APPEAL from the Circuit Court of St. Clair County; the Hon.
RICHARD T. CARTER, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 18, 1959.
Defendants have appealed from a decree of the circuit court of St. Clair County declaring a public roadway across the farms of both parties; granting plaintiffs a private right of way across lands of defendants; voiding for lack of consideration the permit to use the private roadway executed by defendants in favor of the plaintiff Urban A. Jacobi; quieting plaintiffs' title to an abandoned railroad right of way; and awarding damages and incidental relief to the plaintiffs. A freehold being involved the appeal comes to this court.
Plaintiffs and defendants are neighbors owning adjoining farms in Caseyville Township in St. Clair County. Defendants' farm consists of 29.5 acres in the east part of the southeast quarter of section 23, an adjoining 33.23 acres in the northwest part of the southwest quarter of section 24, (which is practically two tracts since the mine property, except for a narrow area near the west line of the quarter, is carved out of it), a 9.8-acre mine tract which was formerly the site of a coal mine, and a 2-acre tract, both of which are almost entirely covered with deposits of mine slag.
Plaintiffs own the 27 acres lying north of the easterly portion of the mine site and east of the north part of defendants' 33.23-acre tract, the remainder of the fractional part of the southwest quarter of section 24, the major portion lying south and east of defendants' farm, and, except for two small tracts, all of the northwest quarter of section 25 lying north of the Baltimore & Ohio Southwestern railroad.
Ogle's Creek, a stream about 10 to 12 feet wide, runs from the defendants' land in section 23 in a northeasterly direction, and continues in a more or less easterly direction to form the boundary line between defendants' 33.23-acre tract on the north and land of plaintiffs on the south, and thus cuts across the south 30 feet or so of defendants' 9.8-acre tract.
In 1898, the former owner of all the lands involved herein, deeded a 30-foot strip for a railroad right of way to the railroad company. This right of way began at the crossing near Carbon, ran north and west across the northwest quarter of section 25 and the southwest quarter of section 24, and ended at the coal mine on the 9.8-acre tract now owned by defendants. The deed to the railroad right of way provided it should revert to the grantor or his assigns and it was not disputed that the right of way was abandoned in 1939.
Defendants' 29.5 and 33.23-acre tracts were formerly owned by William Bevirt, father of Mrs. Mantle. They farmed this land since 1926, making their home on the 29.5-acre tract and later acquiring title in 1931. During this time, as did their predecessors before them, they used the roadway running west from their 29.5-acre tract across the mine property and then south alongside the railroad right of way to the village of Carbon. On June 5, 1953, defendants acquired the 9.8 acres comprising the coal mine property, and the 2-acre tract adjoining it on the north and east, from the Perry Coal Company. In December, 1953, they also acquired a deed from the Perry Coal Company to the 30-foot railroad right of way and a small .84-acre tract, the site of an abandoned airshaft, near the Baltimore & Ohio Southwestern railroad crossing near Carbon. After they acquired the 9.8-acre coal mine tract, they placed logs and brush across the entrance to a roadway that had been used by plaintiff to get to plaintiffs' north 27 acres, thereby forcing them to follow another route. This roadway to the north 27 acres begins at the place in the 9.8-acre tract where the public road turns west and proceeds in a northeasterly direction to the north limits of defendants' 2-acre tract.
In August 1953, defendants, without consideration, gave the plaintiff Urban Jacobi a written permit to use the private roadway but cancelled the permit by written notice some few months later. Previously, defendants had placed a gate and "no trespassing" signs across the public road just south of the Ogle's Creek bridge, compelling plaintiffs to construct a ford across Ogle's Creek to the east of the mine property in order to get to their north 27 acres. This ford was used by plaintiffs until it became unusable following heavy rains in 1957. The difficulties between these two neighbors resulted in the lawsuit from which this appeal is taken.
Plaintiffs' complaint is drawn in three counts. Count I, charging defendants with cultivating parts of plaintiffs' land, was abandoned during the trial for lack of proof and requires no further consideration. Count II alleges that defendants wrongfully claimed the abandoned railroad right of way by virtue of the deed from the Perry Coal Company and prays that this deed be declared void and removed as a cloud on plaintiffs' title. Count III describes the road leading from Carbon north and west across plaintiffs' farm, over the bridge across Ogle's Creek and from there north and west to the west side of defendants' 9.8-acre tract. It alleges that plaintiffs and their predecessors in title used a private roadway across the mine site to reach their north 27 acres; that defendants prevented plaintiffs' use of this private road; that the written permit from defendants to Urban Jacobi allowing him the right to use the road was void for lack of consideration and was cancelled by the defendants; that plaintiffs had to provide for a survey of the respective properties; that defendants were wrongfully using the public road running south across plaintiffs' farm to the village of Carbon; that plaintiffs were compelled to construct a ford across Ogle's Creek and because of heavy rains plaintiffs were not able to get to their north 27 acres. Count III asks that the permit and cancellation notice be declared void; that plaintiffs be permitted the use of the roadway crossing Ogle's Creek and leading to their north 27 acres; and that defendants be restrained from using the public road across plaintiff's farm.
By amendment, plaintiffs added a fourth count to their complaint alleging the existence of the private road leading to their north 27 acres for more than 40 years, that plaintiffs had adverse possession thereof, that by denying plaintiffs the use of the bridge and the private road they were landlocked from reaching their north 27 acres except by the ford they built across Ogle's Creek, and that heavy rains had made the creek impassable. They asked for damages in the sum of $10,000.
Defendants denied all charges made against them and by way of affirmative defense alleged that they had an easement by necessity over the public road leading south to Carbon. They further alleged ownership of the .84-acre tract in section 25 and their use of a public road leading thereto and that plaintiffs unlawfully cultivated a 12-foot strip north of this road. They asked that plaintiffs be restrained from interfering with their use of both roadways and from crossing their lands to plaintiffs' north 27 acres. By an additional counterclaim, defendants charged that plaintiffs obstructed Ogle's Creek downstream from the bridge and that on June 13 and 14, 1957, water was caused to back up and damage the bridge. They asked for damages in the amount of $10,000.
Defendants denied the charges in the counterclaim and averred that they maintained the bridge jointly and that damages to the bridge were caused by unprecedented rainfall occurring on June 13 and 14.
Defendants do not question that part of the decree finding that the road leading from Carbon over plaintiffs' farm to the west side of defendants' 9.8-acre tract, including the bridge over Ogle's Creek, is a public road available to both plaintiffs and defendants alike, nor that part of the decree quieting plaintiffs' title to the abandoned railroad right of way. Their principal contention in substance is that plaintiffs did not prove their right to the private roadway leading to the north 27 acres, either by adverse possession or by necessity. They argue that the public road traverses plaintiffs' farm and that plaintiffs can reach their north 27 acres ...