| Ill. | Jan 22, 1891
delivered the opinion of the Court:
The defendant has appeared in this court and moved to dismiss the appeal for want of jurisdiction. The order of the Circuit Court allowing an appeal directly to this court must undoubtedly have been allowed upon the assumption that the case involves a freehold, and our jurisdiction must depend upon whether that assumption is well founded. The bill asserts and seeks to maintain a right in the nature of a perpetual easement, in respect to which the west half of lot 9, in the south block, etc., is the dominant and the east half of said lot is the servient estate. The alleged easement consists of the perpetual right of the owners of the west half of said lot to have the east half kept free from buildings of every character, other than those necessary to provide a proper shelter and covering for a water-w'heel and water-race, so that light coming from the east half of said lot to the windows of the building on the west half shall not be obstructed or diminished, and so that said building shall not be subjected to any increased exposure to fire. This right or easement, if it exists, is clearly an incorporeal hereditament, in which the complainant sets up and is seeking by her bill to establish an estate in fee. A perpetual easement appurtenant to an estate in fee is a freehold.
In Oswald v. Wolf, 126 Ill. 542" date_filed="1888-11-15" court="Ill." case_name="Oswald v. Wolf">126 Ill. 542, we held that an easement appurtenant to one tract of land, in the nature of a right of way over an adjoining tract, was a freehold, and that a suit to recover the possession and enjoyment of such easement was a suit involving a freehold, within the meaning of the statutes fixing the respective appellate jurisdiction of this court and the Appellate Court. See also Oswald v. Wolf, 25 Ill. App. 501" date_filed="1888-03-28" court="Ill. App. Ct." case_name="Oswald v. Wolf">25 Ill. App. 501. We are of the opinion that the same rule applies here. The right which the complainant is seeking to assert and recover, if it exists at all, is a freehold, and the appeal therefore was properly taken to this court.
Assuming then that we have jurisdiction, the only question presented by the appeal is whether the court properly sustained the demurrer to the bill. It is not claimed that the complainant is entitled to any application of the common law doctrine of “ancient lights, ” even if that doctrine was recognized as in force in this State, nor is it pretended that the Rockford Water Power Company, the common source from which both parties derived their titles, in platting the tract of land of which said lot 9 forms a part, in any way set apart or dedicated the east half of said lot to either a public use or to the use of the owners of the adjacent property. On the plat lot 9 was marked and designated as one of the several lots in the block, and there was nothing there indicating that the east half of said lot was reserved or set apart for any particular uses or subjected to any special burdens. Nor do any of the deeds through which the complainant acquired her title purport to convey any easement or servitude in the east half of said lot, or any right to control the mode in which the east half of said lot should be occupied, used or built upon.
The complainant bases her right to relief upon the terms and limitations of the deed from the Water Power Company to Duncan Forbes and the defendant conveying to them, among other property, the east half of said lot; upon the fact that said half lot had been unoccupied by any building other than one built for the mere purpose of protecting the water-wheel and race, for a period of more than twenty years, the complainant and her grantors and the owners of the lot adjoining said lot 9 on the east during that time claiming as an easement the right to have the east half of said lot 9 kept free from all buildings, except as aforesaid, for the benefit of their respective lots; and upon the representations alleged to have been made by the officers of said Water Power Company, at the time of the conveyance by it to the complainant’s remote grantor of the premises now owned by her, that the east half of said lot 9 would be perpetually kept free from buildings, except as aforesaid.
Considering these three propositions in the reverse order of their statement here, it will be observed by reference to the bill, that the deed from the Water Power Company to Duncan Forbes and the defendant conveying to them the east half of said lot 9, and the deed from said company to Emerson and Talcott, the complainant’s remote grantors, conveying to them the west half of said lot 9 and the east half of lot 10, were both executed on the same day, viz, June 26, 1866. There is no allegation as to which deed was executed at the earlier hour, thus leaving room for the presumption arising from the mere fact that there is no allegation to the contrary, that the Forbes deed was executed and delivered and the rights thereby granted vested in the grantees before any rights were acquired by Emerson and Talcott under the deed to them. But it appears affirmatively from the recitals in the Forbes deed that the execution of that deed was merely a compliance with and fulfillment of a contract for such conveyance entered into by said parties February 14, 1865, thus showing that the equitable title of the grantees under the Eorbes deed accrued nearly a year and á half before the execution of the deed to Emerson and Talcott.
