241 Ill. 42
Ill.
1909
Mr. Justice Carter

delivered the opinion of the court:

Easements may be created by covenants or agreements as well as by grant. (Jones on Easements, secs. 104, 106.) Agreements imposing burdens upon one estate for the benefit of another must be strictly construed. (Eckhart v. Irons, 128 Ill. 568; Downen v. Rayburn, 214 id. 342.) Such agreements, however, creating easements must be so construed as to carry out the plain intent of the parties. (Field v. Leiter, 118 Ill. 17; Barber v. Allen, 212 id. 125.) In construing such instruments the court will look to the circumstances attending the transaction, the situation of the parties, the state of the thing granted and the object to be attained, to ascertain and give effect to the intention of the parties. (Kuecken v. Voltz, 110 Ill. 264.) Construing this contract in the light of these surroundings, it seems obvious that its object was to furnish an outlet for business to the Burlington road for the lots between Allen’s and Mason’s canals. Not only is this indicated by the agreement, but that conclusion is supported' by the terms of the contract entered into by the railroad company in 1864 with the owners of Greene’s South Branch addition as to the right of property holders in said addition to build switches for business purposes from said property to said railroad. The proposition that all the lots between said Mason’s and Allen’s canals south of Twenty-second street were to be permitted to use the curved switch track provided for in said agreement is further strengthened by the addenda made a part of the agreement, which provides that the owners of lots ioi, 102 and 103 may use said curved track under certain conditions different from the conditions provided for the other lots in the main part of the agreement. Moreover, if there is any ambiguity as to the meaning of this contract, the practical construction placed thereon by the acts of the parties can be resorted to to determine the meaning of the grant. (Jones on Easements, sec. 389; Walker v. Illinois Central Railroad Co. 215 Ill. 610; McLean County Coal Co. v. City of Bloomington, 234 id. 90.) Such construction by the Beidlers and Witbecks shows that appellant’s contention that only one track could be constructed south of the south line of lot 86 cannot be sustained, as several branch switches were constructed and in use south of that point for nearly forty years before these proceedings were started. It is obvious from the evidence in this record that the owners of lots 82 to 86 never claimed the right, under this agreement, to use the switches south of the south line of lot 86 from the time said agreement was executed until this controversy arose. Whatever doubt, therefore, there may have been under the original contract, this point must be held to be settled adversely to appellant’s contention as to its present rights in said tracks south of the south line of lot 86: The fact that John H. Witbeck, who was the owner of lots 82 to 86 when said Fisk and Lumber streets were vacated by the city of Chicago, signed a petition requesting such vacation, shows clearly the intention of the then owner that the property might be used for private purposes and that any interest he might have therein was abandoned. His acts in relation thereto are binding upon his successors in title. ( Vogler v. Geiss, 51 Md. 407; King v. Murphy, 140 Mass. 254.) We cannot see how the vacation of Fisk and Lumber streets and the building of the fence across Fisk street, as heretofore set forth in the statement of the case, injuriously, affected appellant’s rights. Since such vacation the Commonwealth Company has built extensive improvements in reliance thereon, and the property owners in the block who consented to the vacation, or their successors in title, are estopped from demanding that the original condition be restored. People v. Wieboldt, 233 Ill. 572.

Had the practice of doing all the switching on the said curved track during the night time, except Sundays, been followed from the time the contract was executed, or even for twenty years continuously, and been adverse, such practical construction of the agreement would have tended strongly to uphold appellant’s contention that the court below was wrong in deciding that the Commonwealth Company had unrestricted rights to the said easement day and night, but the facts as shown in this record indicate that the doing of such switching at night continued less than twenty years and was permissive rather than adverse. We are therefore disposed to agree with the holding of the trial court that the parties to said easement agreement, and their successors and assigns, have the right to use said switch track in common, for the purpose of transferring railroad cars at all times back and forth between said railroad track and the lots in question.

The contention is made that the easement created by said contract of February 28, 1865, was in gross and not appurtenant. This easement satisfies all the requirements of an appurtenant easement. The servient and dominant estates are clearly defined in the contract. An easement will not be held to be in gross if it can fairly be held to be appurtenant. (Louisville and Nashville Railroad Co. v. Koelle, 104 Ill. 455; Kuecken v. Voltz, supra.) If the dominant estate is clearly indicated and the easement is beneficial to such estate then it is appurtenant, and it is not necessary that the dominant and servient estates should be contiguous or that the right of way should terminate, as claimed by appellant, on the dominant estate. (Jones on Easements, sec. 5; Horner v. Keene, 177 Ill. 390; Cady v. Springfield Water-works Co. 134 N. Y. 118.) We do not think Garrison v. Rudd, 19 Ill. 558, holds to the contrary.

