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(148 N.E.)

The quarry

lay the switch did not arise out of the con- to comply with the contract. tract of July 1, 1889. The contract merely owners could not lawfully build and operate settled who should pay for it, but the right a railroad, nor could they build a switch to lay the track depended upon the ordi- track for their quarries to the railroad and nances, and, by giving their consent to lay restrict its use to their own private use. the track over their private property, the Any switch track so built the law requires quarry owners gave an easement over their shall be open to the public use and be oplands which they cannot revoke and are not erated by the railroad with which it conentitled to compensation for. It seems nec- nects. The requirement of law that the essary to determine the status of the switch track should be open to the use of the pubtrack after it was constructed. It is undis- lic was recognized by the ordinance making puted that the right of way was procured provision for connecting other industries by the quarry owners, and they paid all the with the switch and its use by such other cost of material and labor in constructing the industries upon payment of reasonable comtrack except that the rails, splices, fishplates, pensation, which is a requirement now proand bolts were furnished by appellee. The vided for by section 45 of the Public Utiliquarry owners agreed to pay appellee an an- ties Act. (Smith-Hurd, Rev. St. 1923, c. 111%.) nual sum named, as an interest charge on the cost of material furnished by appellee, and pay the expense of keeping the track in such repair as should be required by appellee's superintendent.

[1, 2] We are of opinion that the rational meaning and effect of the decisions are that a railroad company and the private owner of an industry cannot, by any agreement or arrangement between themselves, Appellee, as we have said, contends that build a switch track and limit its use to certhe switch track, as soon as its construction tain shippers, but when it is constructed it was completed, became a part of its railroad, is open to public use and regulation without and the only interest the quarry owners or regard to who paid the cost of construction. their successors in title had in it was to use it The law requires the railroad company with in shipments from the quarries. This court which it connects to so operate it, and for has held that switch tracks built for in- that purpose regards it as the track of the dustrial connections with railroads, whether railroad company, but we do not believe a built at the expense of the railroad or the private arrangement or agreement between owners of the industry, or at the joint ex- the owner of an industry who builds a conpense of both, become, in legal contempla- necting switch, and the railroad company, tion, tracks of the railroad with which they which in no way affects its use by the public, are connected, open to public use and subject is prohibited by law or contrary to public to public regulations. Chicago Dock Co. v. policy. For years appellee recognized the Garrity, 115 Ill. 155, 3 N. E. 448; Public Util- quarry owners had an interest in the track ities Com. v. Smith, 298 Ill. 151, 131 N. E. other than the right to ship the product of 371. Do those decisions require the court their quarries over it. They were charged to hold that, after the completion of the nothing by the railroad company for its use, switch track over a right of way procured and they were paid $1 for each car shipped by the quarry owners, they and their succes- over the switch by other industries which sors in title had no other interest in it ex- were connected with the track. That was cept to pay the annual interest charge, the one-half the charge collected by appellee expense of maintaining it in repair and the from such other industries served by the use of the track in shipping from their quar- switch. Why should it have done these ries? It is true, as appellee asserts, the au- things if the quarry owners were not conthority to construct the switch was given by sidered by it as owning some interest in the the ordinance, and the cost of construction track other than the general public? We and maintenance was provided for by the are warranted in inferring that the quarry contract of July 1, 1889; but it certainly owners were paying the expense to appellee shocks the natural sense of justice to say of maintaining the track in repair all these that when the track was completed it became years. It would seem there was reason for the property of appellee, divested of any regarding those who substantially built the other interest of the quarry owners than the switch and paid appellee the cost of keeping right to ship over it and the obligation to it in repair had some interest in the track pay an annual interest charge and pay the as owners. So long as the recognition of expense of maintaining it in repair. It ap- such right of ownership did not affect the pears the annual interest charge was reduc- public interest or public use of the track, ed, and on the basis of certain evidence of- there is no occasion for the law to interpose fered, the competency of which is disputed, and approve the appropriation of the track in 1901 the quarry owners were in arrears and right of way by appellee. The law is in the payment of the bills incurred by ap- designed to protect private rights as well as pellee in repairing the switch. With that ex- public rights, and we are unable to see ception, as we understand it, it is not claimed wherein the public interest will be promoted there was any failure of the quarry owners by holding appellee became the owner of the

track and right of way when it was completed, and that when the quarries ceased to operate it was under no obligation to pay appellants any compensation either for the license granted them by Naperville or for the easement in their lands over which the track is laid.

