KENNETH W. SMITH et al., Plaintiffs-Appellants, v. LAVERNE MALONE et al., Defendants-Appellees, 317 Ill. App. 3d 974

JUSTICE KNECHT delivered the opinion of the court: In July 1994, plaintiffs, Kenneth W Smith, Patricia Ann Smith, Helen Gilliland Hughes, as trustee of the Helen Gilliland Hughes trust dated November 10, 1993, and Ann Gilliland, filed a complaint against defendants, Laverne Malone, Sharon Malone, William C. Edwards, as trustee under declaration of trust of William C. Edwards dated January 25, 1994, and Bertha A. Edwards, as trustee under declaration of trust of Bertha A.

Edwards dated January 25, 1994, for ejectment and quiet title regarding a strip of former Illinois Central Railroad (Railroad) right-of-way property. In March 2000, the trial court granted defendants’ motion to dismiss plaintiffs’ complaint without leave to file an amended complaint. Plaintiffs appeal, arguing the trial court erred in interpreting

section 912 of Title 43 of the United States Code (43 U.S.C. § 912 (1994)) as requiring plaintiffs to allege a chain of title to the right-of-way and not giving them title as adjacent landowners. We affirm. I. BACKGROUND A. Procedural History Plaintiffs’ original complaint for ejectment and quiet title alleged (1) they owned in fee simple certain property, an abandoned railroad right-of-way in De Witt County, running through

section 35 of township 19 north; (2) in February 1988, the Railroad purported to convey portions of the right-of-way to William C. Edwards; (3) thereafter, Edwards purported to convey his interest to the other defendants; (4) plaintiffs entered into possession of the right-of-way under claim of title and began to farm the property; and (5) defendants claimed title to the right-of-way and interfered with plaintiffs’ possession of the property.

In September 1994, plaintiffs filed a motion to amend their complaint to seek in the alternative declaratory judgment, asking the trial court to find the Railroad abandoned its interest in the right-of-way and plaintiffs are the owners of the right-of-way.

In October 1994, plaintiffs filed a motion to file their second-amended complaint to additionally allege they “are successors in title and interest to whom title of the United States has been granted, conveying or purporting to convey the whole of the legal subdivision traversed or occupied by the [right-of-way].” In August 1999, defendants filed a motion to dismiss pursuant to

section 2 — 615(

a) of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615(a) (West 1998)). In March 2000, the trial court granted defendants’ motion to dismiss, stating: “The court believes that in [plaintiffs’] complaint they must rely solely on their color of title. The court therefore finds as a matter of law [s]ection 912 does not provide that an abandoned railroad right-of-way reverts automatically to the adjacent land owner of the right-of-way.” The trial court also denied plaintiffs leave to amend their complaint. After the trial court’s ruling, plaintiffs’ attorney asked for clarification: “MS.

HEINZ: It was my understanding that the defendants were arguing that we never alleged that we could show that we were successor[s] in interest in the title of the property *** but that is an allegation in the second[-]amended complaint. THE COURT: Counsel, the court Understands that the plaintiffs allege that their right to title is that they are adjacent land owners. MS. HEINZ: Or successors in interest. We say they are the same thing.” In April 2000, plaintiffs filed a notice of appeal without filing a motion for reconsideration. B.

History of Disputed Right-of-Way On September 20, 1850, Congress granted the State of Illinois a 200-foot-wide right-of-way through public lands in Illinois to construct a railroad from Cairo to La Salle, with a branch to Chicago and another to Dubuque. Act of September 20, 1850, 9 Stat. 466 (1850); State v. Illinois Central R.R. Co., 246 Ill. 188, 197, 92 N.E. 814, 820 (1910). The United States also granted Illinois every alternate

section of land for six miles in width on each side of the right-of-way to be sold to finance the construction of the Illinois railroad lines. Act of September 20, 1850, 9 Stat. 466 (1850); Illinois Central, 246 Ill. at 197, 92 N.E. at 820. The parcels of land granted to Illinois under this “checkerboard” land-grant scheme were designated with even numbers. Act of September 20, 1850, 9 Stat. 466 (1850). The right-of-way in dispute crosses the

section of land numbered 35. In February 1851, the State of Illinois incorporated the Railroad to undertake the railroad expansion through Illinois. Illinois Central, 246 Ill. at 198, 92 N.E. at 820. In March 1851, Illinois Governor Augustus C. French deeded the land granted to Illinois by the United States to the Railroad, allowing the Railroad to construct the Illinois portion of the Chicago, Illinois, to Mobile, Alabama, cross-country railroad system. The record does not reflect the complete chain of title to this land, including any United States patents conveying title to this land.

In November 1993, Hughes, as trustee of the Helen Gilliland Hughes trust dated November 10, 1993, obtained a warranty deed conveying an undivided one-half interest in “that part of the [west] of the [northwest] of [section] 35, [township] 19 [north], [range] 2 [east] of the [third principal meridian], containing 29 acres, more or less, and lying [west] of the former right-of-way of the [Railroad].” Gilli-land owned the other undivided one-half interest in this parcel.