It is further contended that section 13 of chapter 30, (Hurd’s Stat. 1908, p. 491,) which provides that “every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance,” etc., has no application to easements. As we understand the argument, it is that if a perpetual easement is to be granted, the word “heirs,” or some other word that would convey a fee under the common law, must be inserted, and that the word “forever,” as used in this agreement, does not answer that purpose. We think this question has been settled adversely to appellant’s contention in Tinker v. Forbes, 136 Ill. 221, Horner v. Keene, supra, Oswald v. Wolf, 126 Ill. 542, and Barber v. Allen, supra. While the ruling of some courts is to the contrary, the weight of authority in this country agrees with the holdings of this court on this question. The dock company acquired a perpetual easement in the curved track across lots 82 to 86 as appurtenant to the lots owned by the dock company at the date of said easement contract,— that is, to lots 87, 88, 89, 90, 93 and the south half of lot 92. It is the settled law in this State that an easement created by a grantor in the lands of his grantee, in favor of the lands retained by the grantor and beneficial thereto, is appurtenant to the lands retained and binding on subsequent purchasers of the grantee’s land. (Jones on Easements, sec. 392; Kuecken v. Voltz, supra; Horner v. Keene, supra.) Without question the authorities support the finding of the chancellor that the easement in said curved track under said agreement is appurtenant to said last named lots for the benefit of the present owner, the Commonwealth Electric Company.

Appellant further insists that no person not a party to the easement contract can take the grant of an easement under it; that the easement contract is necessarily between the parties to it, and that only the dock company, or some one in privity with it, can successfully maintain a suit at law or in equity against the parties of the second part to enforce the provisions of said easement agreement. The trial court agreed with this contention as to a suit at law, but held, in effect, that this is a proceeding in equity and governed by equitable rules of procedure, and that therefore equitable defenses will be sustained and equitable rights enforced herein. (Gage v. Caraher, 125 Ill. 447.) Parol contracts for easements have frequently been given effect by the courts under the rule laid down by Jones in his work on Easements, (sec. 83,) that a parol contract for an easement, which equity will regard as equivalent to a grant, must be “made for a valuable consideration and accompanied by acts of part performance unequivocally referable to the contract.” It has been held in this State that where a person, for a valuable consideration, makes a promise to another for the benefit of a third person, such third person may maintain an action upon such promise; and it is not necessary in such case that there should be any consideration moving from the third person in whose favor the promise has been made. (Dean v. Walker, 107 Ill. 540; Webster v. Fleming, 178 id. 140; Ashelford v. Willis, 194 id. 492.) Courts of equity will enforce agreements creating easements and restrictions on lands when the intention of the parties is clear. Parker v. Nightingale, 6 Allen, 341; Hubbell v. Warren, 8 id. 173.

Without attempting to set, out the evidence in detail here, (it is referred to at some length in the statement of the case,) we think it is clear from this record that the owners of lots south of lot 86 served by the curved track paid to the owners of lots 82 to 86 eleven-fifteenths of the original cost of the section of the curved track, as provided for in said easement contract; that this payment and acceptance was without question referable to the contract, and that the cost of maintaining said curved switch track to the south line of said lot 86 was likewise paid by the owners of lots south of lot 86 served by the curved track, in accordance with the terms of said easement agreement, and also clearly referable to it.

Appellant insists that the payment made under the said original contract should have been in the proportion of eleven-sixteenths to five-sixteenths instead of eleven-fifteenths to four-fifteenths, as shown by this record, and that as the Witbeck Company only paid in the proportion of four instead of five lots, the first contribution as to the original cost of the curved track cannot be referable to this agreement but must have been made under some independent agreement. While the first payment tends to uphold in some measure this contention, we think the testimony of Augustus Beidler and other evidence' shows clearly that the payments, not only for the repair of the tracks but the original cost as provided for in such agreement, were made under this contract. Unless it was understood by the members of the Witbeck corporation and the Beidlers that such payments were being made under such contract, we can see no reason why the easement contract was restored by the then owners of the property and filed for record in 1874, after its destruction by the great fire in 1871.

