No. 2--01--1165

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

LUIS DIAZ, VIRGINIA DIAZ, and 	)	Appeal from the Circuit

MANUEL DIAZ,					)	Court of Kane County.

							)	

	Plaintiffs-Appellees,		)

							)

v.							)	No. 99--CH--946

							)

HOME FEDERAL SAVINGS AND LOAN		)	

ASSOCIATION OF ELGIN,			)	

							)	

	Defendant-Appellant			)	

							)	Honorable

(Union Pacific Railroad Co. and	)	Patrick J. Dixon,

Unknown Owners, Defendants).		)	Judge, Presiding.

	JUSTICE GROMETER delivered the opinion of the court:

	The circuit court of Kane County entered summary judgment

quieting title in a parcel of real estate in favor of plaintiffs,

Luis Diaz, Virginia Diaz, and Manuel Diaz.  Defendant Home Federal Savings and Loan Association of Elgin (the bank) now appeals.  The

bank maintains that plaintiffs failed to show that they possessed

an interest in the property in question, that the bank in fact held

title to the parcel, and that plaintiffs' claim was barred by

several statutes of limitations.  For the reasons that follow, we

affirm.

I. BACKGROUND

	The instant case arises out of a dispute as to the ownership

of a parcel of land formerly used as a right-of-way by the Union Pacific Railroad Company (the railroad).  Plaintiffs own a parcel of property adjacent to the right-of-way and operate a restaurant

there.  The bank is located adjacent to the right-of-way.

	Plaintiffs claim title to the property by virtue of their

purchase of the land upon which their restaurant is situated. 

Plaintiffs purchased the property in 1994 from the Fishburn family. 

The description of the land contained in the deed stated "[t]he

north 1/2 of lot 3, lying east of the Chicago and Northwestern

Railroad Company right-of-way."  In 1999, the Fishburns executed a

quitclaim deed that specifically included "the land subject to the

Right of Way granted to the Galena Union Railroad Company."

Plaintiffs contend that their purchase from the Fishburns included

an interest in the right-of-way.  They trace title, through a

series of mesne conveyances, to a grant made by Erastus Tefft to

one of their predecessors in interest in 1850.  Plaintiffs

currently use the property for ingress and egress, employee

parking, and the placement of a Dumpster.

	The bank claims title by virtue of a purchase of the right-of-

way from the railroad.  In March 1999, the bank entered into a

contract with the railroad to purchase the right-of-way.  The

railroad provided the bank with a quitclaim deed.  In 1849, Tefft

granted the right-of-way to the railroad's predecessor.  Thus, the

bank traces title back to Tefft as well.  Since 1988, the bank had

been using the right-of-way for ingress and egress pursuant to a

licensing agreement with the railroad.

	On December 15, 1999, plaintiffs filed a complaint seeking,

inter alia, a declaration that they were the owners of the right- of-way.  The bank moved to dismiss pursuant to section 2--619 of

the Civil Practice Law, interposing several affirmative defenses

(735 ILCS 5/2--619 (West 2000)), and plaintiffs moved for summary

judgment.  The trial court granted partial summary judgment,

finding that the deed from Tefft to the railroad's predecessor did

not convey a fee interest and that the railroad's grant to the bank

conveyed nothing.  The court then held an evidentiary hearing, the

purpose of which was to determine the boundaries of plaintiffs'

property.  Following this hearing, the court determined that

plaintiffs owned the right-of-way.  This appeal followed.

II. ANALYSIS

	Because this case comes to us following a grant of summary

judgment, we conduct de novo review.  Corona v. Malm, 315 Ill. App. 3d 692, 694 (2000).  Summary judgment is appropriate where no

genuine issues of material fact exist and the movant is entitled to

judgment as a matter of law.  Stewart v. Jones, 318 Ill. App. 3d 552, 557-58 (2001).  The record must be construed strictly against

the movant.  Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999).  The nonmovant need not prove its case; however, it must

set forth some facts that would arguably entitle it to prevail. 

Lutz v. Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 568 (1990).  Further, in resolving this appeal, we must construe a

series of deeds.  The Cconstruction of a deed normally presents a

question of law and is also subject to de novo review.  Timothy Christian Schools v. Village of Western Springs, 285 Ill. App. 3d 949, 954 (1996).  However, where an ambiguity exists and extrinsic

evidence is required to ascertain the intent of the parties, a question of fact exists, and we will disturb the decision of the

fact finder only if it is contrary to the manifest weight of the

evidence.  Mayol v. Weiner Companies, Ltd., 98 Ill. App. 3d 985, 987-88 (1981).  With these standards in mind, we now turn to the

merits of the bank's arguments.

