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Citation. 22 Ill.86 N.H. 337, 169 A. 1 (1933)
Brief Fact Summary. Sakansky (Plaintiff) took title in land, which included an eighteen feet wide right of way across the Defendants’ land. The Defendants wanted to build a building on their land over the right of way or, in the alternative, allow Plaintiff a new right of way around the building. Facts.
Synopsis of Rule of Law. The rule of reasonableness dictates that there is, in the absence of a contract to the contrary, no way for the court to change the boundaries of a pre-existing right of way to limit the headroom of the right of way to eight feet.
Plaintiff took title in land, which included an eighteen feet wide right of way across the Defendants’ land. The right of way was particularly described as to its position on the ground. There were no limits on Plaintiff’s use of the right of way. The Defendants wanted to build a building on their land over the right of way. They proposed building over the right of way and leaving an eight foot high gap above it, or, in the alternative, allowing Plaintiff a new right of way around the building, but such that the Plaintiff would intersect his lands in the same place as under the old way. The case was heard before a master in the lower court where the facts presented were such that the Plaintiff could not use the old right of way if he wished to use vehicles over eight feet high. Plaintiff objected to the master considering any evidence regarding the proposed new right of way. The master found that the case was to be governed by a rule of reasonableness, and found that in light
of the proposed new right of way, the proposed reduction in the height of the old right of way was not an unreasonable interference with the Plaintiff’s rights. The master also found that if he could not take the new right of way into account, then the proposed reduction in height of the old right of way would be unreasonable. The master recommended allowing the Defendants to build over the old right of way, as long as they provide Plaintiff with a new right of way as they testified that they would. Plaintiff appealed on the basis that it was error for the master to consider evidence of the proposed new right of way, and that Plaintiff should be entitled to an injunction to prevent the Defendants from building over the old right of way. Issue.
May the Defendants build over the right of way by limiting the height of the right of way to eight feet?