Wetmore v. Ladies of Loretto, 73 Ill. App. 2d 454 

Appellate Court of Illinois

1966

Chapter

21

Title

Express Easements

Page

405

Topic

Termination & Extinguishment

Quick Notes

Servient Owner tries to prevent Convent from using easement.  Although new Convent buildings extension of easement is a technical misuse, it is merely trivial, because servient owner was in control of the conveyance of land and Convent built another road and reduced traffic over the easement from 50 to 5 cars.  The court said it will not issue an unconscionable injunction that causes hardship.

Book Name

Fundamentals of Modern Property Law: Rabin; Kwall, Kwall.  ISBN:  978-1-59941-053-1.

Issue

o         Whether the remedy of injunction sought by the Pl and granted by the trial court was proper? No, an injunction against a Convent, you must be kidding.

Procedure

Trial

o         Found in favor of plaintiff grantor in an action grantor brought to enjoin grantee's use of an easement

Appellant

o         Reversed and Remanded.

T-Analysis

Type

Fee (Servient Estate)

Easement (Dominant Estate)

Party

Wetmore

Ladies of Loretto

Evidence

1.     Increased usage was unreasonable for a Convent.

2.     House of Studies was built on both 10 acre and 40 acre portions. (40 acre cannot use Hawthorne lane easement).  This should extinguish the easement.

Rule Extension is a misuse

o         If an easement is appurtenant to one tract of land, any extension thereof to another tract of land is a misuse.

1.     The USE only increased reasonably in intensity, but not in KIND.

2.     You saw us building this and you did not say anything.

3.     You had knowledge that 40 acres was purchase for more than just a road.

4.     We did not release the easement.

5.     We reduced easement traffic to 4 to 5 cars a day.

6.     Prior to the House of Studies you had 40 to 50 cars a day. 

Facts

Discussion

Reasoning

Rules

Pl Wetmore

Df Ladies of Loretto

Description

o         Wetmore owned 80 acres.

o         Wetmore sold 10 to a convent, where they had an expressed easement was over Wetmore existing driveway.

Convent Purchases 40 more acres and 33 foot strip

o         Wetmore tries to get the Convent to give up the easement.

o         Convent says no.

o         Convent builds road to Orchard Road.

Wetmore ties to get Convent to release easement

o         Convent says no.

o         40 to 50 cars a day.

o         Hired deputy sheriff to stop and eject trespassers.

o         He installed gates and an alarm.

House of Studies

o         Convent builds facility that resides on both the 10 and 40 acre tracts.

o         Wetmore seeks injunction to enjoin use of easement.

Trial Court

o         Grants injunction

Appellant Court

o         Reverses and Remands

Pl Arg House of Studies, Easement serves 10-acre, but not 40-acre tract

o         The completion of the House of Studies building was the catalyst which gave rise to this suit.

Pl Arg Easement was extended by Dfs

o         Plaintiff's complaint alleges that upon the completion of this building located partly on the 10-acre tract and partly on the 40-acre tract, the easement granted for the benefit of the 10-acre tract was (1) extended by the defendant to the 40-acre tract;

o         that the entire installation (all of the buildings) of defendant on the two tracts are (2) operated as a composite unit and (3) cannot be segregated as to that use pertaining to the 40 and that use pertaining to the 10-acre tracts; and that defendant's use of the easement previously granted therefore, should be (4) enjoined by reason of its extension to the 40-acre tract.

Df Arg 40 Acre Conveyance Created an Implied Easement

o         The conveyance of the 40-acre tract to it in 1957 created an implied easement benefiting [the 40-acre tract] over the route previously granted by the express easement.

o         [The Df - answer] also denied that the use to which the 40-acre tract was put justified enjoining the use of the express easement appurtenant to the 10-acre tract.

Trial Court No Implied Easement, Use Cannot be Segregated, Abandoned & Suspended

o         No implied easement upon conveyance of the 40-acre tract to the defendant;

o         The defendant's use of the 10 and 40-acre tracts cannot be segregated; and

o         Express easement appurtenant to the 10-acre tract was thus abandoned and suspended by operation of law.

Trial Court Enjoined any further use

o         The trial court enjoined any further use of Hawthorne Lane by the defendant until such time as the defendant's installation on the 10 and the 40-acre tracts shall be so altered or changed as to permit the use of Hawthorne Lane for the benefit of the 10-acre tract only, and not for the benefit of the 40-acre tract.

Pl - Obtained Injunction

o         Obtained an injunction preventing the continued use of the express easement appurtenant to the 10-acre tract by reason of its use for the benefit of the nondominant 40-acre tract.

Df Arg Not every extension is a misuse

o         Not every extension of the use of an easement to an additional tract is a nuisance; and

Df Arg Misuse is only where extension materially changes burden

o         Only where the extension materially changes the burden on the servient estate, either as to the type of use or the amount, that there is a misuse.

Court That is not the law

o         We do not understand that to be the law.

Rule Extension is a misuse

o         If an easement is appurtenant to one tract of land, any extension thereof to another tract of land is a misuse.

Court Was Injunction Proper? (See Issue Section)

Dfs  Arg Impossible to distinguish between authorized and unauthorized use

o         In injunction was proper or that the easement was extinguished if it was impossible to sever or distinguish between the authorized and unauthorized use of the servient tenement.

o         The majority of these cases pertained to the construction of a single, inseparable building, partly on the dominant and partly on the nondominant estate.

o         The authorized and unauthorized use made of a roadway or easement for access to such building was quite understandably held to be indistinguishable.

Court No factual justification that use cannot be segregated

o         The chapel, mansion, and gardens on the 10-acre tract is separated and district from the House of Studies.

o         There is no factual justification for the finding that the ENTIRE installation of the House of Studies cannot be segregated.

Court Pl had knowledge and control

o         The Pl was the one who conveyed the 40 tract to the Df.

o         The Pl had knowledge that the 40 acre tract was going to be used for other purposes than just a road.

o         The Df did not want to give up their Hawthorn easement.

o         The Pl had command and control over the extension of the easement (as in he could have put something into the conveyance)

Court Vehicular Traffic before conveyance

o         Before the conveyance there was 40 to 50 cars per day.

Court Seeking injunction after Df efforts

o         After construction of Loretto Lane.

o         After erection of the House of Studies.

o         After concerted efforts to direct traffic.

o         After reducing traffic to 4 to 5 cars a day.

Court Technical, but Trivial misuse of easement

o         While the erection of the House of Studies building on part of the 40-acre tract results in a technical misuse of the easement granted appurtenant to the 10-acre tract, such trivial and inconsequential misuse neither justifies the issuance of an injunction restraining defendant's right to use the easement expressly granted, nor warrants the authorization granted to plaintiff to close Hawthorne Lane as a means of access to defendant's property.

Rule - Hardship

o         A court of chancery will not require the doing or prohibition of an act where the benefit to be obtained does not warrant the hardship imposed.

Court Unconscionable to Enjoin

o          Under the facts of this case, it would be unconscionable to enjoin the use of the easement granted to defendant in 1946.

Court Holding

o         Reversed and Remanded

Rules

Rule Extension is a misuse

o         If an easement is appurtenant to one tract of land, any extension thereof to another tract of land is a misuse.

Rule - Hardship

o         A court of chancery will not require the doing or prohibition of an act where the benefit to be obtained does not warrant the hardship imposed.

Class Notes