Schmidt v. Brown
80 N.E. 1071
Ill.
1907
Check Treatment
Mr. Justice Vickers

delivered the opinion of the court:

By appellant’s second and appellees’ fourth propositions of law submitted, the trial court was asked to declare the legal effect of the contract between Peter Smith and Dr. Brown of 1883, set out in the foregoing statement. Appellant asked the court to hold that the effect of such agreement was merely to give Brown a parol license, which was revocable. Thе court refused to so hold, but held, as requested by appellees’ fourth proposition, that the way in question had been used as a private way for more than twenty years under an. agreement with the owner of the land, Peter Smith, made in 1883, by the father of appellees, and that it had been used under a claim of right with the knowledge and acquiescence of Peter Smith and Thomas Smith, his successor in title. Thеse rulings are assigned as error and relied on by appellant to reverse the judgment below.

The alleged agreement not being in writing, was void under the Statute of Frauds and could not operate as a grant or a conveyance; but the parties to it treated it as giving Dr. Brown some sort of right to the roadway, and under this supposed agreement he claimed the right to use the road in question, and his claim thereto, was' known to Peter Smith and his son, b'oth of whom recognized the claim of right in the Browns to the use of the roadway. Appellant contends that since the alleged agreement between Peter Smith and Dr. Brown was inoperative and void under the Statute of Frauds, the only effect it could have was merely as a permission from Smith to Brown to use the way, which, having originated in a license, could nevеr ripen into a prescriptive right, however long continued.

There can be no question as to the legal conclusion of appellant if he is right in his contention as to the meaning of the alleged contract. In order to establish a way by ‍​‌‌​‌‌​​‌‌‌‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​​​‌​​‌​​‌‌​​‌​​​‍prescription, either public or private, the use must be adverse, uninterrupted, exclusive, continuous and under a claim of right. (Town of Brushy Mound v. McClintock, 150 Ill. 129; City of Chiсago v. Chicago, Rock Island and Pacific Railway Co. 152 id. 561; Township of Madison v. Gallagher, 159 id. 105; Illinois Central Railroad Co. v. City of Bloomington, 167 id. 9; O’Connell v. Chicago Terminal Railroad Co. 184 id. 308.) When the arrangement was entered into between Peter Smith and Dr. Brown in regard to this road, it is clear, both from the language used and the subsequent conduct of both parties, that it was the understanding that Dr. Brown was to have something more than he had hitherto enjoyed in the roadway. The evidence shows that the roadway had been open to the free and uninterrupted use of Dr. Brown and his predecessor in title for about forty years prior to 1883. At no time had there been the slightest objection or interference by Smith of such use, but up to 1883 it might be doubted whether the use was under a claim of right. Dr. Brown’s desire for further assurances from Smith as to the future use of the road might have proceeded from a want of entire confidence in his right as it then existed* or, on the other hand, it may have arisen from a wise foresight which enabled him to turn to good account the exigencies of the situation and re-enforce his claim against possible future attacks without implying any want of confidence in his right as it then existed. However this may have been, it is certain thаt it was not the intention of the parties that Brown’s position was to be made less secure by the agreement than it was before. If appellant’s contention is sustained, the result is that the agreement converts a user of about forty years, which might be the basis of a prescriptive right, into one under a license, thereby destroying any existing right acquired by past user and at the same time making it impossible to аcquire any prescriptive right in the future. Manifestly, such was not the intention of the parties. Whether the agreement is to operate as a license or as the basis for a claim of right depends primarily upon the language employed by the parties. If the language is such as to create a license only, the enjoyment under it is to be regarded as permissive and not of right, and no title is aсquired under it, however long continued. If, on the other hand, the language purports to give a right to the way and the use is continued under such claim of right for twenty years, the use is adverse and will ripen into a prescription. (Jones on Easements, sec. 179.)

