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A decree pro confesso in a mortgage foreclosure, against one known by the complainant to be a lunatic, and for whom no guardian ad litem was appointed, will be set aside, where the relatives of the incompetent were given no notice of the suit, with the exception of one with whom the plaintiff colluded to deprive the incompetent of his equity of redemption in the mortgaged premises. Ammon v. Wiebold (1901) 61 N. J. Eq. 351, 48 Atl. 950.
And in Crawford v. Thomson (1896) 161 III. 161, 43 N. E. 617, it was held that a judgment confessed by a person insane at the time was properly set aside.
In Consolidated Coal Co. v. Oeltjen (1901) 189 Ill. 85, 59 N. E. 600, the court sustained the granting of a motion by the subsequently appointed
conservator of an insane person to set aside a judgment entered against such insane person on his own motion, in an action in which he appeared as plaintiff by an attorney.
And in Craddock v. Brinkley (1919) 177 N. C. 125, 98 S. E. 280, a suit to set aside a judgment in an action in the name of a woman and her husband to settle the boundary line between her land and that of the defendant, it was held that the judgment was properly set aside on the finding of the jury that she was insane and confined in an insane asylum at the me the boundary action was instituted, and at the time of the rendition of the judgment, and that the husband, on the receipt of a sum of money from the defendant's attorney, consented to a judgment giving the defendant 20 acres of his wife's land.
G. V. I.
Easements, $ 29 division of estate by will effect.
The rule that upon division of an estate open and visible easements existing in favor of one portion to the detriment of the other continue in favor of the grantee applies where the division is by will.
[See note on this question beginning on page 233.]
APPEAL by defendant from a decree of the Circuit Court for Washington County (Bernreuter, J.) overruling a demurrer to a bill filed to restrain defendant from maintaining an obstruction across plaintiff's alleged private way, over which he claimed an easement of passage over defendant's land. Affirmed.
The facts are stated in the opinion of the court. Mr. J. Paul Carter, for appellant: 247, 62 N. E. 604; McEwan v. Baker, An easement cannot exist in one's 98 Ill. App. 271; Kuhlman v. Hecht, 77 own land for his benefit.
Ill. 570. St. Louis Bridge Co. v. Curtis, 103 An easement appurtenant to land III. 410; Smith v. Roath, 238 Ill. 247, can only be acquired by grant or pre128 Am. St. Rep. 123, 87 N. E. 414; 19 scription. C. J. p. 945, $ 156, note 59.
Lake Erie & W. R. Co. v. Whitman, A way by necessity is one which is 155 Ill. 514, 28 L.R.A. 612, 46 Am. St. incident to a grant, and without which Rep. 355, 40 N. E. 1014; Forbes v. the grant would be useless.
Balenseifer, 74 IlI. 183. Banks v. School Directors, 194 Ill. Prescription, to be the basis of any right, must have been for the neces- ing defendant's 20 on the east, and sary length of time, and is strictly
26 acres in section 21. The bill construed, and the use must have been
avers all the land in section 2 was hostile and exclusive in its inception, being used by the testator for farmand have continuously so remained.
ing; that there were a dwelling Davis v. Howard, 172 Ill. 340, 50 N. E. 258; Travers v. McElvain, 181 Ill.
house and farm buildings on the 382, 55 N. E. 135; Kuecken v. Voltz,
east 40 of complainant's 80, which 110 III. 264; Illinois C. R. Co. v. Moore,
80 joins defendant's 20 on the east; 160 Ill. 9, 43 N. E. 364.
that there was located a right of Permissive use is presumed so to way running west from complaincontinue, and prescription cannot be ant's dwelling house across the based thereon.
south side of his 80 acres, and Palmer v. Chicago, 248 Ill. 201, 93
across the south end of defendant's N. E. 765; Doss v. Bunyan, 262 Ill. 101,
20 acres immediately west of com104 N. E. 153; Holston v. Needles, 115 III. 461, 5 N. E. 530; Rich v. Naffziger, plainant's land, which intersected a 248 Ill. 455, 94 N. E. 1; Thompson v.
public highway at the west line of Toledo, St. L. & W. R. Co. 271 Ill. 11, said 20 acres; that when Henry 110 N. E. 901.
