Powers v. Heffernan

• Decision Date: 23 April 1908
• Citation: 233 Ill. 597,84 N.E. 661
• Parties: POWERS v. HEFFERNAN.
• Court: Illinois Supreme Court

233 Ill. 597

84 N.E. 661

POWERS

v.HEFFERNAN.

Supreme Court of Illinois.

April 23, 1908.

Error to Circuit Court, Champaign County; Solon Philbrick, Judge.

Bill by Florence H. Powers against John Heffernan. From a decree dismissing the bill, complainant prosecuted error to the Appellate Court for the Third District, whence the cause was certified. Reversed and remanded, with directions.Ray & Dobbins, for plaintiff in error,

Savage & Woods, for defendant in error.

HAND, C. J.

This was a bill in chancery filed in the circuit court of Champaign county by the plaintiff in error against the defendant in error to enjoin the defendant in error from closing up a stairway upon the premises of the defendant in error and a doorway in a partition wall between the premisesof the plaintiff in error and the defendant in error, which afford access to the second story of the building located upon plaintiff in error's adjoining premises. An answer and replication were filed, and the case was referred to the master to take the proofs and report his conclusions. The master reported that the plaintiff in error was entitled to the relief prayed for in her bill, and recommended a decree to that effect. The court sustained exceptions to the master's report and entered a decree dismissing the bill for want of equity, and a writ of error was sued out from the Appellate Court for the Third District to review said decree, and, a freehold being involved, the case was certified to this court by the Appellate Court.

It appears from the pleadings and proofs that one A. L. Beardsley was the owner of 4 25-foot lost fronting upon Walnut street, in the city of Champaign, numbered 12, 13, 14, and 15; that in the year 1893 she erected upon the two south lots, being lots 12 and 13, a two-story brick building, 5 inches of the north wall of which stood upon the north line of lot 13, and 7 inches of which stood upon the south line of lot 14. There was no alley in the rear of said lots, and the second story of said building was reached by a stairway from Walnut street, which was located immediately adjoining the north wall of the building, and a hallway at the head of said stairs. In 1895 A. L. Beardsley, still being the owner of lots 14 and 15, erected a two-story brick building upon those lots, immediately adjoining the building upon lots 12 and 13; the north wall of the building upon lots 12 and 13 being utilized as a partition wall between the two buildings. A doorway was cut through said partition wall from the hall, and the second story of the building upon lots 14 and 15 was reached by the stairway and hall in the building upon lots 12 and 13. The first story of the building upon lots 12 and 13 was used for stores, and the first story of the building upon lots 14 and 15 was used as a printing office. The second stories of the buildings were used for lodge rooms, a hotel, and other purposes at different times after the two buildings were completed, and there was no means of access to the second story of either of said buildings other than by said stairway and hall. In 1905 Beardsley sold lots 12 and 13, and the building located thereon, to the defendant in error, and conveyed the same to him by warranty deed, the only reservation in the deed being one-half of the party wall situated, in part, upon lots 13 and 14, and the defendant in error took possession thereof. In 1906 Beardsley sold lots 14 and 15, and the building located thereon, to the plaintiff in error, and conveyed the same to her by warranty deed. Shortly after the purchase of lots 14 and 15 by the plaintiff in error the defendant in error forbade the plaintiff in error the right to use said stairway and hall as a means of access to the second story of her building, and threatened to close up the door or doors through said partition wall from said hallway and the stairway leading to said hallway from Walnut street, the effect of which would have been to cut off all means of ingress and egress of the plaintiff in error to and from the upper story of the building upon lots 14 and 15, whereupon this bill was filed.

The law seems to be well settled that the disposition and arrangement of two heritages, or of one heritage consisting of several parts, belonging to one owner, for ease and convenience with reference to ways, light, etc., made during unity of seisin, which are apparent and continuous and necessary to the reasonable enjoyment of the several parts thereof, will be an easement upon the severance of title as to the different parts thereof, and upon a grant of a portion by the owner of the fee each portion of the severed premises will pass subject to the burdens and advantages imposed or conferred upon the different parts of the premises. Morrison v. King, 62 Ill. 30;Ingals v. Plamondon, 75 Ill. 118;Clarke v. Gaffeney, 116 Ill. 362, 6 N. E. 689;Cihak v. Klekr, 117 Ill. 643, 7 N. E. 111;Martin v. Murphy, 221 Ill. 632, 77 N. E. 1126.In the Morrison Case, James K. Morrison died seised of a three-story building situated in the city of Chicago, which covered several lots, and was known as Nos. 151, 153, 155, 157, and 159 South Clark street. The first story was used for stores and the second and third stories for offices. The building was divided by walls which ran from the ground upwards. The entrance from the street to the second and third stories was by a common entrance for the whole building and by a stairway between stores Nos. 153 and 155, so that 2 1/2 feet in width for a stairway was taken from store No. 153, and the same width from store No. 155. After the death of Morrison the portions of said building known as Nos. 155, 157, and 159, with the ground upon which they stood, were assigned to his widow as dower. Shortly thereafter his heirs threatened to tear down the portion of the building known as Nos. 151 and 153 for the purpose of rebuilding on the ground covered by that portion of the building, the effect of which was to destroy the means of access to the second and third stories of the portion of the building set off to the widow, whereupon she filed a bill to enjoin the heirs from thus interfering with her enjoyment of the portion of the building assigned to her as dower. The court entered a decree in accordance with the prayer of the bill, which was affirmed by this court. The court, on page 35, said: ‘These arrangements for ease and convenience, such as ways, light, and support, were provided and used by the owner in fee during unity of seisin. They were apparent and continuous. No person of ordinary faculties dealing with the premises could fail to observe them. They were necessary to the reasonable enjoyment of the premises comprising the three stores in question, It is true, as claimed by counsel, that while the whole premises remained in the testator these arrangements for ways, light, support, etc., did not, in any technical sense, amount to easements. Until a severance and the premises were held by separate owners no question of that character need arise. The foundation of the doctrine of easement in this and similar classes of cases is a disposition and arrangement of the premises as to the uses of the different parts by him having the unity of seisin, and then a severance. It being a...