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Kling v. Ghilarducci





APPEAL from the Superior Court of Cook County; the Hon. JOHN F. HAAS, Judge, presiding.


Pasquale Ghilarducci and Dina Ghilarducci, husband and wife, defendants below and hereinafter so designated, appeal from a decree of the superior court of Cook County which found that Tillie C. Kling, hereinafter referred to as plaintiff, was entitled to easements by implication in their property for (1) right of use for a water supply pipe over defendants' property and (2) right of access to a sidewalk and stairway leading to a side entrance to plaintiff's residence. An injunction was issued restraining defendants from interfering with plaintiff's use and enjoyment of such easements. A freehold being involved, the appeal is directed to this court.

On July 17, 1918, the plaintiff's predecessors in title, Sievert and Carrie Johnson, owned lot 23 (except the north 11 feet thereof) in block 5 of E.E. Reed's Montclare Subdivision located in the city of Chicago. They were then constructing a brick bungalow on the west end of the lot and a store building with an apartment on the second floor on the east end of the lot. To secure two independent debts they executed two trust deeds to Chicago Title and Trust Company as trustee, one conveying the west 95 feet upon which the residence property is located, and the other conveying the east 28 feet upon which the store building is located. The residence faces North New England Avenue to the west, is known as 2501 North New England Avenue, and is referred to as the front property. The store building faces West Altgeld Avenue to the south, is known as 6848 West Altgeld Avenue, and is referred to as the rear property.

On July 9, 1919, the Johnsons conveyed the entire lot 23 (except the north 11 feet thereof) to the plaintiff Tillie C. Kling and her husband Frank Otto Kling, subject to the two trust deeds, and in 1929 plaintiff became the owner of the entire interest in both parcels, subject to the trust deeds, by reason of a quitclaim deed from her then-divorced husband, Frank Otto Kling.

Plaintiff resided in the front property from 1919 until March 22, 1932, when suit was filed to foreclose the trust deed on that property and she then moved into the apartment on the second floor of the rear property where she still resides. Plaintiff was a defendant in the foreclosure proceeding, filed her answer in the nature of a general denial, claimed no easements, and a decree of foreclosure and sale was entered. The property was sold under this decree and a master's deed executed to the purchaser March 1, 1937, conveying the west 95 feet of said Lot 23 (except the north 11 feet thereof). The defendants, by mesne conveyances, claim title under the master's deed, having acquired their title on May 2, 1951.

Prior to 1923 both these properties were supplied water from a water main on Newcastle Avenue, to the east of lot 23. In that year a main was installed in New England Avenue, west of lot 23, and the front property then received water from that main. The rear property continued to receive water from the Newcastle Avenue main until 1933 when that service was discontinued. The plaintiff then had the water service pipe extended from the front building to the rear building by means of a one-inch underground pipe connected to an exposed valve in the basement of the front building. Plaintiff received her water supply from this pipe from 1933 until 1938 when the then owner of the front property shut it off. No water was received by plaintiff through that pipe until 1943 when the party who then owned the front property, at plaintiff's request, restored the service. On September 19, 1951, the defendants who then occupied their property shut off plaintiff's water supply.

The apartment which plaintiff occupies as her residence on the second floor of the rear property is reached by an inside stairway from Altgeld Avenue on the south and by an outside stairway on the west side of the building. This stairway extends over onto the defendants' lot one foot and five and three-fourths inches. There is also a sidewalk, located entirely on defendants' property, which leads to a shed under a porch on the west side of the store building where plaintiff stores fuel. Plaintiff claims an easement for ingress and egress to her apartment over the sidewalk and stairway which encroach upon defendants' property.

The trial court having found that plaintiff was entitled to easements by implication in favor of her property and against defendants' property for (1) the right to procure water through a one-inch supply pipe and (2) the use of the stairway and sidewalk upon defendants' property, and having enjoined defendants from interfering with such rights, defendants appeal.

The defendants here argue the judgment of the trial court should be reversed because (1) the decree in the suit foreclosing the mortgage lien on defendants' servient estate adjudicated adversely to plaintiff, a party to that proceeding, her claims of easements detrimental to the interests of the mortgagee and his assigns; (2) plaintiff's claims of easements are subject to the prior rights of the mortgagee because those claims arose subsequent to the execution and recording of the mortgage and they are detrimental to the mortgagee's interests; and (3) no easements exist because the evidence does not show (a) that the use which gives right to the claim of easements had been so long continued and was so obvious or manifest as to evidence permanency, and (b) that the claimed easements are reasonably necessary to the enjoyment of the dominant estate.

The plaintiff contends first that this appeal should be dismissed for lack of jurisdiction, the decree appealed from not being a final decree because although the complaint contained several counts and the counterclaim prayed removal of the encroachments, the case was tried only on one count in the complaint, a count for an injunction restraining defendants from interfering with plaintiff's use and enjoyment of her easements. Plaintiff also argues, to sustain the judgment and in answer to defendants' arguments, that (1) the mortgage foreclosure, begun in 1932 and pending until 1937, did not destroy the implied easement created by plaintiff during that period while plaintiff was the owner of both tracts, because the mortgagee during that period had actual or constructive knowledge of these visible easements, and (2) the easements by implication exist because the evidence shows that the user was long continued, obvious and manifest as to the permanency and the easements are essential to the beneficial use and enjoyment of her property. Plaintiff further argues that defendants are estopped from questioning her easements because the mortgagee and subsequent owners acquiesced in her use of such easements.

The order appealed from adjudicates and establishes in favor of plaintiff two separate and distinct easements. It determines the ultimate rights with respect to easement of way for water and for the sidewalk, stairway and porch. There is nothing in the record which would show that the easements for water and right of way have a bearing on other matters left for further consideration. Hoier v. Kaplan, 313 Ill. 448; Sebree v. Sebree, 293 Ill. 228; City of Park Ridge v. Murphy, 258 Ill. 365; People ex rel Abt v. Vogt, 262 Ill. 170.

The order appealed from completely disposes of all equitable relief sought by plaintiff and against the defendants. The court order of October 5, 1953, disposing of the equity branch of defendants' case, was a final order and was therefore appealable. A perpetual easement or one of indefinite duration involves a freehold and hence the appeal comes to this court. Liberty Nat. Bank v. Lux, 378 Ill. 329; Espenscheid v. Bauer, 235 Ill. 172; Foote v. Marggraf, 233 Ill. 48; Burke v. Kleiman, 355 Ill. 390.

It is not necessary to discuss or review the law pertaining to easement claims based upon prescription or adverse possession. It is obvious that the grant on which the claim of plaintiff is based is on an implied grant in the nature of an easement. Such a grant rises by implication of law.

The essential elements which must exist to create an easement by implication upon severance of ownership are: (1) there must be a separation of the title; (2) before the separation occurs the use which would give rise to an easement must have been so long continued, obvious or manifest to that degree which will show the use was meant to be permanent; and (3) it is necessary that the use of the claimed easement be essential to the beneficial enjoyment of the land granted or retained. Carter v. Michel, 403 Ill. 610; ...

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