{ "id": 5024176, "name": "James Roberts v. John Stephens", "name_abbreviation": "Roberts v. Stephens", "decision_date": "1891-06-12", "docket_number": "", "first_page": "138", "last_page": "143", "citations": [ { "type": "official", "cite": "40 Ill. App. 138" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "110 Ill. 270", "category": "reporters:state", "reporter": "Ill.", "year": 1890, "opinion_index": -1 }, { "cite": "23 N. E. 442", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "year": 1890, "opinion_index": -1 }, { "cite": "116 Ill. 364", "category": "reporters:state", "reporter": "Ill.", "year": 1890, "opinion_index": -1 }, { "cite": "57 Ill. 101", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5241122 ], "year": 1890, "opinion_index": -1, "case_paths": [ "/ill/57/0101-01" ] }, { "cite": "116 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2885347 ], "year": 1890, "opinion_index": -1, "case_paths": [ "/ill/116/0011-01" ] }, { "cite": "6 So. Rep. 686", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": -1 }, { "cite": "87 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5340695 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/87/0215-01" ] }, { "cite": "45 N. W. Rep. 1088", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "15 N. E. 538", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1888, "opinion_index": -1 }, { "cite": "21 N. Y. 605", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "22 N. E. 719", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1889, "opinion_index": -1 }, { "cite": "62 Ill. 30", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606440 ], "year": 1889, "opinion_index": -1, "case_paths": [ "/ill/62/0030-01" ] }, { "cite": "75 Ill. 118", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2701333 ], "opinion_index": -1, "case_paths": [ "/ill/75/0118-01" ] }, { "cite": "117 Ill. 643", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2893993 ], "opinion_index": -1, "case_paths": [ "/ill/117/0643-01" ] } ], "analysis": { "cardinality": 660, "char_count": 10904, "ocr_confidence": 0.557, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3661225036672022 }, "sha256": "418cffb11f86ba827a2a79d463766663d50e9537a21bc831e9556d4223305121", "simhash": "1:0a95e30fad8a1d94", "word_count": 1962 }, "last_updated": "2023-07-14T16:55:04.940945+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "James Roberts v. John Stephens." ], "opinions": [ { "text": "Pleasants, J.\nThis was a bill to enjoin appellee from obstructing a way over his lot, which , appellant claimed as appendant to his. Their premises adjoined. Complainant formerly owned both and had them in one inclosure. On September 1, 1884, he conveyed, what is now the westerly one, to William Harper, \u201creserving,\u201d as expressed in the deed, \u201c the right of way over the south part of said tract for transit for fuel.\u201d The tract conveyed is 277 feet in length, north and south, seventy-seven feet in width at the north end and fifty-two at the south, and adjoins Roberts\u2019 second addition to the city of Colchester. The way or road in question runs east and west, the north side being 153 feet south of the north line of the lot, or about fifteen feet south of the middle line.\nAppellee admits that he has obstructed this road. Readmits also that appellant has a right of way over the south part of his lot, but denies such right over this particular road ; and he claims that he has provided for and offered to him the use of one entering the lot at the south end. On final hearing the bill was dismissed.\nThe evidence clearly shows that for some years before and at the time of the conveyance to Harper, appellant had used the road in question. His coal house was built abutting on it, just east of the line dividing the lots. His garden adjoined the Harper lot on the south and still adjoins it. Harper erected a coal house on his lot, in line with and about eight feet from that of appellant, in accommodation to the road. He, also, with the assistance of appellant, put a gate on the west line, where the road entered the lot. Both the parties recognized and used it as the way intended by the reservation, during all the period of Harper\u2019s possession. The posts at the ends of the gate were eight inches higher than the adjacent fence, and the line of the road was indicated by tracks of the wagons and horses, though it was not much used. Appellant had occasion to use it only once or twice a month, but an ordinary observer, with ordinary sight, could readily see and trace it by these means.