Chicago Title & Trust Co. v. Wabash-Randolph Corp.
| Decision Date | 11 November 1943 |
| Docket Number | No. 27036.,27036. |
| Citation | 384 Ill. 78,51 N.E.2d 132 |
| Court | Illinois Supreme Court |
| Parties | CHICAGO TITLE & TRUST CO. et al. v. WABASH-RANDOLPH CORPORATION et al. |
OPINION TEXT STARTS HERE
Suit by Chicago Title & Trust Company, as trustee, and others against Wabash-Randolph Corporation and others for a mandatory injunction to compel defendants to remove obstructions in a passageway. From a decree of dismissal, plaintiffs appeal.
Reversed and remanded with directions.Appeal from Superior Court, Cook County; Oscar F. Nelson, judge.
Markheim, Hungerford & Sollo, and James S. Shannon, all of Chicago (Harry Markheim, of Chicago, of counsel), for appellants.
Wilson & McIlvaine and Allen G. Mills, all of Chicago (J. F. Dammann, Clarence E. Fox, and John A. Johnson, all of Chicago, of counsel), for appellees.
By this appeal plaintiffs-appellants seek to reverse a decree of the superior court of Cook county which dismissed their complaint for want of equity. The controversy is as to whether there is appurtenant to lots owned by plaintiffs a perpetual easement of ingress and egress over lots owned by defendants. The easement in question is a freehold estate and this court has jurisdiction on direct appeal. Wesssels v. Colebank, 174 Ill. 618, 51 N.E. 639.
The Chicago Title and Trust Company appears in this case as a trustee under a certain trust agreement and as such holds the legal title to the lots for the benefit of which the easement is claimed. The estate of Zouella D. Cardwell is the beneficial owner under the trust. The trustees and the executors of the Cardwell estate will be referred to as plaintiffs. Gorham Brooks et al., are made defendants as trustees under a certain trust instrument in which capacity they hold the legal title to the lots which plaintiffs claim are the servient estate. Wabash-Randolph Corporation is the assignee of a 99-year lease on the lots held in the foregoing trust. Marion E. Markie is a tenant in possession of a part of the particular 10-foot strip over which the easement is claimed. The interests of the several defendants in the result of this litigation are the same and they will be referred to collectively as defendants.
The lots owned by plaintiffs and defendants were originally platted in 1839 as a part of block 10 in Ft. Dearborn addition. They were designated as numbers 31, 32, 33 and 34. They extended from Randolph street on the south to Benton place on the north and were parallel to Wabash avenue.
The title of all parties in this litigation runs back to a common source in Martin O. Walker. On October 3, 1863, Walker entered into a contract with Charles B. Farwell whereby Walker covenanted to convey to Farwell a strip 40 feet in width off the north end of all of said lots, thus designating a tract with a frontage of 40 feet on Wabash avenue and approximately 96 feet in length. It parallels Benton place and is referred to in the record as the north lot. The Walker-Farwell contract contained provisions for a party wall which gave Farwell the right to erect the south wall of his building on the boundary line between the north lot and the remainder of said lots 31 to 34 inclusive. Provision was made for Walker's use of the wall in the construction of a building on the parts of the lots not sold to Farwell and for such privilege he was to pay Farwell one-half the cost of the wall. The contract also contained the following: ‘Walker reserves the right of a passageway of 10 feet wide on the east end of said premises like unto that on the east end of the building now occupied by the firm of Cooley, Farwell & Co., but this reserve shall not be construed to prevent Farwell from extending his basement and all the upper stories over the entire area of said premises sold as aforesaid.’
About 9 months after the Walker-Farwell contract had been made, and on July 19, 1864, Walker entered into a contract with Edward and Michael F. McKey, to convey to them the remainder of said lots 31 to 34, both inclusive. The contract contained the following pertinent provisions: ‘and the said Edward McKey and Michael F. McKey further covenant and agree that they will assume, discharge and fulfill the agreements and obligations of the said Martin O. Walker to Charles B. Farwell and his assigns respecting the use of and payment for one-half of the party wall erected by said Farwell on the north line of the premises above described, and that they will in building upon said premises leave an alleyway along the east side of said premises conforming in all respects with the arched alleyway left by said Farwell at the rear of the building erected by him upon the north end of said lots, said alleyway to be left open for the common benefit of all persons owning or occupying any portions of said lot.’ Both contracts were duly recorded.
