Hankins v. Hendricks

• Decision Date: 21 December 1910
• Citation: 247 Ill. 517,93 N.E. 428
• Parties: HANKINS v. HENDRICKS.
• Court: Illinois Supreme Court

247 Ill. 517

93 N.E. 428

HANKINS

v.HENDRICKS.

Supreme Court of Illinois.

Dec. 21, 1910.

Appeal from Circuit Court, Macon County; William C. Johns, Judge.

Suit by Charles S. Hankins against Arthur W. Hendricks. Bill dismissed, and complainant appeals. Affirmed.

C. E. Schroll, for appellant.

Whitley & Fitzgerald, for appellee.

DUNN, J.

The circuit court of Macon county dismissed the appellant's bill for an injunction restraining the appellee from removing the appellant's fence and passing over his land. The record has been brought before us for review, and presents the question of the existence of an easement of passage to and from appellee's lot over appellant's premises.

For more than 20 years prior to 1903 Harvey Mahannah owned lots 3 and 4 of block 2 in Lake & Co.'s addition to Decatur. Lot 3 was immediately morth of lot 4, and each fronted east on Warren street 150 feet, with a depth of 290 feet. Center street, running east and west, was the south boundary of lot 4. Mahannah sold the west 50 feet of lot 4 to Alice E. Smith on August 14, 1903, the next 40 feet east to Elbert C. Tade on October 29, 1904, the next 40 feet east to William I. Lundy on April 78 1905, and the next 40 feet east to Emery O. Shively on April 2, 1906. He sold 45 feet off the north side of lot 3 to Patrick Cullen, and on January 31, 1906, sold the west 90 feet of the south 105 feet of lot 3 to Elbert C. Tade. This tract Tade sold to the appellee in January, 1909. Immediately south of the Cullen tract, another tract, fronting 45 feet on Warren street and running back 200 feet, was sold; and the tract immediately south of that, fronting on Warren street 47 8/12 feet and 170 feet deep, was sold to Lily Thomas. This left a strip about 12 feet wide, fronting on Warren street, running back 200 feet, and a tract lying north of the west 30 feet thereof immediately west of Mrs. Thomas' lot, and it is concerning these tracts that the controversy arises. The following plat indicates the relative situation of the various parts of the lots (appellant owns all of lot 3 not otherwise marked):

Image 1 (2.69" X 2.83") Available for Offline Print

It appears from the evidence that when Tade bought the first tract of Mahannah, which fronted on Center street, Mahannah told him that there was to be an alley for the use of the property owners, and showed him where it would be There was also to be a court for turning, immediately north and at the rear of Tade's lot. The court was laid out by Mahannah, and was used, together with the alley, for all kinds of driving and hauling. From that time there has been no obstruction to travel, and the property owners have building at the south line of the alley. When Lundy bought, the same representations were made to him in regard to the alley, and he was told that it should extend from Warren street to the west line of his lot. He insisted on having the provision for the alley in his deed, and it was accordingly inserted in these words: ‘The grantors hereby grant to said grantee the free use of an alley, which said grantors agree to open in 1905 from Warren street west along the north line of said lot 4 to the west line of said tract above conveyed, with a court at the west and large enough for turning teams.’ The alley and court have ever since been used by the owners of the adjoining property as a means of access from Warren street to the rear of their lots. The alley was fenced on the south, but not on the north, until after Mrs. Thomas' purchase, when she built the fence on the north in 1906 or 1907. When Tade made his second purchase, the tract 90 by 105 feet in the southwest corner of lot 3 was entirely shut off from access to any public street, except over that portion of lot 3 lying between it and Warren street, which was still owned by Mahannah. The alley was there, and, though not fenced, was a visible indication of its...