There is a substantial agreement between the witnesses as to the language of this agreement. Thomas Smith says: “I heard my father say this: ‘If you will make a road through Kеnnedy’s place then you shall always have a road out to it.’ ” On cross-examination this witness says: “My father said if they would help him with a road that he would see that he was not shut up,—something to that amount. Anyway, it was an agreement between Dr. Brown and my father that the road should be left open. They made the road themselves to get into the new Vienna road. As long as my father lived that agreement was carried out. My father and Dr. Brown got the road through the Kennedy place.” Appellee Gus Brown testifies: “Mr. Smith and my father bought this road in order to get to town, and then my father said to him: ‘Mr. Smith, I am willing to help you buy that road, but I am just a half mile from this road., and it may be you or somebody else would want to shut me up, and I am willing to help buy that road if you will give me assurance that that will be open.’ Smith says: ‘You shall always have a road; I will see that you are never shut out.’ A day or two later my father went down and bought the road.” John Smith, son of Peter Smith, says: “My father told Brown that he would see that he was never shut out. ‘You shall never be shut up,’ I think are his very words.” James Brown gives a similar account of the agreement.'

The evidence is clear and satisfactory that Dr. Brown carried out his part of the agreement and that the road over the Kennedy land was opened up and used in accordance with the wishes of Peter Smith. It is also shown, without any contradiction, that Peter Smith and his son, Thomas, always recognized the right of Dr. Brown and his family to use the road at all times. Two years after the death of Dr. Brown, which occurred in 1886, Peter Smith applied to the widow and Gus Brown for permission to put up gates in the road. Instead of the use of Brown being by the mere permission of Smith, the evidence shows that Smith would not place gates in the road without the permission of the Browns. Again, ‍​‌‌​‌‌​​‌‌‌‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​​​‌​​‌​​‌‌​​‌​​​‍after the death of Peter Smith, when Thomas Smith wanted to straighten the road so as to put his land in more convenient shape for cultivation, he applied to the Browns for permission, and the road was straightened accordingly. Beginning in 1883, under a claim of right the Browns used the roadway continuously until the appellant locked the gates, in 1905,—a period of over twenty-two years. Thus, taking the language of the parties into consideration as well as their conduct under the agreement, it is clear that the parties to the contract understood that in consideration of Brown’s assistance in procuring the Kennedy road he was acquiring a permanent right to the road through' the Smith farm.

We do not want tо be understood as holding that this parol agreement was valid and had the effect of transferring any right or title to Dr. Brown. On the contrary, we hold that the contract was utterly void under the Statute of Frauds. If the contract was valid and passed the title to the easement we would have no occasion to consider the question of prescription. Even though the contract was void because not executed in conformity to the Statute of Frauds, yet such contract may serve to show that Brown’s user was under a claim of right. The claim of right which enters into every case of adverse enjoyment need not be a well founded claim,-—-it need only be a claim of right. A user under a contract void under the Statute of Frauds is a good claim of right. (Washburn on Easements, chap, 1, sec. 4, par. 28; Jones on Eаsements, sec. 179; Buswell on Lim. and Adverse Possession, sec. 267; Graham v. Craig, 81 Pa. St. 459; Outcalt v. Ludlow, 32 N. J. L. 239; McKenzie v. Elliott, 134 Ill. 156.) “A grant, a sale, or gift of lands by parol,” says Shaw, C. J., in Summer v. Stevens, 6 Metc. 237, “is void by the statute; but when accompanied by actual entry and possession it manifests the intention of the donee to enter and take as owner, and not as tenant, and it equally proves an admission on the part of the donor that the .possеssion is so taken. Such possession is adverse.” Brown’s use of this road was adverse, uninterrupted, continuous and exclusive and under a claim of right. The fact that other persons also used the roadway does not prevent ‍​‌‌​‌‌​​‌‌‌‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​​​‌​​‌​​‌‌​​‌​​​‍Brown’s user from being exclusive. “Exclusive use” does not mean that no one used the way except the claimant of the easement. It means no more.than that his right to do so doеs not depend on a like right in others. The use may be exclusive, within the meaning of this rule, even though Smith and others also used the road. Washburn on Easements, sec. 44, p. 164; Jones on Easements, sec. 272; Bennett v. Biddle, 150 Pa. St. 420; McKenzie v. Elliott, supra.