In March 1987, the Smiths obtained by warranty deed the following property: “Beginning at an iron pin on the [n]orth line of the [w]est 1h of [s]ection 35, [t]ownship 19 [n]orth, [r]ange 2 [e]ast of the [third principal meridian], a distance of 1[,]008.72 feet [westerly of the [n]ortheast corner thereof; thence [south] *** a distance of 4Q594.75 feet to an iron pin on the [n]orth line of the [s]outh 31-acre exception lying [e]ast of the [Railroad] right[-]of[-]way line in the [w]est V2 of said [s]ection 35; thence *** [w]est, on the [n]orth line of the [s]outh 31 acres, 932.49 feet to an iron pin on the [e]ast right[-]of[-]way line of the [Railroad]; thence [n]orth on the said [e]ast right[-]of[-]way line a distance of 4[,]596.67 feet to an iron pin on the [n]orth line of the [w]est V2 of said [s]ection 35; thence *** [e]ast on the [n]orth line of the [w]est V2 of said [s]ection 35 a distance of 1[,]008.15 feet to the point of beginning, containing 102.361 acres more or less.” In February 1988, the Railroad quitclaimed all its right, title, and interest to the original 200-foot-wide railroad right-of-way in

section 35 to William C. Edwards. Between 1988 and 1994, Edwards engaged in various conveyances regarding this right-of-way. II. ANALYSIS Plaintiffs claim the conveyances to and among the defendants are void. They assert the Railroad could not have conveyed any interest to Edwards because the Railroad’s interest in the right-of-way, a limited fee subject to an implied condition of reverter, terminated when it ceased to use or retain the right-of-way for the purpose for which the United States granted it. Plaintiffs assert they own the right-of-way by operation of

section 912. Defendants’ motion to dismiss cited to

section 2 — 619 of the Code (735 ILCS 5/2 — 619 (West 1998)). Because the motion asked the trial court to dismiss plaintiffs’ complaint because it failed to state a cause of action, we treat it as a motion to dismiss pursuant to

section 2 — 615(

a) of the Code (735 ILCS 5/2 — 615(a) (West 1998)). When faced with a motion to dismiss, the court must accept as true all well-pleaded factual allegations and disregard mere conclusions of law. Coles-Moultrie Electric Cooperative v. City of Sullivan, 304 Ill. App. 3d 153, 157, 709 N.E.2d 249, 251 (1999). We review de novo a trial court’s dismissal for failure to state a cause of action. Young v. Forgas, 308 Ill. App. 3d 553, 566, 720 N.E.2d 360, 369 (1999). A.

Requirements for Quiet Title Action On appeal, plaintiffs argue the trial court erred by dismissing their complaint because they alleged sufficient facts to plead a cause of action as adjacent owners to the right-of-way. 11 [A] fundamental requirement in an action to quiet title *** [is] the plaintiff must recover on the strength of his own title, although it is not required that a perfect title be established.” Reynolds v. Burns, 20 Ill. 2d 179, 193, 170 N.E.2d 122, 130 (1960). To prevail in a quiet title action, a plaintiff must establish title superior to the defendant’s title. Wilder v. Finnegan, 267 Ill.

App. 3d 422, 425, 642 N.E.2d 496, 499 (1994). Moreover, where a plaintiff has no title in himself, he cannot maintain an action for quiet title. Lakeview Trust & Savings Bank v. Estrada, 134 Ill. App. 3d 792, 812, 480 N.E.2d 1312, 1327 (1985). B. Requirements for Ejectment

Section 6 — 104 of the Code (735 ILCS 5/6 — 104 (West 1998)) provides: “No person shall recover in ejectment unless he or she has, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest[,] or portion thereof, to be proved and established at the trial.” A plaintiff in ejectment also must recover on the strength of his own title rather than the weakness of his adversary’s title. Bulatovic v. Dobritchanin, 252 Ill. App. 3d 122, 128, 625 N.E.2d 26, 31 (1993). C.

Interpretation of

Section 912 Plaintiffs contend the trial court erred in interpreting

section 912. They suggest they obtained the United States’ reversionary interest in the right-of-way merely by virtue of their adjacency to a single side of the right-of-way. We disagree.

Section 912 states, after a railroad company abandons a right-of-way granted by the United States: “[A] 11 right, title, interest, and estate of the United States in said lands shall *** be transferred to and vested in any person, firm or corporation, assigns, or successor in title and interest to whom or to which title of the United States may have been or may be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad ***.” (Emphasis added.) 43 U.S.C. § 912 (1994). In Marlow v. Malone, 315 Ill. App. 3d 807, 813, 734 N.E.2d 195, 200-01 (2000), this court interpreted the plain language of

section 912 to require a plaintiff in a quiet title action to demonstrate title to the land underlying the right-of-way, unless the plaintiff is a municipality seeking to assert ownership to land within its jurisdiction. See City of Maroa v. Illinois Central R.R., 229 Ill. App. 3d 503, 514, 592 N.E.2d 660, 667 (1992). D. Title to the Disputed Right-of-Way Applying the

interpretation of

section 912 we adopted in Mar-low, we examine plaintiffs’ deeds to determine whether plaintiffs can establish title to the land underlying the right-of-way. We conclude plaintiffs cannot do so.