Plaintiffs' theory is that the reference to the alleyway in the last quoted provision created an easement over the lots described in the Walker-McKey contract for the common advantage of all of said lots and the north lot. Defendants contend that no easement was created. They also argue that even though the language in the Walker-McKey contract be deemed to be sufficient to create an easement, there is another obstacle in that the deed made by Walker to the McKeys contained no reference to the easement and that all the provisions of the contract were merged in the deed and therefore the McKeys' contractual obligation to create an easement was nullified. Defendants also say that if an easement was created the evidence shows that there was a subsequent abandonment. On the issues thus formed, the master found an easement had been created, that it still existed and that plaintiffs were entitled to a mandatory injunction to compel defendants to remove the obstructions in the passageway. On a hearing on exceptions to the master's report, the chancellor sustained defendants' exceptions and found that plaintiffs were not entitled to the relief prayed and dismissed plaintiffs' complaint for want of equity. He did find, however, that there was an easement over plaintiffs' property for the use of defendants' property and provided for its use in the decree.
Other facts material to the inquiry as to whether an easement was created are as follows: On February 20, 1866, Walker executed a warranty deed conveying the north lot to one Briggs who held the Walker-Farwell contract as assignee of Farwell. The same day Walker conveyed the remainder of said lots by warranty deed to the McKeys. Both deeds were duly recorded. The deed to Briggs contained the following reservation ‘saving and reserving however, passageway 10 feet wide across the east end of the premises hereby conveyed to be preserved in good condition for the ingress and egress of persons and teams, but without prejudice to the right of the said party of the second part (J. Smith Briggs), his heirs and assigns, to extend a basement and upper lofts or stories above the main or ground story of buildings erected or to be erected on said premises under and over said passageway in such a manner as not to obstruct its use for the purposes aforesaid.’ The Walker-McKey deed contained reservation for the party-wall agreement referred to in the Walker-McKey contract but made no reference to the easement.
On September 17, 1866, a plat for a subdivision of lots 31 to 34, both inclusive, except the north lot which had been conveyed to Briggs, was filed for record, to be known as the Bowen-McKey subdivision. By the subdivision the new lots extended east and west with a frontage of about 40 feet each on Wabash avenue and a depth of approximately 96 feet. They were numbered in consecutive order, 1, 2 and 3, starting at Randolph street and going north. The Bowen-McKey subdivision plat contained no reference to an alleyway on any of the lots. Defendants are the owners of lots 1 and 2 and plaintiffs of lot 3 and the north lot which was originally conveyed to Briggs and was not subdivided in the Bowen-McKey plat.
Plaintiffs' complaint contained an allegation that for many years prior to 1923 a private alley 10 feet in width extended across the rear of all of the lots owned by plaintiffs and defendants. Such allegation was denied in defendants' answer. There is no direct proof as to when the alleyway was first opened, but the evidence does show that when the buildings were erected on the north lot and lot 1, openings were provided approximately 10 feet in width to the height of the first story. The alleyway on lots 2 and 3 was open to the sky. There is evidence which tends to show that some use was made of it prior to 1923 and there is evidence that the entrance at Randolph street had iron gates across it. Further discussion of the evidence as to the use of the alleyway prior to 1923 will be reserved for the discussion on the question of abandonment.
Approximately thirty instruments, which include deeds, mortgages, trust instruments and leases, all connected in some way with the chain of title to lots 1 and 2, have been filed for record since 1866. In eighteen of them no reference was made to the existence of an easement. Twelve of them, in varying language, contained statements recognizing the existence of an easement. To illustrate, a deed, dated December 3, 1888, provided: ‘This conveyance is made subject to any rights or easements that may have been acquired over the east 10 feet of said premises for an alley,’ and a mortgage dated in December, 1890, was made ‘subject to the existing easement appurtenant to the east 10 feet of said premises used as a private alley.’ A deed in 1916 contained the clause, ‘subject to existing easement appurtenant to east 10 feet of said premises (lots 1 and 2) used as a private alley,’ and one dated in January, 1932, contained a similar provision.
Plaintiffs pray for the extraordinary equitable remedy of a mandatory injunction to protect their rights in an easement over defendants' property. Whether...
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