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Kaufman v. 666 North Water Bldg. Corp.

FEBRUARY 25, 1971.

E.H. KAUFMAN ET AL., PLAINTIFFS-APPELLEES-CROSS APPELLANTS,

v.

666 NORTH WATER BUILDING CORPORATION ET AL., DEFENDANTS-APPELLANTS-CROSS APPELLEES.



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT F. WEBBER, III, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The trial court's decree quieted title in plaintiffs for purposes of ingress and egress upon described easements and permanently enjoined the defendants from blocking and interfering with plaintiffs' right to use such easements. The defendants, 666 North Water Building Corporation, hereinafter called Building Corporation, and Faries Wire Inc., hereinafter called Faries, appeal.

The easements at issue arise through deeds between three tenants in common exchanged in 1925. As a result of such partition, Lot 5 herein called Tract A. vested in interests which are designated Shellabarger. At the same time, Lot 8 herein designated Tract B, vested in one Thatcher. The third tenant in common, one Maffit, received a Lot 7 adjacent but not contiguous. The parties believe that such Lot 7 is not herein immediately involved. The easements at issue consist of a strip 13 feet in width along the south side of Tract A and a strip 13 feet in width along the north side of Tract B. The strips are contiguous and create a way for ingress and egress of a total width of 26 feet. The provisions creating the easement in Tract A are in the language:

"* * * reserving an easement, however, in a strip thirteen feet wide off the entire South side of said described premises of egress and ingress for driveway purposes to Mary H. Thatcher and Irene T. Shellabarger, their heirs and assigns, provided, however, that upon the payment of Nine Hundred Dollars to the said Irene T. Shellabarger, her heirs or assigns, and said strip being permanently closed, all her right, title and interest in and to said easement, including a similar easement in a strip of the same dimensions immediately South of the strip herein reserved and contained in a conveyance this day made by the said Irene T. Shellabarger and Alice Neta T. Maffit to Mary H. Thatcher, shall be extinguished and this reservation of no effect * * *"

The deed between the tenants in common creating an easement in Tract B is in the following language:

"* * * reserving an easement, however in a strip thirteen feet wide off the entire North side of said described premises of egress and ingress for driveway purposes to Alice Neta T. Maffit and Irene T. Shellabarger, their heirs and assigns, provided, however, that upon the payment of Nine Hundred Dollars to the said Irene T. Shellabarger, her heirs or assigns, and said strip being permanently closed, all her right, title and interest in and to said easement, including a similar easement in a strip of the same dimensions immediately North of the strip herein reserved and contained in a conveyance this day made by the said Irene T. Shellabarger and Mary H. Thatcher to Alice Neta T. Maffit, shall be extinguished and this reservation of no effect. * * *"

As a result of such reciprocal deed provisions, there was created: (1) an easement appurtenant to Tract A, i.e., a 13 foot strip along the north side of Tract B, with a like servitude in a strip of 13 feet along the south side of Tract A; (2) an easement appurtenant to Tract B, i.e., a strip 13 feet wide along the south side of Tract A with a like servitude upon a strip 13 feet wide along the north side of Tract B.

In the brief and arguments the easement appurtenant to Tract A and a servitude upon Tract B is called the "south strip", while the easement appurtenant to Tract B and the servitude upon Tract A is called the "north strip". We will use the same designations.

Defendants state the issues to be: (1) whether an easement was created in the "south strip" by the deeds in 1925; (2) whether the easement in the "north strip" was extinguished by merger; (3) whether the easements created by the deeds in 1925 were extinguished by operation of the terms of such deeds.

The trial court filed a memorandum reflecting his determination that the deeds of the tenants in common in 1925 created reciprocal easements appurtenant to Tract A and Tract B. Such memorandum suggests that the defendants below argued that the easements were in gross, but such issue is not raised here. The court further noted that the stipulation of the parties showed that there was no complete and co-extensive ownership of the dominant and servient interests so that there was no merger of such interests as would extinguish the easement of the plaintiffs. The court further determined that the easements were not extinguished by operation of law or by the acts of the parties in interest, and hence the easements were not terminated pursuant to the conditions in the deeds of the tenants in common in 1925.

The devolution of title in the respective parcels is significant. As to Tract A, Shellabarger retained title from 1925 until November 1, 1952, when title passed to defendant, North Water. As to Tract B, the original grantee, Thatcher, conveyed a portion of Tract B, herein designated Tract B-1, to one McNeil in 1942. Tract B-1 was the northerly portion of Tract B and the entire servient estate in favor of Tract A was along the north side of Tract B-1. The conveyance of McNeil was made expressly subject to the easement in favor of Tract A. Tract B-1 was conveyed to defendant Faries on September 1, 1960.

In the conveyance of Tract B-1 to McNeil, Thatcher reserved an easement of the dimensions of 18 feet by 48 feet on the west end of Tract B-1 to be used by the grantor Thatcher, "in common with grantees for purposes of ingress and egress."

In 1947, the remaining portion of Tract B, herein called Tract B-2, was conveyed to Shellabarger. The latter conveyed Tract B-2 to one Kaiser on August 28, 1952. Plaintiffs are the grantees of Kaiser.

Defendants argue that the deed in 1942 whereby Thatcher conveyed Tract B-1 to McNeil contained no reservation of interest in the easement at issue for the benefit of Tract B-2, although another easement was created by such deed, and that the deeds in partition do not provide a reservation of mutual use to the 26 feet of way. In Beloit Foundry Co. v. Ryan, 28 Ill.2d 379, 192 N.E.2d 384, the Supreme Court stated an easement is a right or a privilege in the real estate of another, and when exercised in connection with the occupancy of other land it is said to be appurtenant thereto. Ordinarily such an easement is appurtenant not only to the dominant tract as a whole, but also to each and every part thereof, and it is not extinguished by division of the dominant estate but thereafter enures to the benefit of the owners of the several parts. An easement appurtenant passes by conveyance of the land to which it is annexed and the servient estate continues to be subject thereto until such right is ...


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