Ohio & Mississippi Railway Co. v. Barker

Mr. Justice Scholfield delivered the opinion of the Court : The description of the property conveyed to appellee is, “all the line of railroad heretofore belonging to the Springfield and Illinois Southeastern Railway Company, * * * together with the right of way, and all the real and personal property late of the said railway company.” The subsequent words, “in any manner used or appropriated for the operating and maintaining of said line of road,” do not describe an additional kind or title of the property intended to be conveyed, but describe simply the use to which the property intended to be conveyed has heretofore been devoted; and so we must first ascertain whether the property in suit is a part of “the line of railway heretofore belonging to the Springfield and Illinois Southeastern Railway Company,” or whether it is a part of “the right of way late of the said railway company.” The words, “right of way late of said railway company,” plainly can only mean right of way owned by said company, for the property of and the property owned by an individual or corporation, as commonly used and understood, mean precisely the same thing. There is no evidence in this record that the land in suit is a part of the line of railway heretofore belonging to the Springfield and Illinois Southeastern Railway Company, or that it is a part of the right of way owned by that company. The deed is only color of title of that which is shown to be within the description of the grant, and is therefore, under this evidence, not color of title to this land. Stumpf v. Osterhage, 111 Ill. 82; Holbrook v. Forsythe, 112 id. 306. There being wanting proof of color of title, the judgment below is right, and it must be affirmed. Judgment affirmed.