APPEAL from the Circuit Court of Mason County; the Hon. LYLE
E. LIPE, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Plaintiff Thomas Davis brought suit on behalf of himself and all similarly situated lot owners in Quiver Lake Chautauqua Park (hereinafter the Park) against defendant Havana Mineral Wells, Inc., the owner of the portions of the Park not platted as lots, for a declaratory judgment recognizing an easement in such lot owners for the use and enjoyment of the unplatted portions of the Park and for an injunction restraining defendant from interfering with the lot owners' use and enjoyment of the unplatted portions of the Park. After hearing, the trial court ruled that defendant was the owner in fee simple of the unplatted portions of the Park, that it and its predecessors in title had exercised complete control over those areas since about 1912, and that the easement claimed was barred by the statute commonly referred to as the Illinois Marketable Title Act (Ill. Rev. Stat. 1971, ch. 83, pars. 12.1-12.4), and denied the injunctive relief sought. Plaintiff appeals.
The record indicates that on July 1, 1912, a plat of Quiver Lake Chautauqua Park was recorded in Mason County, Illinois. On October 1, 1912, in a warranty deed, the developer of the Park, Quiver Lake Chautauqua Association, conveyed a lot to Kathryn Selters "as shown on the Plat." The Selters deed included the following covenant:
"It is covenanted and agreed by the grantor herein, that the land in the said Park lying West of the road shown and designated on said Plat as `Lake Drive,' and extending to the meandering East line of Quiver Lake, shall be, at all times, held for the use and enjoyment of all persons owning lots in said Park, and for the benefit of said lots; and that no buildings or structures shall be constructed thereon which shall obstruct the view of said Quiver Lake from said `Lake Drive.' This covenant is made for the benefit of the land herein conveyed, and shall run with the land and be binding upon the grantor herein, its successors and assigns."
The deed also stated that the conveyance was "made subject to the terms and conditions of a certain lease for 99 years, entered into by and between the grantee and grantor herein, of even date herewith."
In 1959, plaintiff and his wife purchased this lot from successors in title of Kathryn Selters. The deed conveying the property to them did not refer to any such covenant or lease, however.
Two other deeds containing language identical to that of the Selters deed also appear in the record. One of the deeds, dated October 1, 1912, conveyed a lot to Mattie G. Schilling. However, the 1961 deed conveying the lot from successors in title of Mattie G. Schilling did not include the covenant or refer to any lease. The other deed, dated October 19, 1912, conveyed another lot in the Park to another owner.
The record also includes two identical documents purporting to be 99-year leases for two lots in the Park. One of the leases was for the lot purchased by Mattie G. Schilling and was dated October 1, 1912. The other lease, dated July 13, 1913, was for a lot for which the deed of conveyance to the original individual lot owner is not in the record.
Each lease provided that "in consideration of the sum of ONE DOLLAR and other good and valuable consideration received," the subject lot was leased to the Association for a period of 99 years. During this period the lot owner would be permitted to use the property if the use were in accordance with the Association's bylaws. In addition, the parties to each lease agreed that the Association would provide a caretaker for the Park to be paid for by a tax levied on the lot owner, that the lot owner could rent the premises to others for profit and the Association would attend to the rental in return for 10% of the rent, and that the Association would be allowed to cross the lot with sewer lines and other improvements for which the lot owner would pay a proportionate share. Both leases also contained the following provision:
"It is covenanted and agreed by the parties hereto, that the said Park herein referred to, and of which the premises hereby leased form a part, shall be used for Chautauqua and Resort purposes; and that, should said second party [the Association], its successors or assigns, for any reason, cease to use said Park for Chautauqua or for Resort purposes for a period of three consecutive years, this lease shall, at the option of said first party [the lot owner], be terminated."
On August 4, 1926, the name of Quiver Lake Chautauqua Association was changed to Quiver Lake Mineral Springs, Inc. Subsequently, in 1931, Havana Mineral Wells, Inc., was organized as a corporation and purchased all of the Park except the platted lots which had been sold to individual lot owners.
On February 16, 1972, Havana Mineral Wells, Inc. published a newspaper notice stating that all leases, claims, and easements on its property were cancelled. "No trespassing" signs were subsequently posted on unplatted portions of the Park and a road was barricaded. Plaintiff filed the instant suit on July 7, 1972.
Plaintiff bases his claim that the lot owners have an easement in all of the unplatted portions of the Park on the covenant found in the three deeds to original individual lot owners, including the Selters deed in his own chain of title, the provisions of the 99-year leases referred to in those deeds, and the plat of the Park.
• 1 We first consider the 99-year leases. Plaintiff argues that since identical leases were found for two of the lots, his lot and all of the other lots in the Park must have been purchased subject to the same lease arrangement even though the leases have not been found. A lease, unlike a covenant which may be binding on all lot owners in a development even though it does not appear in all of the deeds, requires privity. Thus, in order to ...