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Horween v. Dubner

NOVEMBER 23, 1965.

RALPH HORWEEN AND GENEVIEVE B. HORWEEN, PLAINTIFFS-APPELLANTS,

v.

HAROLD H. DUBNER, ANNETTE DUBNER AND EXCHANGE NATIONAL BANK, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Decree affirmed.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

This is an appeal from a decree which, in substance, approved the findings of a Revised Master's Report that the conditions of an easement were violated, that the violation failed to terminate the easement, that a counterclaim of defendants be dismissed with prejudice and that plaintiffs' request for attorneys' fees be denied.

The property that is the subject of this lawsuit is part of a 5.76 acre tract of land that was originally owned in its entirety by plaintiffs Ralph Horween and his wife, Genevieve B. Horween. The tract is located in the northeast section of Winnetka about a block from Lake Michigan and is bounded on the north by Private Road and on the south by Tower Road. Plaintiffs purchased the property from Harold Ickes in 1945. At that time, the property was heavily wooded except for cleared areas immediately surrounding three buildings, which consisted of a large stucco main residence, a chauffeur's cottage and a gardener's cottage. Plaintiffs have lived in the main house since 1945 until recently when they moved to the chauffeur's cottage and rented the main house to a friend.

In 1954 and 1955 plaintiffs sold three lots from their property. No utilities were available on Private Road except gas. Plaintiffs knew this when they sold a lot to Kenneth Prince. Therefore, they reserved easements in their deed to Prince running next to the north-south lines on both sides of the lot for the benefit of the adjacent lot immediately to the north.

In July, 1956, plaintiffs sold this adjacent lot on the north to defendants, Dr. Harold H. Dubner and his wife, Annette Dubner. At the closing of the deal, plaintiffs told defendants' attorney about the easements over the Prince lot for the purpose of reaching the utilities on Tower Road, and that they would send him a copy of the easement reservations, which they did a few days later.

Prince had laid his driveway and completed his landscaping before defendants installed their utilities. Thus hardship would incur to defendants, as the Prince lot easement required restoration of the property by anyone making use of the easement. Plaintiff Ralph Horween discussed this problem with Prince in April, 1957. He told Prince that in order to save both defendants and Prince a lot of grief, he would grant defendants a second easement over his own property, along the east side of the Prince lot. On April 30, 1957, plaintiffs had such an easement drafted, and it was delivered to defendants' attorney. It is this easement that is involved in this case. By way of clarification, defendants now have a total of three access routes to Tower Road for utilities; viz., two strips over the Prince lot along the west and east lot lines thereof, which were created by the easement reservation in the deed from plaintiffs to Prince, and a five-foot strip over plaintiffs' property along the east line of the Prince lot, which was created by a gift from plaintiffs to defendants. The testimony of plaintiff, Ralph Horween, is to the effect that he granted the easement only to accommodate Mr. Prince and defendants, and that he neither asked for nor received payment from anyone.

The easement involved here provided that it was "for the purpose of placing and maintaining underground," certain named utilities. It further provided:

As conditions precedent to the continued existence of the easement granted herein, IT IS EXPRESSLY UNDERSTOOD that:

(a) No manhole or other contrivance or structure appearing on or above the surface of the ground shall be placed upon the said easement.

(b) The party in whose favor said easement exists or for whose use said easement is granted at their own cost and expense shall repair and replace on the easement all property, shrubs, fences, trees, flowers, plants and grass which may be damaged as a result of the exercise of the rights created by said easement.

(c) The easement hereby granted shall be null and void and of no further effect should an attempt be made at any time to install or use the utilities installed for more than a single homestead erected upon the property described herein as Parcel No. 2, or should an attempt be made at any time to extend the said facilities to provide for premises other than that on said Parcel No. 2. (Emphasis supplied.)

In the summer of 1957, subsequent to the granting of the easement involved in this suit, defendants used it for the installation of utilities. Plaintiffs inspected the property and found trees and shrubbery knocked down; a clay tile pipe extending above the surface of the ground; piles of raw clay were on the ground; and no attempt had been made to restore the surface to anything like its former condition. Plaintiffs requested that defendants restore the surface and remove the tile pipe. Defendants did nothing as a result of this request until after they installed a swimming pool on their lot three years later.

In the spring of 1960, at the time of the installation of the swimming pool, the easement was used by defendants as a driveway for trucks and excavating machinery.

Later in 1960, defendants installed three large catch basins, covered with concrete and steel manhole covers, on the easement. One of the manholes protruded as much as a foot above the surface. After plaintiff, Ralph Horween, observed the catch basins and manholes, he talked with defendant, Dr. Dubner, and told him that they were contrary to the terms of the easement ...


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