We cannot sustain the claim of appellant that there can be no prescriptive rights as to some of the appurtenant lots because they were in the possession of tenants during the alleged prescriptive period. This claim is based on the argument that if the.property is in the possession of a tenant the owner is prevented from acquiring an easement therein by prescription. This argument is answered by the fact that John H. Witbeck, who was then the owner of the servient lots, was collecting from the owners of the dominant lots moneys on account of the switch track,—and this during the time the tenants occupied the dominant lots. By reason of these payments and acquiescing in the user of the switch track by said appurtenant lots Witbeck waived all claim on this point. The evidence in this record shows conclusively that the owners of lots 87 to 93 and 33 to 39, inclusive, had been openly and notoriously using the said curved track for more than twenty years before this proceeding was instituted and in accordance with said easement agreement. The use of the curved track by said lots last mentioned being under the easement agreement and referable to it, the user must be held adverse. Schmidt v. Brown, 226 Ill. 590.

Appellant further contends that if it be assumed that the easement contract granted an easement for the benefit of any land fronting on Fisk or Lumber street, provided the owners accepted its conditions, such easement does not extend to the center of the street on which such lots abut. The determination of this question depends very largely on whether the plat of Greene’s South Branch addition to Chicago conformed to the requirements of the statute in force at the time such plat was made. The record shows that the plat of the subdivision was executed and acknowledged by certain of the owners by their attorneys in fact. This was not in compliance with the statute. Blair v. Carr, 162 Ill. 362; Gosselin v. City of Chicago, 103 id. 623; Russell v. City of Lincoln, 200 id. 511.

It is argued, however, that Hance and Greene were the owners of all the property east of the center line of Fisk street at the time this plat was made and that they acknowledged the plat in person, and that therefore the plat as to the property they owned is a statutory plat, even though as to the other parts the owners did not comply with the statute,—that is, part of the plat is statutory and part common law. We cannot assent to this proposition. The plat is an entirety. If any of the owners of property covered by the plat failed to comply with the statute it destroyed the validity of the entire plat as a statutory dedication. At the time the agreement was entered into, Fisk street had not been accepted by the public and the title of the abutting lot owners therefore extended to the center of the street. (Hamilton v. Chicago, Burlington and Quincy Railroad Co. 124 Ill. 235.) Parties will be presumed to have contracted with reference to lots by their legal boundaries. Upon the acceptance of Fisk street by the public the public easement became a charg'e upon the title of the property owners. Such private rights, however, have remained, subject only to the right of passage and use by the public. It appears to be conceded that the vacation of these streets was in accordance with the law. Such vacation, therefore, destroyed the public easement and restored the parties to the full enjoyment of their private rights in said lots. Manifestly, the easement under said contract extended to the center of the street on which the appurtenant lots in question abutted,— that is, the easement extended to the center of Fisk and Lumber streets as to lots 87 to 93, inclusive, and lots 33 to 39, inclusive.

The trial court held that lots 94 to 97 were not shown by the record to have any rights in this easement contract. We think this holding was correct. At the time the easement agreement was executed and the deed given by the South Branch Dock Company to the Witbecks for said lots 82 to 86 Caleb Allen was the owner of lots 94 to 97. As has been stated, he did not purchase stock in said dock company. While it is clear that it was intended that all of the lots between Mason’s and Allen’s canals, including those owned by Allen, should have the benefit of the easement contract under the conditions provided therein, no proof is found in the record that the owners of lots 94 to 97 contributed in any way to the original cost of the curved track or towards its repair. While there is some slight evidence in the record that tends to show that some of the parties who occupied these lots, in connection with certain lots east of Fisk street, for lumber business used the curved track for the purpose of taking lumber to and from said lots 94 to 97, still this proof is very indefinite as to dates, length of time and amount of lumber moved. Indeed, the proof tends very strongly to show that said lots 94 to 97, inclusive, during most, if not all, of the time from the date when this contract was signed down to the time this controversy arose, used the switch track west of Fisk street, which curves south-easterly across said lot 105, for carrying materials between said Burlington road and the lots in question. It necessarily follows from what has been heretofore stated, that the right to use said curved switch- track under said agreement is not attached to the west half of the vacated portion of Fisk street originally included within said lots 94' to 97; and it also follows that the trial court was right in holding that the Commonwealth Company, its successors and assigns, are not entitled to maintain the existing connection between said curved switch track and the track constructed by said company in 1902, branching towards the west from the track in Fisk street opposite the dividing line between said lots 88 and 89, as shown on plat 3.

