LAVERNE MALONE et al., Plaintiffs-Appellees, v. KENNETH SMITH et al., Defendants-Appellants, 355 Ill. App. 3d 812

PRESIDING JUSTICE COOK delivered the opinion of the court: This is the latest in a series of cases involving the ownership of a right-of-way of the Illinois Central Railroad (ICR), abandoned in the late 1980s. These cases have addressed

section 912 of Title 43 of the United States Code (43 U.S.C. § 912 (1988)), which provides when lands of the United States are used by a railroad as a right-of-way and the right-of-way is abandoned, title shall vest in the persons to whom title of the United States was granted, “purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad.” An exception exists for “lands within a municipality, the title to which, upon forfeiture or abandonment, as herein provided, shall vest in such municipality.” 43 U.S.C. § 912 (1988). In City of Maroa v.

Illinois Central R.R., 229 Ill. App. 3d 503, 514, 592 N.E.2d 660, 667 (1992), we affirmed a declaratory judgment declaring that ICR had abandoned and forfeited its interest in the 200-foot right-of-way within the city limits of Maroa and that Maroa was the owner of that property. In Marlow v. Malone, 315 Ill. App. 3d 807, 812, 734 N.E.2d 195, 199-200 (2000), some owners of property adjacent to the abandoned right-of-way brought suit, claiming title under

section 912. The defendants, plaintiffs in the present case, claimed title under a 1988 ICR deed to William C. Edwards. We rejected the claim of the adjacent landowners under

section 912 because their deeds specifically excluded the land underlying the right-of-way. For example, one deed contained the language “ 1 [t]hat part of the Southwest Quarter *** lying West of the [ICR] right-of-way.’ ” Marlow, 315 Ill. App. 3d at 817, 734 N.E.2d at 203. In Smith v. Malone, 317 Ill. App. 3d 974, 742 N.E.2d 785 (2000), other adjacent landowners, some of whom are defendants in the present case, brought an action against the Edwards grantees. We again rejected their claim because their land did not include the land underlying the right-of-way.

We further concluded that “[w]e need not consider whether [the Edwards grantees] had title, nor do we need to decide who else might own the right-of-way.” Smith, 317 Ill. App. 3d at 981, 742 N.E.2d at 790. In the present case, the Edwards grantees, defendants in some of the previous cases, brought an action to quiet title. The Edwards grantees do not claim title based on their quitclaim deed from ICR. ICR did not have the power to convey the right-of-way. The United States’ right-of-way grants contained an implied reversionary interest in the federal government in rights-of-way eventually abandoned by a railroad.

Marlow, 315 Ill. App. 3d at 810, 734 N.E.2d at 198, citing Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 271, 47 L. Ed. 1044, 1047, 23 S. Ct. 671, 672 (1903). Rather, the Edwards grantees seek to quiet title on the basis of adverse possession: their payment of taxes with color of title (735 ILCS 5/13 — 109 (West 2000)) or their payment of taxes on vacant land with color of title (735 ILCS 5/13— 110 (West 2000)). The Edwards grantees also seek remedies for forcible entry and detainer, trespass, and injunctive relief. The trial court found the following facts.

When the ICR began to abandon portions of its right-of-way in the 1980s, William C. Edwards purchased a portion of the right-of-way as an investment. Edwards received a quitclaim deed on February 1, 1988. The strip of land contains about 24V2 acres including the roadbed. Edwards paid $357 per acre for the property. All of the right-of-way, except for the roadbed, is tillable but there are drainage problems in various locations because the roadbed interferes with runoff. The Edwards grantees have paid the real estate taxes each year from the date of purchase to the present.

Adjacent landowner Smith testified he attempted to pay the taxes but the county office refused to send him the bill. Ron Margenthaler had farmed the right-of-way for the railroad. In 1988, Margenthaler rented the land from the Edwards grantees and planted it in oats. In 1989 and 1990, the Edwards grantees placed crops on the property. The Edwards grantees leased the property to Darrell Miller, who planted crops in 1991 and 1992. In 1993, Miller discovered that someone else had planted crops on the land.

Miller learned that a dispute had arisen between the Edwards grantees and adjacent landowner Smith and did not lease the property after 1993 because he did not desire to become involved in the dispute. In 1993, the adjacent landowners began to farm the right-of-way so the Edwards grantees could no longer plant crops without destroying those already planted. In 1994, adjacent landowner Smith filed a lawsuit against the Edwards grantees, i.e., the lawsuit referred to as Smith, 317 Ill. App. 3d 974, 742 N.E.2d 785.

