{
  "id": 5254576,
  "name": "Benjamin W. Wood v. Ida Carter",
  "name_abbreviation": "Wood v. Carter",
  "decision_date": "1897-05-24",
  "docket_number": "",
  "first_page": "217",
  "last_page": "220",
  "citations": [
    {
      "type": "official",
      "cite": "70 Ill. App. 217"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 356,
    "char_count": 6185,
    "ocr_confidence": 0.544,
    "sha256": "c350e26981cbe47b7bc36606520047a512342d7928a8221e9ba73d2c4e16281a",
    "simhash": "1:d0f6e52794622340",
    "word_count": 1137
  },
  "last_updated": "2023-07-14T18:32:17.018382+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Benjamin W. Wood v. Ida Carter."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nThis is an action of covenant by the appellant against the appellee. The only question in the case is upon the construction of words in a warranty deed from William Speight and wife.\nBy events since the making of the deed the appellant has succeeded to the benefit secured by those words, and the appellee is bound to perform what they require.\nThe words follow a description in the deed of the premises conveyed, and are as foll\u00f3 ws :\n\u201c Also the right of way over, across and upon a private alley, to be kept opened and maintained by the said Speights and all future owners of the residue of said sub-lot one, upon the east eight feet nine inches (8\u00a3- feet) of the south thirty-three (33) feet of said' sub-lot one; said alley was to be only for the use in common of all the owners and occupants of said sub-lot one, and for the use of no other persons or property soever; said Speight reserving to himself, and such future owners, the right of arching over the said alley-way at a height of not less than ten (10) feet from the ground, thereby making the same a covered passage-way.\u201d\nThe south thirty-three feet of sub-lot one is the northeast corner of Huron and Clark streets in Chicago, and the premises conveyed were next north thereof.\nHuron is an east and west street, so that the premises conveyed have no access to Huron street without this alley.\nThe principal contention is on the word \u201c ground.\u201d\nThe appellee insists, and the court held, that it meant the surface of the earth as the aborigines left it, or at latest as it was at the date of the deed, September 15, 1864.\nThe appellant claims a practicable alley for wagons from Huron street to the premises conveyed, regardless of changes in the surface of Huron street.\nThat at the date of the deed it ivas intended that this alley should give access with wagons to the rear of the premises conveyed, can hardly admit of doubt.\nAccess from Clark street there was\u2014the front was there. The alley is not upon some part of the eight feet nine inches, but upon the whole, one part as much as another. The height, unobstructed, is to be not less than ten feet, and with these features it is to be \u201ckept and maintained\u201d by the grantor and his successors. \u201c Ground \u201d most frequently means earth surface; but it also means the lower surface in the space to which the word relates, as the dictionaries teach us, and as popular writers exemplify.\nSuch an alley as will give free passage from Huron street, with teams and loads that will go under any covering not less than ten feet above the surface of the alley, the appellee must keep and maintain.\nThe case having been tried without a jury, we would be glad to enter final judgment here; but there is not sufficient data for us to fix the damages to which the appellant is entitled by reason of the breach of the covenant.\nThe fact of the breach, under our construction of the covenant, is not denied.\nThe judgment is reversed and the cause remanded.",
        "type": "majority",
        "author": "Mr. Justice Gary"
      },
      {
        "text": "Mr. Justice Gary\non petition for rehearing.\nThis petition calls upon us to take more notice of some circumstances shown in the record than we did in the original opinion.\nFirst. Ten years after the deed was made the appellant built upon the property he holds, and in so doing, he built on his lot, at the north end of the passage-way, a wall to prevent the earth of his lot from falling into the alley, the surface of which was then lower than Huron street, and lower than the surface of the rear of the lot; and also so occupied his lot by building that no wagon could go upon the lot and turn. This, it is insisted, was a practical construction by the appellant of the covenant, and also an abandonment of the easement, further than as a foot-way.\nBut the convenience of a wagon-way to Huron street, while not as great when the wagon must back in, is not thereby wholly lost. It may be a valuable incident to the lot that goods can be received and delivered in that way, and the appellant is entitled to whatever appurtenances belong to his lot, regardless of the mode in which he will use it.\nSecond. That the opinion is wrong in not considering that the reservation of the right of arching the alley was also a reservation of a right to'support the arch on the eight and three-quarters feet.\nThe arch was the grantor\u2019s own affair. How he should support it was no more the concern of the appellant than of what material it should be built.\nAll the interest that the appellant had in the arch was that the width and height of the way should not be diminished to such an extent as to seriously embarrass the use of the alley by wagons.\nIf a support of an arch can be.so placed in the eight and three-quarters feet as not to have that effect, such support would not be a breach of the covenant.\nThe petition is denied.",
        "type": "rehearing",
        "author": "Mr. Justice Gary"
      }
    ],
    "attorneys": [
      "Oliver & Mecartney, attorneys for appellant.",
      "Monk & Elliott, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "Benjamin W. Wood v. Ida Carter.\n1. Deeds\u2014A Deed Construed.\u2014A covenant in a deed granted the right of way over, across and upon a private alley, \u201c to be kept opened and maintained,\u201d and reserved \u201c the right of arching over th\u00e9 said alley-way at a height of not less than ten feet from the ground.\u201d Held, that the word \u201c ground \u201d referred to the surface of the earth as it might be from time to time, and not to the surface as it was in its original state, and that an alley of the agreed width, free from obstructions, and giving free passage to teams and loads able to pass under any covering not less than ten feet above the surface of the alley, must be kept and maintained.\n2. Easements\u2014Abandonment of, by Implication.\u2014An owner of land is entitled to whatever appurtenances belong to his land, regardless of the mode in which he uses them, and the fact that he builds on his land in such a way as to interfere with the use of an easement can not be held to be an abandonment of it.\nCovenant, for a failure to maintain a private alley. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.\nHeard in this court at the March term, 1897.\nReversed and remanded.\nOpinion filed May 6, 1897.\nRehearing denied.\nOpinion filed May 24, 1897.\nOliver & Mecartney, attorneys for appellant.\nMonk & Elliott, attorneys for appellee."
  },
  "file_name": "0217-01",
  "first_page_order": 217,
  "last_page_order": 220
}