Wessels v. Colebank

• Decision Date: 24 October 1898
• Citation: 51 N.E. 639,174 Ill. 618
• Parties: WESSELS et al. v. COLEBANK.
• Court: Illinois Supreme Court

174 Ill. 618

51 N.E. 639

WESSELS et al.

v.COLEBANK.

Supreme Court of Illinois.

Oct. 24, 1898.

Error to circuit court, Iroquois county; John Small, Judge.

Action by L. S. Colebank against Gerd Wessels, A. J. Vliet, Louis Lubben, Henry Bohlman, and Christ Toback. There was a judgment for plaintiff, from which defendants bring error. Reversed.

Kay & Kay, for plaintiffs in error.

A. F. Goodyear, for defendant in error.

This was an action of trespass quare clausum fregit, brought by defendant in error, L. S. Colebank, against the plaintiffs in error, for breaking and entering his close, and with shovels, spades, etc., cleaning out and deepening a ditch across the same, piling up the earth and sediment in mounds and ridges, and damaging his grass and crops. To this plaintiffs in error filed their plea of not guilty, and also a special plea, in which they admitted the acts complained of, and attempted to justify under a claim of right. Defendant in error demurred to the plea, the court sustained the demurrer, and the plaintiffs in error elected to stand by their plea. A trial was then had before the court without a jury, and plaintiffs in error admitted the doing of the acts charged. The court rendered judgment in favor of defendant in error for one cent and costs, to which judgment plaintiffs in error excepted, and have sued out this writ of error from this court. Defendant in error has entered a motion in this court to dismiss the writ of error, alleging that no freehold is involved in this controversy.

A special plea averred that a number of landowners adjoining the close now the property of defendant in error, and whose lands naturally had surface drainage over said close, in the year 1887 did, by mutual license, consent, and agreement, construct a continuous open drain from the highway on the south of section 22 over and across the west half of said section to the road ditch on the north of the section, said open drain running across the aforesaid close, which was then the property of George Egley, who joined in the construction and maintenance of the drain for the benefit of his own land; that said drain has, from the time it was constructed, been maintained, cleaned out, and repaired by the town authorities and the owners of the lands affected, from time to time, and that said acts of maintenance, cleaning out, and repairing were at all times done with the license and consent of the owner, for the time being, of this close; that neither Egley nor any of his grangees ever did, in any manner, prior to July 2, 1890, revoke the parol license so given in 1887 to construct the said open drain across this close; that thereby the drain became and was, prior to July 3, 1890, and has remained from thence to this time, according to the statute, a continuous open drain for the mutual benefit of all the lands affected; that in 1897 this drain was in need of repair, and required spading out of the earth and sediment that had collected in the same, and that certain of the defendants who were property holders interested in the maintenance of the drain-one of them being a highway commissioner-had directed the other defendants to clean out the drain, which was done without doing any unnecessary damage to plaintiff's close. The grounds of demurrer were that it did not appear from the plea that the defendant landowners, by any legal or sufficient conveyance or by any ancient right, ever acquired or had any permanent or good right or authority to keep up or repair said drain, or to enter upon said close for that or for any other purpose.

CARTER, J. (after stating the facts).

The motion to dismiss the writ of error on the ground that no freehold is involved in the case has been reserved to the hearing, and will be disposed of first. The rule, as frequently announced by this court, is that a freehold is involved in cases only where either the necessary result of the judgment is that one party gains and the other loses a freehold estate, or where the title to a freehold is so put in issue by the pleadings that a decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate. Hibernian Banking Ass'n v. Commercial Nat. Bank, 157 Ill. 576, 41 N. E. 918;Goodkind v. Bartlett, 136 Ill. 18, 26 N. E. 387, and cases cited. The question is presented by the decision of the court in sustaining the demurrer to the plea. If the facts alleged in the plea, which were admitted by the demurrer, show that the plaintiffs in error, who were the owners of the adjoining lands through which the ditch had been excavated and maintained, had a perpetual easement in the close of defendant in error to have the drain kept open, so that the waters flowing through the same upon their lands might flow unobstructed through the ditch as it extended through the close of the defendant in error, then a freehold is involved. Chronic v. Pugh, 136 Ill. 539, 27 N. E. 415. Independently of the statute, it is clear that the right enjoyed by plaintiffs in error was a mere license, revocable at the pleasure of the owner of the close, and that the conveyance of the close without reservation of the right would revoke the license. The statute referred to is the act entitled ‘An act declaring legal, drains heretofore or hereafter constructed by mutual license, consent or agreement, by adjacent or adjoining owners of land, and to limit the time within which such license or agreement heretofore granted may be withdrawn,’ approved June 4, 1889, in force July 1, 1889. Laws 1889, p. 116. Section 1 makes drains constructed by mutual license, consent, or agreement, like the one here in controversy, drains for the mutual benefit of all the lands interested therein. Section 2 provides how other parties may join. Section 3 prohibits any of the parties interested therein from filling up the same, or in any manner interfering with the same so as to obstruct the flow of water therein, without the consent of all the parties, and provides that ‘the license, consent, or agreement of the parties herein mentioned need not be in writing, but shall be as valid and binding if in parol as if in writing, and may be inferred from the acquiescence of the parties in the construction of such drain.’ Section 4 provides that the right to revoke any parol license before granted to construct such drain upon, across, or over the lands of any party shall be exercised, and suit commenced to enforce the same, within one year from the time the act took effect; and if not thus exercised, and suit brought within one year, then such party shall be forever barred from thereafter revoking such license.

It is admitted that plaintiffs in error were the owners of the dominant, and the defendant in error of the servient, heritage; that the former and the grantors of the latter jointly, and by mutual consent and agreement, excavated the ditch for the drainage of these lands of the several owners, and for several years maintained the ditch, and kept it open and in repair, and that the license was not revoked within the time fixed by the statute. Under these facts, and by virtue of the statute, this license became irrevocable, and the question is, was it converted into an easement? An easement is an incorporeal hereditament, and consists of a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner. 2 Washb. Real Prop. c. 1, § 3, pl. 1. It is always distinct from the occupation and enjoyment of the land itself. It is a liberty, privilege, or advantage in land distinct from the ownership, and rests upon grant or prescription. 1 Washb. Real Prop. c. 12, § 2, pl. 1. Except in what are known as ‘common-law dedications,’ parol gifts of land, or of...