FINN v. WILLIAMS

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Docket Number

No. 25965. Decree affirmed.

Attorney(S)

ELMER E. VAIL, and ANTHONY J. MANUELE, for appellant. ROSCOE BONJEAN, for appellees.

Judges

Mr. JUSTICE WILSON delivered the opinion of the court:

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Smart Summary

Factual and Procedural Background

In 1895, Charles H. Williams conveyed approximately 39.47 acres from a larger tract, while the remaining approximately 100 acres later passed to Zilphia Jane Williams. The plaintiffs acquired the smaller tract in 1937 and alleged that it was landlocked, with the only available access to a highway crossing the defendant’s land. [1]

After the defendant denied access and the plaintiffs’ alternative permissive routes over neighboring land had closed, the plaintiffs sought a declaration of a right-of-way easement of necessity. The circuit court of Sangamon County granted that relief. The defendant appealed directly to the Supreme Court of Illinois because a freehold was involved. [1][2]

The plaintiffs moved to dismiss the appeal as untimely. The Supreme Court denied that motion and affirmed the decree. [3][4]

Legal Issues Presented

Whether the appeal was timely filed under Supreme Court Rule 36. [3]
Whether the plaintiffs possessed an easement of necessity over the defendant’s land after the original tract was severed and the plaintiffs’ other permissive access routes became unavailable. [1][2][5]

Arguments of the Parties

Plaintiffs’ Arguments

The appeal should be dismissed because the record was filed too late. [3]
Their tract was entirely surrounded by other lands and had no available access to a highway or market except over the defendant’s property. [1]

Defendant’s Arguments

The plaintiffs had access by a private road running south to a public highway. [1]
Any present necessity for access arose from changed circumstances occurring after severance of the two tracts. [5]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Trapp v. Gordon, 366 Ill. 102	A way by necessity exists when conveyed land has no highway outlet except over the grantor’s remaining land or land of strangers.	The court treated this principle as governing the plaintiffs’ landlocked tract and the original severance. [5]
Gilfoy v. Randall, 274 id. 128	A way by necessity may arise from the severance of commonly owned land where access otherwise does not exist.	The court cited the case in support of recognizing the easement over the defendant’s remaining acreage. [5]
Logan v. Stogsdale, 123 Ind. 372	An easement of necessity may remain dormant through successive transfers and pass with the dominant estate.	The court concluded that the easement implied in the 1895 conveyance passed through mesne conveyances to the plaintiffs. [5]

Court's Reasoning and Analysis

The court first rejected the motion to dismiss. Although the record was filed after the original sixty-day period, the trial judge had extended the time for filing the report of proceedings. Under Rule 36, that extension correspondingly extended the deadline for transmitting the appellate record. The record was therefore filed before the applicable extended deadline. [3]

The evidence did not support the defendant’s claim that the plaintiffs had a southern private road to a public highway. The alternative private routes over neighboring land had been closed, and the defendant had refused access through her property since May 1939. Consequently, the plaintiffs lacked practical ingress and egress for their residence, livestock, and farm products. [2][5]

The court applied the established rule that when an owner conveys land having no highway outlet except over the grantor’s remaining land or land of strangers, an easement of necessity arises over the remaining land. Because the two tracts had once been under unified ownership and the plaintiffs’ tract was surrounded by other property, the 1895 conveyance necessarily implied such an easement. [5]

The court further reasoned that the easement could remain dormant during periods when neighboring owners permitted access. The later loss of that permissive access did not extinguish the easement; instead, the plaintiffs could exercise the dormant easement when permission was denied. [5]

Holding and Implications

Decree affirmed. The Supreme Court denied the motion to dismiss and upheld the plaintiffs’ right-of-way easement of necessity over the defendant’s 100-acre tract. [3][4][6]

The direct effect was to preserve the plaintiffs’ legally enforceable access to a highway through the defendant’s land. The opinion discusses no broader implications; no new precedent was set.

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EUGENE E. FINN et al. Appellees, vs. ZILPHIA JANE WILLIAMS, Appellant.

Mr. JUSTICE WILSON delivered the opinion of the court:

