Story Case

Simon Moore conveyed property consisting of a lot and a dwelling house of five rooms to James Henderson. This property adjoined other property belonging to Moore. The drain from the house sold led across the lot retained by Moore to the street sewer, one hundred feet distant. The conveyance recited that the property was conveyed with "all appurtenances belonging to the house." This, therefore, included the drain leading across the lot retained by Moore.

Four years later, Henderson rebuilt his house, adding five new rooms. After this was done, Moore stopped the drains, saying that he refused to be burdened with the added drain. Henderson contended that this was an easement right which could not be taken from him. Who is correct?

Ruling Court Case. Willougjiby Vs. Lawrence, Volume 116 Illinois Reports, Page 11; Volume 56 American Reports, Page 758

Martin and Lawrence leased, in the city of Chicago, for a period of five years, a tract of land which was to be suitably improved and used for a race track. Martin and Lawrence entered into a written agreement with Willoughby, whereby the latter undertook to build the fences in and around the terrace track. In return for such services, the former, by a written instrument, granted to Willoughby the exclusive right to use all fences and buildings for advertising, during the continuance of the lease. In accordance with the agreement, Willoughby expended large sums of money in constructing the fences. About this time Martin and Lawrence transferred their rights under the lease to the Chicago Jockey and Trotting Club. This club, after taking possession, refused to permit Willoughby to use the fences for the purposes before mentioned. He, thereupon, brought this bill against Lawrence and the club to have them enjoined from interfering with his rights.

Lawrence contended that he had only a license which could be revoked, and that the grant of the right in question does not constitute an easement.

Mr. Justice Magruder said: "The general rule is that two distinct tenements are necessary to the creation of an easement, the dominant, to which the right belongs, and the servient, upon which the obligation rests, as if the owner of one farm has a right of way over the adjoining farm; that in favor of which the right is exercised, is the dominant tenement; that over which it is exercised, is the servient tenement. In easements of this character, the burden rests upon a piece of land, in favor of another piece of land. But there is a class of rights which one may have in another's land, without their being exercised, in connection with the occupancy of other lands, and, therefore, called easements in gross. In such cases the burden rests upon one piece of land, in favor of a person or individ-ual."

It was held that Willoughby's right was an easement in gross which could not be revoked. Judgment was given for Willoughby.

Ruling Law. Story Case Answer

An easement is usually an appurtenance and exists as a right on behalf of one piece of property in respect to another piece of property. In some states, as in Illinois and Massachusetts, there may be easements in gross which are burdens on one piece of property in favor of a person, and not for the benefit of another piece of land. The presumption is, however, that an easement is not in gross wherever it can be construed appurtenant to other land.

Easements may be created by prescription; that is, by an open and hostile user for a period of twenty years. Thus, if A uses a roadway upon B's land for twenty years, claiming a right, and B does not object, after this period A has the legal right thereto, although he may not have had it during any part of the twenty year period. This is frequently the reason for signs upon property marked "No thoroughfare." This protest keeps the twenty-year period from running. Or easements may be created by agreement between the parties. As, for instance, "A" sells Blackacre to "B" and grants to "B" the right to go over Whiteacre; this right of "B" is called an easement; it is a way; it becomes a property right in behalf of Blackacre and passes with Blackacre. When a conveyance or deed includes the grant of an easement, the courts will construe it to give only the rights specified in the deed, or which were exercised at the time of conveyance.

Therefore, where a conveyance is made to an artificial drain over the land of another, and the deed expresses that the drain is limited to a house or barn, the courts will say that the easement is only for the house or barn in the condition in which it was when the grant was made. When the house or barn is increased in size, the other owner has a right to stop the drain.

In the Story Case, therefore, Henderson should have had the deed show that the easement was appurtenant to the land, in which case he could have used the drain for all reasonable purposes to which he might put the land. In the same way, if a right of way is granted for a specified purpose the courts will limit the use to that purpose.