Adams v. Gordon

• Decision Date: 16 October 1914
• Docket Number: No. 9522.,9522.
• Citation: 265 Ill. 87,106 N.E. 517
• Parties: ADAMS v. GORDON.
• Court: Illinois Supreme Court

265 Ill. 87

106 N.E. 517

ADAMS

v.GORDON.

No. 9522.

Supreme Court of Illinois.

Oct. 16, 1914.

Appeal from Circuit Court, Lake County; Charles Whitney, Judge.

Bill by Amie I. Adams against John Gordon. From a judgment of dismissal, plaintiff appeals. Reversed and remanded, with directions.

For decision on transfer of cause from Appellate Court, see 186 Ill. App. 286.Shepard, McCormick & Thomason, of Chicago, and John D. PopeEllant.

Elam L. Clarke, of Waukegan, for appellee.

Appellant filed her bill in chancery in the circuit court of Lake county, Ill., against appellee, for an injunction to restrain him from interfering with her in the exercise of her rights which she claimed in the nature of an easement in certain water facilities and a way thereto, situated on the lands of appellee. A demurrer was sustained to her bill, and, appellant electing to abide by her bill, a decree was entered dismissing the bill for want of equity. She prayed and perfected an appeal to the Appellate Court for the Second District, which has transferred the cause to this court pursuant to the statute, for the reason that a freehold is involved.

It appears from the allegations of the bill that prior to November 29, 1911, appellee was the owner of a tract of about 100 or more acres of land situated on what is known as Deerpath avenue, in the vicinity of Lake Forest, Ill. November 29, 1911, he entered into a contract with John F. Tracy for the sale of a portion of this land, in which he contracted, among other things, that the purchaser should have the right to the use of the well located on his adjacent property, together with the pump, gasoline engine, and tank situated thereon, until such time as public water mains should be installed in Deerpath avenue, with the right to use a path, not exceeding 8 feet in width, from a gate on the west line of the property leading in a direct line to the well, the purchaser to maintain the well, pump, engine, and tank at his own expense and furnish water for the use of appellee without charge or expense to him, and, should said Tracy fail to so maintain and furnish water, his right to the use of the well and pump might be terminated by the vendor and all obligations under the contract canceled. On the same day the contract was made appellee conveyed the land described in the contract to said Tracy by warranty deed, in which no reference whatever is made to the provision in the contract in relation to the use of water facilities as above set forth. At the time the contract was made between appellee and Tracy appellant was a tenant on the property under a lease expiring on November 30, 1911. January 4, 1912, Tracy conveyed the land purchased by him to appellant by warranty deed in all respects the same as the deed he had received from appellee; the deed making to mention whatever of the easement contained in the contract between appellee and Tracy. Appellant alleges the omission of this matter was due to the mistake of the scrivener in drafting the deed, but she does not ask that the deed be reformed. For some years the water facilities located on appellee's land have been used by him and his tenants, including appellant, for the purpose of supplying the premises now owned by her with water for domestic purposes and to supply water for the stables, lawns, and gardens thereon; said water facilities being absolutely necessary and essential to the full enjoyment of her premises. Appellant charges that one of the important factors inducing her to purchase the premises was the fact that she should have the right to the free and unobstructed use of the water facilities mentioned in the contract between said Tracy and appellee. The pump, pumphouse, tank, and engine are located on appellee's premises about 100 feet from the west line of appellant's property, and the water is conveyed from there to her premises and buildings by means of an underground pipe leading from the tank on appellee's property to the house, stable, lawn, and garden on appellant's premises. The pipe is visible on appellee's land between the point where it leaves the tank and enters the ground, and also visible on appellant's premises where it emerges from the ground and connects with the faucets, plugs, flush boxes, and hydrants on her land. A view of the premises at the time of the purchase by Tracy and of her purchase from Tracy would have disclosed that the faucets, plugs, flush boxes, and hydrants on her property were connected with the tank on appellee's land, and that the pump, pumphouse, engine, and tank situated thereon were used as the means of supplying these premises with water, and that the water facilities thus provided were highly beneficial to her property. No public water mains have been installed or constructed in Deerpath avenue leading to this property, and it is indispensable to its use and enjoyment by appellant that she have the advantage of water facilities provided for it, situated on appellee's land. After appellant became a purchaser appellee permitted her to continue to use the water facilities for some time without protest, and from time to time to make the necessary repairs thereon. Shortly before filing the bill he demanded of her the payment of $50 which he claimed was due on a former tenancy by her, and when she refused to pay, on the ground that it was without any foundation, appellee refused to allow her servants to make repairs on the engine used for pumping water into the tank, locked the door to the pump house, shut the water off, forbade appellant or her servants to use the well or the pathway thereto and blockaded the same by installing posts and wires across the pathway, and threatened violence to appellant and her servants if they attempted to obtain water from the well or to use the pathway leading thereto. The bill prayed for an injunction enjoining the appellee from interfering with appellant's rights in the premises and in the use of the water, pumphouse, engine, and tank and other water facilities as above set forth, and for general relief. A general demurrer was sustained to the bill, setting forth the above facts. Appellant elected to abide by her bill, and a decree was entered dismissing the bill for want of equity. This appeal followed.

