180 N.E. 816 | Ill. | 1932
Lead Opinion
Evert T. Look, Jr., filed a bill in the circuit court of Peoria county to restrain Antje Bruninga and Lammert G. Bruninga from interfering with the complainant in the use of a roadway. The cause was referred to a master, who heard evidence and recommended that the relief prayed be granted. From a decree entered in accordance with this recommendation the Bruningas have appealed.
On August 20, 1850, Evert Tebbon Loock, grandfather of appellee, purchased an eighty-acre tract of land in Peoria county. The north half of this tract will be spoken of hereinafter as the north forty and the south half as the south forty. Loock lived in a house on the south forty. The house stood some distance from the highway which runs east and west along the south line of the south forty. A road led from the highway to a point near the house and then extended through the barnyard across a creek and natural ravine and over a hill in a general northwesterly direction. There was a gate across the road near the barnyard. Loock died intestate in 1876. Tebbe E. Look, Lammert Look, Bonnie Look, John E. Look and George Look, Loock's sons, were his only heirs-at-law. Bonnie Look was the father of appellee. In 1883 or 1884 these heirs came together to settle the estate. As a result of the proceedings Bonnie was deeded the north forty and George the south forty. The consideration stated in each deed was $1842.50. Upon the death of Bonnie ownership of the north forty passed to appellee. Appellant Antje Bruninga acquired the south forty by purchase in 1926. *185
While the record is voluminous it is necessary to note the evidence in its controlling phases only. Appellee testified that he was present upon the occasion when Loock's heirs came together, at which time he was twenty years old; that an auction was then held; that Bonnie Look wanted to purchase the entire tract, but George Look wanted a forty; that after a number of bids were made the entire tract was awarded to Bonnie; that George said he wanted a forty; that Bonnie said he was agreeable to this but that the north forty was not on a road; that Bonnie said if George would take the north forty Bonnie would give him a right of way out on the old road across the south forty; that George wanted the south forty, and said that if Bonnie would take the north forty George would put a gate at the line fence where the road entered the north forty from the south forty and give Bonnie a right of way forever through the south forty; that Bonnie then agreed to let George have the south forty; that from then on until the time of his death Bonnie used the roadway every year; that witness has used it for forty-six years; that from the time the north forty was acquired, witness' father and witness worked the road and kept it passable, such work consisting of cutting down brush and overhanging branches of trees and hauling cinders and doing graveling and grading to fix washouts; that at one time George's sons, who then owned the south forty, asked witness' permission to put padlocks on the gates to protect their corn from cattle, offering witness a key, and that witness agreed and was given a key.
John G. Look, son of George, a witness for appellants, stated on direct examination, in answer to a question as to whether Look ever had any interest in the roadway: "Not that I know of, but they used it. During the time we owned it we didn't give them permission to use it. There was nothing said. We kept the gates up on either side of the property." On cross-examination he stated: "When *186 I speak of keeping up the gates I refer to the inside gates as well as the gate on the public road and the one that divides this place from the Evert Look place. We had the whole fence between us and Evert Look on the north side that divides that forty from the Evert Look place. We took care of all of it and the gate was a part of what we had to take care of. That gate has been there as long as I know." Witness further testified that they once put a crop of wheat across the road, but it was not done for the purpose of keeping appellee out.
Lammert Look, another son of George, testified that the road was plowed up and wheat was planted but witness told appellee to go on through; that appellee crossed through there for thirty years and never asked consent; that "he went right along and used it," and that there was a gate in the fence "and we kept that gate up."
Appellant Lammert Bruninga testified that there were wagon tracks as far as the house and beyond it, up over the hill, twenty-six years ago, and a gate on the north side as long as witness could remember; that he was not on friendly terms with appellee; that he hauled a load of ground feed through there and had trouble going through the creek and asked appellee to fix the road; that appellee did not go down and fix it so witness could get through, but that the time before that witness got stuck, and appellee went down and fixed it without witness telling him.
Andrew and Warner Harkens testified to having known the property for over forty years and to having observed appellee's continuous use of the road. Andrew stated that he had helped appellee to work it, hauling cinders and gravel on it and filling up holes. Warner testified to having seen crops on top of the hill on the south forty but that there were never any crops in the road, and that "they crossed the road with a harrow but they never plowed the road."
The master and chancellor found that upon the occasion of the auction George Look agreed that if he were permitted *187 to have the south forty Bonnie Look could have a right of way over the south forty forever; that as a result of this agreement Bonnie permitted George to purchase the south forty; that over fifty years prior to the present proceeding there was established a clearly defined right of way over the south forty to the north forty; that this right of way was established by the heirs of appellee's grandfather for the purpose of a roadway permitting ingress to and egress from the north forty; that this right of way had been used continuously by the owners of the north forty since its inception and as appurtenant thereto; that Antje Bruninga resides on a piece of land immediately adjoining the south forty on the east and from her dooryard can observe approximately this entire right of way and has known for thirty-nine years that it was being used for the purpose of ingress to and egress from the north forty; that appellee has shown an open, visible, adverse, continuous and uninterrupted use of the right of way for over twenty-five years under a claim of right and with the knowledge and acquiescence of the owners of the south forty, and that he has acquired a prescriptive right to use the right of way and has thereby established an easement over the south forty which is appurtenant and appendant to his property. The decree restrained appellants from interfering with appellee's free and complete use of the right of way.
Appellants contend that no effect can be given to the agreement made between Bonnie and George Look at the time of the auction because it was void under the Statute of Frauds. In so far as the contention means that the agreement cannot be enforced as such, it is, of course, meritorious. To say that the agreement cannot be taken into consideration in any way at all, however, is going too far. This court considered a very similar situation in Schmidt v. Brown,
A similar problem was presented in McKenzie v. Elliott,
The above cases are decisive of the issue here. The master and chancellor were well warranted in finding that the north forty was purchased as the result of an agreement whereby its purchaser was to have a right of way forever over the south forty. The evidence amply shows that there was thereafter a continuous user of the right of way under claim of right based on this agreement. Appellee and his father worked the road and kept it in repair. Appellants' predecessors in title maintained gates which were erected in connection with its use, asked permission to lock them, and cultivated the land in a manner which accorded recognition to the rights of appellee. While the owners of the south forty also made some use of the road, the same element was present in the Schmidt case and was held not to prevent the use by the owner of the dominant tenement from being exclusive.
Dexter v. Tree,
Appellants insist that this case is governed byMorse v. Lorenz,
Appellants contend that Bontz v. Stear,]
Appellee's father joined in the warranty deed conveying the south forty to George Look. Appellants contend (1) that the agreement for the right of way cannot be considered because it alters the terms of a sealed instrument subsequently executed; and (2) that appellee is estopped by the warranty of freedom from incumbrances to assert that there was any easement for right of way when the deed was executed. These contentions are without merit. We have already stated that appellants are warranted in insisting that the parol agreement was void and in itself vested the owner of the north forty with no rights whatever. Consequently there is no agreement in existence to vary the terms of a sealed instrument. There was no breach of the covenant against incumbrances, because no incumbrance by way of easement was in existence when the deed was executed. Appellants insist, nevertheless, that Biwer v. Martin,
Appellants contend, lastly, that equity has no jurisdiction of this case, citing Oswald v. Wolf,
The decree of the circuit court is affirmed.
Addendum
The foregoing opinion reported by Mr. Commissioner Edmunds is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Decree affirmed. *193