\nOn April 30, 1887, Harper conveyed the lot to appellee, also reserving by his deed \u201c the right of way over the south part of said tract for transit for the right to convey fuel to and from,\" etc. Possession was given immediately, and appellee, like his grantor, acquiesced in the continued use of the road by appellant as before and used it himself in like manner, until the summer of 1889, when he moved his coal house and obstructed the way as charged in the bill. The defense is that this road was not over the south part of said tract, and that the reservation was not of a right over any specific road.\nWe think that in its ordinary and popular sense \u201cthe south part \u201d is a description in contradistinction to the north part only. It does not suggest the idea of a middle part. A middle part is no specific part, but any that is embraced in any two lines between the north and south or the east and west boundaries, that are parallel with and equidistant from the middle line.\nThe south part suggests and supposes a north part, and each is certain\u2014the one being all that lies south and the other all that is north of the middle line east and west. Of these two, the road in controversy was certainly not over the north part. It is said these terms here meant the south end or side of the tract. If \u201c end\u201d and \u201c sides \u201d are such \u201c parts \u201d as could support a road they are as uncertain as a \u201cmiddle\u201d part, unless they mean in this connection the same as \u201c part,\" and we think they do.\nBefore appellant conveyed to Harper, there was an old rail fence on the west and north lines of the tract, without gate or hars, which was occasionally taken down, and at other points, bv persons coming on with teams, but appellant himself entered at the point where the gate was afterward put. Harper removed the old rails and built a picket fence instead, in which he set the gate on hinges. That was the point on the west line that was nearest to appellant\u2019s coal house (which was due east), 'and very considerably nearer than any on the north or south lines. Hence his selection and use of that as the way to it from the city of Colchester. There can be no reasonable doubt, from the evidence, that that was the way he intended to reserve, nor that Harper so understood and agreed to it, and intended the same specific way by the reservation in his deed to appellee. Appellant\u2019s deed was on record and the way was traceable on th\u00e9 land when appellee purchased, and the same use was thereafter continued, with his knowledge and consent, for more than two years. These facts, in our opinion, fixed the location as against him, if the terms of the reservation did not. He had no more right to change the point of entrance on his tract than the terminus on appellant\u2019s.\nWe infer from the argument for him, and from the evidence, that the decree must have been based on one or both of the points made by counsel here, and above stated. For the reasons indicated it will be reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Pleasants, J." } ], "attorneys": [ "Messrs. Lawrence Y. Sherman and Agnew & Vose, for appellant.", "Messrs. Prentiss & Baily, for appellee." ], "corrections": "", "head_matter": "James Roberts v. John Stephens.\nInjunctions\u2014Way\u2014Obstruction of.\nUpon a bill filed to enjoin defendant from obstructing a way over bis lot, complainant .contending that the same was appendant to his, this court holds, it appearing that the same had been used with the defendant\u2019s consent for two years after the purchase by him of the lot through which it runs, that its location was fixed as to him, and that the decree in his favor can not stand.\n[Opinion filed June 12, 1891.]\nAppeal from the Circuit Court of. McDonough .County; the Hon. C. J. Scofield, Judge, presiding.\nMessrs. Lawrence Y. Sherman and Agnew & Vose, for appellant.\nIt is not required that appellant\u2019s way should be a physical necessity for the enjoyment of his estate; it suffices that it is highly convenient and beneficial therefor. Cihak v. Klekr, 117 Ill. 643.\nBut the law that only ways of necessity will be reserved as appurtenant to the dominant estate, applies to those created by implication of law alone. Washburn on Easements and Servitudes, 4th Ed., 914-5; Ingals v. Plamondon, 75 Ill. 118.\nWhile appellant was owner of both lots, he arranged and disposed the several parts thereof so as, among other things, to create the way in controversy; he then conveyed to appellee\u2019s grantor.