People ex rel. Helgeson v. Hackler

• Citation: 21 Ill.2d 267,171 N.E.2d 599
• Decision Date: 20 January 1961
• Docket Number: No. 36072,36072
• Parties: PEOPLE ex rel. Helen HELGESON et al., Appellees, v. Louis H. HACKLER et al., Appellants.
• Court: Supreme Court of Illinois

Page 599

171 N.E.2d 599

21 Ill.2d 267

PEOPLE ex rel. Helen HELGESON et al., Appellees, v. Louis H. HACKLER et al., Appellants.

No. 36072.

Supreme Court of Illinois.

Jan. 20, 1961.

White & Williams, Havana, and Dunkelberg & Rust, Pekin, for appellants.

Sorling, Catron & Hardin, Springfield, and Edward A. Krebaum, Havana (George W. Cullen, Springfield, of counsel), for appellees.

HOUSE, Justice.

Plaintiff, Helen Helgeson, initially made the Mason and Tazewell Special Drainage District and its commissioners, defendants in a mandamus action to compel construction of a bridge across a drainage ditch and thereby afford access from her land to a public highway. She later joined members of the Hackler family as defendants seeking a determination that she has an easement across their adjoining land and praying for an injunction to restrain interference with such easement. This appeal is from a decree dismissing the drainage district count, declaring a 20-foot wide easement of necessity over certain of the Hackler land and enjoining interference with plaintiff's use of the easement. A freehold is involved.

The cause was submitted on stipulations from which the following facts appear; During his lifetime, Oliver S. Biggs owned and farmed as a unit the south one-half of the southeast quarter, called tract I, and the east one-half of the southwest quarter, plus the east five acres of the southwest quarter of the southwest quarter, called tract II, all in section 33, township 22 north, range 5 west, in Mason County, Illinois. A road runs along the east side of the above land and a paved highway, Route 136, runs along its south boundary line. Access to the highway from tract II is prevented by an impassable, water-filled ditch of the drainage district which enters the south line of tract I, then turns and runs west alongside of and parallel to the north side of the highway to a point 120 feet east of the southwest corner of tract II where it turns to the northwest, leaving a 150 by 120-foot triangle of land between the ditch and the highway. Tract II is thus landlocked by tract I, the drainage ditch, and the lands of strangers.

At Biggs' death in 1947 he devised tract II to the plaintiff and tract I to a Harold Palmer who subsequently conveyed it to the Hacklers in 1951. From 1947 to 1958 the plaintiff's access to and from her farm was had by passing over and across the Hackler farm, and in 1958 an alternate route, consisting of a 20-foot road running along and on the north bank of the drainage ditch to the highway, was established for plaintiff's use. However the Hacklers later demanded a yearly consideration from the plaintiff for a right of access across tract I. Plaintiff thereupon requested the commissioners to construct a bridge across their ditch to provide her an access to the highway, but the commissioners refused on the grounds that she had access to the highway by way of an easement across the Hackler farm.

The stipulation admits that plaintiff is entitled to have a means of ingress and egress, and that failure of the Hacklers to give plaintiff a means of ingress and egress, plus the existence of the drainage ditch, prevents plaintiff from having the use of tract II. We will therefore not go into the effect of the small triangular tract in the southwest corner on the question of access.

It is argued by the owners of tract I that plaintiff owns the fee, extending all the way to the highway, that the right of the drainage district is only to the easement of the right of way for drainage purposes and that therefore plaintiff's land is adjacent to a public highway throughout the length of her south boundary. But the intervening strip used for drainage purposes is separate ownership, whether a right of way or a fee, so that tract II is not contiguous to the highway, and the strip is an effective barrier.

They further argue that the drainage district is under an obligation and should be compelled to construct a bridge across its ditch pursuant to the provisions of section 12-5 of the Illinois Drainage Code (Ill.Rev.Stat.1959, chap. 42, par. 12-5) providing for the construction 'of at least one bridge or proper passageway over each open ditch * * * where the same crosses any enclosed tract or parcel of land in such a manner that a portion thereof is landlocked and has no access from any public highway other than by a bridge or passageway over the...