We are of the opinion that the agreement, and the user under it for more than the requisite period, together with the clear recognition of Brown’s rights by the owners of the Smith farm, wаrranted the court below in refusing appellant’s second proposition of law, in which the court was requested to hold that such agreement only operated as a license, and that appellees’ fourth proposition was a correct legal conclusion under the evidence in the record.

Appellant has cited a number of decisions of this and other courts which hоld that where the proprietor of land has a' private way through his own land and for his own use, the mere permissive use of it by others for any indefinite time, such as a half, a century, would not confer any right to its continued enjoyment. Among the cases in this court where this rule is recognized are Dexter v. Tree, 117 Ill. 532, City of Chicago v. Chicago, Rock Island, and Pacific Railway Co. 152 id. 561, and City of Chicago v. Borden, 190 id. 430. These cаses, and others in line with them, are not applicable to the facts here. Where a proprietor sets apart a portion of his land for a private passway for his own personal use across his own land to reach a street, a public highway or other point, the bare fact that the public or other persons may also use such private passway gives no right by prescription. But that is not this case. Here Peter Smith did not lay out this road as a private way for his own use, nor does it appear that his predecessors in title, if there were any, laid out the road. The road was in existence at least ten years before Smith obtained title, in 1853. 'The road extended, not from Smith’s farm to a highway, but from Brown’s place, more than a quarter of a mile north of the Smith house. How, then, cаn it be said that the road in question was the private way of the proprietor of the Smith farm? True, the road is located upon the Smith farm, and should the way be abandoned the roadway would revert to the owner of the Smith farm; but this same contention could be made with respect to most highways or private ways in the State. The very existence of an easement presupposes ‍​‌‌​‌‌​​‌‌‌‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​​​‌​​‌​​‌‌​​‌​​​‍that the title tо the reversion is in another. No one can have an easement in his own land. If one having an easement acquires the fee in the servient estate the easement is destroyed. (3 Greenleaf’s Cruise on Real Property, 225; Jones on Easements, sec. 835.) Smith had no easement in this roadway. His title to the road was a fee in the land and was not any different from his title to the residue of the farm. That Smith owned the fee is conceded, but that he had any higher or different right to the roadway than to any other part of his farm is denied. He could pass over the roadway $ so could he likewise pass over any other portion of his farm. But his title in the roadway was charged with the burden of the easement which appertained to the Brown farm as the dominant estate, which he could not lawfully interrupt or destroy. Cаses may be found where a proprietor has set apart a strip of his estate for his convenience in passing and re-passing and which is used by the owner as a passway, wherein such strip may be spoken of as a private way of the owner; but such language should not be understood as describing any different right or title than exists to the whole estate, but only as describing the use to which the owner has еlected to put a part of the estate.

Appellant insists that the use of this roadway under the agreement brings this case within the rule laid down in Forbes v. Balenseifer, 74 Ill. 183, and Lambe v. Manning, 171 id. 612. To this we cannot assent. In the Forbes case four adjoining land owners agreed, by parol, to leave one rod outside of their fences for a road north and south, thus making a road two rods wide running,across their lands to a highway on the south. The fences were so built and the road opened for the use of the said proprietors. In a short time, less than three years, one of the proprietors sold his land without making any reservation. After the purchaser of one tract became the owner he closed the lane by erecting gates. There was no question of prescriptive right involved, and the court held that the parol agreement merely operated as á license and that no interest in the easement passed. Had the proprietors of the other tracts used this way for twenty years under the agreement as a claim of right and had such right been recognized by the purchaser, then there would be some analogy between that case and the case at bar. In the Lambe case there was a mere license to take gravel from a pit to repair a mill-dam. It was held that the death of the licensor or licensee revoked the license, and that a remote grantee of the mill property could not set up a right to use the gravel pit after the licensor’s death and after the property had been sold under partition. The easement in the Lambe casе, if such it could be called, was ,in gross, and in no event could the owners of the mill property set up a claim thereto simply because a remote owner of the mill had once enjoyed such an easement. We fail to find anything in either of these cases that militates against the views we have expressed in the case at bar.

