Citation. 22 Ill.193 Va. 522, 69 S.E.2d 342 (1952)
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Brief Fact Summary.
The Lindseys (Plaintiffs) sought an injunction to prevent Clark (Defendant) from using a ten feet wide right of way, which had been reserved by earlier deeds, but not particularly in the deed to Plaintiffs.
Synopsis of Rule of Law.
The lower court applied the rule that “[h]e who seeks equity must do equity.” The mere non-use of an easement created by deed, without more, is not sufficient to cause abandonment.
In 1937, the Clarks were the owners of four adjoining lots, nos. 31, 32, 33, and 34, each lot fronting Magnolia avenue and running back therefrom for 150 feet to a 20 feet alley. The Clark residence was on lots 31 and 32. Then, in 1937, the Clarks conveyed to Mr. and Mrs. Six (Mrs. Six being Clarks’ daughter) the front two-thirds of lots 33 and 34, which was a frontage of 50 feet and extending back 100 feet. On the rear one-third of these lots Clark built a house and garage for rental purposes. The Six’s built a house on their property (the front two-thirds of lots 33 and 34). The Clark deed to the Sixes contained the following reservation: “There is reserved, however, a right of way of ten (10) feet in width, along the South side of the two lots herein conveyed for the benefit of the property in the rear.” In 1939 the Sixes conveyed their property to the McGhees, with the reservation in the deed. Then, the McGhees conveyed the property to the Plaintiffs without the reservatio
n listed in the deed. Clark began using the North side of lots 33 and 34, with no explanation, and despite the deed’s reservation of a right of way along the South side of the property. This was used by Clark without objection from the Sixes or the McGhees, and not by the Lindseys until a few months before the lawsuit was brought. There was evidence presented at trial that Clark stood on the North side of lots 33 and 34 and stated that he was reserving that as a right of way. When the McGhees bought the property the Sixes pointed out the driveway to the North, but of course the deed stated the reservation to be to the South. The Lindseys wrote to Clark, by their attorney, and objected to the right of way being used for parking, but not of its location. Then, three years later, the Plaintiffs had their attorney write to Clark again to complain that the reservation was along the South side of the property, not the North. The Plaintiffs wrote in that letter that they intended to erect a
fence. At trial the Plaintiffs contend that Clark has no right of way across their property because none was reserved on the North side of the property and because the one on the South side had been abandoned. The trial court held that the right of way had not been abandoned. The Plaintiffs appealed.
Has the right of way along the South side of the Plaintiffs property been abandoned by the Defendant through non-use?
No. The decision was affirmed.
Abandonment is a question of intention. The intent can be inferred from the cessation of use coupled with acts or circumstances showing an intent to abandon the right. The mere non-use of an easement created by deed, without more, is not sufficient to cause abandonment. There must be acts or circumstances in addition to the non-use of the easement created by deed. The burden of proof in abandonment cases is upon the party claiming such abandonment, and the burden is clear and convincing evidence.
Because Clark reserved a right of way, even though he was mistaken as to where it was, his non-use does not show abandonment.
The Plaintiffs claimed that Clark should be equitably estopped from claiming a right of way on the South side because of the non-use and because he stood by and watched the Sixes build a house encroaching on the easement. The court found otherwise. The Lindseys had actual and constructive knowledge of where the house was and where the driveway was when they bought the property. They negligently failed to effectively search their title to their own detriment.
The suit showed that Clark was entitled to a ten-foot right of way along the South side of Plaintiffs’ property, but that such right of way was blocked by the Plaintiffs’ house and shrubbery. Clark was willing to let the right of way continue on the North side.
The lower court based its decision on the maxim: “[h]e who seeks equity must do equity.” Thus, the lower court did not err in determining that the rights of the Defendant Clark was to be limited to use of the North side right of way only for travel, and not for parking, and that, if the parties requested to elect to do otherwise, the court would fix their rights in a subsequent order.
The court was obviously interested in a fair, or equitable, outcome in the case. It would be unfair to require the Plaintiffs, who sought to limit the Defendant to the deed easement on the South side, to tear out their shrubs (and two feet of their house) in order to let Defendant use the South side easement. The decision to allow the Defendant to continue to use the North side right of way was a fair outcome.