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Cosmopolitan Bank v. Chi. T. & T. Co.

OPINION FILED NOVEMBER 23, 1955

COSMOPOLITAN NATIONAL BANK OF CHICAGO ET AL., APPELLANTS,

v.

CHICAGO TITLE AND TRUST COMPANY ET AL., APPELLEES.



APPEAL to the Superior Court of Cook County; the Hon. FRANK M. PADDEN, Judge, presiding.

MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 16, 1956.

By this suit in equity the plaintiffs sought a declaration of a reciprocal easement by implication (or in the alternative, an easement by prescription) in an area located between a store building owned by them and an apartment building owned by the defendants. The cause was referred to a master who heard evidence and filed a report recommending that an easement be recognized as prayed in the complaint and that the defendants be enjoined from interfering with the plaintiffs in the use of said easement. But the superior court of Cook County sustained exceptions to the master's report and entered a decree dismissing the complaint for want of equity, thus finding no easement to exist (either by implication or prescription) in favor of the plaintiffs.

The existence of a perpetual easement being in issue, a freehold is involved warranting a direct appeal to this court. Walker v. Witt, 4 Ill.2d 16.

The principal party plaintiff is Joseph C. Cowen, who is the beneficial owner of a trust under which the Cosmopolitan National Bank of Chicago is trustee. The principal party defendant is William F. Carmody, who owns the beneficial interest of a certain trust under which Peter Kelley is successor trustee to the Chicago Title and Trust Company.

The plaintiffs' property, which is improved with a two-story brick building containing ten stores on the first floor and twenty-nine offices on the second, is located on the southeast corner of Pleasant Street (running east and west) and Marion Street (running north and south) in Oak Park. The defendants' property, which is improved with a three-story brick building containing approximately seventy-five apartments, is situated on Pleasant Street about 18 feet east of said store building owned by the plaintiffs.

The 18-foot area between these buildings is paved with concrete and extends south from Pleasant Street for a distance of 180 feet to a dead end. The east 12 feet 5 inches of this area is owned by the defendants in fee, and the west 5 feet 7 inches is owned by the plaintiffs, with no visible line or boundary to indicate any separation.

The area was paved in 1922, and thereafter it was used by vehicles as a driveway to serve the occupants of both buildings. In August, 1947, however, defendant Carmody blocked the driveway by placing a permanent steel post at the western extremity of his lot line and attaching thereto a chain which extended from the west wall of the apartment building. The chain was permanently affixed by lock and key and removable only under Carmody's authority. Since that time he has refused to permit the plaintiffs to make use of said area owned in fee by the defendants, and consequently vehicles have been unable to use the driveway as they had before to serve the occupants of plaintiffs' building. This action by defendant Carmody prompted the instant suit.

The plaintiffs contend that this 18-foot area is a concrete driveway in which they are entitled to a reciprocal easement, either by implication or prescription. The defendants assert that the evidence does not establish any rights in the plaintiffs to the use of the east 12 feet 5 inches of said area.

The parties agree that the essential elements for an easement by implication (either implied grant or implied reservation) are as follows: (1) There must be a separation of 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 shows the use was meant to be permanent. (3) The use of the claimed easement must be essential to the beneficial enjoyment of the land granted or retained. See Carter v. Michel, 403 Ill. 610, 617, and Walker v. Witt, 4 Ill.2d 16, 21-2.

First, was there a separation of title? And, if so, when did the separation occur?

On April 1, 1922, Joseph Trinz was the owner of the entire real estate here involved (i.e., both the apartment property and the store property.) The land was then vacant. On that date, however, he conveyed an undivided one-half interest to Harry M. Lubliner. Three days later (on April 4, 1922), Trinz and Lubliner executed two separate trust deeds (one covering what became the apartment property and the other the store property). Then, on April 12, 1922, the village of Oak Park issued them a permit authorizing the construction of the apartment building, and on April 20, 1922, they were issued a permit by said village to construct the store building.

On May 18, 1922, Trinz and Lubliner, as incorporators, organized two separate corporations, one known as the Wisconsin Building Corporation and the other as the Pleasant Apartments Building Corporation. Trinz and Lubliner owned all of the shares of stock equally, with a qualifying share being held by Lubliner's wife. These three were the incorporators, subscribers, stockholders and directors of both corporations. The following day (May 19, 1922), by two separate deeds Trinz and Lubliner conveyed the apartment property to the Pleasant Apartments Building Corporation and the store property to the Wisconsin Building Corporation, said conveyances made subject to the two trust deeds of April 4, 1922.

Sometime during 1922, the two buildings were constructed with said paved area between them, and for the succeeding five years Trinz and Lubliner individually paid the ...


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