40 Ill. App. 138 | Ill. App. Ct. | 1891
This 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, “reserving,” as expressed in the deed, “ the right of way over the south part of said tract for transit for fuel.” 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’ 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.
Appellee 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.
The 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’s 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.
On April 30, 1887, Harper conveyed the lot to appellee, also reserving by his deed “ 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.
We think that in its ordinary and popular sense “the south part ” 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.
The south part suggests and supposes a north part, and each is certain—the 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 “ end” and “ sides ” are such “ parts ” as could support a road they are as uncertain as a “middle” part, unless they mean in this connection the same as “ part," and we think they do.
Before 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’s 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’s deed was on record and the way was traceable on thé 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’s.
We 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.
Reversed and remanded.
