| Ill. | May 15, 1886
delivered the opinion of the Court:
We are of opinion that upon the facts of this case, Cihak, the plaintiff in error, has an easement in the alley in question, which can not be destroyed without his concurrence. We would have no doubt in the matter had Mrs. Hubbard, the grantor of Cihak, been the actor in the sale to him, and in the previous management of the entire property, instead of Gunzenhauser. The proof establishes, to our satisfaction, that in 1859 Gunzenhauser, as agent, took charge of the three lots, 19, 20 and 21, fronting on DeKoven street, to care for, lease them, and collect the rents; that for the more advantageous leasing of the lots and deriving the most rental, he subdivided them, making of lots 20 and 21 four lots, fronting on Jefferson street, and dividing lot 19 into two lots, fronting on DeKoven street. He made the four lots on Jefferson street ninety feet in depth, and an alley ten feet wide, the alley running from north to south along the entire east line of lot 19, and taking off the west ten feet of the east two lots, thus forming an alley between the east half of lot 19 on the west, and the four lots on the east; that he drove the stakes for the alley; that he made written leases of the lots, according to this subdivision, leasing the four lots as only ninety feet deep; that in 1859 he leased the east half of lot 19, and the tenant in that year put up a fence on the west line of the alley, and as the four lots east of the alley-were leased, the tenant would put a fence on the west end of his lot adjoining the alley, so that by about 1864 all the four lots east of the alley were leased and occupied, and there was either a fence or shed and barn along the entire east line of the alley, and from that time until 1882, with the alley thus open and defined, all the lots were under lease in the manner stated. This establishment of the alley was not only for the use and benefit of the lots from which it was taken, on the east of it, but it was as well for the use and benefit of the east half of lot 19, which adjoined it its whole length on the west. This alley w7as a manifest advantage to the east half of lot 19, and must have enhanced its rental value. There was a building on the east half of lot 19, fronting on DeKoven street, with its side on the line of the alley, with a window in it, and a door leading into the alley. The alley was actually being used for the delivery of coal and wood for the house, and was the only means of access to the house used for such purpose. If all this had been with the knowledge and procurement of the owner, and she had personally sold the east half of lot 19, the case would seem to be brought within the principle, that when the owner of .two tenements, or of an entire estate, has arranged and adapted these so that one tenement, or one portion of the estate, derives a benefit and advantage from the other, of a permanent, open and visible character, and he sells the same, a purchaser takes the tenement, or portion sold, with all the benefits and burdens which so appear at the time of the sale to belong to it. Morrison v. King, 62 Ill. 34; Ingalls v. Plamondon, 75 id. 118; Jones v. Jenkins, 34 Md. 1" date_filed="1871-02-03" court="Md." case_name="Janes v. Jenkins">34 Md. 1; Huttemier v. Albra, 18 N. Y. 50; Lampman v. Milks, 21 id. 507; Dunklee v. Wilton Railroad Co. 24 N. H. 489; Kieffer v. Imhoff, 26 Pa. St. 438; Cannon v. Boyd, 73 id. 179; Seymour v. Lewis, 2 Beas. (N. J.) 439.
We do not concur in the view of counsel for defendants in error, that the easement to be claimed by the grantee in such a case must be really necessary for the enjoyment of the estate granted. Mr. Bennett, in his edition of Goddard on Easements, page 122, in speaking on this subject of grants of quasi easements, upon the conveyance of one of two lots, says: “The third class of cases is where the quasi easement claimed by the grantee is not really ‘necessary’ for the enjoyment of the estate granted, but is highly convenient and beneficial therefor; and here the modern rule in America is, that if such easement is ‘continuous and apparent’ at the time of the grant, it passes to the purchaser with his estate, otherwise not.” And in Washburn on Easements, (3d ed.) 95, in the discussing of this question the author says: “It (the easement) must be reasonably necessary to the enjoyment of the part which claims it, and where that is not the ease, it requires descriptive words of grant or reservation in the deed, to create an easement in favor of one part of a heritage over another. ” There can be no doubt, here, that the alley was highly convenient and beneficial for the enjoyment of the estate granted to Cihak.
