Kuecken v. Voltz
| Decision Date | 13 June 1884 |
| Citation | 110 Ill. 264,1884 WL 9880 |
| Parties | HENRY KUECKEN et al.v.JOHN VOLTZ. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on writ of error to the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.
Mr. FRANCIS LACKNER, and Mr. SIDNEY C. EASTMAN, for the plaintiffs in error:
Easements and servitudes are of two kinds,--appurtenant or appendant, or in gross or personal. The former run with the land, while the latter are personal benefits, and are not assignable or inheritable. A good definition of the subject is found in Whitney v. Union Ry. Co. 11 Gray, 365.
The grant of a way is never presumed to be in gross when it can fairly be construed to be appurtenant to the land. Washburn on Easements, chap. 1, sec. 3, No. 2, and chap. 2, sec. 1, No. 5; Louisville and Nashville R. R. Co. v. Koelle, 104 Ill. 455; Winthrop v. Fairbanks, 41 Maine, 307.
Counsel cited and quoted from the following cases, in which reservations and exceptions in conveyances were held to create easements appurtenant to other land: Mendell v. Delano, 7 Metc. 176; Karmuller v. Krotz, 18 Iowa, 353; Bowen v. Conner, 6 Cush. 132; Kent v. Waite, 10 Pick. 138; Child v. Chippel, 9 N. Y. 257.
In construing deeds the courts will ascertain and give effect to the intention of the parties, and for that purpose will take notice of attendant circumstances. Hadden v. Shoutz, 15 Ill. 582.
Easements acquired by deed can not be lost by non-user. Arnold v. Stevens, 24 Pick. 106; White v. Crawford, 10 Mass. 189; Smiles v. Hastings, 24 Barb. 49; Angell on Water-courses, sec. 252.
Messrs. ROSENTHAL & PENCE, for the defendant in error:
If the thing granted or reserved be non-continuous, or is to be used only occasionally, like a way, it creates only an incorporeal hereditament--an easement--and not an estate or fee in the land. Garrison v. Rudd, 19 Ill. 563; Washburn on Easements, 29, 31.
Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming. They must inhere in the land, concern the premises, and be essentially necessary to their enjoyment. Washburn on Easements, *161; Karmuller v. Krotz, 18 Iowa, 357; Morgan v. Mason, 20 Ohio, 409; Garrison v. Rudd, 19 Ill. 558; Louisville and Nashville R. R. Co. v. Koelle, 104 Id. 455.
If an easement has been granted by deed, the ordinary rule which governs in similar cases prevails, namely, that the rights of the parties to the deed must be ascertained from the words of the deed, and the extent of the easement can not be determined from any other source. Goddard on Easements, 275.
Non-user is not exactly of the same character as adverse enjoyment, though the length of time--twenty years--which it takes to destroy an easement by non-user is the same as it takes to acquire a title by adverse enjoyment. Washburn on Easements, chap. 5, sec. 6, p. 669.
This was a bill in equity, brought by Henry Kuecken and Bertha Reinke, to compel the opening of a certain alley, extending from the west end of two certain lots owned by the complainants, south across the west end of two lots owned by John Voltz, to Chicago avenue. The location of the property and the alley will be better understood and more easily comprehended by an examination of a plat introduced in evidence, which is as follows:
TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE
In 1856 George B. Chandler owned eighty-nine feet front on Wells street, extending west ninety feet deep on Chicago avenue. On the 15th day of May of that year, Chandler sold to Michael O'Neil, by written contract, which was followed by a deed on June 1, 1860, the south forty-nine feet of said tract. The contract and deed both contained the following clause: “Excepting and reserving therefrom ten feet across the west end of said premises, for an alley.” This forty-nine feet passed, by mesne conveyances, to John Voltz, the defendant in the bill, the deeds conveying the property containing the same exception and reservation embraced in the contract and deed from Chandler to O'Neil. In 1860 Chandler sold Reinke twenty feet front on Wells street, adjoining on the north the forty-nine feet sold to O'Neil. Prior to this, however, (in 1859,) he conveyed the twenty feet north of the last named tract, and said tract passed, by mesne conveyances, to Kuecken. The deeds conveying each of these tracts contained the same exception and reservation contained in the deed to O'Neil. The circuit court, on the hearing, on the evidence, held that the reservation contained in the deeds was for the benefit of Chandler alone, and that no easement was created for the benefit of the different owners of abutting property, and dismissed the bill.
It is conceded in the argument that an easement was created by the exception and reservation contained in the deeds under which Chandler conveyed the property, but it is contended by the defendant's counsel that the language used created an easement or right of way in gross, personal to the grantor, (Chandler,) while, on the other hand, complainants insist that a proper construction of the language employed in the deeds created an easement appurtenant, which runs with the land.
Easements are of two kinds--appurtenant or appendant, and in gross. The former run with the land, and pass by a deed of conveyance; but the latter are personal, are not assignable, and will not pass by a deed of conveyance. The grant of a way is never presumed to be in gross when it can fairly be construed to be appurtenant to the land. (Washburn on Easements, chap. 1, sec. 3.) There is another rule that may be resorted to in construing the language contained in the deeds, which is declared in Hadden v. Shoutz, 15 Ill. 582, as follows: “In construing deeds or other writings, courts must seek to ascertain and give effect to the intention of the parties, and for that purpose they may and will take notice of attendant circumstances, and by them determine the intention of the parties.”
Had Chandler occupied the two lots now owned by complainants, at the...
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