Hoepker, Sr., purchased the land, in Mr. James A. Watts for appellee. 1872, the private way was the only Farmer, Ch. J., delivered the opin
way of ingress to and egress from ion of the court:
the 80 acres he devised complainant, Henry Hoepker, Jr., filed his bill and up to the time of his death was in chancery in the circuit court of traveled by him and his tenants to Washington county against William and from said land, and since his Hoepker for an injunction requiring death has been used by complainant the defendant to remove an obstruc
in attending church and school, and tion placed by defendant across a
in securing timber from the 26 acres private way or road, over which the in section 21; that in 1880 Henry complainant claimed he had an Hoepker, Sr., lengthened the private easement of passage over land of de- way by extending it north, from its fendant, and to enjoin him from
eastern terminus as originally laid further obstructing or maintaining out, a half mile, to intersect a public an obstruction across said right of highway on the north line of section way. The defendant demurred gen- 2, thereby giving an outlet north erally and specially to the bill. The and east to the village of Addieville; court overruled the demurrer, and that defendant had knowledge of defendant refused to answer, and
the existence and use of the private elected to stand by the demurrer.
way as originally laid out and exThe court thereupon ordered the tended, and frequently traveled it in bill to be taken as confessed, and visiting complainant; that the prirendered a decree granting the re- vate way was visible from deeply lief prayed for in the bill. The de
worn tracks made by long years of fendant has prosecuted an appeal to
use; that the use of the private way this court.
by complainant was and is reasonThe bill alleges complainant and ably necessary to the full enjoyment defendant are brothers, sons of
of and use of his land; that in March, Henry Hoepker, Sr., deceased; that 1923, defendant erected an obstrucin 1872 Henry Hoepker, Sr., owned
tion of posts and wire across the all the lands described in the bill, in- private way, and deprived comcluding the lands now owned by plainant and his family of the use complainant and defendant, and
and defendant, and of it; that he refused to remove the continued to own them until his obstruction on request, and declared death, in January, 1917; that he left his intention to continue it, and as a will, by which he gave defendant a result complainant and his family a certain 20 acres, with other land, are deprived of a way from their in section 2, and gave complainant residence to church and school, and 80 acres in the same section, adjoin- to procure fuel and timber from the
(309 II. 407, 141 N. E. 159.) land in section 21, except by travel- church and school and to complaining a circuitous route, lengthening ant's land in section 21, except by a the distance 1 mile. The bill alleges circuitous route, necessitating travthat a suit at law will result in a el of a mile further. multiplicity of suits and irreparable It has been held in Cihak v. damage to complainant, and prays Klekr, 117 Ill. 643, 7 N. E. 111, and an injunction commanding defend many other cases, that where the ant to remove the obstruction, and owner of an entire estate has so arrestraining him from continuing it. ranged and adapted it that one por
Defendant contends it cannot be tion of the estate derives a benefit determined from the bill whether and advantage from the other porthe easement was claimed to exist tion, of a permanent, open, and visiby grant or by prescription; that, ble character, and such owner sells if any easement existed when the a portion of the property, the purfather of complainant and defend- chaser will take the tenement sold ant acquired title to all the land, in him, with all the benefits and bur1872, the servitude terminated by dens which appear at the time to merger; that the use of the land by belong to it, and it is not necessary tenants, other than the land rented in such case that the easement to them, was permissive, not hostile, claimed by the purchaser must be and it does not appear from the bill really necessary for the enjoyment that complainant's farm is sur- of the estate granted him, but it is rounded by land of defendant, and sufficient if it is highly convenient complainant could not, therefore, and beneficial therefor. Defendant acquire rights against defendant insists that that rule applies only in under the will of Henry Hoepker, the ordinary case of vendor and Sr., which will did not refer to the vendee, where the vendee was inright of way over defendant's 20 duced to purchase on account of the acres. It is also urged that no act arrangement of the premises, and of defendant induced complainant has no application where the propto part with anything for the land erty is acquired by will or inherithe received from his father. These ance. contentions were set forth as spe- We think this contention of decial grounds of demurrer to the bill. fendant was decided to the contrary
