I cannot agree with the conclusion reached by the court, nor with the reasoning advanced in its support. It is a general rule of the common law that buildings erected on lands are presumed to be a part thereof and belong to the owner of the premises. (Matzon v. Griffin, 78 Ill. 477.) By agreement between the parties, buildings or other improvements placed upon real estate can, of course, be made separable from the land and disposed of as personal property. But the intention to so treat them must affirmatively appear. In the absence of such an agreement a reversion retained in a deed carries with it the right to the improvements erected on the land. Williams v. Kirby SchoolDist. 207 Ark. 458, 181 S.W.2d 488; Webster County Board ofEducation v. Gentry, 233 Ky. 35, 24 S.W.2d 910.
If, as the court says, a consideration of $50 for one acre of land and the subsequent erection of a large and substantial building thereon are alone sufficient to rebut an actual intention that the reverter clause was to include the building, then it would seem that a substantial revision has been made in the law of real property. Neither the opinion of the court, the briefs of counsel, nor my own research has disclosed any authority in support of the proposition. If such is the law, then private parties must now draw their instruments of conveyance with careful attention to the possible value of any future improvements thereon and the adequacy of the price paid for the land. Structures of small value will revert with the land, while those of large and substantial proportions will not. And all without reference to an absence of provisions concerning the matter.
It is no answer to plaintiffs' contention to say that school trustees had no power to make a gift, and that this lack *Page 164 of power evidences an intention that the buildings were not to revert with the land. It is no doubt true in the ordinary transaction between private individuals, that both parties are aware the grantee has no desire to make a gift. But if inability to make a gift is a test of intention so also must be a lack of desire to do so. Such a rule would destroy the law of fixtures. The reversion of both land and building is not the completion of a "gift" of the building to the grantor. The original transaction must be presumed to have been entered into in the light of ordinary rules of property law, and the terms adjusted accordingly.
Even if the school authorities acted illegally in purchasing property subject to a possibility of reverter and then erecting structures thereon at its own expense, such violation could not operate to impair the property rights of the grantor. To give them the right to remove the buildings where a reversionary provision is accepted would be to give judicial sanction to their violation of the law. (Webster County Board of Education v.Wynn, 303 Ky. 110, 196 S.W.2d 983.) In the case cited the facts were similar to those in the case at bar. At the time of the conveyance a Kentucky statute provided in part that in the acquisition of land as a site for a schoolhouse the title should be made in fee simple to the county board of education. It was held that the failure of the school board to conform to this law did not affect the right of the grantor's successors in title to both the land and the building upon abandonment of the property for school purposes.
However, defendants have not shown any violation of law in the case at bar. The school trustees did not indirectly give away school property. The parties to the original transfer must be presumed to have acted with reference to well-established rules of property law. The cost of the school buildings, like the cost of grading or other improvements to the land itself, were in effect a part of the price paid for the school premises. *Page 165
Neither the statute of 1865 nor section 22 of article 4 of the School Code makes any reference to the nature of the title under which property used for school purposes shall be held, and neither makes any distinction between ownership of buildings and ownership of sites. The former prescribes the respective functions of the board of trustees and the directors. The latter simply provides for the sale of school property, and specifies the procedure therefor. In the majority opinion of the court, not only does the statute provide the basis for a presumed intention that the building was not to revert, but it even places in the trustees a separate title to the building and the land. Thus, presumably, a deed by the trustees containing only a legal description of the land would fail to convey the building thereon to a purchaser! The consequences of such a rule to all those who have accepted such conveyances from school trustees are serious indeed.
The majority opinion asserts that any remaining doubt about the construction given to the school law is settled by Hackett v. Trustees of Schools, 398 Ill. 27. In that case a deed conveying one acre of land to school trustees provided that in case the premises were abandoned for school purposes the owner of the tract from which the acre was taken should have the privilege of purchasing the acre for the same price at which it was sold. In the instant case there is no evidence that a subsequent sale of school property was contemplated at the time of the conveyance. There was simply a deed containing a reversionary clause by which the estate of the school trustees automatically terminated upon the abandonment of the premises for school purposes. In the Hackett case, on the other hand, no interest in the land was retained by the owner of the adjoining tract. The holder of an option to purchase does not thereby have an interest in the land itself. (Keogh v. Peck, 316 Ill. 318, 328.) In determining the extent of the property covered by the option we considered the fact that a future sale *Page 166 would be necessary in order for the adjoining owners to acquire the school land, and that sales of school property are governed by statute. Such considerations have no application where the grantor simply retains a possibility of reverter. The distinction was recognized in the Hackett case, where we said: "It will be observed that the deed was also an option contract. It was not the ordinary deed with a reversionary clause by which the land, upon the happening of a contingency, did, without more, revert to the original grantors, but it contained a contract that they might, if they chose, repurchase it at the exact price they received for it. The land did not revert to them by the happening of the contingency. It remained the property of the school trustees, burdened with the option contract." It hardly seems open to question that a material distinction exists between the deed in that case and the deed in the case at bar. Here the property reverts back to the grantor upon the happening of the contingency, without more; there it required the acceptance of an offer — or an actual sale — before the owner of the adjoining land could acquire the tract. A statute governing the mode of selling property used for school purposes has a direct application in the latter situation. It has none in the former. Hence the difference between the two conditions is not solely one of price. It is the difference between a possibility of reverter and an option to purchase, a distinction which is not merely one of words.
It may be socially desirable that buildings placed by the State upon its property shall become the sole property of the State, regardless of the incidents of its ownership of the fee. But until the legislature so provides in explicit terms, and within the confines of the constitution, it is inadvisable to vary ordinary rules of property law wherever one of the parties is a public body. There are few fields of the law in which certainty is of greater importance than in that of real property. A rule which in effect renders the *Page 167 incidents of a conveyance dependent upon considerations of cost, which may fluctuate with the passing of years, or upon exceptions inferred from general statutory language, can result in nothing but confusion and uncertainty.
I think the decree of the circuit court should be reversed.
Mr. JUSTICE THOMPSON joins in the foregoing dissenting opinion.