Rose v. City of Farmington
| Decision Date | 16 April 1902 |
| Citation | 196 Ill. 226,63 N.E. 631 |
| Parties | ROSE v. CITY OF FARMINGTON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Fulton county; John A. Gray, Judge.
Action by Emma N. Rose against the city of Farmington. From a judgment for defendant, plaintiff appeals. Affirmed.Chiperfield & Chiperfield, for appellant.
Frederick M. Grant, for appellee.
This was a bill for an injunction filed in the circuit court of Fulton county by appellant, Emma N. Rose, to enjoin the appellee, the city of Farmington, from closing or obstructing a certain alleged private way claimed by her as an easement over a lot belonging to the appellee. There was a hearing before the court, which resulted in a decree denying the relief prayed for. From this decree the complainant took this appeal.
It appears that appellee is the owner of a lot in the city of Farmington lying south and west of appellant's premises, and that appellant claims a right, by prescription, to use the north 12 feet of appellee's lot as a driveway to get to that part of her premises lying east of appellee's lot. Appellee was about to erect on its premises a building which would cover the whole of this stripclaimed as a driverway by appellant.
In order to establish a way by prescription, the use and enjoyment of what is claimed must have been continued for a long period, to wit, 20 years. It must have been adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land in or over which the easement is claimed. The adverse use which will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to the land in fee. Washb. Easem. 131; 19 Am. & Eng. Enc. Law, 11; City of Chicago v. Chicago. R. I. & Ry. Co., 152 Ill. 561, 38 N. E. 768. The adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it must include these five elements; (3) visible, (1) hostile or adverse; (2) actual; (3) visible, notorious, and exclusive; (4) continuous; and (5) under a claim or color of title. Zirngibl v. Dock Co., 157 Ill. 430, 42 N. E. 431.
In the case at bar there seems to be no controversy as to the fact that appellant and her predecessors in the title and occupation of the premises now owned by her traveled over and used the strip in question as a driveway. Appellant's grantor, Mrs. Katherine Davis, testified that she never had the consent of any one for the purpose of using this roadway, and that there has never been any obstruction of any kind upon it. George Woodruff, the grantor of the last witness, testified that during the time he used it there were no objections raised from any source. Neither did he at any time obtain anybody's consent to its use. The driveway was not mentioned in any of the deeds to the premises. He never asked permission to use it,-never, claimed to own it. He said nothing to anybody, and the owner said nothing to him. The alleged driveway seems to have been used there as early as 1872. Jotham Crane, who owned the lot now belonging to appellee from 1885 on, testified that this alleged way had been used by some persons to reach the Masonic and Odd Fellows' Hall and a store and certain coal houses on the next lot. Crane testified that while he owned the lot he had several talks about it with Mr. Dunn, appellant's father, who lived with her, and witness told him just as long as he owned or controlled the lot he would let him go across it; that he never talked about it with Woodruff or Mrs. Davis; that they used it as an accommodation; that nobody had any right to use it, except those spoken of; that he would not stop any person from going across a piece of ground he had, if it did not do him any harm. Mr. Dunn denied all knowledge of any such conversations with Crane. Other witnesses also testified that the way was used in getting to the...
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