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Ideal Trading Corp. v. 237 E. Ontario Corp.

APRIL 13, 1967.

IDEAL TRADING CORPORATION, AN ILLINOIS CORPORATION, AND BROCHON ENGRAVING CO., AN ILLINOIS CORPORATION, PLAINTIFFS-APPELLANTS,

v.

237 E. ONTARIO CORP., AN ILLINOIS CORPORATION AND BROWNE AND STORCH, INC., A FOREIGN CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. JOHN LUPE, Judge, presiding. Decree affirmed.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from a decree of the Circuit Court dismissing the amended complaint for want of equity after exceptions to the master's report had been overruled.

The plaintiffs raised two points on appeal, (1) that the court erred in finding that the plaintiffs did not have an irrevocable license, and (2) that the court erred in finding that the agreement of June 25, 1948, was valid and binding in all respects.

The defendant, Browne & Storch, Inc., managed the premises at 235 East Ontario Street, Chicago, Illinois. No evidence was offered against this defendant and the case was dismissed in the trial court as to this defendant. No appeal is taken from that part of the decree.

The facts adduced at the hearing before the master in chancery, who heard the case, are voluminous and an effort will be made to set forth only those facts which are pertinent to the issues here.

The action was brought by the plaintiffs to establish that they had a right to use the rear of defendants' property for purposes of ingress and egress to plaintiffs' premises by virtue of an easement by necessity, an easement appurtenant, an easement by prescription, or, in the alternative, that the plaintiffs have an irrevocable license to use defendants' premises. Plaintiffs on appeal abandoned their claim of right to use the premises of the defendant based on an easement of necessity or by prescription, or easement appurtenant by a grant, but only raised the point that plaintiffs have an irrevocable license to use defendants' property.

The parties to this action entered into a stipulation as to some of the facts, and as to the others, evidence was heard and admitted. The following facts were either stipulated to or brought forth from testimony of witnesses.

In the year 1938, Brochon Engraving Co., a corporation, (Brochon) was in possession of the premises at 233 East Ontario Street (233 premises), Chicago, Illinois, as a tenant of the Trust Company of Chicago, as Trustee under Trust No. 309, which was then the owner of the property. The 233 premises contained a three-story brick building built on the front part of the lot. A vacant yard behind the building extended from the building to the rear alley. Brochon also occupied the premises at 235 East Ontario Street (235 premises), Chicago, Illinois, which adjoin the 233 premises to the east. The 235 premises at that time were owned by one Ella Lawes. Brochon was in sole occupancy and possession of the two premises as a tenant and conducted its business from both properties in 1938. In that year, while in possession as a tenant of both premises, Brochon constructed a one-story brick building on the vacant yard that existed at the rear of the 233 premises and connected it to the existing building in the front of the 233 premises. The building then became a single unit on the 233 premises. The addition extended from the rear of the building then on the 233 premises to the alley line and covered the full width of the lot.

At the time that Brochon, as a tenant, built this one-story brick extension building in the rear of the 233 premises, for its use as tenant thereof, it also built a loading dock or platform on the rear of the 235 premises, the building on which premises did not extend to the alley, and which premises were also in the possession of Brochon as the sole tenant. The loading dock was built up against the new extension building and level with two large sliding doors which had been built into the east wall of the newly constructed extension building. The loading dock was level with the rear door of the building on the 235 premises, so that the dock would service both the 235 premises and the 233 premises for the use and benefit of Brochon, which was in sole possession of both parcels as tenant of two separate owners of the properties. At the time Brochon constructed the new one-story addition to the rear of the building on the 233 premises it was necessary to remove the lower half of the fire escape on the rear of the existing building on the 233 premises. The old fire escape from the third floor to the second floor was permitted to remain and Brochon built the roof of the new addition to the 233 premises up to the fire escape and continued the fire escape across the roof of the new building to the rear of the building on the 235 premises and proceeded to construct the fire escape across the rear of the 235 premises and down the east side of said building to the alley.

All of the improvements constructed by Brochon were for its sole use and convenience at a time when it was in possession of both parcels and had the exclusive right of use and occupancy as to both.

In 1942 Brochon terminated its lease of the 235 premises, but remained in possession of the 233 premises by entering into a new lease with Northwestern University, the then owner of the 233 premises.

Neither the stipulation of facts nor the evidence discloses what, if any, arrangements were made by Brochon for the continued use of the loading platform constructed on the rear of the 235 premises.

In July of 1943 one Carl C. Waterbury acquired title to the 235 premises.

On August 31, 1946, the plaintiff, Ideal Trading Corporation, purchased the 233 premises from Northwestern University. At the time of this purchase Brochon was the sole tenant in possession of the 233 premises. At the time of the purchase of the 233 premises, Ralph Pollack, President of Ideal Trading Corporation, purchased the business and stock of the tenant in possession, Brochon, and took over the name of this corporation and continued operating the business which had been ...


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