	Before turning to the merits, however, we note that, at

several points in its brief, the bank attacks the sufficiency of

plaintiffs' complaint.  The bank filed a motion in the trial court

titled "motion to strike or to make more definite and certain"

attacking the sufficiency of the complaint.  In this motion,  the

bank relied on section 2--615 of the of the Civil Practice Law. 

735 ILCS 5/2--615 (West 2000).  The bank subsequently answered the

complaint.  When a trial court denies a motion to dismiss a

complaint and a defendant files an answer, the defendant generally

waives any objection to defects in the complaint.  People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 333 (1997).  Thus, by answering plaintiffs' complaint,  the

bank waived any objections regarding the sufficiency of the

complaint, and we will not consider this issue.

	We also note that the bank complains that the trial court

entered summary judgment regarding its nonownership of the parcel

prior to determining plaintiffs' interest in the parcel.  We see

neither prejudice nor error in the trial court's decision to

proceed in this manner.  The trial court merely simplified and

defined the issues likely to arise at the evidentiary hearing.  Had 

the bank successfully controverted plaintiffs' claim of title at the hearing, it is apparent that plaintiffs would not have

prevailed in the cause.

A. Title

	 The bank first contends that the trial court erred in

granting summary judgment in plaintiffs' favor for three reasons. 

First, the bank argues that plaintiffs have not shown that they

hold title to the parcel.  Second, in a related argument, the bank 

contends that plaintiffs have not demonstrated that they hold title

superior to the bank's.  Third, the bank takes issue with the trial

court's determination that the railroad abandoned the right-of-way. 

In order to resolve this appeal, we must address three main issues:

(1) what interest, if any, plaintiffs hold to the parcel;, (2) what

interest, if any, the bank holds, and (3) whether any question of

material fact exists as to whether the railroad abandoned the

right-of-way.

	In an action to quiet title, a plaintiff must prevail on the

strength of its own title, rather than merely on defects in a

defendant's title.  Lakeview Trust & Savings Bank v. Estrada, 134 Ill. App. 3d 792, 812 (1985).  However, a plaintiff need not

establish perfect title to the property.  Reynolds v. Burns, 20 Ill. 2d 167, 193 (1960).  Where a plaintiff demonstrates less than

perfect title, the title held by the defendant may be considered,

and the plaintiff may still prevail if able to demonstrate superior

title.  Wilder v. Finnegan, 267 Ill. App. 3d 422, 425 (1994).  A plaintiff is barred from maintaining a quiet title action only

where it can show no title whatsoever in the property at issue. 

Marlow v. Malone, 315 Ill. App. 3d 807, 812 (2000).

	The trial court correctly determined that plaintiffs

demonstrated title in the parcel sufficient for them to prevail on

their motion for summary judgment.  The trial court held an

evidentiary hearing and considered extrinsic evidence on this

point; thus, we will apply the manifest weight standard to the

trial court's construction of the deed.  Mayol, 98 Ill. App. 3d at 987-88.  Whether an ambiguity exists, however, remains a question

of law.  Foxfield Realty, Inc. v. Kubala, 287 Ill. App. 3d 519, 523 (1997).  Our interpretation comports with that of the trial court;

thus, we would affirm even on a less deferential standard of

review.

	Plaintiffs trace title to the property through a series of

mesne conveyances to Erastus Tefft.  Tefft was also the grantor 

who conveyed the right-of-way to the railroad's predecessor in

interest.  Thus, we must construe the deed given by Tefft to the

plaintiffs' predecessor in interest.

	In construing a deed, our primary goal is to ascertain the

intent of the parties.  Lakeland Property Owners Ass'n v. Larson, 121 Ill. App. 3d 805, 809 (1984).  To determine the parties'

intent, a court must analyze "the specific words used in

conjunction with the circumstances under which they were drafted." 

Warren-Boynton State Bank v. Wallbaum, 123 Ill. 2d 429, 436 (1988).  Relevant circumstances include " 'the state of [the testator's]

property, his family, and the like.' "  Warren-Boynton State Bank, 123 Ill. 2d at 436, quoting Armstrong v. Barber, 239 Ill. 389, 404 (1909).  The document must be considered as a whole. 