Hughes’ deed includes only “that part of *** [section] 35 *** lying [west] of the former right-of-way of the [Railroad].” (Emphasis added.) The Smiths’ deed describes the property by tracing “[w]est, on the [n]orth line of the [s]outh 31 acres, 932.49 feet to an iron pin on the [e]ast right[-]of[-]way line of the [Railroad]; thence [n]orth on the said [e]ast right[-]of[-]way line.” (Emphasis added.) Thus, the Smiths’ deed describes property lying east of the right-of-way but not including the land underlying the right-of-way.

Plaintiffs maintain our holding in Marlow requiring plaintiffs to demonstrate title to the land underlying the right-of-way was incorrect because

section 912 requires title to the legal subdivision traversed by the right-of-way. We disagree. The language in

section 912, “purporting to convey the whole of the legal subdivision” (43 U.S.C. § 912 (1994)), merely indicates a purported conveyance of the entire subdivision, without qualification, includes title to the land underlying the right-of-way. Marlow, 315 Ill. App. 3d at 814-15, 734 N.E.2d at 201-02. In any event, plaintiffs’ deeds do not describe any “legal subdivision” “traversed” by the right-of-way because each plaintiff owns property only on a single side of the right-of-way. See Warren v. Van Brunt, 86 U.S. 646, 652, 22 L.

Ed. 219, 222 (1874) (legal subdivisions of the public lands must contain at least a quarter of a quarter section, or 40 acres, except in the case of fractional sections); Merriam-Webster’s Collegiate Dictionary 1257 (10th ed. 1998) (“traverse *** 1: something that crosses”). Plaintiffs also contend our

interpretation of

section 912 in Marlow renders no one able to establish a chain of title to the disputed right-of-way in this odd-numbered

section and results in title reverting to the United States when Congress intended to divest itself of its interest. We disagree.

Section 912 applies to situations in which the United States granted the right-of-way to a railroad, yet issued a separate patent for the entire subdivision traversed by the right-of-way. Marlow, 315 Ill. App. 3d at 815, 734 N.E.2d at

Section 912 also applies in situations in which an attempt to convey a fee interest in the entire subdivision, including the land underlying the right-of-way, is technically unsuccessful. Marlow, 315 Ill. App. 3d at 815, 734 N.E.2d at 202. Moreover, the language in

section 912, “purporting to convey the whole of the legal subdivision” (43 U.S.C. § 912 (1994)), enables a purported conveyance of the entire subdivision, without qualification, to include title to the land underlying the right-of-way. Marlow, 315 Ill. App. 3d at 815, 734 N.E.2d at 202. The owner of a legal subdivision may convey the property, including the interest in the land underlying the right-of-way, in any manner or proportions. Marlow, 315 Ill. App. 3d at 815, 734 N.E.2d at 202.

Therefore, plaintiffs are not successors in interest to those to whom title of the United States may have been granted, conveying or purporting to convey the whole of the legal subdivision traversed by the right-of-way, because their deeds did not include the land underlying the right-of-way. Plaintiffs had no title in the land underlying the right-of-way because their deeds excluded the right-of-way. Thus,

section 912 does not grant them title to the right-of-way as landowners each adjacent to a single side of the right-of-way. As a result, their complaint for ejectment and quiet title must fail. We need not consider whether defendants had title, nor do we need to decide who else might own the right-of-way. The trial court properly dismissed plaintiffs’ complaint because they did not assert any basis for title other than their erroneous

interpretation of

section 912. E. Leave To Amend Complaint Plaintiffs contend the trial court erred in denying them leave to file their second-amended complaint. Parties do not have an absolute right to amend pleadings, and the decision whether to permit amendment is addressed to the sound discretion of the trial court. Kennedy v. King, 252 Ill. App. 3d 52, 55, 623 N.E.2d 955, 957 (1993). A trial court may properly deny a motion to amend pleadings if the proposed amended complaint would be subject to immediate dismissal due to some inherent defect. Kennedy, 252 Ill. App. 3d at 55, 623 N.E.2d at 957.

Plaintiffs argue their second-amended complaint states a cause of action because it alleges plaintiffs are successors in title and interest to whom title of the United States has been granted, conveying or purporting to convey the whole of the legal subdivision traversed or occupied by the right-of-way. Although plaintiffs’ allegation mirrors the language in

section 912, it is an erroneous conclusion of law. See Coles-Moultrie, 304 Ill. App. 3d at 157, 709 N.E.2d at 251 (“[wjhen faced with a motion to dismiss, the court must *** disregard mere conclusions of law”). As plaintiffs’ attorney admitted at the March 2000 hearing, plaintiffs allege to be “successors in interest” merely because they are adjacent landowners. Thus, the trial court did not abuse its discretion in denying plaintiffs leave to amend their complaint because their sole claim of title in their second-amended complaint was also supported only by their erroneous

interpretation of

section 912. III. CONCLUSION For the reasons stated, we affirm the trial court’s judgment. Affirmed. STEIGMANN, PJ., concurs.