Citation. 22 Ill.260 Wis. 372, 50 N.W.2d 920 (1952)
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This case arises from a dispute when an easement was established in Tisch’s favor for all purposes of ingress and egress to and from an alleyway against S.S. Kresge Co. (Plaintiff), in 1936. Thereafter, Winkelman Realty Co. (Defendant), purchased the Tisch property in 1943, and began using the easement previously used by Tisch in his barbershop and living quarters, for transportation and storage of goods, which were consigned to various stores of the Defendant.
Synopsis of Rule of Law.
A prescriptive right acquired by a particular use of the property cannot ordinarily justify an added use in connection with the dominant estate in a manner far different from that employed in the original use.
Facts.
Winkelman Realty, Winkelman Department Stores and Winkelman Men’s Stores are all owned by the same group and are referred to collectively as Defendants. The Plaintiff in 1936, tried to close the alleyway. Tisch was allowed his easement for ingress and egress to and from the alleyway as against the Plaintiff’s property in 1936. Then, Defendants (who already owned adjacent properties) bought Tisch’s property, along with the easement in 1943. The Defendants began using the alleyway as a conduit for storage of goods and transport of goods to their various adjacent stores. The Plaintiff sued to establish a claim against any claim of the Defendant’s except for ingress and egress (use of easement as in prior owners), to enjoin Defendants from using any portion of Plaintiff’s property except for ingress and egress, and to enjoin Defendants from transporting merchandise to or from their Men’s Store or Department Store by way of Tisch’s former property. The trial court found that the ea
sement acquired by Defendants from Tisch is only an appurtenance to that lot, and not to any other lot owned by Defendants. The trial court also found that the Defendants were using the Tisch easement for purposes other than what the original prescriptive easement was prescribed, and that such a use was an additional burden on the Plaintiff’s servient estate. The trial court quieted title to the alleyway in favor of the Plaintiff, but recognized the original Tisch easement in favor of Defendants (but only to that particular lot). The trial court’s judgment also ordered that the Defendants not use the alleyway in any manner not permitted under the Tisch easement (ingress and egress to one lot only- not for transport and storage of goods). The Defendants appealed and the Plaintiff appealed for a modification of the decree to enjoin the Defendants from any usage of the alleyway whatsoever.
Issue.
Can a prescriptive easement for one purpose be added to by a subsequent usage and still be upheld?
Held.
No. Judgment affirmed. The requested modification of the Plaintiff is denied on the basis that the modification requests relief, which was in excess of the complaint’s prayer for relief.
The court held that Defendants’ easement was originally prescribed for usage by a business of a barbershop and living quarters to have a means of ingress and egress, and that the storage and transport of goods is outside the scope of the original prescription.
A prescriptive right acquired by a particular use of the property cannot ordinarily justify an added use in connection with the dominant estate in a manner far different from that employed under the original use.
The Defendants argued that they had not unreasonably changed the nature or use of the alleyway. The court found that an owner of a servient estate is not required to wait until his property has been unreasonably burdened, such that the dominant estate gains additional rights.
The Plaintiff’s request for a modification of the original judgment to enjoin the Defendants from any use of the alleyway is denied on the basis that the modification requested makes a demand for more than was in the original complaint. The Plaintiff is limited to such relief as he prayed for and not more.
Discussion.
A prescriptive right acquired by a particular use of the property cannot ordinarily justify an added use in connection with the dominant estate in a manner far different from that employed in the original use.