Warren-Boynton State Bank, 123 Ill. 2d at 436.  Further, "[n]o one clause, phrase or sentence determines the intent" of the parties,

and "[n]one of the words are [to be] considered meaningless or

repugnant or surplusage."  Warren-Boynton State Bank, 123 Ill. 2d at 436.  Where the parties' intention is not clear, a court must

turn to rules of construction to aid the inquiry.  Warren-Boynton State Bank, 123 Ill. 2d at 436.  Consistent with the principle that the relevant circumstances under which a grant was made must be

considered (Warren-Boynton State Bank, 123 Ill. 2d at 436), we apply the principle of contractual interpretation that parole

evidence is admissible to determine if a latent ambiguity exists

(see American National Bank & Trust Co. of Chicago v. Olympic Savings & Loan Ass'n, 60 Ill. App. 3d 722, 724-25 (1978) (construing a lease)).

	The bank argues that the deeds in the chain of title linking

plaintiffs to Tefft specifically exclude the right-of-way from the

conveyances.  For example, the deed from Tefft to his successor in

interest describes the property conveyed as "[a]ll of that certain

part [of the lot] which lays east of the line of the Chicago &

Galena Rail Road."  Subsequent deeds contain similar descriptions. 

The bank contends that the "lays east of" language demonstrates

that this conveyance specifically excludes any interest in the land

used by the railroad.  We disagree.  As we will explain below, the

railroad right-of-way constituted an easement.  Thus, the question

before us is whether Tefft and the subsequent grantors intended

that the fee interest underlying the easement pass with the balance

of the property or if they intended to retain an interest in the

property themselves.

	Regarding this point, the deed is ambiguous.  The original

deed includes in the description the following:

	"Together with all and singular the hereditaments and

appurtenances thereunto belonging or in any wise appertaining

and the reversion and reversions remainder and remainders

rents issues and profits thereof and all the estate right title interest claim or demand whatsoever of the said party of the first part either in Law or Equity of in and to the above

bargained premises with the hereditament and appurtenances." 

(Emphasis added.)

Considering this passage, particularly the emphasized language, in

the context of the facts surrounding the conveyance, it is

ambiguous as to whether Tefft intended to include his interest in

the land underlying the railroad's right-of-way in the grant.

	If Tefft had intended to retain a fee interest in the land

underlying the right-of-way, he would have been left with a piece

of property that was being used exclusively by the railroad.  Given

the operation of the railroad, no other use could be made of the

parcel.  Further, it is also unlikely that he would have retained

a fee interest in the land in contemplation of the railroad

eventually abandoning the easement.  The land underlying the

easement is an irregularly shaped parcel with dimensions of 10.85

feet by 66 feet by 45 feet by 74.7 feet.  As such, it would have

had little, if any, value to Tefft as an independent parcel.  Thus,

we conclude that, in light of the facts surrounding the conveyance,

Tefft intended to include his interest in the land underlying the

easement in the conveyance to plaintiffs' predecessors.

	The bank counters, "Illinois case law holds that this language

is merely surplusage and does not convey any interest in land at

all."  The bank's position suffers from two fatal flaws.  First, it

ignores the similarly well-established principle that courts should

avoid construing a deed so that any portion of it is rendered

meaningless.  Warren-Boynton State Bank, 123 Ill. 2d at 436; Dolley v. Powers, 404 Ill. 510, 512-13 (1949).  Second, and more fundamentally, the bank misconceives the enterprise upon which we

are embarked.  Our usual goal in interpreting a deed is to

ascertain the intent of the parties (Lakeland Property Owners Ass'n, 121 Ill. App. 3d at 809), not defeat it.  Documents like deeds, wills, and contracts are sui generis, and they must be interpreted on their own terms.  Thus, whether our supreme court

interpreted language in a deed making reference to tenements,

hereditaments, and appurtenances to not encompass a grantor's fee

interest in an adjacent parcel in, for example, St. Louis Bridge Co. v. Curtis, 103 Ill. 410 (1882), is largely irrelevant.  Whatever the supreme court concluded about the deed that was before

it in St. Louis Bridge Co. says little about the deed we are called on to interpret, particularly given that each such transaction

occurs in a different factual context.  Blindly applying

interpretations from other cases to construe deeds and like

instruments may just as well defeat the intentions of the parties

as advance them.