The bill is not based on the claim in Morrison v. King, 62 Ill. 30. In that an easement of passage existed that case the owner of a plat. of by grant or prescription, but on the ground in Chicago erected a buildground that Henry Hoepker, Sr., ing covering the entire plat, three during the time he owned all the stories high, divided into five store land, arranged and adapted it so buildings on the ground floor, and that one portion of it derived bene- the upper stories were used for offit from another portion, which ar- fices, and reached by one stairway rangement was of a permanent, between two of the storerooms. open, and visible character, and The building and stairway were when he devised the land to his sons used by the owner and tenants for they took the same with all the bene- the enjoyment of the premises until fits and burdens which appeared at the death of the owner. After his the time to belong to it. The bill al- death, in a proceeding by the widow leges that from 1872, when Henry for the assignment of dower, that Hoepker, Sr., acquired title to all part of the building and the land on the land, until his death, the private which three of the store buildings way existed and was continuously were located was set off to the widtraveled ; that its use is reasonably ow as dower. Afterwards the heirs necessary to the full enjoyment of of the deceased owner, who held the complainant's land; that its ob- legal title to the remainder of the struction deprives him and his fam building, decided to tear down their ily of a way from their residence to part of the property and erect a new building. Part of the stairway was strictions in the proceedings, should on their part of the property, and be entitled to take the portion allotpart on the property assigned to the ted to her as it existed at the time. widow as dower, and they proposed If conveniences provided for such to remove that part of the stairway portion by the common owner were which was on their property. Its continuous and apparent, and necremoval would have been the prac- essary to the reasonable enjoyment tical destruction of the only means of it, they will be presumed to have of access to the second and third been taken into consideration by the floors of the widow's premises. She commissioners, and regarded as a filed a bill to enjoin the heirs from charge upon the other portion in facarrying out their purpose, claiming vor of that allotted, and as passing she was entitled to rights, in the with the estate by operation of nature of easements, which the de- law." fendants were threatening to de- The case made by the bill was stroy. This court affirmed a decree that the easement of way across the granting the relief prayed. The south end of defendant's 20 acres, opinion, which refers to many au- if not absolutely necessary to the enthorities, says, in part: “Now, can joyment of complainant's land, was it be successfully maintained that in highly beneficial and convenient to such a case, or one under the 15th its reasonable use. It had existed section, the proceeding under the and been used during the lifetime of authority of the law, which has the the father of complainant and de effect, in one case, to vest the widow fendant, and was so in use when he with a life estate, and, in the other, made his will and at
Ensements-diviwith an absolute estate in fee the time
of his sion of estate by simple, shall not have the effect to death. We are of
will-effect. pass any of those things as incidents opinion the bill stated a case entiappendant and appurtenant to such tling complainant to relief, and the lands and tenements as would pass court did not err in overruling the by a conveyance without mention of demurrer to the bill. appurtenances? We think not. It The decree is affirmed. seems to us to be a reasonable rule, consistent alike with justice and the analogies of the law, that where the
NOTE. severance of an estate consisting of two or more heritages occurs by Roadway or pathway used at time reason of the death of the common of severance of tract as
a visible owner and the laws of descent and easement is the subject of the annoof dower, and an allotment of the tation, post, 233. Specifically, as to latter is made under the statute, the way implied by devise, see subd. V. dowress, in the absence of any re- of that annotation.
Easements, $ 29 — grant with advantage apparent.
