The Ill. Ins. Co. v. Littlefield

• Decision Date: 31 January 1873
• Citation: The Ill. Ins. Co. v. Littlefield, 67 Ill. 368, 1873 WL 8218 (Ill. 1873)
• Parties: THE ILLINOIS INSURANCE COMPANYv.HANS H. LITTLEFIELD et al.
• Court: Illinois Supreme Court

67 Ill. 368

1873 WL 8218 (Ill.)

THE ILLINOIS INSURANCE COMPANY

v.HANS H. LITTLEFIELD et al.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cass county; the Hon. CHARLES TURNER, Judge, presiding.

This was a bill in chancery, filed by the Illinois Insurance Company against Hans H. Littlefield and David M. Irwin, for an injunction to restrain the defendants from obstructing an alley in Beardstown.The court below, on motion, dissolved the injunction and dismissed the bill, from which order the complainant appealed.

Mr. HENRY E. DUMMER, and Mr. J. H. SHAW, for the appellant.

Mr. G. POLLARD, for the appellees.

Mr. JUSTICE BREESEdelivered the opinion of the Court:

Appellants claim the alley in question to be a public alley, and a right to an unobstructed use of it as appurtenant to the ownership in fee of part of lot four in block one, which it bounds.All the lots in this block are fifty feet front on Main street, running back to the Illinois river.

Both parties claim through one Francis Arenz, deceased.Arenz was the owner of lots three and four in this block, and on the second day of April, 1839, conveyed to Robert Lindsey part of lot four in block one, namely: “forty feet off the west side of said lot, fronting on Main street and running back to the Illinois river, the remaining ten feet of the east side of said lot being reserved for an alley between the parties to this deed.”

Lindsey sold and conveyed this lot to one Brown, and in the deed, as a part of the description, uses this language: “fronting east on an alley of ten feet, which has been reserved from the part of said lot in the aforesaid block.”

In subsequent deeds to subsequent purchasers, this strip is described as an alley, in one deed as reserved by T. W. Arenz, and in others as reserved by Francis Arenz.

In the deed conveying the land to James C. Leonard, through whose assignee in bankruptcy appellants claim, the lot is described as part of lot four, block one, commencing at a point on Main street, at the west side of a ten foot alley, and running west on main street twenty feet, thence at right angles with Main street, etc.

In the deed from Leonard to his assignees, it is thus described: “Part of lot four in block one, commencing at a point on Main street at the west side of a ten foot alley, and running to a point on Main street, twenty feet; thence at right angles with Main street, sixty-five feet; thence at right angles, twenty feet to the alley; thence at right angles, to the place of beginning.”In the same deed is conveyed also “a leasehold interest running twenty years from September, 1870, in and to the alley on part of lot four in block one, commencing in Main street and running towards the Illinois river thirty-six feet.”In the deed of Leonard's assignees to appellants, the lot bears the same description as in Leonard's deed to them, and contains this reservation: “Subject, however, to a leasehold which the said James C. Leonard held on part of the alley above mentioned, and which leasehold, with the right of using walls, was sold on this day to ______.”

To show this ten feet was not a public alley, it is only necessary to look at Arenz's deed to Lindsey, being the first in the series.In that deed it is distinctly declared by the parties to it, as follows: “The remaining ten feet of the east side of said lot being reserved for an alley between the parties to this deed.”Here is plainly avowed the purpose, not for the use of the public, but for the parties to that deed.

Arenz was then the owner of lot three on the east, and it was quite competent for him, owning also lot four, to stipulate with the purchaser of all but ten feet of that lot, that these remaining ten feet should be an alley for their use as owners of the adjoining lots.

The title to the west half of this lot three was sold by Arenz, and, by mesne conveyances, became vested, in January, 1854, in Horace Billings, and is still in him.In 1858, one Norbury, through whom appellants claim, conveyed to this same Billings this part of lot four, with the same description, with reference to the alley, as in the other deeds subsequent to the deed to Lindsey.

In August, 1864, Billings and wife conveyed the lot to George Plaker, with the same description as to the alley.

On the 24th of September, 1870, Plaker, then being the owner of this part of lot four, and Billings of the west part of lot three, executed a lease of this alley, so called, to Leonard for the term of twenty years.This is the leasehold interest to which the lot, when purchased by appellants, was subject, and which had, before the sale to them, been stricken off and sold to one Irwin, for the sum of one hundred and eighty dollars.This leasehold interest is described as “the ten foot alley taken off lot four (4) from the east side, ten feet in width and extending back towards the Illinois river thirty-six feet,” making a plat of ground ten feet...