Phillips is the name of one of the quarry owners who constructed the track under the license granted by the Naperville ordinance. It was not shown he had any interest in the switch or quarries at the date the letter was written. That proof, appelleee claims, shows that by an arrangement made with Phillips About the time the track connecting the on May 11, 1901, he (presumably the quarry quarries with the switch were removed, as owners) agreed the bills then due from him we understand, appellee began insisting that and the cost of putting the track in proper the quarry owners recognize and use the shape would be added together and he would switch on the basis of its being appellee's pay one-half, appellee to assume the balance. property. The record shows there were a Appellee was to retain the amounts receivnumber of interviews between representa- ed from other parties for switching over tives of the quarry owners and of appellee. the track and thereafter keep the track in Appellee was preparing to take up the track repair. Appellee's books show some charges connecting with the quarries, and representa- were made against one, at least, of the quartives of the quarries were opposing that ac- ry owners in 1902, but we have discovered tion and also claimed ownership of the no proof that the charges were paid. The switch. In July, 1905, the division superin- evidence was not competent. It was not tendent of appellee wrote the quarry owners shown Phillips was at the time a quarry that after December 31, 1905, certain tracks owner, or that, if he was, he had authority to leading to the quarries would be taken up. represent the others in making any agreeThe quarry owners protested and said they ment with appellee. As we understand the intended resuming operations. They claim- proof, the Dolese & Shepard Company and ed to own the track, and proposed that some the Naperville Stone Company were then the kind of an arrangement be made by which owners. The proof does not show that they the quarries could be operated. We do not knew anything about the matter. The entry understand the proof to show the owners in appellee's books requires explanation; was intended permanently to abandon their quar- made by a clerk of appellee presumably after ries. They cannot successfully operate them he had seen the letter from Besler to Judnow, since their track connections have been son, and, so far as the record shows neither removed, as it is apparent switch connections appellants nor their predecessors in title had are indispensable to the practical and suc- any knowledge of the letter. To bind them cessful operation of a stone quarry. it must appear that they knew of and as[3] Much weight is attached by appellee to sented to the agreement, which was not recertain evidence, admitted over appellants' duced to writing. Even if the evidence was objection, supposed to have an important competent, it would not prove that there was bearing upon the case. An entry in appel-a compromise of what appellee claimed was lee's book, made in 1901, contained the notation, "Cancelled. C. B. & Q. maintain track. See letter from J. D. Besler, 5-1001." H. D. Clark, chief clerk of the division superintendent of appellee, testified the entry was in his handwriting and was made in regular course of business. The letter referred to in the notation was admitted in evidence over appellants' objection, and was as follows:

"Chicago, May 11, 1901.

"Mr. H. D. Judson, Supt. Chicago Division, Aurora-Dear Sir: Referring to the Naperville stone quarry track. As a matter of record I

would say that arrangement was made to-day with Mr. T. P. Phillips (at which time you were present) providing that the bills now due from Mr. Phillips, also bills made for cost of putting the track in proper shape, will be added together, and he agreed to stand one-half of the amount and the railroad company will assume the balance. The C., B. & Q. is to retain the amounts received from other parties for private switching over this track and the railroad company to keep the track in repair hereafter. The arrangement is to take effect from

this date.

Yours truly, J. D. Besler."

Besler was general superintendent and Judson division superintendent of appellee.

due it under the original contract, in consideration of which and the release of onehalf the switching charges paid by other shippers the quarry owners were released from the obligation to keep the track in repair. Nothing was said about any property right in the track or whose property it was. We think the conclusion warranted from appellee's acts that about the time the letter was written, or soon afterwards, it claimed the track was its property and ceased paying the quarry owners a share of the charges collected from other shippers and ceased collecting the cost of keeping the track in repair. However that may be, appellee's claim of ownership was never assented to by the quarry owners.

[4, 5] We are of opinion appellants are owners of the right of way and an interest in the track in the proportions that the amount they paid for its construction bears to the amount paid by appellee, that they are the owners of the fee in certain lots in the village of Naperville over which the track runs, and that appellee has appropriated their property and should compensate them for it and for any damage to property not

(148 N.E.)

taken. Appellants having filed July 31, 1923, The bill filed alleged, in substance, that an election to treat the acts of appellee as appellant was the duly qualified executor of an appropriation and to accept compensa- and trustee under the will of John A. W. tion, the appropriation should be considered as made the date the waiver and election were filed. We do not think we would be warranted in ordering an accounting for cars of others than appellants shipped over the switch track.