Gunzenhauser would appear to have made the subdivision he did, of his own motion. Wilder was the owner at the. time, and lived in Chicago. All that goes to connect him with the subdivision, is Gunzenhauser’s statement that Wilder was on the ground several times; helped him to get off the squatters; “made no objections to my letting out the land in that way, and was perfectly satisfied.” While Henry G. Hubbard owned the property, he lived in Connecticut, and is not shown to have had any personal knowledge of the subdivision; and the same with Mrs. E. K. Hubbard. We understand she, too, resided in Connecticut. E. K. Hubbard, her husband, testifies that he resided in Chicago from 1835 to 1885; that he had authority from his wife to act on her behalf; says, he thinks his wife had seen the lots; that he saw them after his wife became owner, perhaps once a month; that he did not recollect consulting with any one regarding the subdivision platted and recorded, except, perhaps, Gunzenhauser. And here the inquiry is suggested, why this plat of the subdivision which was made and recorded at the instance of E. K. Hub-hard, and, as Mrs. Hubbard acknowledges, by her direction, comes to correspond precisely with the subdivision which Gunzenhauser made in 1859', and has the same alley of just ten feet wide, exactly as Gunzenhauser staked it out in 1859. It implies knowledge by Mrs. Hubbard of the subdivision, and is evidence tending to show her adoption and confirmation of that subdivision, and of what was done under it.
But without further pursuing this branch of the case, or expressing an opinion whether the circumstances of the arrangement and use of the alley for the accommodation of this lot of Cihak, and selling the lot-with the apparent appurtenance of the alley attached to it; were alone sufficient to give the grantee of the lot the use of the alley, we come to the conclusion that they were sufficient, when taken in connection with the subsequent sales being made subject to the alley. Defendants in error never bought or paid for the alley, or so -supposed. In the deeds for lots 1 and 2, the use of the west ten feet of the lots for a private alley was expressly reserved. And at the time the deed for lots 3 and 4 was made, there was, upon record, the plat of the subdivision, showing the alley upon it. True, it is named “private alley, ” and it is insisted by counsel for defendants in error that this means private to the lots from which the alley was taken,— those on the east side of it,—and that it was for their use only. Under other circumstances,—of Mrs. Hubbard not being the owner of the ground on the west side of the alley,—this might be so. But was it so under the circumstances here ? The alley had originally been laid out many years before, for the accommodation of Cihak’s lot, as well as the other lots, and had ever afterward been used equally for the accommodation of Cihak’s and the other lots. At the time Mrs. Hubbard put the designation “private alley” on the plat, the alley was being so used, and she was the owner of the ground on both sides of the alley, with a building standing on the west line of the alley, constructed with special adaptation for the use of the alley. The alley was important for the beneficial enjoyment of her lot on the west side of the alley, and must have enhanced its value. There was no apparent purpose why the alley should not be as much for the use of the owner’s ground on the one side of the alley as on the other side.
Under such circumstances, we think the meaning of private was, that the alley was private to the owner’s own ground; that the alley was for the use of the owner’s lots only, but of her lots abutting on both sides of the alley, and not for the use, solely, of her lots on one side of the alley. We give no consideration to the manifestly incompetent testimony of E. K. Hubbard, that his wife’s intention was to reserve the alley as a private alley for the use of lots 1, 2, 3 and 4. It was not competent for him to swear to his wife’s, or any one’s else, intention. All that he might do in such regard, would be to testify to acts and declarations, as showing intention. The question here is, what others had reason to believe was the intention from the circumstances, and the acts done. The alley was an important consideration with Cihak when he purchased. An inspection of the abstract of title did not show the alley of record. This defect was brought to the attention of Gunzenhauser, and to assure Cihak that he would get with his lot the use of the alley, the plat of the subdivision, with the alley appearing upon it, acknowledged by Mrs. Hubbard, was shown by Gunzenhauser to Cihak, the former stating that the plat was going to be put upon record. This satisfied Cihak that he would get the benefit of the alley. Gunzenhauser, who made the sale, Kaspar, who acted for Cihak, and Cihak, no doubt, all believed that the recording of the plat of the subdivision would secure for Cihak the use of the alley. It did not occur to either of them that the word “private” had any significance as excluding such use. To so construe that word would be to make it but a snare to entrap the one purchasing the lot on the west side of the alléy. It would be to give to defendants in error ground which they never purchased, and to rob plaintiff in error of an alley the use of which he had good reason to believe he purchased as an appurtenance to his lot.
We find enough in the facts of this case to have put the defendants on inquiry, so as to have affected them with notice of the circumstances upon which we rest the right of the complainant to the use of this alley.
• The judgment of the Appellate Court and the decree of the circuit court will be reversed, and the cause remanded to the circuit court for further proceedings in conformity with this opinion.
Judgment reversed.
Mr. Justice Scott : I do not concur in this opinion.