APPEAL from the Circuit Court of Rock Island County; the Hon.
A.J. SCHEINEMAN, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 16, 1956.
Defendants appeal directly to this court from a decree of the circuit court of Rock Island County adjudging the plaintiff to be the owner of an easement of way over defendants' property, perpetually enjoining defendants from interfering with plaintiff's use thereof or obstructing the same, and assessing $110 as damages against defendants in favor of the plaintiff. The right of plaintiff to a perpetual easement over property owned by defendants being the sole issue in this case, a freehold is involved warranting direct appeal to this court. The sole question presented is whether or not the plaintiff is entitled to an easement by implication over property owned by the defendants.
The properties in question were part of a larger tract, owned by one Mathias Bachman and his descendants since 1903, being bounded on the south by Rock River, on the north by a highway running east and west and known as Blackhawk Road, and on the west side by a government roadway running north and south.
For several years the Bachmans leased out a number of lots, over 12 in number, along Rock River, and the various persons leasing such lots erected cottages retaining title to the cottages with the privilege of removal.
In order to reach the river-front cottages, the tenants used and maintained a private roadway running from Blackhawk Road down the east side of the Bachman tract toward Rock River, then turning west and running a short distance in back of all the cottages, emerging on the government roadway along the west side of the tract. For more than fifty years the roadway was in use, first as a means of access to a fishing camp and later for the movement of farm implements in farming operations. Since prior to 1937 the roadway had been improved with gravel to a width of about 16 feet, was plainly visible, and was commonly used by the owners of the river-front cottages for ingress and egress to their properties.
After the last of the direct Bachman heirs died, a suit for the partition of this and other property was instituted by the then owners. The decree of partition appointed partition commissioners with directions to divide the tract in question into lots and to make a survey and plat thereof, which was done. Such plat provided for two rows of lots, one along the river and another abutting this row to the north, with the north boundary of such second row of lots along Blackhawk Road. In the plat lots A to O inclusive, from east to west, were river-front lots and lots P to A-A inclusive, from west to east, abutted on Blackhawk Road. The plat does not indicate any roadways, existent or nonexistent, so that no means of access by land to the river front lots of any nature whatsoever is shown thereby. The survey of the lots was made so that each of the cottages along the river was situated on a separate lot. None of the lots abutting on Blackhawk Road were improved.
Subsequently a decree was entered in the partition proceeding confirming the commissioners' report and ordering the sale of the premises, in the terms and conditions of which it was provided that the several lots in this tract of land should first be offered separately, and if the price bid for each lot when offered separately should equal or exceed the appraised value as fixed by the commissioners then such lot should not be offered for sale again, either in combination or as part of the whole. Under such decree the owners of the buildings were given the right to remove the same within a reasonable time if they did not become the purchasers of the land.
Plaintiff's father had purchased a cottage situated on tract B in 1937, which was later rebuilt and in existence at the time of sale. At the partition sale, which was held on the premises, the sequence in which lots were offered was from east to west along the river, thence back eastward along the other row of lots in alphabetical order. Bids were first asked on lot A, but no one bid a sufficient amount and it was not struck off. Then the plaintiff bid high on lot B and it was struck off to her. Others bid high and had struck off to them the remaining lots west along the river. As the second row of lots abutting on Blackhawk Road was offered, either no bid was received at all, or no bid meeting the minimum requirement of the sale order, and most, if not all, of these lots were unsold when the first round of the auction was complete. Inquiries had been made by various persons at the sale as to the status of the gravel road not shown on the plat, and no satisfactory answer could be obtained from anyone in authority. The plaintiff, after the first round of the auction, went to the attorney for the estate and had some conversation with him, which was overheard by others. Although the details of such conversation are disputed, it is agreed that such attor-of the river-front lot she had purchased, for protection, in ney advised plaintiff to buy the lot in the second row back order to be assured of access to her river-front lot. Thereafter the north row of lots was again offered and the same people who had bought river front lots and failed to bid on this second row then put in adequate bids so that practically all lots were sold and all cottage owners acquired space to build a new means of access from Blackhawk Road to their houses if they so desired. Following plaintiff's high bid on Z, being the tract behind lot B on which she had previously been high bidder, the defendant Bleuer bid high on tract A-A, and the defendant Dodge bid high on tract A.
Thereafter the circuit court confirmed the sale and deeds were issued to the various purchasers using metes and bounds descriptions, with no reference therein to the roadway in question.
The chancellor, after considering voluminous evidence on the question, found as a matter of fact that there was no understanding or agreement, either prior to or at the time of the sale, that the used and visible road in question would be closed or not remain open.
Thereafter, various purchasers of river lots to the west of plaintiff's property built access roads direct to Blackhawk Road and in diverse manners blocked the old roadway. However, defendants did not at first dispute plaintiff's right to use the old roadway across lots A-A and A to her lot B. Plaintiff claims that prior to the sale she had an agreement with the defendants for the improvement and maintenance of this gravel road at their joint expense. The defendants do not completely deny such agreement, but assert that they contemplated dividing the expense as to that portion of the road which was jointly used, and that they did not feel called upon to help pay for a portion of the road beyond that jointly used by them and to pay for improvements up to and on plaintiff's own lot.
After the sale plaintiff contacted the defendant Dodge and told him that if he and defendant Bleuer would give her an easement across lots A-A and A, she would be willing to sell tract Z for $1200. Dodge thereupon proceeded to find a purchaser for tract Z, obtained a down payment of $100, drew up a proposed contract for the sale thereof and had an easement drawn up by an attorney. Thereafter, Dodge advised the tenant of plaintiff's river-front cottage that when he moved out the defendants were going to close the roadway, and they did so. This suit by plaintiff to establish an easement of way by implication followed.
Defendants-appellants first contend that the plaintiff understood that the roadway in dispute was to be closed and therefore there can be no easement by implication. This was a vigorously disputed question of fact in the trial court. The trial judge who heard the witnesses expressly found that there was no such understanding or agreement as argued by the defendants, either prior to or at the time of sale. From a consideration of the record we cannot say that such finding is clearly and palpably contrary to the manifest weight of the evidence and we ...