dissenting:
One thing certain about section 912 is that when railroad operations cease, the railroad has no power to convey any interest in its former right-of-way. A nuisance strip 200 feet wide and perhaps several miles long would be contrary to public policy. See 605 ILCS 5/9 — 127 (West 1998) (except where deed of dedication expressly provided otherwise, whenever any highway is vacated “the title to the land included within the highway or part thereof so vacated, vests in the then owners of the land abutting thereon”); 65 ILCS 5/11 — 91—2 (West 1998) (same rule as to municipal streets or alleys). “ ‘No doubt the rule, in its practical operations, subserves the public good by preventing the existence of strips of land of no great value, formerly a part of the highway, but on the abandonment of which would induce profitless and vexatious litigation.’ ” Prall v. Burckhartt, 299 Ill. 19, 25, 132 N.E. 280, 282 (1921), quoting Gebhardt v. Reeves, 75 Ill. 301, 307 (1874), overruled on other grounds in Village of Auburn v. Goodwin, 128 Ill. 57, 63, 21 N.E. 212, 213 (1889). No reason has been suggested for interpreting section 912 completely at odds with the other statutes and decisions on the subject.
Under section 912, the right-of-way goes to the surrounding neighbors if it is located in the country or to the municipality if it is located in a town. City of Maroa, 229 Ill. App. 3d at 514, 592 N.E.2d at 667 (section 912 provides that on abandonment all rights, title, and interest in the right-of-way pass to Maroa). Defendants, who purport to derive title from a 1988 deed of the former right-of-way, a quitclaim deed from ICGR to William C. Edwards, clearly have no right or title in the former right-of-way. Defendants argue, however, that in a quiet title action, plaintiffs must prevail on the strength of their title, not on the weakness of defendants’ title.
In a quiet title action, plaintiff must recover on the strength of his own title, “although it is not required that a perfect title be established.” Reynolds, 20 Ill. 2d at 193, 170 N.E.2d at 130. The title of the defendants may be considered, and plaintiff may prevail, even without perfect title, if he establishes title superior to that of defendants. See Wilder, 267 Ill. App. 3d at 425, 642 N.E.2d at 499. Only if a plaintiff has no title in himself is he barred from maintaining an action for quiet title. Ford, 383 Ill. at 514, 50 N.E.2d at 715. It is certainly not clear that plaintiffs have no title in this right-of-way. Based on the information disclosed so far, it in fact appears that plaintiffs have very good title.
A trial court should grant a motion to dismiss only if the plaintiff can prove no set of facts that would support a cause of action. Carver v. Nall, 186 Ill. 2d 554, 557, 714 N.E.2d 486, 488 (1999). A plaintiff is not required to plead evidence in his complaint but is only required to allege ultimate facts. Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659, 662, 646 N.E.2d 930, 932 (1995); Kling v. Landry, 292 Ill. App. 3d 329, 340, 686 N.E.2d 33, 41 (1997). The ultimate fact in this case is that plaintiffs had the right to this property under section 912.
Plaintiffs’ deed gives them the portion of the west half of section 26 “lying [w]est of the former [w]est right-of-way line of the [ICR].” The trial court took that language at face value and concluded that plaintiffs had no rights to the property underlying the right-of-way. The railroad owned all of section 26 at one time, and all the present owners in section 26 derive their title from the railroad. The original deeds may have granted section 26 subject to the right-of-way, or the original deeds may have granted only the property to the left and right of the right-of-way and said nothing about the right-of-way. It makes no difference. The railroad could not reserve anything more than a right-of-way to itself. The railroad could not convert its right-of-way into a fee interest by fading to make any conveyance regarding the right-of-way. The underlying interest belonged to the United States, and by statute, the United States gave this interest to those who had received “the whole of the legal subdivision or subdivisions traversed or occupied by such railroad *** without the necessity of any other or further conveyance.” 43 U.S.C. § 912 (1994).
This language from section 912 is not all that difficult. If the title of the United States to an entire quarter-section has been conveyed to an individual, except for a railroad right-of-way traversing that quarter-section, the owner of the quarter-section will own the former right-of-way “when the use and occupancy of said lands for such purposes has ceased.” 43 U.S.C. § 912 (1994). If the quarter-section is not intact, if it has been divided into subdivisions, the owners of those subdivisions that were “traversed or occupied by such railroad” will now own the right-of-way. 43 U.S.C. § 912 (1994). If a single individual does not own the land on both sides of the right-of-way, if two owners are involved, each will now own to the centerline. Under section 912, the right-of-way goes to the surrounding neighbors if it is located in the country.
If someone other than the railroad had reversionary rights to the property underlying the right-of-way, years ago, and neglected to mention those rights in deeds to subsequent grantees, is that fatal to any claim made by plaintiffs? The answer is no. A description in a deed includes the appurtenances to the tract even though they are not specifically mentioned in the deed. Messenger, 345 Ill. at 438, 178 N.E. at 40; Chicago, Santa Fe & California Ry. Co., 128 Ill. at 357, 18 N.E. at 830-31. The deed to plaintiffs must be read as if it said, “and any appurtenances thereto, including any right to reverter acquired from the United States in the lands underlying that right-of-way.” The argument that unmentioned appurtenances do not convey to the grantees in the deed, but descend to the heirs and devisees of the grantor, is contrary to sound principles of property law. Prall, 299 Ill. at 35-36, 132 N.E. at 286 (“nothing remained in the dedicator but a mere possibility of reverter,” which “is inalienable[,] not assignable!),] not subject to be sold on execution, and not devisable”).
Plaintiffs argue in their brief that “prior to the abandonment of the right-of-way by the railroad, no entity had a fee interest in the land located between the boundaries of the right-of-way,” that “the last party to hold a fee interest in this land was the United States Government,” and that “the issue for this court to consider is not who owns a fee interest in the land contained between the boundaries of the right-of-way itself, but who owns the land through which it passes.” I would suggest that at least since 1922, when section 912 was enacted, some sort of potential interest existed in those persons who had been conveyed “the whole of the legal subdivision or subdivisions traversed or occupied by such railroad.” 43 U.S.C. § 912 (1994). Even if, at the time the right-of-way was abandoned in 1986, the fee interest underlying the right-of-way was considered to have been vested in the United States government, that was no reason for dismissal of this suit. Plaintiffs allege that they acquired the interest of the United States. Plaintiffs certainly had title superior to that of defendants. See Wilder, 267 Ill. App. 3d at 425, 642 N.E.2d at 499.
The trial court acknowledged that plaintiffs’ deed “did grant the land [w]est of the right-of-way” and that that was not in dispute. Plaintiffs’ third-amended complaint alleges that “upon termination of the interest of [ICGR] in the subject land, the subject land was transferred to and vested in plaintiffs pursuant to the Act of 1922.”
The complaint alleges that “the plaintiffs are owners in fee simple of the subject land and are now and have been three years last past continuously in possession of the property.” Finally, the complaint alleges that “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 subject land.” The trial court was mistaken when it stated that “the [cjourt does not believe that the [pjlaintiff has sufficiently alleged that she has title as required” and refused to allow plaintiffs to file their third-amended complaint.