Citation. 22 Ill.151 Tex. 56, 246 S.W.2d 163 (1952)
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Brief Fact Summary.
In this case the Plaintiff Castellaw had easements to land granted by the lower court and Defendant appealed on the basis that the easements should not have been granted.
Synopsis of Rule of Law.
An easement was created here, even though the words in the deed are not words of inheritance or of legal character normally found in the creation of easements.
In 1938 Stapp, as owner of all three lots in question, conveyed to Malcolm Smith and wife a parcel which reserved a driveway for a gas station upon an adjoining parcel. The reservation of the driveway was without time limit. Another grantee of Stapp, her daughter Anderson, took another parcel adjoining the gas station which encompassed a wash shed, the reservation to expire on the removal of the wash shed. Plaintiff Castellaw, another daughter of Stapp, succeeded to ownership of the gas station and renewed the lease until 1953. On the question of the driveway easement, Stapp’s conveyance to Smith and wife expressed in the warranty deed that grantor (Stapp) shall have the right to use that portion of the lot as a driveway. Smith and wife later conveyed the lot to Defendant Mitchell and Powers in 1947, and the reservation of the driveway was unchanged. Defendants Mitchell and Powers argue that the provision in question was nothing more than an easement “in gross,” or a personal
right of Stapp’s which did not pass by her devise of the gas station to Plaintiff, or in the alternative, that the provision is repugnant to the grant of the entire lot and should be treated as if never written.
Does the reservation of the right to use the driveway reserved by Stapp pass to her devisee Plaintiff such that an easement is recognized?
Yes. Reasons below:
There was no possibility of repugnance or conflict between the grant as a whole and the reservation of the driveway. The ordinary reader of the instrument would not be confused about what the grantor meant to alienate and what she intended to keep, and the Court refused to require that she expressly disclaim the possibility of a conflict.
The specific character of the reservation is evident from the limited physical area affected, the exact description of the area, its location at the very edge of the lot, the limited amount of rights reserved, and the fact that the rights were consistent with the usage of the property.
The easement will be considered to be an appurtenance of the lot upon which the gas station sits. The better rule is that neither words of inheritance nor other words of art are essential to the valid reservation of an appurtenant easement, even one that is unlimited.
This case contains a map which aids the reader in understanding the relationships between the lots affected. The easement in this case is based on a reservation of a right to use a portion of land which was sold. Later cases will illustrate other forms of easements which arise through usage.