Clarke v. Gaffeney

Mr. Justice Magruder delivered the opinion of the Court: This is an action of ejectment, brought by appellee, against appellants,'in the circuit court of Madison county, to recover a strip of land described in the declaration, as follows: Beginning at a point on the east line of lot 1, of John T. Lusk & Co.’s subdivision of the north-east quarter of section 15, town 4 north, range 8 west of the third principal meridian, in Madison county, Illinois, where said east line intersects the south line of the highway known as the Edwardsville and St. Louis road, and running thence south on the east line of lots 1, 2, 3 and 4 of said subdivision, to the south-east corner of the lot last named; thence east sixty-seven links; thence north, on a direct line, to a point seventy-three links east of the north-east corner of lot 2 of said subdivision, and continuing thence north on a line of the same bearing as the one last described, to the line of the Edwardsville and St. Louis road; thence in a southwesterly direction, on the south line of said last mentioned road, to the place of beginning. The description will be better understood by an examination of the following plat, which was introduced in evidence on the trial below: [[Image here]] John T. Lusk and John R. Torrence are admitted to be .the common source of title. On June 21, 1856, they had become the owners, by a regular chain of title from the government, of the one hundred and four acres of land in the north-east quarter of said section 15, which are embraced in the plat above set forth. They are spoken of in the pleadings as J. T. Lusk & Co'. Lusk' died in December, 1857, and Torrence between 1860 and 1865. In November, 1856, Lusk and Torrence made the foregoing plat of the one hundred and four acres owned by them, and recorded the plat on November 17,1856. It shows the subdivision of the one hundred and four acres into ten lots, containing each about ten acres, with a strip of land, containing six and seven-tenths acres, running north and south through the center of the one hundred and four acre tract, and dividing it so that lots 1, 2, 3, 4 and 5 lie on the west side of the strip, and lots 6, 7, 8, 9 and 10 lie on the east side of it. A main road, called the St. Louis road, or the Edwardsville and St.Louis road, ran “on the north side of this land.” On November 17,1856, Lusk and Torrence, or J. T. Lusk & Co., sold the ten lots at public auction, and Lusk announced publicly to the purchasers at the sale, that the strip of land dividing the lots as above stated, had been laid out as a roa d for the use and benefit of those buying lots, so that the owners of lots lying south of the main road could have access to it through this strip, without traveling over the property of their neighbors. It was this announcement which induced parties to buy the lots. The proof shows that there was no convenient means of access to or egress from the lots that were remote from the main highway, except through the strip running between the eastern and western tiers of lots. At the auction sale, one Nelson Daniels bought lots 1, 2, 3 and 4, and the deed executed to him and William M. Whaling by Lusk and Torrence, dated November 17, 1856, describes the property as “lots 1, 2, 3 and 4, subdivision of west part, N. E. J of sec. 15, town 4 N., B. 8 west; lot 1 contains 9T|^ acres, lots 2, 3 and 4 contain each 10^°^ acres.” Appellants are now the owners of lots 1, 2, 3 and 4, by a regular chain of conveyances, beginning with Daniels and Whaling. At the auction sale lots 7, 8, 9 and 10 were bought by Timothy Brown, and lot 5 by Tyler Brown. The proof shows that appellee now owns lots 6, 7, 8 and 9, that one Wolf owns lot 10, and a Mrs. Lix owns lot 5. During twenty-seven years' after the death of Lusk, his heirs and devisees asserted no claim of ownership in the strip of land running between these two sets of lots. During more than twenty years after the death of Torrence, his heirs asserted no ownership therein. In the year 1884 appellee succeeded in obtaining deeds to herself from the heirs and devisees of Lusk and Torrence, conveying the strip in question, and shortly thereafter began this suit. Ever since the auction sale in 1856, this strip has been used openly and continuously by those who bought at said sale from Lusk and Torrence, and by the grantees from those so buying. The owners of the lots on either side of the strip holding under the purchasers from Lusk and Torrence, have used the whole of the strip, for one purpose or another, from 1856 down to the commencement of this suit. The northern part of it, running south from the St. Louis road for about one hundred yards, was used for twenty years as a roadway or means of approach to the lots lying on either side. As between Lusk and Torrence, and the original purchasers from them, the latter were entitled to an easement or right of way in this strip of land for the use and benefit of their lots. It would certainly have been an act of great injustice for Lusk and Torrence to have interfered, in any way, with the enjoyment of such easement by their vendees. It is true, that while the title to the one hundred and four acres remained in Lusk and Torrence, the subdivision, as above made, created no easement of any kind. Until a severance, and the premises were held by separate owners, no question of that character could arise. The foundation of the doctrine of easement in this and similar classes of cases is a disposition and arrangement of the premises as to the uses of the different parts by him having the unity of seizin, and then a severance. “It being a general principle in relation to grants that every grant of a thing naturally and necessarily imports a grant of it 'as it actually exists, unless the contrary is provided for, it would seem to follow that each portion of the severed premises would pass subject to all the burdens and advantages imposed or conferred by the proper owner. ” “An easement may be created by the disposition made of premises by the owner of the estate, and, upon a severance of the title, the owners will take their respective shares as they existed in the hands of the former owner. ” Morrison et al. v. King et al. 62 Ill. 30. Lusk and Torrence subdivided and platted this land in such a manner that there was no way of approach to the lots which did not abut upon the main highway, except along the strip in question. They then severed their title by conveyances of different lots to different owners, accompanying their sales with the declaration that each lot owner should have a right of Avay over the strip to the main road. Each lot passed with the advantages conferred, as well as subject to the burdens imposed, by the original owners. Under the circumstances of this case, appellee, holding by conveyance from the heirs of such original owners, is as much estopped as were Lusk and Torrence from interfering with the right of way of these different lot owners over the strip designated and reserved for their use. It is not necessary that such right of way should have been specifically mentioned in the conveyances. “Incorporeal hereditaments, appendant or appurtenant to land, as, common of piscary and of pasture, and right of way, pass by a conveyance of the land to Avhich they are annexed, without even mention of the appurtenances. ” (Coke on Litt. 121b.) In Hadden v. Shoutz, 15 Ill. 581, a mill and dam had been erected upon a creek running through the quarter section, of which a certain six acres, on which the mill and dam had been built, were a part. Hadden conveyed the six acres, with the mill and dam thereon, to Shoutz. The dam flowed the- water of the creek back upon a part of the quarter section not embraced in the six acres conveyed to Shoutz, and which Hadden owned when he so conveyed. This back-flow of the water upon the land not conveyed, was necessary to the use of the mill, and was held to be an easement appurtenant to the mill, and to have passed by a grant of the mill, as appurtenant thereto. It was further held, that this easement,: so long as it was not abandoned, would not be extinguished by a conveyance of the land upon which the water flowed. So in the case at bar, the right ■ of way over this Strip passed to appellants as grantees from the original vendees of these lots, and whatever title, if any, appellee has obtained as grantee from the original vendees or their heirs, she has taken subject to such right of way. The judgment of the court below is therefore reversed. Judgment reversed.