Lambe v. Manning

• Decision Date: 14 February 1898
• Citation: 171 Ill. 612,49 N.E. 509
• Parties: LAMBE v. MANNING.
• Court: Illinois Supreme Court

171 Ill. 612

49 N.E. 509

LAMBE

v.MANNING.

Supreme Court of Illinois.

Feb. 14, 1898.

Appeal from circuit court, Dupage county; C. W. Upton, Judge.

Bill by William V. Lambe against William J. Manning for injunction. Decree for defendant, and complainant appeals. Affirmed.Brown & Snyder and Henry M. Coburn, for appellant.

Botsford & Wayne and Chas. S. Cutting, for appellee.

BOGGS, J.

This was a bill in chancery filed by the appellant, in which it was alleged the appellant was entitled to obtain gravel from a gravel pit on the lands of the appellee, for the maintenance of a certain milldam, and also to obtain water, conducted by means of a certain pipe to the mill of appellant, from a certain spring situate on the premises of the appellee, and averring that the appellee has obstructedthe way or road leading to the gravel pit, locked the gate thereto, and threatens to further obstruct and prevent the appellant from taking or using such gravel, and threatens to move and disconnect the said pipe, and thereby prevent appellant from using the water from the said spring, etc. The prayer of the bill was that the appellee should be enjoined from interfering with or preventing the appellant from obtaining said water and gravel. A preliminary injunction was issued by the master in chancery. The answer of the appellee, in substance, denied that appellant had any right of access to the said gravel pit, or to take the gravel therefrom, and also denied that appellant was entitled to use water from said spring by said pipe, or by any other means. Appellee also, by leave of the court, filed a cross bill, the prayer of which was that it might be adjudged and decreed by the court, upon a hearing, that the appellant had no right to the use of the water from the said spring, and no right to get gravel from the said gravel pit, and that he might be perpetually enjoined and restrained from exercising, or attempting to exercise, either of such privileges. The testimony was produced before, and heard by, the court, and a decree entered finding that the evidence failed to support the allegations of the appellant's bill, and that the allegations of the answer of the appellee and his cross bill were sustained by the proof, and adjudging and decreeing the original bill should be dismissed at the cost of the appellant, and that appellant should be perpetually enjoined from asserting, or endeavoring to exercise, any right of access to the said gravel pit, or to the use of the said water from the said spring. This is an appeal to bring the decree into review in this court. The facts disclosed by the proof are that the tract or parcel of land on which the said gravel pit is located was on the 30th day of November, 1847, the property of one Julius M. Warren, and is now owned by the appellee, by mesne conveyances from the said Warren; that on the said 30th day of November, 1847, the said Julius M. Warren sold to Warren Smith, Franklin Smith, and Alva Fowler a certain other tract or parcel of land by him owned, on which were located a sawmill and a milldam (the latter erected for the purpose of collecting the water flowing in a tributary of the Dupage river, for the purpose of operating said mill), which last-mentioned tract adjoined the other tract, upon which the gravel pit was located; that said Warren executed to the said Smiths and Fowler a deed, duly acknowledged, for the mill property, which also contained a grant of the right and ‘privilege of flowing to highwater mark on both sides of the river, as far as Julius M. Warren now owns.’ The deed was executed on a printed form, and, when the same was presented to the recorder for record, there was attached to the foot of said printed form, by means of wafers, part of another sheet of paper, on which appeared the following writing: ‘Also, said party of the second part is to have access to the above-described premises by a two-rod road lying east from a line running south from the place of beginning, and one of the same dimensions running down the river on the west side, between low and high water mark, down to the north line of the town of Warrenville aforesaid. Also, the privilege of getting gravel out of the usual place of getting gravel, for the dam, for the benefit of the dam and mills. J. W. Warren. [L. S.] Signed, sealed, and delivered in presence of George W. Waite.’ The said Warren Smith and Franklin Smith, and the said Alva Fowler, to whom said Julius M. Warren conveyed said mill tract, sold and conveyed an undivided two-thirds thereof to one Lloyd Stearns, and the remaining one-third thereof to Daniel Ball, but made no reference in either of the deeds to the right to take gravel from the gravel pit; but on the back of each of said deeds is found a statement in writing, signed by said grantors, as follows: ‘Also, the privilege of getting gravel out of the usual place of getting gravel, for the dam and mills, as far as the right of doing so is invested in us.’ Said Ball and Stearns conveyed their interest in the property by deeds which contained no reference whatever to the right of taking gravel from the other tract. Appellant traces his title by mesne conveyances from these grantees. The other deeds in his chain of title contain in each of them a clause to the effect that the grantors convey all such rights as they may have to take gravel, except the deed to appellant, which was executed to him by his father, and which purports to convey a permanent right and continued easement of taking gravel.

Appellant contends the writing upon the sheet so attached to the deed should be deemed and considered a part of the deed, and should ‘be read into the body thereof,’ or, as the proof shows that the signature to the said writing so attached to the deed is the genuine signature of the grantor, Julius M. Warren, the effect of the said writing was to create an easement in favor of the grantees in the said deed, and of their heirs and assigns, to go upon the premises where the said gravel pit is located, and take gravel therefrom, perpetually, so long as it was needed for the maintenance of the said dam. The view of the appellee is, the writing in question is a mere license or privilege granted to the grantees in the deed to take the gravel, and that it was revocable at the pleasure of the said Warren, and that the grantees in the said deed, Smiths and Fowler, took no right which they could assign or pass to another. The conveyance of the title to real estate by deed is regarded as a most solemn and important act,-so much so that the mode and manner thereof are established and regulated by statutes enacted expressly for that purpose. The deed in question is a full and complete instrument without the paper writing attached thereto, and there is nothing in the deed referring in any way to such paper. Courts are entirely without power to import into the deed the contents of the paper, simply because it is attached to it. The appellant produced no testimony tending to show the paper was executed at the time of the execution of the deed, or was intended to be a part thereof. The appellee, however, introduced as a witness the subscribing witness to the signature of the maker of the paper. His testimony, in substance, was that he was the scrivener who prepared the deed signed and acknowledged by the said Warren, and that some two or three weeks later he was requested to step into the business house of Warren Smith, one of the grantees in that deed, and that the grantor, Julius M. Warren, and the grantees, ...