Under the view we have taken of the case it is unnecessary to consider the statute of frauds or of limitations,

The decree is reversed and the cause remanded to the circuit court of Du Page county for further proceedings and a decree in harmony with the views herein expressed. Reversed and remanded.

HEARD, J., dissenting.

(317 Ill. 325)

STANDARD TRUST & SAVINGS BANK v.
FERNOW. (No. 16258.)

(Supreme Court of Illinois.

April 24, 1925.
Rehearing Denied June 10, 1925.)

1. Deeds 181-Grantee, in whom title vests by delivery of deed, cannot divest himself of title by alteration or destruction of deed.

Grantee, in whom title has vested by delivery of deed, cannot divest himself of title and vest it in another grantee, or revest it in grantor, by an alteration or destruction of the deed.

2. Deeds 181-Insertion of word "Junior," after name of original grantee, with knowledge and consent of all parties, held not to vest title in substituted grantee.

After delivery of deed, the insertion of the word "Junior," after the name of the original grantee, with the knowledge and consent of all parties in order to vest title in grantee's son, in place of grantee, held inoperative.

Fernow, Sr., who died September 2, 1922, leaving him surviving as his only heirs, John A. W. Fernow, Jr., his son, who is appellee here, and a daughter, Marie F. Leith; that under the terms of the will appellant was to preserve the trust estate, collect the rents and profits, and pay semi-annually one-half of the net income to the son and daughter during their lives; that included in the inventory of the estate was certain improved property in Chicago, known as 2525 Indiana avenue, title to which was claimed by Fernow, Jr., by virtue of an unrecorded deed thereto in his possession, executed by Harry L. Schmitz. The bill sought to establish title in appellant. The bill was answered by Fernow, Jr., denying the several allegations of the bill; and later he filed a cross-bill, praying title be decreed in him and his title quieted.

The facts developed upon the hearing are not in dispute, and are substantially as follows:

About October 3, 1917, John A. W. Fernow, Sr., who was a physician in Chicago, purchased the property here involved, and title who was then manager of the loan and real was taken in the name of Harry L. Schmitz,

estate department of a Chicago bank. The property had improvements upon it and carried an incumbrance. On November 2, 1917, Schmitz and his wife executed a deed to the property, which instrument was properly ac"John A. W. Fernow," but it was not recordknowledged and delivered to the grantee, ed. Some time thereafter, about 1919, a lease to the premises was executed by Schmitz to the Chicago Postal Pneumatic Tube Company at a rental of $100 per

month.

The first rental checks were sent to Schmitz, and later, upon instructions, the company sent the rent remittances direct to Dr. Fernow, and continued to do so until

Appeal from Superior Court, Cook Coun- his death. At the time of the purchase of

ty; Oscar Hebel, Judge.

Bill by the Standard Trust & Savings Bank, as executor, against John A. W. Fernow, Jr., who interposed a cross-bill. From a decree dismissing the bill, and granting relief under the cross-bill, plaintiff appeals. Reversed and remanded, with direction.

John W. Ellis, of Chicago, for appellant. George Steinbrecher and Lewis S. Eaton, both of Chicago, for appellee.

FARMER, J. This is an appeal from a decree of the superior court of Cook county, dismissing for want of equity a bill filed in that court January 18, 1924, by appellant, and granting the relief prayed in the cross-bill of appellee.

the property, Schmitz, who had known Dr. and when the deed was delivered the doctor Fernow over 15 years, had a talk with him, said. the property was to be John A. W. Fernow, Jr.'s. Schmitz said he called the doctor's attention to the similarity of the names of the father and son, and that there might be confusion about it, and the doctor said that could be fixed. Schmitz had a later conversation with Fernow, Sr., and asked if he had done anything about the deed, and the doctor said he had not. About two weeks before Dr. Fernow's death he telephoned to Schmitz, saying his son, John, was going to bring the deed over, and asked him to add "Jr.," after the name "John A. W. Fernow." Schmitz told Fernow, Sr., that he would want something in writing from

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

him authorizing Schmitz to do it, and the doctor said, "All right;" that he would write something and send John over with it. Schmitz did not see the doctor then or thereafter, and stated Fernow, Jr., brought over the deed and a letter signed by his father. The letter was dated August 20, 1922, and the body of it was as follows:

