Citation. 22 Ill.376 Ill. 95, 33 N.E.2d 226 (1941)
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Brief Fact Summary.
Eugene and Curtis Finn (Plaintiffs) became owners of the back 40 acres of a 140-acre property. Plaintiffs’ land had no outlet to the public highway.
Synopsis of Rule of Law.
Where an owner of land conveys a parcel, which has no outlet, a way by necessity exists across the lands remaining.
Charles Williams owned a tract of land consisting of 140 acres. In 1895, Williams conveyed 39.47 acres to Bacon. The Plaintiffs acquired the title from Bacon in 1937. Zilphia Williams (Defendant) inherited the remaining 100 acres. The Plaintiffs charge in their complaint that the only possible means of ingress and egress from their property is by means of a right of way across Defendant’s 100 acres. The relief sought by Plaintiffs is that an easement by necessity be declared from the north line of Plaintiff’s tract through the Defendant’s tract to where the Defendant’s current means of ingress and egress begins. The Defendant argued that the Plaintiff’s had a road leading to the south across another’s land, which led to the highway. There were private roads accessible by owners of the 40-acre tract since the severance of the lot in 1895, including the Plaintiffs. All such private roads have been closed, however. Since May of 1939, Defendant has refused the Plaintiffs permissio
n to cross her land, and the Plaintiffs have had to walk to market, a distance of about three-quarters of a mile. The court found that the evidence does not support the Defendant’s position that the Plaintiffs had access to a road leading south across the land of others. The lower court found for Plaintiffs. Defendant appealed.
Are the Plaintiffs entitled to a right of way by necessity across the Defendant’s tract of land?
Yes. Decree affirmed.
Where an owner of land conveys a parcel, which has no outlet to a highway except across the remaining lands of the grantor or over the lands of strangers, a way by necessity exists over the remaining land of the grantor. 17 Am.Jur. Easements Section: 48. Thus, in this case, when the land was severed by Williams in 1895, the only outlet available to the smaller land (now held by Plaintiffs) was across stranger’s land or across the larger portion of grantor (now held by Defendant). The rule would operate to create a right of way across the Defendant’s land for the Plaintiffs.
If there has been a unity of title, such as in this case, the right of way by necessity can lie dormant through several transfers of title and yet remain as a right appurtenant to the title, which can be exercised at any time by the holder. This solves the problem of the passage of time between the severance of the original estate and the establishment of the right by Plaintiffs to a way by necessity.
The court found that a right of way by necessity was necessarily implied in the 1895 conveyance severing the estate. The implied right of way by necessity passed to Plaintiffs in 1937.
The fact that other owners of the 40-acre tract were permitted to use the private roads across the lands of strangers is immaterial, the Plaintiffs have no such permission. The right of way by necessity implied in the severance of the tracts in 1895 is a right to which Plaintiffs may avail themselves.
This case contains a good statement of the rule regarding right of way by necessity. The doctrine applies to create a right as against the remaining parcel of the grantor because such a result is far more equitable than enforcing a right of way against the land of a stranger, who had no control over the original conveyance which left the granted parcel without an outlet.