Morse v. Lorenz

• Decision Date: 21 February 1914
• Citation: 104 N.E. 237,262 Ill. 115
• Parties: MORSE v. LORENZ et al.
• Court: Illinois Supreme Court

262 Ill. 115

104 N.E. 237

MORSE

v.LORENZ et al.

Supreme Court of Illinois.

Feb. 21, 1914.

Appeal from Superior Court, Cook County; Charles M. Foell, Judge.

Bill by Hattie T. Morse against Albert W. Lorenz and others. From a decree for defendants, complainant appeals. Affirmed.

Theodore A. Kolb, of Chicago, for appellant.

H. T. Wilcoxon, of Chicago, for appellees.

DUNN, J.

The appellant filed her bill for an injunction against the appellees and made a motion for a temporary injunction. The appellees moved to dismiss the bill. The chancellor denied the motion for an injunction and dismissed the bill for want of equity, and the complainant appealed.

The bill alleges, in substance, that in 1909 the appellant owned a lot in the city of Park Ridge, in Cook county, fronting west on Greenwood avenue, and appellees owned a lot fronting east on Chester avenue; the rear ends of these lots being diagonally across an alley from each other, the south boundary of the appellees' lot being in a line with the north boundary of the appellant's. The appellant's lot was not improved, while the appellees resided in a dwelling on their lot. Chester avenue had sewer and water mains therein, laid by the city, while Greenwood avenue was without either. The appellant desired to erect a dwelling on her lot and install therein drains, sinks, wash basins, toilets, bath tubs, and running water. She planned to extend sewer and water service pipes from her dwelling east across the alley and across a vacant lot directly east of her lot to the sewer and water mains in Chester avenue, but Albert W. Lorenz, one of the appellees, learning of these plans, set out to induce the appellant to lay the said sewer and water service pipes across the appellees' lot and offered to give the necessary permission thereto; such use of the appellees' lot to be without any compensation to them, but free. The expense of laying such pipes through the lot immediately back of her house would have been far less than to lay them through the appellees' lot, but the appellant was finally persuaded by Albert W. Lorenz to abandon her original plan at his request and in consideration of his agreement to permit her, without any charge or expense whatever, to cross over the appellees' lot with said sewer and water service pipes, and of his agreement that, in consideration of the appellant's changing and abandoning her original plans and accepting his offer, she could lay the said sewer and water service pipes over the appellees' lot and connect with the sewer and water mains in Chester avenue without becoming liable for any damage done to the said lot, and without any rent or compensation for the use of the said lot, until such time as Greenwood avenue might have sewer and water mains. Lorenz also offered and agreed to reduce the said permission and agreement to writing, but the appellant said that she would not impose upon his generosity to that extent, but that she trusted him and would rely upon his word and verbal contract. Thereupon the appellant erected her house, extended a sewer and a water service pipe across the appellees' lot, connecting her house with the sewer and water main in Chester avenue, and expended a large amount of money in so doing. She continued in the use of such sewer and water service pipes, undisturbed and unquestioned, until August 21, 1913, when her husband received a letter from Albert W. Lorenz reminding him that the matter of an easement on the sewer and water pipes running through the appellees' lot was undisposed of. An exchange of letters followed, closing with a notice, dated September 15, 1913, of Lorenz's intention to remove the sewer and water pipes at the expiration of ten days. To prevent such removal this bill was filed on September 25th.

[1][2] The appeal is brought to this court on the ground that a freehold is involved; that is, the right claimed by the appellant to maintain the sewer and water service pipes from her lot across the appellees' lot until sewer and water mains may be laid in Greenwood avenue. This right would impose upon the appellees' lot a servitude for the benefit of the appellant's lot, constituting an easement (Chronic v. Pugh, 136 Ill. 539, 27 N. E. 415;City of Chicago v. Green, 238 Ill. 258, 87 N. E. 417), which may be perpetual, since sewer and water mains may never be laid in Greenwood avenue, and therefore amounts to a freehold (Bruner v. Hicks, 230 Ill. 536, 82 N. E. 888,120 Am. St. Rep. 332;Illinois Kaolin Co. v. Goodman, 252 Ill. 99, 96 N. E. 867). Such an interest in land can be created only by deed or prescription. It cannot be granted by parol. The oral consent of the appellees, under section 2 of the Statute of Frauds (Hurd's Rev. St. 1912, c. 59), vested no interest in the land in the appellant. It is insisted by the appellant that the statute of frauds does apply here because an interest in lands for a longer time than one year is not involved, basing her claim upon the construction given to the first section of the statute, that contracts not to be performed within one year are such, only, as cannot be performed within a year. A freehold is greater than any term of years, and though a life estate may terminate within a year it is subject to section 2 of the statute. A decree in favor of the appellant would establish an easement in the appellees' lot in her favor for an indefinite time, which might be perpetual, and therefore a freehold is involved.

[3][4] The oral permission to lay the sewer and water service pipes through the appellees' lot amounted to no more than a mere license, revocable at the will of the appellees. The license was not coupled with an interest in the land, for such interest cannot be granted by parol. Early in the history of the state it was decided that a parol license to overflow the lands of the licensor will not be enforced in equity even in favor of one who, acting under the license in good faith, has made valuable improvements on his own land which will become worthless if the license is revoked. Woodward v. Seely, 11 Ill. 157, 50 Am. Dec. 445. The court said (11 Ill. 164 ): ‘A right of way, it is said, cannot be granted by parol, but must be founded upon a deed, or writing, or presumption which presupposes one, and it is difficult to conceive how the right to pass over the land of another should constitute an interest in it, incapable of being granted by parol, while the right to cover it with water constitutes no such interest. In our judgment, a license perpetually to overflow the land of the defendants would create an interest in it and, therefore, could not be granted by parol; consequently, the license in this case carried with it no...