Carter v. Michel , 403 Ill. 610 ( 1949 )

The record in this case discloses the buildings on the two lots in question were erected thereon, with the incorporated passageway, by the then owner of both lots. From 1914 until 1936 the two lots were under the unified ownership of different individuals of the Hagel family, and the passageway was used by them and their tenants. Eugene M. Hagel, as the last holder of the unity of seizin, sold lot 7 in the fall of 1936 to appellants by warranty deed which contained no reservation of an easement for the benefit of the then present or future owners of lot 8. Eugene M. Hagel thereafter transferred lot 8 to his father, Eugene A. Hagel, and the latter in turn sold lot 8 to appellee Elizabeth Carter (then Sheridan) in the fall of 1942 by deed which did not contain any provision concerning or reference to the use of the passageway over lot 7.

The master and chancellor found the passageway had been used many years as a common passageway by the various owners and tenants of both buildings; that the use of the passageway was open, visible, continued and uninterrupted; that the way was necessary for the reasonable enjoyment of the adjoining property; and that all the elements were present to impose an easement by implication upon lot 7, and findings were made and a decree entered accordingly.

One of the main elements of such an implied grant is that before a separation of the title occurs the use must have been so long continued, obvious or manifest to that degree which will show the use was meant to be permanent. Permanency can only be based upon the length of time over which the passageway has been used by others. This, of course, does not include tenants or licensees. During much of the time since 1914 there was unity of seizin in Eugene M. Hagel, the last time as late as 1936. His ownership of both lots was equal in duration, quality and all other circumstances of right.

The law is settled that where there is a unity of absolute title to and possession of the dominant and servient estates in the same person it operates to extinguish such easement absolutely and forever, for the reason that no man can have an easement in his own land. 17 Am. Jur., Easement, sec. 139;Smith v. Roath, 238 Ill. 247.

Therefore, not until the separation of title by Eugene M. Hagel in 1936 can we look to the facts of ownership, possession and use to determine whether that use was meant to be permanent. The appellees did not acquire title to lot 8 until 1942. It cannot be said, at the time of the purchase by appellees in 1942, that the passageway had been used (since 1936) for so long a continued and uninterrupted period of time to show the use was meant to be permanent. It would seem from the facts the contrary appears and no rights can be acquired by appellees in the property of appellants by the mere permissive use since 1942.

Likewise, mere convenience to an adjoining property owner cannot impose the right of use or easement over the land of an adjoining owner. It is held in some cases that another element of an implied easement is that it be "necessary," in others, "highly convenient and beneficial." No precise definitions can be stated to bring a case within either of the above rules. There is a wide range between the two. The law should give some consideration to the holder of the servient estate in determining what is necessary and highly convenient and beneficial. In the placing of easements by implication against the property of another, equity should place the requirements nearer the necessitous end of the range rather than the convenience and beneficial end thereof.

The imposition of an easement here seriously affects the absolute, free and untrammeled ownership of title to lot 7. At the time the premises were purchased it would have been a simple matter to have caused to be included in the deeds any rights or easements granted or reserved, in accordance with the understanding and agreement of the parties. This was not done. In fact, proof was offered tending to establish there was no such agreement or understanding and such proof indicates that, at the time appellants made the purchase, they would not consummate the transaction or accept title if the premises so purchased by them contained any such reservations.

For the reasons assigned the decree should be reversed.