1. Where the owner of an entire tract of land employs a part of it so that one parcel derives from the other a benefit of a continuous or ap(200 Ky. 478, 255 8. W. 105.) parent nature, and sells the one in favor of which such advantage exists, it will pass to the grantee by implication if it is necessary to the reasonable enjoyment of the property granted.
[See note on this question beginning on page 233.] Easements, $ 50 remedy for ob- another equally safe and convenient, struction.
and pay damages for the obstruction
to time of adjudication, or permanent 2. One permanently obstructing a
damages if a new way cannot be furpass way may be required to furnish nished.
APPEAL by plaintiff from a judgment of the Circuit Court for Boyd County in favor of defendants in a suit brought to enjoin the obstruction of a certain pass way and to recover damages for its obstruction. Reversed.
The facts are stated in the opinion of the court. Messrs. S. S. Willis and B. S. Wil- W. 805; Henry v. Koch, 80 Ky. 391, 44 son, for appellant:
Am. Rep. 484. When a pass way is appurtenant to The measure of damages for the property, it is no defense to its ob- obstruction of a pass way is the dimistruction that the plaintiff had some nution of the value of the use of the other road which could be used.
property during the continuance of a Estep v. Hammons, 104 Ky. 144, 46 temporary obstruction; and, for a perS. W. 715; Johnson v. Allen, 33 Ky. L. manent obstruction, it is the differRep. 621, 110 S. W. 851; Goldberg v. ence between the reasonable market Cleveland, 33 Ky. L. Rep. 953, 111 S. value of the property before and after W. 682; Newport Pressed Brick & the obstruction is created. Stone Co. v. Plummer, 149 Ky. 534, 149 Big Sandy R. Co. v. Bays, 31 Ky. L. S. W. 905.
Rep. 288, 102 S. W. 302; Rogers v. Where a pass way has been estab- Flick, 144 Ky. 844, 139 S. W. 1098. lished by long usage, a grantor cannot Mere deflections from the main pass change the location by a reservation
way are characteristic of the public in a deed or authorize grantee to use, and do not affect the right to the change the location of the road.
pass way or to the continuity of its Irvine v. McCreary, 108 Ky. 502, 49
exercise. L.R.A. 417, 56 S. W. 966; Hammonds
Bo“) v. Morris, 32 Ky. L. Rep. 642, 5. Eads, 146 Ky. 162, 142 S. W. 379.
106 S. W. 867; Salmon v. Martin, 156 The fact that Oliver Ward became
Ky. 309, 160 S. W. 1058. the owner of the land surrounding the
Messrs. R. S. Dinkle and George B. pass way gave him no right to obstruct
Martin for appellees. it.
Potts v. Clark, 23 Ky. L. Rep. 332, 62 Clay, J., delivered the opinion of S. W. 884; Crigler v. Newman, 29 Ky. the court: L. Rep. 27, 91 S. W. 706; Mitchell v. Maud Powers brought this suit Pratt, 177 Ky. 438, 197 S. W. 961.
against George and Oliver Ward to Where land is subdivided by the
enjoin the obstruction of a pass way grantor and then partitioned, each
and to recover damages for its obparcel is subject to the benefits and burdens of existing pass ways, as be
struction. Being denied the relief tween it and the other parcels, and a
prayed for, she appeals. subsequent purchaser of one lot takes J. B. Eifort was the owner of a it subject to an existing pass way be- large tract of land which fronted on tween it and the other lots retained by the old county road between Ashthe vendor.
land and Catlettsburg. Afterwards Muir v. Cox, 110 Ky. 560, 62 S. W.
the corporate limits of Ashland 723; Stone v. Burkhead, 160 Ky. 47, 169 S. W. 489; Lebus v. Boston, 107
were extended in an easterly direcKy. 98, 47 L.R.A. 79, 92 Am. St. Rep.
tion, and the road became what is 333, 51 S. W. 609, 52 S. W. 956;
now known as Winchester avenue. O'Daniel v. Baxter, 112 Ky. 334, 65 S. In the years 1908 and 1910 Miss