Littlejohn v. Chicago, Evanston & Lake Superior Ry. Co.

Mr. JuSTicB ScoTT delivered the opinion of the court: Treating the agreement signed by Benjamin Hill as binding upon his wife, Louesa Hill, by reason of her acquiescence therein, but without determining whether it is in fact binding upon her, the first question presented for our determination is whether the deed from Louesa Hill to Burge, and that from Burge to Littlejohn, conveyed the legal title to the strip in question to the latter. The position taken by appellees seems to be that the railroad company had acquired title to the strip by taking possession under the agreement with Louesa Hill, made through her husband, and that the only interest which Louesa Hill had in that strip at the time she delivered the deed to Burge was a reversionary interest, or a possibility of reverter in case the railway company should thereafter abandon the strip as a right of way. We cannot agree with this contention. An agreement with a railroad company for the conveyance of a right of way stands on the same footing as any other contract for the conveyance of land. (St. Louis and Belleville Electric Railway Co. v. VanHoorebeke, 191 Ill. 633.) The railway company did not obtain any title whatever by virtue of the agreement with Louesa Hill, and by the terms thereof would not be entitled to a conveyance of title until it had performed certain conditions precedent. It was by the agreement given a license to enter upon the land to construct a road-bed and lay tracks and operate its trains while complying with the conditions. Such license, however, gave right to possession only, and not title. It is clear that the legal title to the strip of land in the possession of the railway company had not passed from Louesa Hill up' to the time she delivered the deed to Burge. Appellees contend, however, that by her deed to Burge, Louesa Hill recognized title to the right of way in the railway company and excepted such right of way from the grant to Burge. This contention is based upon that part of the deed which grants to Burge a reversionary right to the portion of the premises used by the railway company in case the railway company should give up its right of way. The conveyance, however, is not made subject to the right of way, but only subject to the agreement for right of way. In order to except property included in the description of a deed from the operation of the grant, the intention so to do must be expressed in clear and certain terms. We do not think the language used in the deed following the description of the premises clearly indicates an intention on the part of the grantor to except the right of way from the operation of the deed, or recognizes title in the railway company. The purpose which Louesa Hill evidently had in mind in mentioning the reversionary right, after conveying property by a description which included the strip occupied by the railway company, was to pass title to the strip in case the railway company 'should comply with the provisions of the agreement for right of way, receive a deed therefor and after-wards abandon such right of way. It follows that the legal title to the strip in question passed to Littlejohn by his deed from Burge. The only remaining question is whether the defendants proved their possession to be rightful. Other than the rights claimed to have been reserved to them by the deeds above mentioned, they rely solely upon the agreement with Louesa Hill, through her husband, and the rights thereby conferred. The rights conferred by the agreement were, first, a license to enter upon the land for the purpose of constructing a road-bed, laying tracks and operating trains while performing the conditions contained in the agreement; and second, the right to a deed upon performing such conditions. The license was irrevocable only during the time specified in the agreement for complying with the conditions. After the termination of such period, if those conditions had not been performed the license was revocable at the will of the licensor or her grantee. (Kamphouse v. Gaffner, 73 Ill. 453.) It is conceded by appellees that the condition requiring the railroad to be constructed and operated through the village of Wilmette has not been performed. There was a breach of all the conditions of the agreement before the railway company went into possession as it did not take possession within one year from the date of the contract, and at law Louesa Hill, or the owner of the legal title claiming through her, had a right to terminate the contract at any time thereafter before the conditions had been complied with, and to revoke the license under which the railway company was in possession. Littlejohn terminated the contract and revoked the license on June 4, 1903, by making demand in writing upon defendants for the possession of the land. After such demand the possession of the defendants ceased to be rightful under the contract with Louesa Hill. Appellees rely upon Sands v. Wacaser, 149 Ill. 530, and similar cases decided by this court, as showing their possession to be rightful. It will be observed upon examination of those cases that the conditions, the performance of which would entitle the railroad company to a deed for the premises, had all been complied with before any attempt was made to declare a forfeiture of the contract, the only contention being that the conditions had not been performed within the time specified by the contract. In such case it is held that the owner of the land, having permitted the railroad company to enter upon the land and perform the conditions after the expiration of the time specified by the contract, has waived the right to declare a forfeiture of the contract on account of the conditions not having been performed within such time, and that a subsequent grantee can not be heard to complain of laches which his grantor had waived. Here, however, the railway company not only failed to comply with the conditions within the time fixed by the contract, but it failed to perform one of the conditions at.all, although nearly seventeen years have elapsed since making the agreement. We do not think the failure of Louesa Hill to declare a forfeiture of the contract at the expiration of the time fixed for performance was a waiver of the right in herself or her grantee to insist upon a performance of the conditions at some future time or to declare a forfeiture for non-performance. This case is, therefore, plainly distinguishable from those cited by appellees. Appellees also argue that the railway company is seized of an estate upon condition subsequent. The conditions were plainly conditions precedent. The railway company, by the terms of the agreement, could not demand a deed until it had performed all such conditions, and as no such deed was in fact delivered to it, it never became seized of any estate whatever which the law recognizes. The law in regard to estates upon condition subsequent, sought to be applied by appellees, has no bearing upon this case. The plaintiff proved title in himself. The defendants failed to prove any title whatever or any right to the present possession of the strip of land occupied by them. The judgment of the superior court will therefore be reversed and the cause will be remanded to that court for further proceedings in conformity with the views herein expressed. Reversed and remanded.