APPEAL from the Circuit Court of Kankakee County; the Hon.
C.D. HENRY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1955.
The plaintiff, Edith Allendorf, has appealed and the defendants, Genevieve and Martha Daily, have cross-appealed from a decree of the circuit court of Kankakee County establishing plaintiff's rights under a grant of right-of-way easement, enjoining the plaintiff from encroaching beyond such right of way as so established, and assessing punitive damages against the plaintiff for trespassing upon the defendants' land.
Since the right to a perpetual right-of-way easement over land is in issue a freehold is involved warranting direct appeal to this court. Poulos v. Hill Co. 401 Ill. 204; Housing Authority v. Church of God, 401 Ill. 100; Wiley v. Lamprecht, 400 Ill. 587.
The complaint filed by the plaintiff prayed for an injunction restraining the defendants from interfering with plaintiff's use of an alleged two-rod-wide right-of-way easement strip over the east side of defendants' 80-acre farm as a means of ingress to and egress from lands owned by the plaintiff and for damages to such right-of-way strip.
The defendants' answer denied the right of plaintiff to such an easement, and their counterclaim asserted that the alleged easement was void in its inception or had been abandoned, and prayed that it be removed as a cloud on defendants' title. Such counterclaim further alleged that the east boundary of the defendants' 80-acre farm is a fence, but the true east line of such 80 acres lies east of the fence, the distance varying from 13 to 17 feet, and, in the alternative, prayed that the plaintiff be enjoined from entering any part of the defendants' land which is more than two rods west of the true boundary of the 80 acres. The counterclaim further set up a charge of trespass and claim for damages.
In addition to general denials of the counterclaim, plaintiff set up affirmative defenses of res judicata, easement by implication, and easement by adverse possession.
The special master to whom the case was referred, after hearing extensive testimony and arguments and considering the briefs of counsel, reported detailed findings, conclusions and recommendations to the trial court. Objections by both parties to the master's findings, conclusions and recommendations were overruled and allowed to stand as exceptions and the trial court approved and incorporated the master's findings, conclusions and recommendations in its final decree.
The final decree adjudged an easement by express grant to the plaintiff of that portion of the east two rods of the southwest quarter of section 29, township 30 N., range 12 W. of 2d P.M. in Kankakee County, lying immediately west of the division fence located on said two rods, said easement being for the benefit of certain lands owned by the plaintiff in said section and those lands only; restrained plaintiff from using said easement for the benefit of other land owned by the plaintiff, from entering or using any portion of the west 78 acres of the east half of the southwest quarter of section 29, township 30 N., range 12 W. of 2d P.M. in Kankakee County, from removing or interfering with gates at either end of the easement except opening and closing thereof; found the plaintiff guilty of willful trespass and assessed special damages against her; ordered the plaintiff to keep the easement in repair and restrained the defendants from interfering with the lawful use of the easement.
The errors relied on by plaintiff-appellant for a reversal in substance are as follows: (1) The court erred in holding that the east two rods constituting the right of way was to be measured from the true east line of the 80 acres in question instead of the division fence and should have held that there was latent ambiguity in the description of the easement in the master's report and deed which could be removed by parol evidence and on such basis should have held that plaintiff was entitled to an easement two rods wide measured westerly from the division fence along the east line of defendants' 80 acres; (2) the court erred in failing to hold that the plaintiff had an easement by implication to the two-rod strip in question; (3) the court erred in failing to hold that plaintiff had an easement by adverse possession in the two-rod strip in question and (4) that the court erred in assessing actual and punitive damages against the plaintiff.
The defendants-appellees and cross-appellants rely on five errors in substance for reversal as follows: (1) That the court erred in holding the right of way as set off by the partition commissioners was valid; (2) the court erred in holding that there was no abandonment; (3) the court erred in failing to find that the plaintiff was estopped from claiming the right of way; (4) the court erred in holding the special and punitive damages assessed were adequate and, last, the court erred in finding the costs and expenses should be borne equally by the parties except as to witness fees.
The principal issue to be decided is to what extent, if at all, the plaintiff had a right to the use of a two-rod strip of land along the east side of the 80-acre tract in issue. The problem was created many years ago in a partition suit and master's deed and has given rise to high personal feeling between the litigants as shown by the voluminous conflicting evidence as to what has occurred over the intervening years up to the present time in relation to the claimed easement. However, there is apparently no dispute over the facts and circumstances surrounding the origin of the so-called grant or easement.
In 1899 Thomas Daily, Sr., was the owner of some 160 acres of land situated in the north half of section 29, township 30 N., range 12 W. of the 2d P.M. in Kankakee County. On October 2, 1899, he purchased at an administrator's sale to pay debts the east half of the S.W. 1/4 of said section 29, which is now owned by the Daily sisters, defendants herein. Peter Boudreau, Sr., was the owner of the land lying immediately east of said 80 acres. During his lifetime Thomas Daily, Sr., brought an action against Peter Boudreau, Sr., for trespass quare clausum fregit. The survey at that time showed that the true east line of the east half of the southwest quarter of said section was east of a division fence, varying from some 18 feet at the north to some 13 feet at the south. This court, in Daily v. Boudreau, 231 Ill. 228, held that Thomas Daily's action was barred by the Limitations Act since the defendant Boudreau occupied the land up to the fence for twenty years, claiming to own it, it being immaterial whether he supposed the division fence to be the true line or not. Thomas Daily, Sr., died testate on or about August 20, 1913, and by the terms of his will and of a codicil thereto he devised all of his real estate equally between his seven children, with the proviso, however, that his son, Matthew Daily, should take only a life estate in his undivided one-seventh with a ...