The Edwards grantees erected “no trespassing” signs at various times, but the signs were taken down by Smith. After Smith was decided in 2000, the Edwards grantees leased the property to Jim Trichl in 2001. Trichl planted a crop and harvested that crop. Trichl was not able to plant a crop on the acreage that abutted Smith’s property in 2002 and 2003 because Smith’s tenant placed a crop on the land in those two years. After Smith was decided, the other adjacent landowners ceased farming the land abutting their respective properties. The trial court concluded that

section 13 — 110 of the Code of Civil Procedure (735 ILCS 5/13 — 110 (West 2000)) did not apply because the land was not “vacant and unoccupied land.” The

section that applied was

section 13 — 109: “Every person in the actual possession of lands or tenements, under claim and color of title, made in good'faith, and who for 7 successive years continues in such possession, and also, during such time, pays all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of such lands or tenements, to the extent and according to the purport of his or her paper title.” 735 ILCS 5/13 — 109 (West 2000). The court found the quitclaim deed to William C. Edwards from ICR was sufficient to establish the element of color of title.

The court found that the quitclaim deed was made in good faith because the Edwards grantees paid $357 per acre for the right-of-way, received a deed, paid taxes, and performed other acts consistent with ownership. The court also found that the Edwards grantees were in actual possession of the property for seven successive years.

The court recognized that “in 1993, some of the adjacent landowners began to intrude and plant crops on portions of the right-of-way that adjoined their land.” However, “the actual possession that is necessary must be determined in view of the circumstances and conditions of the property.” Although the adjacent landowners had entered the land to plant crops, it was common knowledge that ownership of the land was in dispute, and a lawsuit had been filed. “[Tjaking into account the crops planted by plaintiffs and the defense of the lawsuit, the plaintiffs have shown possession for seven successive years beginning in 1988.” The court later noted that this court had determined in Smith that the adjacent landowners did not obtain title pursuant to

section 912 and the adjacent landowners had not suggested they claimed title pursuant to any other theory; “consequently, it is clear that none of the defendants have a claim to or are the legal owners of the disputed right-of-way.” First, we repeat that in Smith, 317 Ill. App. 3d at 981, 742 N.E.2d at 790, we concluded that “[w]e need not consider whether [the Edwards grantees] had title, nor do we need to decide who else might own the right-of-way.” Cf. McClellan v. King, 133 Ill. App. 2d 914, 917, 273 N.E.2d 696, 698 (1971) (“[u]pon plaintiff[’s] failure to reinstate his action we can only conclude that the hostile possession of the disputed tract was established”). Under

section 13 — 109, the claimant must show actual and adverse possession of the lands for seven years, contemporaneously with his payment of taxes under color of title. Beard v. Henn, 28 Ill. 2d 11, 14, 190 N.E.2d 345, 347 (1963). The possession must be hostile or adverse, actual, visible, open and notorious, exclusive, and continuous. The burden of proof is demanding, and the evidence must be unequivocal. Beard, 28 Ill. 2d at 15, 190 N.E.2d at 347. To prevail under

section 13 — 109, a litigant must prove (1) claim and color of title, made in good faith; (2) payment of taxes for seven successive years; and (3) continuous, uninterrupted, hostile possession for the statutory period adverse to the opponent. Harlan v.

Douthit, 379 Ill. 15, 21, 39 N.E.2d 345, 348 (1942). “It is likewise settled that these three conditions must concur before the statute begins to run, and seven full years must have intervened between the day when the first payment of taxes was made and the day of the commencement of the litigation.” Harlan, 379 Ill. at 21, 39 N.E.2d at 348. “The party claiming exclusivity need not show that he possessed the property to the exclusion of all others.” Illinois District of American Turners, Inc. v. Rieger, 329 Ill. App. 3d 1063, 1073, 770 N.E.2d 232, 241 (2002).

The fact that third parties may at times make some use of the property does not destroy exclusivity. However, because exclusivity requires that the claimant possess the property independent of a like right in others, the opponent, the alleged rightful owner, must he altogether deprived of possession. Illinois District, 329 Ill. App. 3d at 1073, 770 N.E.2d at 241. The adjacent landowners here were not altogether deprived of possession. The Edwards grantees’ possession of the property was not continuous and uninterrupted.

In 1993, the adjacent landowners began to farm the right-of-way and that use continued until 2001. Adjacent landowner Smith placed a crop on the land adjoining him in 2001 and 2003. The trial court apparently concluded that our decision in Smith had determined that the adjacent landowners had no right to the property and therefore their possession from 1993 to 2001 and beyond could be ignored. That is not correct. Our decision specifically refused to address whether the Edwards grantees or anyone else might own the right-of-way. Smith, 317 Ill. App. 3d at 981, 742 N.E.2d at 790.

We also concluded that ICR did not have the power to convey the right-of-way. See Marlow, 315 Ill. App. 3d at 810, 734 N.E.2d at 198. The Edwards grantees and the adjacent landowners basically stand on an equal footing, each having no rights to the property other than they may have obtained by adverse possession. Under the exclusive-possession requirement, it is evident that two or more persons cannot hold one tract adversely to each other at the same time. Estate of Welliver v. Alberts, 278 Ill. App. 3d 1028, 1039, 663 N.E.2d 1094, 1100 (1996).

Accordingly, we reverse the decision of the trial court that the Edwards grantees have acquired title by adverse possession. We likewise reverse the award of money damages. Reversed. MYERSCOUGH, J., concurs.