Smith v. Malone

JUSTICE MYERSCOUGH, specially concurring:

I agree with the majority’s interpretation and application of section 912 in this case. I write separately only to emphasize that section 912 operates to grant title to forfeited or abandoned railroad rights-of-way only to those with title regardless of whether the right-of-way traverses an even- or odd-numbered section of land. Although we have previously found that the plain language of section 912 explicitly requires title to the land underlying the right-of-way (Marlow, 315 Ill. App. 3d at 813, 734 N.E.2d at 200-01), the legislative history leading to the enactment of section 912 clearly supports our interpretation and application as well.

In its report to the House of Representatives regarding House Bill 244, later passed as section 912, the Committee of Public Land and Surveys wrote:

“The object of this bill is to provide for disposition of lands embraced in forfeited or abandoned railroad rights[-]of[-]way on what was originally public lands. In some cases[,J a right[-]of[-J way was granted by the [gjovemment and later forfeited, while in other cases change in the location of the railroad resulted in the abandonment of the old right[-]of[-]way. The act of March 3, 1875, under which most of the rights[-]of[-]way over public lands have been granted contains a provision for forfeiture of the grant for failure to construct the railroad within a specified time succeeding the date of the grant. Under the decision of the courts[,] railroad companies receiving such grants take a qualified fee with an implied condition of reverter in the event the companies cease to use the lands for the purpose for which they were granted. Upon abandonment or forfeiture, therefore, of any portions of such right[-]of[-]way the land reverts to and becomes the property of the United States.

It is, however, a fact that in making conveyances of subdivisions traversed by such rights[-]of[-]way the United States issues patents for the full area of the tracts or legal subdivisions, making no diminution by reason of the prior grant of the right[-]of[-]way.

It seemed to the committee that such abandoned or forfeited strips are of little or no value to the [g]overnment and that in case of lands in the rural communities they ought[,] in justice[,] to become the property of the person to whom the whole of the legal subdivision had been granted or his successor in interest. Granting such relief in reality gives him only the land covered by the original patent.” H.R. Rep. No. 67-217, at 1-2 (1921).

See also S. Rep. No. 67-388, at 2 (1922) (letter from E.C. Finney, Acting Secretary) (recommending to the Senate that House Bill 244 should be passed and adopting the explanation in the above-quoted House Report).

Therefore, based upon the plain language of section 912 and the legislative history, section 912 operates in the following manner regardless of whether the right-of-way traverses an even- or odd-numbered section of land. As in the present case, the United States either grants or issues a patent for an entire tract or subdivision of land to a person or company (hereinafter patentee). See H.R. Rep. No. 67-217, at 1-2 (1921). By virtue of that conveyance, the patentee owns the entire tract or subdivision covered by the patent or conveyance without qualification. The United States, however, also grants a right-of-way for railroad passage across that tract or subdivision. According to the United States Supreme Court, the United States’ grants of these railroad rights-of-way actually only grant the railroad a qualified fee with implied condition of reverter. Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 271 , 47 L. Ed. 1044, 1047 , 23 S. Ct. 671, 672 (1903). Accordingly, whenever a railroad forfeits or abandons a right-of-way, the land underlying the right-of-way reverts to the United States government. See H.R. Rep. No. 67-217, at 1-2 (1921).

Because these forfeited or abandoned strips of land were of little or no value to the United States (see H.R. Rep. No. 67-217, at 2 (1921)), Congress enacted section 912 to divest the United States of these railroad rights-of-way. Essentially, section 912 works much like the doctrine of after-acquired title. The doctrine of after-acquired title generally provides that when one conveys real estate by a deed purporting to convey the same in fee simple, any legal estate that the grantor acquires after the sale or conveyance passes to the grantee or the grantee’s successor in interest. 23 Am. Jur. 2d Deeds § 347 (1983); see also Tomkins State Bank v. Niles, 127 Ill. 2d 209, 217 , 537 N.E.2d 274, 278 (1989) (stating that the Illinois statute regarding this issue provides that “if a person sells or conveys to another an estate in land which the vendor does not possess, but then after the sale or conveyance, the vendor does ‘become possessed of and confirmed in the legal estate to the land or real estate so sold or conveyed [(Ill. Rev. Stat. 1983, ch. 30, par. 6)],’ the vendor holds the subsequently acquired estate in trust for the person or entity to whom the original conveyance was made”).

Therefore, upon forfeiture or abandonment, the railroad right-of-way reverts to the United States government. By operation of section 912, the United States’ reverted interest then vests in the patentee who received interest in the entire tract or subdivision or their successors in interest.

Often, however, railroads abandon rights-of-way long after the original patent or grant. By the time the railroad abandons the right-of-way, the patentee may have divided and conveyed some or all of the tract or subdivision. If in dividing or conveying portions of the subdivision the patentee has conveyed or, more accurately, purported to convey an interest in the land underlying the right-of-way, any after-acquired interest the patentee receives by operation of section 912 will be transferred to grantees or the grantee’s successor in interest who received a deed for the patentee’s interest in the land underlying the right-of-way. If the patentee only conveyed the land on either side of the right-of-way but never conveyed the land underlying the right-of-way, the land underlying the right-of-way remains the property of the original patentee or his heirs.

Likewise, if hypothetically the United States never issued a patent or conveyed the land underlying the right-of-way to anyone, then when the railroad company abandons the right-of-way and the land underlying the right-of-way reverts to the United States, the United States remains possessed of the fee simple interest in that land. In such a case, section 912 would not apply.

Therefore, persons with title only to the land bordering or adjacent to the right-of-way may not claim the land underlying the right-of-way merely by virtue of their adjacency. Persons seeking to claim interest in an abandoned railroad right-of-way by operation of section 912 must have title to the land underlying the right-of-way. Title must emanate from the original interest of the United States, either through a patent or other similar grant such as a purported conveyance from the United States to a railroad company and thereafter from the railroad company to individual persons or corporations. Marlow, 315 Ill. App. 3d at 813, 734 N.E.2d at 200-01.

Moreover, these principles are applicable both to situations in which the entire section of land was granted to the railroad company to subsidize the construction of the railroad (see Marlow, 315 Ill. App. 3d at 815, 734 N.E.2d at 202) and to situations, as in the present case, in which the United States apparently never granted the entire section to the railroad company. In Marlow, the right-of-way crossed an even-numbered section that the United States had granted to the railroad to sell and subsidize the railway construction. Marlow, 315 Ill. App. 3d at 815, 734 N.E.2d at 202. In the present case, however, the disputed right-of-way crosses an odd-numbered section of land. Therefore, because the United States did not historically grant the odd-numbered sections to the railroad companies (Act of September 20, 1850, 9 Stat. 466 (1850); Illinois Central, 246 Ill. at 197, 92 N.E. at 820) and the record fails to indicate the complete chain of title, we must assume that the United States did not grant this particular section to the railroad as it had with the section in Marlow. This fact, however, does not change the underlying analysis regarding ownership of the abandoned right-of-way or application of section 912. I, therefore, agree that no logical reasons exist for applying different standards to these two situations.

For the foregoing reasons, I specially concur.