The errors assigned are: (1) That the court erred in sustaining the demurrer to the bill; and (2) that the court erred in dismissing appellant's bill for want of equity.

CRAIG, J. (after stating the facts as above).

[1] Appellant by her bill asserts and seeks to establish and maintain a right in the nature of a perpetual easement in the adjoining lands of the appellee in the use and maintenance of certain water facilities located thereon, by means of which her house, barn, garden, and premises are supplied with water. This right, if it exists, is an easement appurtenant to an estate in fee, and a bill filed for the purpose of establishing such an easement involves a freehold, and the case was therefore properly transferred to this court. Tinker v. Forbes, 136 Ill. 221, 26 N. E. 503;Foote v. Marggraf, 233 Ill. 48, 84 N. E. 42;Foote v. Yarlott, 238 Ill. 54, 87 N. E. 62;Espenscheid v. Bauer, 235 Ill. 172, 85 N. E. 230.

Appellant insists that she is entitled to the benefits of the contract of November 11, 1912, between Tracy and appellee, and also that the water facilities on appellee's land constitute an open and visible easement appurtenant to her premises, which passed by the deed of conveyance of the land from appellee to Tracy and from Tracy to her. Appellee insists that no rights passed to appellant under the contract with Tracy, for the reasons it was never executed by Tracy, that it was a personal contract, and that it became merged into, and extinguished by, the deed subsequently made conveying the land to Tracy. The appellee further insists that, in order for an easement to pass as appurtenant to land, it must be open, visible, and continuous, and such as does not require the interference by man. We do not deem it necessary to pass upon each one of these contentions separately, but the substance of each and all of these contentions will be given full consideration.

[2] The object in construing and interpreting an instrument is to ascertain and make it speak the true intention and meaning of the parties at the time it was made, and where any doubt exists as to its sense and meaning, resort may be had to the circumstances surrounding its execution, for the purpose of ascertaining the subject-matter and the standpoint of the parties in relation thereto. Without this knowledge it would be impossible to fully understand the meaning of an instrument or the effect to be given to the words of which it is composed. Goodwillie Co. v. Commonwealth Electric Co., 241 Ill. 42, 89 N. E. 272. This knowledge is almost as indispensable as that of the language in which the instrument is written, and a reference to the actual condition of things at the time as they appeared to the parties themselves will often afford the court great help in construing such language and arriving at the true intent and meaning of the agreement they have made.

[3][4] By referring to the situation of the parties and the condition of the premises at the time appellant became a purchaser of the same, we find she had been a tenant thereof for some years, the length of time not being stated in the bill, and during all of that time had used and enjoyed all of the privileges which she now claims as an easement appurtenant to her premises. In purchasing the property she had a right to assume and expect she was buying it in its...