February 16, 1895, Charles H. Williams owned a tract of land in Salisburg township, in Sangamon county, consisting of approximately 140 acres. On the day named, Williams conveyed 39.47 acres to Thomas J. Bacon. In 1937, the plaintiffs, Eugene E. Finn and Curtis Estallar Finn, acquired the title to this tract. The defendant, Zilphia Jane Williams, inherited the remaining 100 acres. By their complaint filed in the circuit court of Sangamon county, plaintiffs charge that the nearest and only available means of egress from and ingress to their land to a highway and to any market for their livestock and crops is by means of a right-of-way over defendant's tract immediately to the north; that their tract is not located or situated on any public highway and is entirely surrounded by land of strangers and the defendant's tract; that prior to and during all the time the forty acres and the one hundred acres constituted one tract and were owned by defendant's husband, the only means of ingress and egress to and from the single tract to a highway was by right-of-way in a northerly direction through a third tract of land north and adjacent to the present tract of defendant, and that this open road is still used by defendant as her only means of egress and ingress from and to the highway. The relief sought was the declaration of a right-of-way easement of necessity from the north line of plaintiffs' tract through the defendant's tract, to the beginning of the right-of-way road through the third tract mentioned. Answering, the defendant admitted that plaintiffs' land is not located or situated on any public highway but averred that since its severance from her land it is and has been located on a private road leading to the south to a public highway. This averment, plaintiffs denied. Evidence was heard, and a decree rendered adjudging the plaintiffs to be the owners of a right-of-way easement of necessity over defendant's one hundred acres, as alleged. Defendant appeals directly to this court, a freehold being involved.

A procedural question requires initial consideration. Plaintiffs have moved to dismiss the appeal on the ground, among others, that the record was filed too late. Notice of appeal was filed by defendant in the office of the clerk of the circuit court on June 20, 1940, within the prescribed period of time. Thereafter, on August 6, the trial judge extended the time for filing a report of the proceedings to September 15, 1940. The record was filed with the clerk of this court on September 19. Rule 36, paragraph 1(c), of this court, ( 370 Ill. 38) provides that the report of the proceedings at the trial shall be filed in the trial court within fifty days after the appeal has been perfected. Paragraph 2(a) of rule 36 ( 370 Ill. 40) provides that the record on appeal shall be transmitted to the reviewing court not more than sixty days after notice of appeal has been filed. It thus appears that a ten-day differential exists with respect to filing the report of the proceedings in the trial court and the filing of the record of appeal in the reviewing court. Paragraph 2(a) of rule 36, supra, provides, further, that in the event a judge of the trial court extends the time for filing the report of the proceedings at the trial the time within which the record on appeal shall be transmitted to the reviewing court shall be correspondingly extended. The order extending the time for filing the report of proceedings in the trial court to September 15, 1940, correspondingly extended the time for filing the record in this court to September 25, 1940. Since the record was filed on September 19, 1940, plaintiffs' motion must be denied.

Private permissive ways of ingress and egress over the land of strangers both to the east and to the south have been available to the successive owners, including plaintiffs, of the forty-acre tract since its severance from the one hundred-acre tract of the defendant in 1895, but each of the private ways over the lands of the adjoining strangers has been closed and, as defendant concedes, these permissive means of ingress and egress do not now exist. Two witnesses for defendant who had lived near the property in controversy for about sixty years testified to roads leading to the south and to the east from the forty-acre tract over the land of strangers. These roads were private roads over the property of strangers, and are now closed. Nathan Woodrum, defendant's son-in-law, testified that he had until recently lived on the one hundred-acre tract, and that a road through defendant's land connects with the road through the tract at the north, and that the road through this third tract is the only mode of access to the highway unless permission be obtained to go through the land of strangers. Since May, 1939, defendant has refused to permit plaintiff to travel further over the right-of-way through her tract. As a result of defendant's action, the plaintiffs have been unable to take their livestock and farm products to market, have had no means of egress from or ingress to their forty acres on which they live, and have had to walk to the township highway, a distance of about three-quarters of a mile, carrying such produce as they could.

The evidence does not sustain defendant's averment that plaintiffs have the use of a private road leading to the south to a public highway and defendant, by her concession that a present necessity exists, has apparently abandoned this claim. She maintains, however, that the necessity has arisen by reason of changed circumstances since the severance of the two tracts. Firmly established principles control. Where an owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a way by necessity exists over the remaining lands of the grantor. (17 Am. Jur. (Easements) sec. 48; Trapp v. Gordon, 366 Ill. 102; Gilfoy v. Randall, 274 id. 128.) If, at one time, there has been unity of title, as here, the right to a way by necessity may lay dormant through several transfers of title and yet pass with each transfer as appurtenant to the dominant estate and be exercised at any time by the holder of the title thereto. (17 Am. Jur. (Easements) secs. 49, 127; Logan v. Stogsdale, 123 Ind. 372.) Plaintiffs' land is entirely surrounded by property of strangers and the land of the defendant from which it was originally severed. A right-of-way easement of necessity was necessarily implied in the conveyance severing the two tracts in 1895, and passed by mesne conveyances to plaintiffs in 1937. The fact that the original grantee and his successors in interest have been permitted ingress to and egress from the forty acres over the land owned by surrounding strangers is immaterial. When such permission is denied, as in the present case, the subsequent grantees may avail themselves of the dormant easement implied in the deed severing the dominant and servient estates.

The decree of the circuit court is right, and it is affirmed.

Decree affirmed.