There are at least two reasons why the easement in the east half of lot 9 claimed by the complainant can not have resulted from the representations or agreement alleged to have been made by the officers of the Water Power Company at the time of the conveyance of the west half of said lot to Emerson and Talcott. Said easement is an incorporeal hereditament which could be created only by grant, and there is no pretense that there was anything more than an oral agreement in relation to it. In the second place,-the equitable title of the grantees in the Forbes deed certainly, and their legal title presumably, had become vested in them before said representations were made or said agreement by the officers of the Water Power Company entered into. Whatever effect then might be given to said representations or agreement as against the Water Power Company, they can not be held to affect the rights of the grantees in that deed, or to create an easement upon property or property rights which had already become vested in them.
Nor does the bill in our ojiinion make out a case of twenty years’ adverse enjoyment of the easement sufficient to establish a prescription from which a previous grant will be implied. The tendency of the decisions in this country for a considerable time has been against the doctrine of gaining a prescriptive right to the enjoyment of light and air as an easement appurtenant to an estate, on the ground that it is incompatible with the condition of a country which is undergoing such radical and rapid changes in the progress of its growth. 2 Washburn on Real Property, (5th ed.) 365, and decisions cited in note. This view was adopted by this court, after full consideration of the question, in Guest v. Reynolds, 68 Ill. 478" date_filed="1873-09-15" court="Ill." case_name="Guest v. Reynolds">68 Ill. 478.
But an attempt is made to take the case out of the rule thus established by alleging that, for the period of twenty years, the complainant and her grantors had continually, openly and notoriously asserted their adverse right to have the east half of said lot 9 kept unobstructed and clear of all buildings except a covering for a water-wheel, and that the owners of said half lot have continuously recognized that right. There is no allegation, however, of any acts done by the complainant or her grantors by way of asserting their right to an easement in said half block, or of any acts done by the owners of the servient estate by way of recognizing such right. On the contrary, the averments of the bill show that, on the 26th day of June, 1866, the date of the conveyance by the Water Power Company of both the dominant and servient estates, the east half of lot 9 was used for a water-wheel and water-race, and had no building on it except a mere covering for the water-wheel, and that it so continued up to July 12, 1889, the date at which the defendant commenced the erection thereon of his proposed building. During all that time, covering the entire period of the alleged prescription, the owners of said half lot made no attempt, and presumably had no .occasion, to assert their dominion over said half lot by way of occupying it in any other mode or of building upion it in any other form. Nothing transpired during that period by which the complainant’s right to her alleged easement was raised or called in question, and we are therefore unable to see how any amount of assertion on her part of her right to such easement could be of any avail. If she had made public proclamation of her right every day, nothing would have been gained. The owners of the servient estate were called upon to give heed to her assertions of her rights only when they came into collision with them in the exercise of their dominion over their own property, and their failure to respond or deny her claims, so long as they had no occasion to change their mode of occupancy—and that is all, in the- absence of any averment of acts of recognition, the allegation in the bill of their continual recognition of her rights can be held to amount to—can not be set up in aitl of her alleged prescription or pleaded by way of estoppel.
There is an allegation, however, that in 1865, the year before the complainant’s and defendant’s title passed Out of the Water Power Company, a question arose between the owner of the lots lying immediately east of said lot 9 and Duncan Forbes and the defendant in relation to a building which the latter had then lately caused to be moved on to the east half of lot 9, and that on complaint being made to the officers of said company, they decided that the maintenance of said building on said half lot was -an encroachment upon the rights of the owner of the lots east, and that upon notice to Duncan Forbes the defendant, they caused said building to be removed. It is difficult to see how the acts of the parties in relation to that building can throw any light upon the rights of the parties here. The rights or easements which may have been granted by the Water Power Company to the owner of said lots east are not shown, and we therefore can not tell upon what claim of right his complaints were based. The Water Power Company then owned both halves of lot 9, and its assenting to or ordering the removal of said building, whatever may have been its reason for doing so, could have had no tendency to create an easement or servitude upon the east half of said lot 9 in favor of the west half of said lot. Furthermore, there is nothing in the bill showing any privity between the. complainant and the owner of the lots east of lot 9. Her rights are in no way dependent upon those of such owner, and receive no aid from any assertion of right which he may have made. Even if it should be admitted that there is an easement which renders the east half of lot 9 servient to the lots «adjoining it on -the east, that fact would have no tendency to establish a similar' easement in said half lot appurtenant to the lots adjoining it on the west.
