Smith v. Roath
| Decision Date | 19 February 1909 |
| Citation | 87 N.E. 414,238 Ill. 247 |
| Parties | SMITH v. ROATH. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, La Salle County; Edgar Eldredge, Judge.
Action in partition by Lucina A. Smith against Byron A. Roath. From a decree of distribution, defendant brings error. Reversed and remanded.Peter M. McArthur and Butters, Armstrong & Ferguson, for plaintiff in error.
Elmer E. Roberts and McDougall & Chapman, for defendant in error.
May 20, 1907, a bill was filed in the circuit court of La Salle county by defendant in error and her husband, for the partition of lot 5 in block 6, in Clark & Underhill's addition to Marseilles, Ill. Byron A. Roath answered, admitting the substantial facts set forth in the bill, except that he claimed that five feet on the west side of said lot 5 was set apart as a portion of an alley between lots 5 and 6 in said block, and had been used as an alley for more than 40 years, with the knowledge and consent of all the parties to this litigation. The answer further alleges that said Byron A. Roath is te owner in fee simple of lots 6, 23, and 24 in said block 6, and that without the use of said five feet on the west side of lot 5 the use and occupation of lots 6, 23, and 24 would be seriously impaired, because the access to the outbuildings on said lots would be entirely cut off. The relative situation of the lots and the alley may be seen from the following plat:
Image 1 (2.66" X 3.52") Available for Offline Print
The cause was referred to a master to take proof, and he reported, among other things, that there was an alleyway running from Clark to Bluff street, as set forth in said answer, which had been in open and continuous use of the persons occupying the buildings upon said lots for more than 40 years, and was a necessary and valuable means of access to said buildings; that said boundary line as to said alleyway on lot 5 had been well known to all the parties since Hannah A. Roath's death; that said defendant in error, Lucina A. Smith, had known of its existence for upwards of 40 years, and that said lots were subject to the burden and servitude of said alley. The circuit court sustained objections to the finding of the master as to this easement, but in all other respects approved the master's report and entered a decree of partition. The commissioners appraised the value of the property at $1,500, and reported that it was not susceptible of division, and recommended a sale. This report was approved, and the court ordered the property sold by the master. On June 4, 1908, after duly advertising in accordance with the requirements, the master sold the property to said defendant in error, Lucina A. Smith, for $1,575; she being the highest bidder. Thereafter, upon petition filed by the solicitors for defendant in error, the chancellor allowed $100 as complainants' solicitor's fees, to be taxed as costs. Plaintiff in error entered a motion to vacate the order taxing solicitor's fees, and prayed an appeal, which was not perfected. Thereupon a decree of distribution was entered, the balance, after paying costs, fees, and expenses, being divided, approximately two-thrds to Byron A. Roath and approximately one-third to Lucina A. Smith. A writ of error has been sued out to review the findings of the circuit court.
CARTER, J. (after stating the facts as above).
The main contention in this cause is as to whether a passage or alleyway existed across the west five feet of said lot 5 by prescription. Plaintiff in error, Roath, contends, and so testified, that the four lots in question were purchased with money sent home by him from the army in 1865; that in the winter of 1865 and 1866, on his return home, he built on lot 23, and his father built on lot 5; that at that time he (plaintiff in error) owned all four lots, and that they agreed between them that there should be a private alley, composed of five feet from the west side of lots 5 and 24, and five feet from the east side of lots 6 and 23, and that the coalhouses, barns, etc., should be so placed as not to obstruct said 10-foot alleyway; that there was a fence built on said lot 5, five feet east of the west line, in the latter part of 1866, which is there yet; that trees came up and were allowed to grow along the line of that fence, and that some of them have now been there over 20 years; that said alley has been a private passageway 43 years; and that coalhouses and barns were so built as not to obstruct it. No record evidence was offered showing that Byron A. Roath had ever held title to lots 5 and 24 in 1865 or 1866, but the deed was introduced showing that he obtained title to lots 6 and 23 November 6, 1865, and it appears that he has owned them ever since. The deeds offered in evidence also show that in February, 1872, R. M. Roath, the father of Byron A. Roath, deeded, through Lewis H. Harris, said lots 5 and 24 to his wife, Hannah A. Roath, and that the title remained in her name until her death; that the heirs of said Hannah A. Roath, to wit, Byron A. Roath, Eva R. Roath, and Lucina A. Smith, on March 9, 1874, quitclaimed said lot 5 to William H. Wilson, and that Wilson and wife reconveyed said property to said heirs on May 27, 1874; that the title remained in said three children up to January 24, 1894, when Eva Roath Hay, one of them, with her husband, conveyed to said Byron A. Roath an undivided one-third interest in said lot 5. The evidence shows that in the spring of 1874 William H. Wilson and his wife, having bought said lot 24, built a house on it, in which they lived for many years; that at the time they purchased said lot there was a fence five feet east of the west line of said lot 5, as heretofore set out, and that it has remained there ever since that date.
There is evidence tending to show that this private passageway or alley between Bluff and Clark streets, during a portion of the past 40 years, had gates at both ends, but the gate has been removed next to Clark street for 18 years or more. The evidence is not very definite as to how long these gates existed, but it is very evident from all the testimony that they did not...
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