APPEAL from the Circuit Court of Peoria County; the Hon. HENRY
J. INGRAM, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 15, 1951.
This is a direct appeal from a decree entered in the circuit court of Peoria County. A freehold interest is involved. In this opinion the appellees will be referred to as the plaintiffs and the appellants as the defendants.
On December 27, 1943, the plaintiff Irma Sottiaux filed her complaint in the circuit court of Peoria County and by stipulation her husband, Jules L. Sottiaux, was later made an additional plaintiff. The complaint sought to restrain the defendants from preventing plaintiffs and their tenants from using a brick driveway, the use and ownership of which is the subject matter of this suit.
The parties to the suit were neighbors owning lots on either side of the brick driveway. It was alleged in the complaint that plaintiffs were the owners of lot 8, block 1 in Bunn's Subdivision, known as 1119 Knoxville Avenue in the city of Peoria and that defendants were the owners of lot 9, block 1 of said subdivision, known as 1115 Knoxville Avenue, adjoining plaintiffs' property to the south. Plaintiffs' lot is improved with a two-story frame residence facing Knoxville Avenue, with a frame garage at the rear opening to the east on a private driveway and connecting with the brick driveway on an angle. Defendants' lot is improved with a two-story frame residence with a frame barn on the rear. Plaintiffs' garage has been erected and continuously used as such for upwards of 40 years. The complaint also alleged, "Approximately the South 2 feet of plaintiff's lot and the North five feet of defendants' lot are and have been for over 40 years improved with a brick paved private driveway extending from Knoxville Avenue to the Public alley in the rear of said lots and affording the only means of ingress to and egress from plaintiff's said garage."
The complaint further states that for at least forty years prior to the time defendants acquired title, plaintiffs and their predecessors in title used said private driveway for traveling between Knoxville Avenue and the alley, as the sole means of ingress and egress from the garage, and as a place upon which to park automobiles and other vehicles; that such use was "open, adverse, uninterrupted, exclusive, continuous and under a claim of right; and that during all of this time defendants' predecessors in title freely and openly acquiesced in such use;" that, therefore, by reason of such use, the plaintiffs are now vested with a prescriptive right or easement to the exclusive use of that portion of said driveway located upon defendants' said premises.
The complaint further set forth that defendants claimed to own the driveway; prevented plaintiffs from using it and threatened to tear it up. The prayer of the complaint asked that defendants be enjoined from in any manner interfering with plaintiffs' use of the said driveway and for damages.
The answer disputed and denied all the material allegations of the complaint. A counterclaim in ejectment was also filed by defendants alleging the entry and withholding of possession of a portion of lot 9 by the plaintiffs.
The plaintiffs filed a verified answer to the counterclaim alleging that for more than twenty years prior to defendants' ownership of lot 9, the plaintiffs and their predecessors in title to lot 8 had been in possession of the north approximately six feet of said lot 9 and that said possession was open, notorious, continuous, exclusive, uninterrupted, hostile, adverse, against the whole world and under claim of ownership. The answer further stated that by reason of the foregoing facts the claim of the defendants to said strip of land has long since been barred by the Statute of Limitations.
The cause was referred to a master in chancery, who, after taking evidence, found in favor of the plaintiffs, holding that the use made of the driveway by the successive owners and tenants of lot 8 had created a prescriptive right or easement in the plaintiffs to the exclusive use of said driveway. The master also found that the successive owners of lots 8 and 9 have, by their acts and declarations and acquiescence, adopted the south line of said driveway as the south line of lot 8 for a period of more than twenty years before defendants acquired title to lot 9 so that said line cannot now be questioned.
On a hearing of exceptions to the master's report, the circuit court entered a decree awarding a fee-simple interest in the driveway to the plaintiffs but disallowed any claim for damages. The court based its finding on a parol agreement implied from the acts, declarations and acquiescence of the respective former owners and their tenants, fixing the south line of said driveway as the dividing line between lots 8 and 9 and the recognition of said dividing line and use and occupancy in accordance therewith for a period of more than twenty years. The decree perpetually enjoined the defendants from using, trespassing upon, destroying or in any manner injuring the said private driveway.
By this decree a strip of land approximately five or six feet in width, which, under the plat, was a part of lot 9, was vested in the plaintiffs absolutely.
The plaintiffs insist that because no reply was filed to a verified answer in ejectment which set up the affirmative defense of adverse possession and the Statute of Limitations, the facts alleged in such answer stand admitted, and decree should be entered in accordance therewith, citing Horner v. Jamieson, 394 Ill. 222. Plaintiffs failed to take any steps to preserve this point and introduced evidence on all the material issues in the cause. In the case of Cienki v. Rusnak, 398 Ill. 77, we ruled that, "Where, in the absence of a reply, defendant introduces evidence to prove an affirmative defense, the failure to file a reply is waived and the absence of a reply does not constitute an admission."
The facts supporting both the proof of plaintiffs and of the defendants show substantially the following situation: A plat was introduced in evidence, showing the two properties to have a frontage on Knoxville Avenue of fifty feet each. The brick driveway in controversy extending from Knoxville Avenue to the alley is shown between the houses and purports to have a width of about 7.35 feet. There is no testimony in the record showing who built the driveway or when it was built. Both properties are improved with frame buildings. At the rear of plaintiffs' lot 8 (1119 Knoxville Avenue) is a frame garage. It was built in 1904 or 1905, sometime after the construction of the brick driveway. The garage is built on a slight angle about 3 1/2 feet north of the driveway and opens diagonally upon it by means of a concrete apron or approach. On the rear of defendant's lot 9 (1115 Knoxville Avenue) is a frame barn. It has ...