McKinzie v. Elliott

• Decision Date: 12 June 1890
• Citation: 134 Ill. 156,24 N.E. 965
• Parties: McKINZIE v. ELLIOTT.
• Court: Illinois Supreme Court

134 Ill. 156

24 N.E. 965

McKINZIE

v.ELLIOTT.¹

Supreme Court of Illinois.

June 12, 1890.

Error to circuit court, Will county.

Hill & Haven, for plaintiff in error.

C. W. Brown and Fred Bennett, for defendant in error.

MAGRUDER, J.

This is a bill filed of February 26, 1887, in the circuit court of Will county, by the defendant in error against the plaintiff in error, to enjoin the latter from obstructing an alley lying east of the former's homestead lot, and from interfering with her use of said alley. The cause was heard upon bill, answer, replications, and proofs taken, and a decree was rendered on January 7, 1889, finding the issues in favor of the complainant. A writ of error has been sued out from this court for the review of said decree.

Complainant's lot has a frontage of 40 feet on the south side of Washington street, in Joliet, and a depth of 130 feet. She bought the lot in the summer or fall of 1865 from one Frederick Gritzner, who then owned all of block 5 in the Canal Trustees' subdivision of W. 1/2 section 15, town 35 N., range 10 E., of third P. M., except a portion thereof that had been sold to one Howk. Gritzner executed to her a deed, dated April 2, 1866, conveying the lot by the following description: Commencing at a point 99 feet west from the N. E. corner of said block 5; thence running 130 feet south; thence west 40 feet; thence north 130 feet; thence east 40 feet, to the place of beginning, in said block 5, etc. In April, 1875, Charles F. Gritzner, the son of Frederick and three other persons, who owned certain lots in said block 5, executed, and recorded in the recorder's office of Will county, a certain plat showing the location of the lot and alley in question, a portion of which plat is as follows:

Image 1 (2.54" X 3.96") Available for Offline Print

The strip of land alleged to be an alley is 16 feet wide and 130 feet deep, and lies directly east of complainant's lot, and between her lot and that of Howk; the latter having a frontage of 82.50 feet on the north, and converging to a point on the south, so as to have the form of the letter ‘V.’ We do not deem it necessary to go into an extended analysis of the evidence. We think that defendant has acquired a right of way over or an easement in the strip of land on the east side of her lot by prescription. She was in the continuous and uninterrupted use of it for more than 20 years before filing her bill, and such use was adverse. We have held that an easement in land may be acquired by an uninterrupted and adverse enjoyment for a period of 20 years. Vail v. Mix, 74 Ill. 127;Railway Co. v. Hoag, 90 Ill. 339;Totel v. Bonnefoy, 123 Ill. 653, 14 N. E. Rep. 687. When defendant in error made her purchase she desired a lot that should extend up to the west line of Howk's lot, but was told by Gritzner that she could not do so, because the strip 16 feet wide west of the Howk lot was to be reserved for an alley. In 1865 and 1866 and thereafter there was a fence on the west side of Howk's lot running the length of the alley on the east. Gritzner himself measured the lot of defendant in error, and the alley, and placed a stake on the east side of the alley, and another on the west side of her lot. In the fall of 1865 defendant in error moved a house upon the lot, the east side of the house being on the west line of the strip in question. She also built a barn on the south part of the lot, and a shed just north of the barn. Doors opened upon the alley in the east end of both the barn and the shed. There were stone walks under the dwelling-house, and there was an opening from the alley into the coal cellar under the house. The husband of defendant in error was a teamster, and the lot was useless to them without access to the rear through the alley. Except through the alley, the barn and wagon shed could not be reached, nor could coal be put into the coal cellar. The house was burned down in 1872, but was rebuilt without delay; the eastern end of the new house resting upon the west line of the strip, and containing an opening into the coal cellar, as was the case with the old house. As soon as defendant in error bought the lot, she built a bridge over the ditch on the south side of Washington street, so that the alley could be entered from the street, and her husband graded and filled the alley so as to make it fit for use. She and her husband lived upon this lot, and used the alley for putting coal into the cellar, and as an approach to the barn and wagon shed in the rear, from the fall of 1865 until January 3, 1887, when her husband died. Their use of the strip during this period of time is proven beyond question, and is not denied by plaintiff in error.

It is said that the defendant in error used the alley by permission of the owners, and therefore that her possession was not adverse. The testimony shows that the defendant in error would not have bought the lot without the use of the alley; that such use was a part of the consideration for the purchase; and that both Frederick Gritzner and his son Charles told her the strip was to be kept open as an alley. They and their grantees acquiesced in her use of it or more than 20 years. We cannot see that the use was any more permissive than if there had been a written grant of the easement. It is true that a right of way cannot be gained by the parol agreement of him who creates it; but where, under such agreement, the way has been used for 20 years with the acquiescence of the owner, a prescriptive right to the same has been thereby gained. ‘It is no objection to gaining an easement by prescription that the same was originally granted or bargained for by parol. That the use began by permission does not affect the prescriptive right, if it has been used and exercised for the requisite period, under a claim of right on the part of the owner of the dominant tenement. Land itself may be gained in that way, as well as an easement in it.’ Washb. Easem. (4th Ed.) p. 154, § 28.

On November 6, 1872, Frederick Gritzner conveyed to his son Charles all of said block 5, except what he had previously sold to defendant in error and to Howk and three other persons. On August 8, 1881, Charles Gritzner made a contract in writing with one Fitch for the sale to him of lot 4 of the subdivision made,...