	We observe that the bank does not attempt to establish a

custom or usage that such terms did not encompass interests like

that held by Tefft in the right-of-way.  If the parties had contracted with such a usage in mind, the usage would be relevant

to interpreting the deed.  See Katz v. Brooks, 65 Ill. App. 2d 155, 159-60 (1965).  The bank presents no evidence of such a usage, the

existence of which is a question of fact.  Clark v. General Foods Corp., 81 Ill. App. 3d 74, 79 (1980).  Further, it would have been impossible for Tefft and his grantee to have had in mind the

meaning set forth in the cases the bank relies on in support of

this argument, as the earliest one was decided approximately 30

years after the conveyance occurred.

	Thus, we conclude that plaintiffs, by virtue of the chain of

title leading back to Tefft, have demonstrated that they hold title

to the right-of-way.  As noted above, it is not necessary for

plaintiffs to establish perfect title to the parcel.  Reynolds v. Burns, 20 Ill. 2d at 193.  However, where less than perfect title is established, the title held by the defendant, if any, may be

considered, and the plaintiff may still prevail if able to

establish superior title.  Wilder v. Finnegan, 267 Ill. App. 3d 422, 425 (1994).  Hence, assuming without deciding that the title

exhibited by plaintiffs is less than perfect, we will examine the

interest the bank holds in the parcel.

	We must begin this inquiry with another grant made by Tefft,

this time to the railroad's predecessor in interest.  The deed in

question here provides:

	"To all whom these presents shall come greeting: whereas the

'Galena and Chicago Union Railroad Company' contemplate

constructing a railroad from Chicago to Galena now know ye

that I, Erastus Tefft *** being desirous for the construction of the said railroad in consideration of the premises and of

one dollar to me in hand *** have and by these presents to

give, remise, relief, convey, and quitclaim to the Galena and

Chicago Union Railroad Company for the purpose of constructing

a railroad thereon and for all uses and purposes connected

with the construction and use of said railroad the right of

way for the said railroad over and through the following

described tract, piece or parcel of land situate lying and

being in the County Kane and State of Illinois bounded as

follows to viz:

		One rod in width on each side of the centre line of the

Galena and Chicago Union Railroad as located through the

northwest corner of lot No.4, and a part of the north half of

lot No. 3 in block 16 of the original town plat of the town of

Elgin ***.  To have, hold, and enjoy the land above described

with the appurtenances unto the said Galena and Chicago Union

Railroad Company and their assigns forever for any and all

uses and purposes in any was connected with the construction,

preservation, occupation, and enjoyment of said railroad. 

Provided however that if the said railroad shall not be

constructed over and through said premises within two years or

if the said Galena and Chicago Union Railroad Company or their

assigns shall at any time hereafter cease permanently to use

said railroad to be constructed and the same shall be

abandoned or the route thereof changed so as not to be

continued over said premises then and in that case the said land hereby granted shall revert to the said grantor his heirs

or assigns."

The bank contends that the deed created a fee simple determinable,

leaving only a possibility of reverter in Tefft.  We disagree with 

the bank and agree with the trial court.  Read as a whole, the deed

makes apparent that the interest created in the Galena and Chicago

Union Railroad Company was an easement.  

	A fundamental principle of construction is that a deed should

not be interpreted, to the extent possible, so that any portion is

rendered meaningless or mere surplusage.  Warren-Boynton State Bank, 123 Ill. 2d at 436.  Construing this deed as creating a fee simple determinable violates this principle.  It renders the terms

"over and through" and "right-of-way" meaningless.  An interest

that passes "over and through" necessarily passes over and through

something.  If a fee had been created in the grantee, the right-of-

way would, in fact, pass through nothing; it would simply be

property held by the grantee.  Further, the term "right-of-way" is

synonymous with "easement."  See Schnabel v. County of Du Page, 101 Ill. App. 3d 553, 558 (1981); see also Penn Central Corp. v. Commonwealth Edison Co., 159 Ill. App. 3d 419, 423 (1987).  That the parties used these two phrases in the deed provides strong

evidence that they intended to create an easement.

	Conversely, construing the interest created as an easement

leads to no similar problems.  It is true that the last sentence of

the above-quoted passage appears to create a possibility of

reverter in the grantor.  While possibilities of reverter often

follow a fee interest (e.g., Mahrenholz v. County Board of School Trustees of Lawrence County, 93 Ill. App. 3d 366, 371 (1981)), they may follow other interests as well (see In re Estate of Bentley, 14 Ill. App. 3d 630, 633 (1973) (observing that "future interests in

personal property have been recognized in Illinois")).  Easements may be held subject to future interests such as possibilities of

reverter and rights of reentry (Abrams v. Royse, 211 Ill. App. 3d 283, 286 (1991); City of Urbana v. Solo Cup Co., 66 Ill. App. 3d 45, 46 (1978)); hence, ascribing the intent to create such an

interest runs afoul of no rule of law.