"Confirming my telephoned request of you yesterday, I want to state that my John will call on you and present deed to real estate at 2525 Indiana Ave. It is my wish that you add Jr.' to my name, thus transferring the title of this property to my son John."

was so substituted. Appellee contends that the deed as originally made was delivered to him by his father during the latter's lifetime and was a valid conveyance to appellee, and that the addition of "Jr." to the name of the grantee did not invalidate the conveyance; that if the deed as originally made was not a valid conveyance to appellee, then the addition of "Jr." to the name of the grantee in the original deed, with the knowledge and consent of the grantor and grantee in said deed, and the redelivery of the instrument to the appellee, makes the deed a valid conveyance to him.

We have previously set out herein the The deed received by Schmitz from the proof developed upon the hearing and conhands of Fernow, Jr., was the same instru- cerning which there is practically no disment Schmitz and his wife, as grantors, had pute. The evidence does not warrant apon November 2, 1917, executed, acknowl- pellee's first contention, that the original edged and delivered to Fernow, Sr., convey- purchase was made and the conveyance ing to the doctor the property here in ques- therefor delivered to Dr. Fernow with the tion. Upon receipt of the deed and letter, purpose of having title vest in appellee, nor Schmitz gave the deed to a stenographer in was it so considered by his father. Dr. Ferthe office, who added "Jr." after the gran- now had supervision of the property from tee's name, making it then appear, "John the time of its purchase. He represented A. W. Fernow, Jr." Schmitz did not consult to one of his bankers that he owned the his wife prior to having the change made property, and was then attempting to buy nor did he tell her that such had been dene, additional property immediately adjoining and did not have the instrument reacknowl- it, and if he considered the son the owner edged. After the deed had been changed, there was no occasion for the related acSchmitz handed it back to Fernow, Jr., and tivity in having Schmitz change the instrudid nothing more. This deed was not re- ment of conveyance by inserting “Jr.” after corded after “Jr.” had been added thereto. the name of the grantee. Schmitz testified The proof shows that after the death of Dr. that at the time of the purchase of the InFernow one month's rent for the premises diana avenue premises the doctor did not was paid by the tenant to appellant, and state for whom he was buying the properthereafter it was paid to Fernow, Jr., after ty, but when he delivered the deed to the he showed the deed here in question to the doctor the latter mentioned that it was to manager of the tube company. It also ap- be John A. W. Fernow, Jr.'s, property. pears from the testimony of a Chicago bank | However, when Fernow, Sr., by telephone officer who knew and had several conversa- communication requested "Jr." to be inserttions with Fernow and his son, that the doctor, in talking about the Indiana avenue property, said, “Oh, yes; I own that." The banker also said Fernow, Jr., never claimed to own the property. In a written statement made to the same bank during June, 1920, at which time the doctor was seeking some financial aid in connection with his building operations, Fernow, Sr., listed as part of his assets, "Equity 2525 Indiana Ave., $8,000," and said further in the statement that he purchased the equity in that property, and was then trying to buy the 29 feet adjoining it on the south, and offered $300 per foot for it. Another witness said Fernow, Sr., had said his son, John, was to have the property in question.

It is the contention of appellant that the deed of November 2, 1917, by Schmitz and his wife to Fernow, Sr., was a valid conveyance, and its subsequent alteration by consent of the grantor and grantee did not invalidate the title previously conveyed; that the deed having been altered by the substitution of a grantee cannot support a claim to the property made by appellee, whose name

ed in the original deed, almost five years later, Schmitz declined to do so without some writing from the doctor to that effect. Moreover, at no time did Fernow, Jr., claim to own the property until after his father's death. The determination of the case, in our judgment, depends solely upon the effect to be given to the insertion of "Jr." in the deed after the name of the original grantee.

