McEwan v. Baker

Mr. Justice Waterman delivered the opinion of the court. Appellant relies upon the covenant in the warranty deed made by appellee to Robert McEwan and the similar covenant in the deed from Robert McEwan to him, Frank McEwan, especially the covenant that the land, namely, the said front eighty-acre tract, is free and clear from incumbrance. If a man sells land to another, which is wholly surrounded by his own land, the purchaser is entitled to a right of way over the other’s ground to arrive at his own. Such a way is a necessary incident to the grant. Kent’s Com., 6th Ed., Vol. 3, pp. 420-3; Brigham v. Smith, 4 Gray (Mass.), 297; Washburn on Easements and Servitudes, 3d Ed., p. 235; Uhl v. Ohio River R. R. Co., 34 S. E. Rep. 934; Rock Island & Peoria Ry. Co. v. Dimick, 144 Ill. 628; Jones on Easements, Sec. 319. Nor will a right of necessity for access to the premises of a grantor, remaining in him after a conveyance of a portion of what he once owned, be presumed to have been relinquished by general covenants in a warranty deed. Necessity for and right of access may, indeed, be relinquished by express words, clearly indicating an intention to do so, but general covenants, which do not indicate that such relinquishment was in the mind of the covenantor, will not be construed as a waiver of such necessary easements. Chappell v. N. Y. & H. Ry. Co., 24 Atlantic Rep. 997. So too, where a party so owns and so uses two tracts of land that the value of one is enhanced and it derives a benefit from a right of way over the other, and such right-of-way-benefits and enhanced value are apparent and open to the ordinary observation of a purchaser of the servient tract, such purchaser will be presumed, in the absence of stipulations to the contrary, to have purchased the servient tract with notice of the servitude. Cihak v. Klekr, 117 Ill. 658; Vol. 10, 2d Ed. Am. & Eng. Ency. of Law, 420-2; John Hancock Hut. Life Ins. Co. v. Patterson, 103 Ind. 582; Horrison v. King, 62 Ill. 30; Ingals v. Plamondon, 75 Ill. 118; Tinker v. Forbes, 136 Ill. 221. The use made by appellee of the front eighty acres, after the conveyance of the same to Robert HcEwan, was obvious to ordinary observation; and the lease given by Robert HcEwan to appellee, under which appellee was making use of said front eighty acres, was a thing which appellant would easily have ascertained had he inquired by what right appellee was driving his cattle over said front eighty acres, as at the time of and for many years after the purchase of the same by appellant, appellee continued to do. Appellant is chargeable with knowledge of that which in this regard he had notice. Crawford v. C., B. & Q. Ry. Co., 112 Ill. 314; Harris v. Mclntyre, 118 Ill. 275; Jones Law of Real Property, Vol. 2, p. 1524. Being able to break down the barrier interposed by appellant, without in so doing bringing about a personal encounter with appellee or his servants, i. e., being able to break down said barrier peaceably, appellee had a right to remove the obstruction which appellant had wrongfully erected. Ostatag v. Taylor, 44 Ill. App. 469; Hoots v. Graham, 23 Ill. 81; Marcy v. Taylor, 19 Ill. 634; Frazier v. Caruthers, 44 Ill. App. 61; White v. Noerup, 57 Ill. App. 114; Lee et al. v. Town of Mound Station, 118 Ill. 304; Cooley on Torts, 2d Ed. 438. The judgment of the Circuit Court is affirmed.