Baird v. Hanna

• Citation: 159 N.E. 793,328 Ill. 436
• Decision Date: 10 February 1928
• Docket Number: No. 18433.,18433.
• Parties: BAIRD v. HANNA et al.
• Court: Illinois Supreme Court

328 Ill. 436

159 N.E. 793

BAIRD

v.HANNA et al.

No. 18433.

Supreme Court of Illinois.

Dec. 21, 1927.

Rehearing Denied Feb. 10, 1928.

Error to Circuit Court, Wayne County; Roy E. Pearce, Judge.

Bill by W. G. Baird against T. P. Hanna and others. From a decree granting an injunction, defendants bring error.

Reversed.

Creighton & Thomas, of Fairfield, for plaintiffs in error.

Virgil W. Mills, of Fairfield (William T. Bonham, of Fairfield, of counsel), for defendant in error.

THOMPSON, J.

This case involves an implied grant of an easement of light over a strip 13 1/4 feet wide in the north half of lot 49, in Fiddeman's addition to the city of Fairfield, as an incidentto the south 71 feet of said lot, which is occupied by a residence and photograph gallery. The gallery consists of three rooms on the north side of the building. The east room is the reception room, and the west room is the dark room. The middle room is the operating room, where the exposures are made, and in the north wall of which is a skylight 12 feet by 12 feet, placed at an angle of about 25 degrees south from the perpendicular. George Newton acquired this property many years ago, and loter married. Subsequently he acquired the 13 1/4 foot strip involved in this proceeding which lies immediately north of the portion of the lot occupied by the photograph gallery. On the east end of this strip of ground is a small building which stands immediately north of the reception room of the photograph gallery, and on the west end of the strip is another building north of the dark room. The space north of the operating room is now open, and has been since the photograph gallery was erected; thereby affording an unobstructed flow of light through the skylight. Upon the death of Newton, his widow, Laura, became the owner of the property by virtue of his will. She continued to conduct the photograph business in the property until April 7, 1908, when she sold the business and the south 71 feet of lot 49, with the buildings thereon, to defendant in error, W. G. Baird. May 6, 1920, Mrs. Newton sold the 13 1/4 foot strip of ground immediately north of the photograph gallery to plaintiffs in error T. P. Hanna and Barney Barnhouse. Subsequently they leased the property owned by them to plaintiff in error E. E. Goodman and his wife for a period of three years. Goodman conducts a restaurant in the building on the front end of the property. On August 4, 1926, he began the erection of a 30-foot addition on the west end of this building, and it is this addition which defendant in error charges will injure his property and business by obstructing his light. He applied for, and obtained, in the circuit court of Wayne county, an injunctionrestraining the erection of the building opposite his skylight, and this writ of error is prosecuted to review the decree awarding the injunction.

Defendant in error relies upon the rule of the common law that where the owner of two heritages, or of one heritage consisting of several parts, has arranged and adapted these so that one derives a benefit or advantage from the other of a continuous and obvious character, and he sells one of them without making mention of those incidental advantages or burdens of the one in respect to the other, there is in the silence of the parties an implied understanding and agreement that these advantages and burdens, respectively, shall continue as before the separation of the title. This general rule is announced and has been applied in Adams v. Gordon, 265 Ill. 87, 106 N. E. 517;Powers v. Heffernan, 233 Ill. 597, 84 N. E. 661;Ingals v. Plamondon, 75 Ill. 118;Morrison v. King, 62 Ill. 30, and many other cases in this state. But it has also been held that the law of implied grants and implied reservations shall not be applied to easements for light and air. Guest v. Reynolds, 68 Ill. 478, 18 Am....