Gooch v. Furman

Mr. Justice Waterman

delivered the opinion of the Court.

We do not think that it appears that appellant had any right to use the passage in question as a means of access to and from his gymnasium; in other words, appellant had not a right as against appellee to an easement in the passage additional to the use which prior to and at the time of appellant’s leasing had been enjoyed by the tenant of, or was appurtenant to, the premises leased by him.

The use by the tenant of Mo. 4045 Avas merely for purposes incidental to ordinary house keeping; not as a way of access to a gymnasium used by a school of boys.

The lease of appellee ivas prior in point of time and is of Mo. 4047 “and the grounds adjacent thereto, as the same were (are) occupied and enjoyed by the party of the second part at the date thereof.” At the date of such lease the adjacent grounds, the passage, was not occupied or enjoyed by the party of the second part thereto, subject to use by the pupils of the tenant of Mo. 4045 for ingress and egress to a gymnasium. Whatever right to use this passage Avas then appurtenant to Mo. 4045, Avas such as had arisen by usage or manifest intention in the arrangement and construction of the three dwellings by the common OAvner.

In Cihak v. Klekr, 117 Ill. 643, the Supreme Court said: “When the owner of tivo tenements, or an entire estate, has arranged and adapted these so that one tenement, or one portion of the estate, derives a benefit and advantage from the other of a permanent, open and visible character, and he sells the same, a purchaser takes the tenement, or portion sold, with all the benefits and burdens which so appear at the time of the sale to belong to it.”

By this is not meant that a passage adapted for the use of two dAvelling houses is thereby set apart for whatever use the owner or lessee of one dwelling sees fit to put it to. Being apparently designed to be used for dwelling house purposes, it can not be put to use as an adjunct to an obnoxious business, contrary to the wish of the occupant of one of the dwellings, an adjunct to which, as such, it is. Prior to the lease to appellant, appellee had acquired and was in possession of this passage as an adjunct to the dwelling house 4047, and the barns in the rear; the barns to be occupied for the purposes of a private sales stable. The premises 4045 had not, up to the letting to appellant, been used other than for dwelling house purposes. We are of the opinion appellant has a right to the use of this passage-way for dwelling house purposes only.

The court should not have awarded damages upon the dissolution of the injunction. The bill was not only for an injunction, but for mandatory relief, viz., the removal of the fence erected by appellee, or the opening of a gate therein. The expense incurred by appellee was in a trial upon the merits of the entire case, and in preparation therefor, and this expense to appellee, appellant should not have been ordered to recompense. Lambert v. Alcorn, 144 Ill. 313-330.

The decree of the Superior Court is reversed and the cause remanded, with directions to enter a decree enjoining appellee from obstructing or continuing any obstruction now existing to the use of said passage-way for dwelling house purposes only, by the occupant of 4043 and 4045 Drexel Boulevard, and finding that appellant has no right to the use of such passage by himself or pupils for the purpose of ingress dr "egress to the gymnasium on the said premises of appellant, such decree to be without costs to either party.

Heither party will recover costs in this court. Reversed and remanded with directions.