In view of the conclusions heretofore reached that certain lots are appurtenant or dominant to and certain other lots are non-appurtenant or non-dominant to said easement in the said switch track, one of the most serious and far-reaching questions in this record is whether the present use of said curved switch track by the Commonwealth Company is excessive. The master reported and' the court decreed that the easement was not appurtenant to the vacated portion of the west half of Fisk street,—-that is, the land which had been a part of that street and was originally included in the eastern ends of said lots 94 to 97. The stipulation filed in this' case shows that the ten turbines and generators for supplying electricity in this plant are located on this vacated portion of Fisk street; that at least one-half of each turbine is west of the center line of Fisk street. The precise question thus presented has never been passed on by this court, nor, so far as we are advised, by any other court. Somewhat similar questions, however, have been considered. In Jones on Easements (sec. 32) that author states: “An easement cannot be extended or made to attach to land other than for the benefit of which it was created. It cannot be made to attach to other land which the owner of a dominant estate may subsequently acquire. * * * A land owner conveyed part of his land to a stone company, together with a right to construct a line of railway over the remaining part to connect the land granted with a public railroad. (Hoosier Stone Co. v. Malott, 130 Ind. 21.) It was held that this easement was appurtenant to the land granted, and the stone company had no right to permit its use by third persons to convey stone quarried on lands owned by them.” Again, that author states (sec. 360) : “One having a right of way appurtenant to certain land cannot use it for the benefit of other land to which the right is not attached, although such other land is within the same enclosure with that to which the easement belongs. Except for this rule the burden upon the servient estate might be increased at the pleasure of the owner of the dominant estate. This rule is therefore applicable whether the way was created by grant, reservation, prescription or as a way of necessity. * * * The way is granted for the benefit of the particular land and its use is limited to such land. Its use cannot be extended to other land, nor can the way be converted into a public way without the consent of the owner of the servient estate. One having a right of way to his land blackacre over the land of another has no right to drive his cattle to blackacre and then to other land beyond it.” Howell v. King, 1 Mod. 190.

A owned three lots, all of which were embraced in one pasture, and had the right to cross other land to go to one of these three lots. He crossed this other land and went to one of his lots not dominant to the easement for the purpose of salting sheep, and on his return was assaulted by the owner of the land subject to the easement. The court held that he was a trespasser. French v. Marstin, 32 N. H. 316.

A person had a right to go over certain land to reach a three-acre lot. Adjoining this lot he also owned a nine-acre lot, the two not being separated by any fence. Having mowed the grass on his two lots he proceeded to load the hay, each load containing hay cut from each of the lots. An action in trespass was sustained. The court held that he could only enter the other party’s land to go to the three-acre lot. Davenport v. Lamson, 21 Pick. 72.

One Jenkins was the occupant of a field called “nine-acre field” and of two adjoining fields called “Parrott’s land.” The nine-acre field had a right of way over plaintiff’s land to the public highway. Jenkins mowed all three fields and stacked all the hay, in good faith, on the nine-acre field, afterward selling it to the defendant, James, who carried it across plaintiff’s land to the highway, which was the alleged trespass. It was held that this was not an excessive user of the right of way. Williams v. James, 2 L. R. C. P. 577.

A private carriage road had been established for many years as a means of reaching certain enclosures of meadow and woodland. Afterward Pinch and others acquired a portion of the premises, including the fee (subject to the easement) of the road, and erected thereon a large lunatic asylum. The defendant railway company acquired title to another portion of the premises and maintained thereon a cattle-pen, where large numbers of cattle were driven by' means of the road and were collected and were then driven over the road to the railroad for shipment. Plaintiffs objected on account of the noise. The court held that this was a lawful user on the part of the railway company, and that said company was not restricted to the user which existed at the time of the grant. Finch v. Great Western Railway Co. 5 L. R. Exch. 254. See, also, on this point, Reise v. Enos, 76 Wis. 634; Webber v. Vogel, 159 Pa. St. 235; Greene v. Canny, 137 Mass. 64; Albert v. Thomas, 73 Md. 181.

While the general principles that must control are easily stated, their application to the complex and intricate machinery of modern civilization is not in all cases simple or clear. Some decisions of recent date have been handed down that are more closely in point than the authorities heretofore referred to. An easement was imposed on certain land in favor of a lot called therein for convenience the “pink land,” and afterwards a building was erected partly on said “pink land” and partly on adjoining premises called the “white land,” which was not subservient to the easement. It was desired to use the building for manufacturing purposes and to use this easement for hauling and freight traffic for the benefit of all the building. The court refused such use. Harris v. Flower, 74 L. J. Ch. 127.