Appellant urges upon our attention the suggestion that if any easement existed here it was personal to Dr. Brown, and that appellees, who are his children, cannot set up such easement as a justification of the alleged trespasses,—in other words, it is said the easement, if any ‍​‌‌​‌‌​​‌‌‌‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​​​‌​​‌​​‌‌​​‌​​​‍existed, was in gross and not appendant to the Brown farm. In the absence of proof to the contrary it will be presumed that Dr. Brown died intestate, and that appellees, as his heirs, inherited, together with his other children, all of his inheritable property. (Lyon v.Kain, 36 Ill. 362.) Being the owners, by descent from their father, as tenants in common, .of the Brown farm, appellees might lawfully do what any other tenant in fee could do to enable them to enjoy the estate and its appurtenances. Was the way in question a way in gross or was it appendant to the Brown farm? A way that is apрendant is an inheritable estate and passes to the heirs and to all subsequent grantees. If the way leads to the grantee’s land and is useless except in connection with it, and was used solely for access to such land, it is appurtenant to it. (Jones on Easements, sec. 19.) A way is in gfoss when there is not a dominant estate to which it is attached. (Garrison v. Rudd, 19 Ill. 558; Koelle v. Knecht, 99 id. 396; Willoughby v. Lawrence, 116 id. 11.) In the Rudd case it was said (p. 564) : “They [private ways] are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming, must inhere in the land, concern the premises and be essentially necessary to their enjoyment.” Again, in the same case, it is further said: “This right is said to be in gross when it is not attached as an incident to an estate, and is conferred by deed or by reservation in a deed, the distinction being quite manifest between a grant of land where a way is appendant which carries the way, and a grant of a way separate from any estate, in gross or specially.” In Koelle v. Knecht, supra, it was said (p. 403) : “It [an easement] is appurtenant or appendant to an estate in fee in lands, or in gross, to the person of the grantor fоr life or for years. * * * When in gross it is purely personal to the holder. When appurtenant, it is attached to and is an incident to the land and passes with it, whether the land be conveyed for a term of years, for life or in fee. It is an incident to the land, and cannot be separated from or transferred independent of the land to which it inheres.—Washburn on Easements, p. 10.” The way in question has all of the elеments of an easement appendant to the Brown farm as the dominant estate, and hence it passed to appellees as an appurtenance to their father’s estate.

Finally, it is contended that appellees had no right to take the law into their own hands and remove the gates from the way, and that even if the right of way existed, it is said appellees did not have the legal right to remove the gates. This is a misapprehension of the rule of law applicable to the facts. We have already sought to show that appellees were entitled to the enjoyment of an easement over the lands of appellant. A purchaser of a servient estate charged with an easement which is discoverable on examination, takes his title subject to the easement. (Morrison v. King, 62 Ill. 30; Ingals v.Plamondon, 75 id. 118; Cihak v.Klekr, 117 id. 643; Edwards v. Haeger, 180 id. 99.) Appellant had no better right to obstruct this road than his grantor. The roadway was open and visible and appellant had occupied the Smith farm for five years before he purchased it, during which time it is fair to assume that he became familiar with the road and the uses which the Brown family made of it. As already pointed out, he asked аnd obtained permission to put the gates up in the first instance, which indicates that he had full notice of the rights of the Browns in the roadway. After appellant had locked the gates and refused to open them upon notice, appellees clearly had the right to peaceably remove the gates. The right to remove a private nuisance by abatement by the party aggrieved has always been recognized by the common law. In Cooley on Torts (3d ed. vol. 2, p. 748,) the author says: “As an obstruction or encroachment would constitute a private nuisance, the owner of the easement may, when practicable, under the rules applicable to the abatement of nuisances in general, proceed to abate it.” If in so doing the owner exceeds his right he becomes a trespasser. (See, also, Webb’s Pollock on Torts, p. 515.) The rule applicable to the abatement of nuisances by a private individual is thus stated in a note found on page 515 of Pollock on Torts: “The true theory of abatement of nuisance is, that an individual citizen may abate a private nuisance injurious to him when he could bring an action, and also when a common nuisance obstructs his individual right he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing.” We conclude that the conduct of appellees was within the protection .of the law, and that the court properly held that they were not guilty of the trespass alleged against them. It follows that the judgment of the trial court is free from error and that the same should be affirmed.

Judgment affirmed.