\nThereupon the unity of the estate was severed, the way became appendant to appellant\u2019s lot and the estate of appellant\u2019s grantee became subject to the servitude.\n\u201c The foundation of the doctrine of easements in this and similar classes of cases is a disposition and arrangement of the premises as to the uses of the different parts by him having the unity of seizin and then a severance. It being a general principle in relation to grants that every grant of a thing naturally and necessarily imports a grant of it as it actually exists; unless the contrary is provided for, it would seem to follow that each portion of the several premises should pass subject to all the burdens and advantages imposed or conferred by the proper owner.\u201d Morrison v. King, 62 Ill. 30, and cases cited; Washburn on Easements, etc., page 90, 4th Ed.; Shieds v. Titus, 22 N. E. 719 (Ohio, 1889); Lampman v. Milks, 21 N. Y. 605; Devlin on Deeds, Vol. 2, Secs. 841-2.\nThe language of the reservation is equivalent to reserving a way \u201c where the road now is.\u201d This latter expression is held to fix a way with sufficient accuracy. Brill v. Brill, 15 N. E. 538 (N. Y. 1888).\nWhere land is conveyed \u201c with all the ways, appurtenances' * * * to the same belonging,\u201d any easement or appurtenances already existing and belonging to the land will pass. 2 Devlin on Deeds, Sec. 864, pages 152, 153.\nWhere a right of way is described in the grant as on or near \u201d a designated boundary line, the ambiguity of the locus of the way grew out of the indefinite point of divergence of the way from plaintiff\u2019s land; it could answer the call in the deed by either of two directions; the defendant by his acts gave a construction to the grant and practically explained the ambiguity in its terms by fencing along the way; nor does a change of lines by a new survey affect the way so fixed; we think this case is in point. Fritsche v. Fritsche, 45 N. W. Rep. 1088.\nWhere there is an ambiguity in the clause reserving the way, the practical construction given it by the acts of the parties subsequent to the execution of the deed may be shown by parol; appellee is bound by the practical construction of the deed by his grantor. 2 Devlin on Deeds, Sec. 851, 1042, 1043; see Garrison v. Nute, 87 Ill. 215.\nThe purchaser of the servient estate is charged with notice of the servitudes openly existing at the time of the conveyance.\nVisible objects and structures upon or attached to the servient estate and which appellee might, by the ordinary use of his senses, see or know of, are notice. 2 Pomeroy\u2019s Eq., 41, 48, 51, 53; Id., page 19, Sec. 739.\nAppellant had open possession of way; this is notice. Franklin v. Pollard Mill Co., 6 So. Rep. 686.\nWherever a purchaser holds under a conveyance and is obliged to make out his title through that deed or through a series of prior deeds, the general rule is firmly established that he has constructive notice of every matter connected with or affecting the estate, which appears either by description of parties, recital, reference or otherwise, on the face of any deed which forms an essential link in the chain of instruments through which he derives title. 2 Pomeroy\u2019s Eq., 65, 66, Secs. 626, 627; 2 Devlin, 302-3, Secs. 1000, 1002,\nActs essentially destructive of way or continuous trespasses, hill to restrain is proper remedy, and actual or constructive notice binds purchaser. Willoughby v. Lawrence, 116 Ill. 11; McCann v. Day, 57 Ill. 101; Clarke v. Gaffeney, 116 Ill. 364; Herman v. Roberts, 23 N. E. 442 (N. Y. Jan\u2019y, 1890); 3 Pomeroy\u2019s Eq., Secs. 1295, 1342, 1357; 1 Id. Sec. 271.\nWhen it appears by fair interpretation of the words of a grant, that it was the intention of the parties to create or reserve a right in the nature of a servitude or easement in the property granted, then uncertainty or ambiguity may be solved by the circumstances of the thing granted and the situation and conduct of the parties. Kuecken v. Voltz, 110 Ill. 270; Herman v. Roberts, 23 N. E. 442 (N. Y., Jan\u2019y, 1890).\nIf appellee may at pleasure disturb the long settled relations to each other of those two contiguous lots, appellant\u2019s repose in the enjoyment of his easement may be violated whenever appellee\u2019s caprice or fancy prompts him to again readjust the roadway for the alleged improvement of his lot; we do not understand the law reduces appellant\u2019s easement to such a delusive and vacillating right after it has been once fixed by the acts and conveyances of the parties.\nMessrs. Prentiss & Baily, for appellee." }, "file_name": "0138-01", "first_page_order": 134, "last_page_order": 139 }