	Furthermore, we do not find the language "[t]o have, hold, and

enjoy the land *** forever" inconsistent with the intent to create

an easement.  While such language, standing alone, appears to

create a fee, considering the passage as a whole, we conclude that

this language is limited by the term "right of way."  In the first

paragraph quoted above, the grantor purported to "give, remise,

relief, convey, and quitclaim *** the right of way *** over and

through the following described tract, piece or parcel of land." 

In Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 468-69 (1991), our supreme court rejected an argument that the term "right-of-way"

limited the estate granted because it found that the parties had

used the term merely as a shorthand description of the land itself. 

Here, conversely, the inclusion of the term in the same sentence

with words of conveyance indicates an intent by the parties to

limit the estate.  Thus, read in context, what the grantee acquired

to "have, hold, and enjoy" was an easement.

	Thus, we conclude that the railroad held an easement in the

parcel.  We further conclude that the railroad abandoned that easement.  The abandonment of a railroad right-of-way for railroad

purposes results in the termination of the easement.  Schnabel v. County of Du Page, 101 Ill. App. 3d 553, 558 (1981).  The question of abandonment turns on the intent of the holder of the easement. 

Department of Conservation ex rel. People v. Fairless, 273 Ill. App. 3d 705, 716 (1995).  Mere nonuse, unless accompanied by the

intent to abandon, is insufficient in itself to establish

abandonment.  Seymour v. Harris Trust & Savings Bank of Chicago, 264 Ill. App. 3d 583, 596-97 (1994).  However, nonuse is a relevant

consideration.  Egidi v. Town of Libertyville, 251 Ill. App. 3d 225, 232-33 (1993).  An easement is abandoned "when nonuse is

accompanied by acts which manifest an intention to abandon and

which destroy either the object for which the easement was

established or the means of its enjoyment."  Schnabel, 101 Ill. App. 3d at 558.

	In the instant case, three undisputed facts conclusively

demonstrate that the railroad intended to abandon the easement. 

First, the railroad ceased operating trains on the easement in late in

1997 or early in 1998.  Second, the railroad removed the tracks

from the easement sometime in the middle of 1998.  Third, the

railroad attempted to convey a portion of the easement to the bank. 

The bank relies on Fairless, 273 Ill. App. 3d at 715-17, in arguing that these facts are insufficient to conclusively show abandonment. 

In Fairless, however, the railroad owned the right-of-way in question in fee simple.  Fairless, 273 Ill. App. 3d at 716.  In the present case, the railroad held only an easement; hence Schnabel, 101 Ill. App. 3d 553, provides sounder guidance.  In Schnabel, the court relied on, inter alia, the three facts present in this case in determining that a railroad abandoned an easement as a matter of

law.  Schnabel, 101 Ill. App. 3d at 561.  While Schnabel did rely on some additional facts, we find the facts present here sufficient

to warrant summary judgment.  Particularly, that the railroad

attempted to alienate the easement is compelling evidence that it

no longer intended to use it for railroad purposes.  Because the

railroad abandoned the easement and this was the only interest the

railroad held, the bank took nothing by virtue of the quitclaim

deed from the railroad

	Accordingly, we hold that plaintiffs established title in the

parcel.  The undisputed facts also show that the bank has no

interest in the parcel.  Thus, the trial court committed no error

in determining that plaintiffs owned the property.

B. Statutes of Limitations

	The bank contends that plaintiffs' claim is barred by three

statutes of limitations.  First, the bank contends that section 13-

-114 of the Code of Civil Procedure (Code) (735 ILCS 5/13--114

(West 2000)), which precludes reliance on documents predating a

claim by 75 years under certain circumstances, bars plaintiffs from

relying on the Tefft deed to plaintiffs' predecessors in interest. 

Second, the bank contends the claim is barred by section 13--118 of

the Code (735 ILCS 5/13--118 (West 2000)), which imposes a 40-year

limitations period where the defendant a party and its predecessors can trace

good title back for 40 years.  Finally, the bank asserts that any

possibility of reverter created by the Tefft deed to plaintiffs'

predecessor was extinguished by section 4 of the Rights of Entry or Re-entry Act (765 ILCS 330/4 (West 2000)).  We hold that none of

these statutes bar plaintiffs' claim.

