.” That ten-acre tract was owned by one Saxton,.from whom defendant afterward obtained the right of way through such tract. The surrounding circumstances may be looked at in construing a contract, where there is any uncertainty of meaning. These two lots (11 and 13) lie east of Stony Island avenue. The line of the railroad had been located, and' a map made, with the line of the road marked upon it as running across these lots. It is, then, clear enough that this provision was an undertaking by Bowen and Snyder, the parties of the first part, that they would procure' for the company, free of cost to it, this right of way, and when Bowen, who then owned the undivided third of the thirty acres upon which the right of way was located, afterward, by partition, had set off to him lots 11 and 13 as his share in severalty of the thirty acres, the right of way running through lots 11 and 13 was then on his own land solely, and by virtue of that provision in the contract for procuring the right of way, the railroad company could enforce from him a conveyance of this right of way. There was evidently no verbal promise to give the right of •way, distinct from this written contract. Any verbal contract there ever may have been, was embodied in this contract afterward executed, so that thereafter there was no separate verbal promise existing. The circumstances sufficiently show this. It was, then, a written contract for the right of way, made for a valuable consideration, and not a mere verbal promise, without consideration, to give the right of way, revocable at will, under which defendant took possession and claims its right, which right is a sufficient defence as against Bowen. Honoré and' the Fidelity Savings Bank occupy no better position than Bowen himself. Honoré, when he purchased, was informed by Bowen that he had agreed to give the defendant the right of way across the land, which sufficiently affected Honoré with notice of this contract. Bowen, it is true, did not mention this particular contract, but he said he had agreed to give the right of way to the company, and that in buying the land, Honoré must allow the right of way free of charge. Honoré had no right to take the agreement to be any other than it was,—a binding contract for the right of way. Bowen’s interest, to be sure, was but the undivided one-third of thirty acres; but Honoré was bound to know that, on partition, the portion of the thirty acres upon which the right of way was located was liable to be assigned to Bowen as his share, and he took subject to that chance. The Fidelity Savings Bank was fully informed of this particular contract before it took the notes and trust deed; and besides, the company at that time was in possession of the right of way,—running its cars over it,—which would be constructive notice of the company’s right. As to Abell, no more need be remarked than that he took, at the most, by his quitclaim deed from Honoré, but the equity of redemption, which was cut off by the foreclosure sale and deed. To that foreclosure suit, it may be observed, the railway company was not a party. The judgment will be affirmed. Judgment affirmed.