Koelle v. Knecht

• Decision Date: 21 June 1881
• Citation: 1881 WL 10557,99 Ill. 396
• Parties: WILLIAM KOELLE et al.v.DANIEL KNECHT et al.
• Court: Illinois Supreme Court

99 Ill. 396

1881 WL 10557 (Ill.)

WILLIAM KOELLE et al.

v.DANIEL KNECHT et al.

Supreme Court of Illinois.

Filed at Mt. Vernon, Jun. 21, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

This was a bill filed by Daniel Knecht and Augustus Lenz, against William Kœlle, John Kœlle and Christian Kœlle, and the Louisville and Nashville Railroad Company, to enjoin the carrying of freight or coal over the complainants' switch on their land, except the freight and coal of complainants, or persons licensed by them. A decree was rendered in accordance with the prayer of the bill. Mr. CHARLES W. THOMAS, for the appellants:

The deed from Christian Kœlle granted a right of way over the grantor's lands, for the benefit of the grantor as well as of the grantees, it providing that the switch might be used by the grantees and others for railroad and switch purposes.

That deed provides, that it is executed upon the consideration that the grantees shall permit the grantor to “use said switch and railroad, the same as the grantees.” This clause refers to the whole structure, and is a complete and perfect reservation of a right appurtenant to Kœlle's land. It is contended that this was a reservation of a right in gross to Kœlle himself, and that it died with him.

The fact that the reservation appears, in a literal sense, to be to the grantor in person, is of no weight. In Winthrop v. Fairbank, 41 Me. 307, the grantor used these words, “reserving to myself the privilege of passing with teams, etc., across the same, in suitable places, to land I own to the south of the premises,” and they were held to confer the benefit of the exception in favor of the grantor, his heirs and assigns, as occupants of the remaining lands belonging to him south of the premises, the privilege reserved being appurtenant to those lands. See, also, Bowen v. Conners, 6 Cush. 132; Garrison v. Rudd, 19 Ill. 564; Karmueller v. Kurtz, 18 Iowa, 352.

Although it is within the power of one selling his land to reserve to himself a right in gross, yet as such right is less permanent and beneficial, the law always favors and presumes, when such a construction can fairly be made, that the right is not in gross, but an easement appurtenant. 2 Wait's Actions and Defences, 665.

The second source of appellants' right to have their coal hauled over the switch in question, is the law which makes the switch part of a public highway, free to all the people who may have occasion to use the same. Const. 1870, sec. 12, art. 11. Messrs. HAY & KNISPEL, for the appellees:

Deeds are to be most strongly construed against the grantor, ( City of Alton v. Illinois Transportation Co. 12 Ill. 38,) and it will therefore take stronger words to create an easement by reservation than by direct grant. Suffield v. Brown, 4 DeG. T. & S. 185; 2 Wait's Act. and Def. 665. And easements which will pass by implication in a grant, will not be implied by a reservation. 2 Wait's Act. and Def. 663; Bern v. Mills, 21 Wend. 290.

Applying these rules of construction to the reservation in question, we must construe the same to be a reservation of the right in gross, personal to the grantor himself; and if it is such an easement in gross, only, it is not assignable or inheritable. Washb. on Easements, p. 11.

In the case of Garrison v. Rudd, 19 Ill. 558, the court defines easements as follows: “They are said to be appendant or appurtenant when they are incident to an estate,--one terminus being on the land of the party claiming, must inhere in the land, concern the premises, and be essentially necessary to their enjoyment. They are of the nature of covenants running with the land, and, like them, must respect the thing granted or demised, and must concern the land or estate conveyed. They pass by a conveyance of the land, under the term “‘appurtenances,’ without being expressly named.” And such an easement is appurtenant to all and every part of the land, no matter into how many parts it may be subdivided on sale,--to each part, however small, it attaches. It is to be enjoyed by all the owners of the estate to which it is incident, and can not be separately sold and conveyed to another.

The right is said to be in gross when it is not attached as an incident to an estate, and is conferred by deed, or by reservation in a deed, the distinction being quite manifest between a grant of land where a way is appendant which carries the way, and a grant of way separate from any estate, in gross or specially. That such a reservation is a personal right or appurtenance in gross, counsel cited Ackroyd v. Smith, 70 Eng. C. L. R. 164; Wagner v. Hanna, 38 Cal. 111.

But if the reservation was of an easement appurtenant, it was to Kœlle's land, and none other. The bill does not pray for an injunction against operating the switch on Kœlle's land.

An easement may pass, without express mention, as an incident to the grant of the adjacent premises; but the fee in one piece of land, not mentioned in the deed, will not pass as appurtenant to another tract granted by an accurate description, giving it a definite and limited boundary. Gebhard v. Reeves, 75 Ill. 307; Jackson v. Hatchaway, 15 Johns. 448; Tyler v. Hannon, 11 Pick. 193; O'Lindar v. Lathrop, 21 Id. 292.

An easement appurtenant reserved in a deed is limited to the land granted, and does not extend to after acquired land. Washb. on Easements, 49; Stearns v. Mullen, 4 Gray, 151; Smith v. Porter, 10 Id. 67. A right of way can only be raised out of the land granted or reserved by the grantor, and never out of the land of a stranger. Oliver v. Hock, 47 Md. 301.

The constitutional provision has no reference to a road of this kind--a mere private switch. See Hoyt v. Chicago, Burlington and Quincy Railroad Co. 93 Ill. 601.

Mr. JUSTICE WALKER delivered the opinion of the Court:

In November, 1870, Christian Kœlle, in consideration of $200 paid to him by Daniel Knecht, Alpheus Boling and Joseph Schmisseur, granted to them a right of way, in this language: “I, for the consideration hereinafter named, do hereby convey to Daniel Knecht, Joseph Schmisseur and Alpheus Boling the right of way for a switch, from the St. Louis and Southeastern Railway across my land, fifteen feet wide, to the lands of the said Schmisseur, near the turnpike, where the same was located by the said railroad company by its engineer, in section 6, township 1 north, range 8 west, in St. Clair county, Illinois, to be used by said grantees and others for railroad and switch purposes, and when not so used, to revert to me, said grantor, otherwise to remain the property of said grantees and their heirs and assigns forever, for the uses and purposes named.”

Boling sold out his interest to Lenz, who took his place in the enterprise before the switch was constructed. The complainants then purchased an 80-acre tract of land, a part of which lay between the land of Kœlle and Schmisseur, to have and control the right of way between the railroad track and Schmisseur's land. They graded, bridged and prepared the road bed between the railroad track and Schmisseur's land, ready for the ties and rails, at their own expense. When prepared, the...