	The plain language of section 13--114 conclusively forecloses 

the bank's argument.  The section states that, among other things,

no documents and instruments that were "executed, dated, delivered,

recorded or entered into" more than 75 years before being offered

in support of a claim "shall adversely to the party or parties

hereafter coming into possession of such real estate under claim or

color of title *** be evidence or admissible in evidence or be held

or urged to make any title unmarketable in part or in whole, or be

required or allowed to be alleged or proved as a basis for any

action, or any statutory proceeding affecting directly or

indirectly the title to such real estate."  735 ILCS 5/13--114

(West 2000).  Our primary goal in interpreting a statute is to

ascertain the intent of the legislature.  Vrombaut v. Norcross Safety Products, L.L.C., 298 Ill. App. 3d 560, 562 (1998).  The best indicator of the legislature's intent is, of course, the plain

language of the statute.  People v. Bowden, 313 Ill. App. 3d 666, 668 (2000).

	Section 13-114 protects individuals who "hereafter [come] into

possession of such real estate under claim or color of title." 

Thus, to invoke this section, a litigant must satisfy two

conditions precedent: (1) it must be in possession of the property,

and (2) the possession must be under claim or color of title.  Our

review of the record indicates that it is undisputed that the bank

is not in possession of the property at issue.  The concept of possession has plagued courts for years and prompted our supreme

court to make the following observation:

	" 'It has frequently been said in reference to acts necessary

to constitute possession, that every case must rest upon its

own facts, and that it is difficult to state any general rule

as to what character of improvements or acts will be

sufficient for this purpose, and that the acts necessary to

constitute possession depend, to some extent, upon the nature

and locality of the property, the use to which it may be

applied and the situation of the parties; that a variety of

circumstances necessarily have to be taken into consideration

in determining the question.  Any acts of dominion exercised

over the property by the party claiming to hold title thereto

that clearly indicate to others an appropriation thereof to

the purposes for which it may ordinarily be used are generally

regarded as sufficient. [Citations.]' "  Klingel v. Kehrer, 81 Ill. App. 3d 431, 437 (1980), quoting LeSourd v. Edwards, 236 Ill. 169, 172-73 (1908). 

Thus, possession is a fact-specific inquiry that must be undertaken

in the context of the particular case.  The undisputed facts in

this case show that, if anyone, plaintiffs are in possession of the

parcel.

	By affidavit, Luis Diaz averred that since his purchase of the

restaurant he and his family have continually used the parcel for

ingress, egress, and parking, and have maintained a commercial

garbage receptacle on it.  In a counteraffidavit, Kenneth Moran,

one of the bank's employees, stated that the bank has not taken any action to interfere with plaintiffs' use of the parcel.  The only

reasonable inference to be drawn from these facts, no matter how

one defines "possession," is that the bank is not in possession of

the parcel.  Accordingly, the bank is not entitled to invoke

section 13--144 of the Code as a bar to the current action.

	Section 13--118 is similarly inapplicable to the case at bar. 

This section states, in pertinent part, that "[n]o action based

upon any claim arising or existing more than 40 years before the

commencement of such action shall be maintained in any court."  735

ILCS 5/13--118 (West 2000).  The claim plaintiffs advance did not

arise more than 40 years prior to the date upon which they brought

it.  It is undisputed that, until at least late in 1997, the

railroad continued to use the easement.  Because the railroad was

entitled to use the easement, plaintiffs could have brought an

action against no one while the railroad was doing what it was

clearly entitled to do.  Thus, section 13--118 does not preclude

the assertion of the claim.

	The bank also contends that section 4 of the Rights of Entry

or Re-entry Act bars the plaintiffs' claim (765 ILCS 330/4 (West

2000)).  This section provides that "[n]either possibilities of

reverter nor rights of entry or re-entry for breach of condition

subsequent *** shall be valid for a longer period than 40 years

from the date of the creation of the condition or possibility of

reverter."  765 ILCS 330/4 (West 2000).  The bank contends that

this provision renders ineffective the language in the deed

creating the right-of-way that states that the parcel shall revert

to the grantor in the event the parcel ceases to be used for railroad purposes.  As we have previously determined, however, the

interest held by the railroad was an easement, which may terminate

on its own terms when abandoned (see Schnabel, 101 Ill. App. 3d at 558).  Therefore, the existence or nonexistence of such a future

interest is irrelevant, and the bank's assertion that this statute

bars the current action is ill founded.

III. CONCLUSION

	In light of the foregoing, the judgment of the circuit court

of Kane County is affirmed.

	O'MALLEY and BYRNE, JJ., concur.