An automobile garage was erected on two lots, one of which was entitled to an easement over an alley connecting with the streets. The automobiles from the garage, both that part situated on the land dominant to the easement and that part not on said land, passed in and out of the alley. The court held that the proprietor of the garage might use the alley as appurtenant to that part of the garage dominant to the easement but not as a means of ingress or egress to and from the other portion of the garage by means of the portion which was dominant. Diocese of Trenton v. Toman, 70 Atl. Rep. (N. J.) 606.

A partition deed embracing a number of lots contained a provision that a certain alley should “be forever left open as a means of ingress and egress for the advantage of all the property hereinbefore conveyed and partitioned.” Afterward the Broad Exchange Company acquired title to one of said lots and to certain -other lots not included in said partition deed, and proceeded to erect on all of said lots a large office building, .designed for the accommodation of some seven thousand occupants. The heat and power plant was located on the premises dominant to the easement. The coal, ashes, paper and sweepings of the entire building were conveyed through the alley. The court issued an injunction against the owner of the building and its agents from using the easement until such time as the building should be so arranged as to permit the use of the easement for the advantage of the dominant tenement only. McCullough v. Broad Exchange Co. 101 N. Y. App. 566.

Counsel for the Commonwealth Company argue that as that company has so arrang-ed its entire plant that the part which contains the boilers is on the dominant estate the use of the easement is not excessive, as the company uses the switch track to the dominant estate for the purpose of transferring coal to the furnaces and boilers located on the dominant estate, where the coal is consumed, and the ashes and cinders are then hauled away from the dominant estate over the track. They argue that the steam plant is located next the dynamo plant, where electricity is generated, and that the dynamo plant cannot be considered appurtenant to the easement, under these circumstances, any more than it could if the steam had been piped under the river to turbine wheels on the south side of said river; that the relative location of the steam plant and the dynamo plant is immaterial; that the use of the easement in hauling freight over the switch is not only within the letter but within the spirit of the contract, and counsel insist that the only question presented is whether such use of the easement is within the terms of the grant,—-is unlawful and excessive because adjacent property receives benefit therefrom. To support • their contention, counsel for the Commonwealth Company rely upon certain of the authorities heretofore cited, but especially upon the case of Simpson v. Godmanchester, L. R. App. (1897) 696. In that case the court had under consideration the use of an easement to prevent the flooding of dominant lands. This easement consisted in the right to open sluices for the purpose of protecting from inundation certain lands adjoining the river, and had been exercised for two hundred years in times of actual or threatened flood. A suit was brought to restrain the exercise of this right, and it was held by the court that the lands that had so exercised it in previous years could still continue to exercise it, even though by so doing other lands not dominant were benefited, holding that “it is no objection to the exercise of a lawful right that it may indirectly benefit other persons or subjects which do not enjoy the same right.” We think, however, the question in that case is clearly distinguishable from the one here presented. In that case no greater burden was imposed upon the servient estate, but here the burden imposed is increased and is in excess of the grant under the said easement agreement by the building being located partly on non-dominant estate, as herein set forth.

