Appeal from the Circuit Court of Cook County; the Hon. DONALD
J. O'BRIEN, Judge, presiding. Affirmed.
Rehearing denied and opinion modified October 6, 1969.
Plaintiff Glen View Club filed an action for a mandatory injunction to compel defendant Ferdinand J. Becker to remove a retaining wall and patio from an area which encroached upon the plaintiff's alleged easement for a private road. The trial court granted the motion for summary judgment and entered a decree in accordance with the prayer of the complaint. Property owner has appealed to this Court.
The record discloses that Glen View Club is a golf and country club which acquired title to certain club grounds on April 19, 1897. In 1902, Andrew Blaes was the owner and in possession of land just north of the golf club. By a deed dated August 9, 1902, and recorded April 26, 1915, Blaes conveyed what the club now contends was an easement for a road from the north line of the club property to the intersection of Coronet Road and Woodland Drive, both streets being located in the Village of Glen View. The instrument referred to recited in part as follows:
"This Agreement Made this Ninth day of August, A.D. 1902, between Andrew Blaes of Niles Township, Cook County, Illinois, party of the first part, and the Glen View Club, a private corporation organized and existing under the laws of the State of Illinois, party of the second part, Witnesseth:
"First. That for and in consideration of the sum of One Dollar ($1.) in hand paid by second party to first party, the receipt of which is hereby acknowledged, and in the further consideration of the mutual agreements and covenants hereinafter mentioned, the party of the first part gives, grants and leases in perpetuity for the purposes of a private road, street or thoroughfare to the party of the second part, the following described tract of land:
"The East Thirty-three (33) Feet of the West Eleven (11) Acres of the South-west Quarter of the South-east Quarter of Section Thirty-six (36) Township Forty-two (42) North of Range Twelve (12) East of the Third Principal Meridian.
"Also, a strip of land Sixty-six (66) Feet in width beginning at the South-west Corner of the tract of land last above described running thence South and about One Thousand (1000) Feet more or less to a fence dividing the land now owned by said first party, in the North-west Fractional Quarter of Section Eight (8) Township Forty-one (41) North of Range Twelve (12) East of the Third Principal Meridian, from the land now owned by said second party; thence East about Five Hundred (500) Feet; thence North Sixty-six (66) Feet; thence West about Four Hundred and Sixty-six (466) Feet; thence North a distance of about Nine Hundred and Thirty-three (933) Feet to a point sixty-six (66) Feet from the place of beginning of said last or second described tract, a plat of which land is hereto attached and made a part hereof for further certainty.
"Second. It is mutually covenanted and agreed by and between the parties hereto that the party of the first part shall have the privilege so long as said strip of land shall be used or occupied by said second party as a private road, street or thoroughfare, for free and uninterrupted access to the Club grounds of first party, said grounds of said second party being otherwise known and described as The South-west Fractional Quarter of Section Eight (8) Township Forty-one (41) North of Range Twelve (12) East of the Third Principal Meridian in said Cook County, Illinois, for himself and his tenants occupying cottages adjacent to the grounds, house and property of the party of the second part, provided that such cottages shall be, in order to enjoy said privilege, members in good standing in said Club of said second party."
It is noted that the instrument refers to land in Range Twelve (12) when the only land the club owned and the only abutting land that Blaes owned at the time was in Range Thirteen (13), according to the pleadings.
By deed dated March 18, 1920, Andrew Blaes, the grantor of the road to the club in 1902, deeded the property over which the alleged easement ran to Genevra L. Couch and such deed contained the following language:
"The East Thirty-three (33) feet of said premises is a part of a private road over which the grantor, his heirs and assigns and the Glen View Club have and are to continue to have a right of way."
The description in this deed to Couch referred to the correct Range 13.
In 1942, the Cook County Forest Preserve District condemned the east thirty-three feet of the roadway and in May, 1942, a condemnation judgment was entered and ...