It remains to ‘be considered whether the easement set up by the complainant results from the terms and limitations of .'the Forbes deed. That deed granted a certain interest in the grantor’s water-power On Rock River, and also conveyed to the grantees lots 12. and 13 in the west block of the grantor’s lots, “and also, for the purpose o*f locating proper water-wheel and races, to draw said water, the east half of lot 9 in the south block,” etc. I't can not be doubted that the effect of this deed was to convey to the grantees the fee in said half lot. By reference to the operative words of the deed it will be seen that by it the grantor granted, bargained, sold and conveyed, for the purpose above indicated, the east half of said lot 9, the title or interest thus sought to be conveyed being, not an easement or servitude, but the lot itself. What effect then is to be given to the words, “for the purpose of locating proper water-wheel and races to draw said water ?” It is plain that they do not constitute a condition, as there is no provision for re-entry for condition broken, nor is there anything in the instrument indicating an intention on the part of the grantor that the appropriation of said premises to any other purpose should -have the effect of defeating -the estate granted. Nor can said language be construed as a covenant on the part of the grantees to use the property granted for the purpose indicated and none other. No terms are used by which a covenant is ordinarily expressed, nor are there any negative words forbidding the appropriation of the property to other purposes. The contention, however, is, that said language constitutes a limitation on the use to which the grantees are at liberty to appropriate said half lot, thus, in effect, creating a servitude or easement in favor of the adjoining property.
Even if it should be admitted that the clause above quoted, if standing alone, would have had the effect of a limitation or restriction upon the use of the property granted to the mere purpose of furnishing a proper location of a water-wheel and water-race, the conclusion contended for would not follow, as there is other language in the deed which shows that the parties really contemplated a much less restricted use of said half lot. The clause above mentioned has no negative words forbidding the erection on said half lot of a building for business purposes, but in the same part of the deed in which said clause is found, viz, the part usually known as the premises, is the further clause that, “no building is to be erected or business carried on on said east half of said lot 9, in the south block, that shall materially increase the fire exposure of the building on either side of said half lot; aléo, no building or erection is to be put up on said half lot that shall darken any light, within three feet of the west line of said half lot.” In determining therefore what restrictions the grantor intended to place upon the use of said half lot, all of these clauses must be construed together.
In considering them together, we scarcely find room for doubt that the limitation or restriction upon the use of said half lot intended to be imposed was not, as the complainant contends, to the mere location of a water-wheel and race, and such structure as might be fairly necessary to cover and protect the water-wheel, but that the parties contemplated the erection on said half lot of a business building, to be occupied and used for business purposes, subject to two limitations or restrictions, viz, 1. that the building to be erected should be one which would not materially increase the fire exposure of the buildings on either side, and, 2. that no building which would darken any light should be placed within three feet of the west line of said half lot.
The question then arises whether the building which the defendant proposes to erect is shown by the bill to be violative of either of these limitations. There is no averment that the west wall of said building will be within three feet of the west line of said half lot, and therefore, even though it may darken the windows of the complainant’s building, it is not shown to be within the terms of the second limitation; but it is directly and positively alleged that said building will materially increase the fire exposure of the complainant’s building. This brings it within the first limitation above mentioned, and entitles the complainant to relief, if she is in a position to avail herself of the limitation in the Forbes deed.
The limitation in that deed is in the nature of an exception or reservation to the grantor of an incorporeal right in the land granted, and the reservation- being made for the benefit of the adjoining half lot, such right is in the nature of an equitable easement appurtenant to that half lot. Fuller v. Arms, 45 Vt. 400" date_filed="1873-02-15" court="Vt." case_name="Fuller v. Arms">45 Vt. 400; Ayling v. Kramer, 133 Mass. 12" date_filed="1882-05-13" court="Mass." case_name="Ayling v. Kramer">133 Mass. 12; 2 Washburn on Real Property, 2. The conveyance of the west half of said lot through mesne conveyances to the complainant, vested said easement in her .as appurtenant to the property thus conveyed. Where an easement has become appurtenant to a dominant estate, a conveyance of that estate carries with it the easement .belonging to it, whether mentioned in the deed or not. 2 Washburn on Real Property, 317.
As to all other grounds of relief we think the demurrer to the bill was properly sustained, but the defendant should have been required to answer whether his proposed building would materially increase the fire exposure of the complainant’s building. The decree will be reversed and the cause remanded with instructions to overrule the demurrer to the extent and in. the manner above indicated, and for further proceedings not inconsistent with this opinion. ,
Decree reversed.