dissenting:
I would reverse the judgment of the circuit court as to the 28 deeds. I believe those deeds conveyed easements which reverted to plaintiffs upon abandonment by the railroad.
I first discuss the 27 similar deeds: A deed should be construed so as to carry out the intention of the parties as gathered from the instrument as a whole, and every word and clause within the instrument should be considered and, if possible, given effect. (Keen v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1945), 392 Ill. 362, 368, 64 N.E.2d 499, 502.) This court has stated that a deed to a railroad will be construed as conveying only an easement, unless there is “no language in the deed relating to the use or purpose of the grant or no language limiting the estate conveyed.” (McVey v. Unknown Shareholders of Inland Coal & Washing Co. (1981), 100 Ill. App. 3d 584, 586, 427 N.E.2d 215, 217.) Application of these principles to the 27 deeds in this case requires the conclusion that the instant deeds were intended to convey easements only. If each of the 27 deeds were intended to convey a fee, then why mention repeatedly that the purpose of the conveyance is to permit construction of a railroad? What the grantee intended to do once it had the benefit of the conveyance was irrelevant in the context of the deed if a fee was intended. Thus the majority interprets the repeated references in each deed to the purpose of the grant as surplusage. Keen teaches us that such a conclusion is generally improper with respect to deeds in general; McVey teaches that it is usually inappropriate with respect to grants to railroads in particular.
Focusing on the word “through,” the majority rejects plaintiffs’ argument that the phrase “through, across, over and upon” was intended to show a conveyance of surface use only as opposed to a vertical estate. In my opinion “through” connotes a passage through the portion of those estates which existed above the ground (see Keen v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1945), 392 Ill. 362, 371, 64 N.E.2d 499, 503-04 (which recognizes that an estate in lands has an indefinite upward and downward extent)) rather than passage through a solid object. The use of the phrase “through, across, over and upon” is thus consistent with the view that only an easement was intended, particularly when that phrase is viewed in conjunction with the repeated references in the deeds to the sole purpose for the grant.
The majority also rejects plaintiffs’ argument that the language specifically conveying the timber, stone, or other materials upon the strip of land to the railroad was unnecessary in the context of an absolute conveyance and further demonstrates that only an easement was intended. The trial court found this language to be surplusage, and despite Keen and McVey a majority of this court' finds that reasoning persuasive. There was no reason to mention the timber and other materials on the strip of land if the conveyance was of a fee, and the majority recognizes this by deeming that language surplus-age. The more reasonable interpretation is that the railroad needed the additional grant of materials because all it received otherwise was an easement. The latter view renders the reference to timber and other materials harmonious with the other language in the deeds, particularly the multiple references to the purpose of the easement.
Another point overlooked by the majority is that the first sentence of each of the 27 deeds recites as partial consideration “the advantages which may and will result to the public in general” from construction of the railroad. This sheds further light on the intentions of the parties to the conveyances. As that recitation acknowledges, the expected benefit arises not from the conveyance itself but from the use of the land for the purpose recited again and again therein.
I also disagree with the trial court and the majority of this court regarding the 28th deed. The 28th deed specifically refers to the right of way of the railroad. As noted in McVey, a deed to a railroad should “invariably” be construed as conveying only an easement if the deed refers to the right of way, and this reference need not be in the granting clause. (McVey v. Unknown Shareholders of Inland Coal & Washing Co. (1981), 100 Ill. App. 3d 584, 586, 427 N.E.2d 215, 217.) As the majority notes, the deed was in the statutory form of a general warranty deed; however, to construe it as the majority does is to permit the general form of the 28th deed to control and govern its particular terms.
The majority of this court in essence concludes that grants to railroads create fees unless the magic words “easement” and “right of way” are on the deed. I do not believe that is the law. I would reverse the judgment and hold title reverted to plaintiffs on abandonment of the right of way by the railroad.