A case much relied on by appellee is Abbott v. Abbott, 189 Ill. 488, 59 N. E. 958, 82 Am. St. Rep. 470. In that case the claim was made by George B. Abbott, the grantee in a deed for two lots, that after he had received a warranty deed his name was erased by some person to him unknown and the name of his daughter, Fern Abbott, substituted as grantee. The court said if the erasure and substitution were made without the knowledge of the original grantee the same could have no effect upon his title. The court found from the proof that the alteration was made before the delivery of the deed, with the consent of both parties to it, and was delivered after the change was made, and that Abbott knew it had

(148 N.E.)

been made when he received it and when he, change in the description of the property caused it to be recorded. It was held the conveyed by the deed. In an extensive note deed vested title in Fern. In the opinion to the case as reported in L. R. A. many of the court it was said arguendo that, if authorities upon the subject are collected Abbott himself procured the alteration, he and briefly reviewed. The author of the could not afterwards repudiate it and claim note states the general rule established by title in himself, and the court also said, if the overwhelming weight of authority is a deed is altered after delivery, by consent that no alteration after the deed has been of both parties, and again delivered after delivered will have any effect upon the the change, it will be valid. The case the grantee's title, but there are a few decisions court was considering did not come within holding, if the parties consented to the althat rule, and what was said in that regard teration, it will be effective. Abbott v. Abbott, was unnecessary to the decision of the case supra, is cited as stating that a deed altered and contrary to the great weight of the au- after delivery by consent of the parties, and thorities, which hold that the erasure of the again delivered, will be effective as altered, name of the grantee in a deed and the sub- but the author says that case should not be stitution of the name of another person as considered as an exception to the rule, as grantee, even if done with the consent of the condition in that case really called for both parties, cannot divest the title of the a new instrument. As we have before statoriginal grantee vested by the delivery of ed, the case before the court in Abbott v. the deed, and a second delivery after the al-Abbott was not one where the deed was teration cannot change the result. This is the substance of the rule as stated by the author of Tiffany on the Law of Real Property. Volume 2, (2d Ed.) 1603. In connection with that statement of the rule, the author says it has been said that, if the original grantee procured the alteration, he could not thereafter claim the title himself, but that could only be so if elements of estoppel were present.

We shall cite only a few of the many cases which lay down the rule stated by Tiffany. In Carr v. Frye, 225 Mass. 531, 114 N. E. 745, also reported in L. R. A. 1917E, 814, the effect of the erasure of the original grantee's name from a deed which had been delivered and the substitution of another name as grantee by procurement of the original grantee was considered. The court held the substitution of another person as grantee did not divest the original grantee of the title nor transfer it to the substituted grantee. In that case the wife of the original grantee was substituted and after the alteration the deed was recorded. The court held the property remained the prop erty of the original grantee although the record title was in his wife, the substituted grantee. To the case as reported in L. R. A. is an elaborate note, in which numerous cases are referred to, among them Abbott v. Abbott, supra. The author of the note says the statement by the court that if the original grantee procures the substitution he cannot thereafter repudiate it and claim the title, and that if the substitution is made after delivery, with the consent of the grantor and original grantee, the deed, if again delivered, is valid, was obiter, because in the Abbott Case the substitution was made before the deed was delivered to the original grantee.

The effect of alteration in deeds was considered in Waldron v. Waller, 65 W. Va. 605, 64 S. E. 964, reported in 32 L. R. A. (N. S.) 284. The alteration in that case was a

altered by consent of the parties after it had been delivered to the grantee and redelivered after the alteration. Abbott based his claim of title on the proposition that the alteration was made after delivery of the deed to him and without his knowledge and consent, but the proof showed the change in grantee was made by agreement of the parties before the deed was delivered to Abbott. That the Abbott Case was not to be considered as in conflict with the general rule was recognized by this court in Osby v. Reynolds, 260 Ill. 576, 103 N. E. 556, Ann. Cas. 1914D, 387.

This court has held that not every alteration made in a deed after delivery will be void, but there may be facts connected with some alterations which will justify giving effect to the alteration. In Prettyman v. Goodrich, 23 Ill. 330, it was claimed a description of land had been inserted in a trust deed by the man who wrote it, after it had been executed, without the knowledge of the grantor, and the court was asked to declare the trust deed a nullity. The proof showed the description of the land was inserted in the trust deed with the knowledge and consent of the grantor, and after that was done the grantor, in company with the grantee's attorney, took the trust deed to the recorder's office to be recorded, and paid, or agreed to pay, the recording fee. The court held there was a second delivery of the deed and sustained it.

Williamson v. Williamson, 306 Ill, 533, 138 N. E. 166, is not authority in support of appellee's claim of title. In that case a deed was made by a mother to her son. Some time after the deed was executed, and before it was recorded, the grantor expressed dissatisfaction with the deed because it might leave her without a home. The grantee told her she was right and that he would fix it so as to protect her. Accordingly he had a clause inserted in the deed giving her the possession and use for her life.

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