Counsel for the Commonwealth Company insist that if the rule contended for by appellant be upheld, a steel plant could not use a switch to haul iron and coal for the manufacture of steel billets onto the dominant estate if the billets were subsequently to be rolled into rails on non-dominant lands; that a furniture factory could not use the switch in connection with the manufacture of furniture if the furniture was subsequently to be finished on non-dominant lands; that a car company could not manufacture car wheels on dominant property and use the easement if the wheels were to be subsequently attached to cars on non-dominant property. Under all these illustrations it is argued that other lands would receive the benefit of such use. If this argument were sustained then the Commonwealth Company could have constructed a very small part of its building, containing only the boilers, on the appurtenant lots and could have erected all the rest of the plant on non-dominant property, even though the plant covered acres of ground. No arbitrary or absolute rule can be laid down that will control in every case. The peculiar or special facts of each case must necessarily be taken into consideration in reaching a decision. As a general proposition, however, we think, if the entire plant is operated as a whole, that any integral, necessary or indispensable part of the entire plant cannot be situated on non-dominant estate. As we understand the question on this record, it is necessary for the creation of electricity not only that the boilers make the steam, but, as a part of the same creative act, the steam must be used in the turbine wheels to propel the generators, and the generators must at the same time be used for the purpose of generating electricity,-—that is, the steam cannot be created as an independent factor. It cannot be tranferred to non-dominant estate, and thereafter, an appreciable period of time intervening, used, by a distinct and independent act, for generating electricity, the same as the billets of steel can be transferred from dominant to non-dominant estate and later on changed into the form of rails, or the same as car wheels manufactured on dominant estate can after-wards be transferred to non-dominant property to be used in making cars. The steam plant is not a part of this plant distinct and separate from that part of the plant which generates the electricity. The two are connected together and both are essential in the operation of the electrical plant. How can it be said that they are any more distinct parts of the same plant than that the brain and heart are distinct and each working independently of the rest of the human body? The generators and steam plant are both a part of one uniform and indivisible plant and process. These turbines and generators cannot be operated without the continuous support and application of the steam. Counsel for appellant well argue that this steam plant is no more independent of the rest of the plant than would a steam plant on dominant land in a flouring mill be from the shaft and machinery which grinds the grain on non-dominant land.

Counsel for the Commonwealth Company argue that the use of the switch by the non-dominant property is a reasonable one for the purposes of the dominant property, and that the Commonwealth Company erected its plant in good faith, without intending to subject the easement to a greater burden than was intended when the contract was originally entered into. We are inclined to think that this contention is sound to the extent of holding that the use of this unrestricted way is in good faith and reasonable in so far as the change of use is rendered necessary by using the dominant or appurtenant lots for their present use, instead of the former use of the curved switch track for lumber yards, but we do not think this rale of law can apply to its present use by the non-dominant lots. On principle and authority the holding of the trial court on this last point cannot be sustained. The entire plant of the Commonwealth Company, as shown on plat 3, both east and west of the center line of Fisk street, must be held to be one integral, indivisible and entire whole, and the use of the switch in hauling coal for this entire plant must be held to be an excessive user. The decree of the chancellor should have so found.

We are also disposed to hold that the trial court improperly decided that under this agreement the Commonwealth Company had the authority to connect the branch switch, as shown on said plat 3, opposite the middle part of said lot 85. Most favorably construed for the Commonwealth Company’s contention, we do not think this easement contract by its terms was intended to allow more than one track north of the south line of said lot 86.

It is contended, however, that the construction placed upon this contract by the parties interested in years past permitted a branch or extra switch to be connected and built north of said south line of lot 86. The proof as to any switch being built north of said south line of said lot previous to 1902 is not at all clear or satisfactory. It is true, there is some evidence in the record that one switch track branched off from the main branch or switch at some point opposite lot 86, but just how far north of the south line of said lot no witness testified, though all the evidence is that no switch track ever branched off north of lot 86.

Counsel for the Commonwealth Company contend that, even if this state of facts be admitted, appellant not having raised this question until the amendment of its petition filed in 1908, it therefore waived its right to raise it. Even if John H. Witbeck stood by and permitted the construction of the switch track without objection, it cannot be held that the Commonwealth Company acted in ignorance of its rights, and no delay short of the statutory period will bar the relief contended for. Burrall v. American Tel. Co. 224 Ill. 266; Spalding v. Macomb and, Western Illinois Railway Co. 225 id. 585.

We think we have covered all the material points raised on this record. The facts are complicated and many of the questions difficult. We have been greatly aided in our study of the case by the well arranged and able briefs of counsel, together with the very complete statement of facts in the report of the special.master.

The decree of the superior court will be reversed and the cause remanded, with directions to re-enter the decree modified in accordance with this opinion, so as to enjoin and restrain the appellee the Commonwealth Electric Company, its officers, agents and employees, from using said easement over said curved switch track in connection with any lands which (as specified in this opinion) are not dominant to said easement; also to enjoin and restrain said company, its officers, agents and employees, from using the said easement over said curved switch track in connection with the building containing the generating plant, until such plant is so arranged as to permit the use of said easement for the advantage and benefit only of the lands that are dominant to it, without by the same act subjecting the easement to use in connection with non-dominant lands; also to enjoin and restrain said company, its officers, agents and employees, from the use of the switch track which branches off from the east of said main curved track opposite lot 85, unless and until said switch track is changed and re-built so as to connect with said main curved track not farther north than the south line of lot 86. In all other respects the decree will remain unchanged.

Reversed and remanded, with directions.