Syllabus. 129 200 139 422 142 116 129 200 150 278 151 467 JOSEPH OSWALD v. PETER WOLF. Filed at Ottawa June 15, 1889. 1. NUISANCE—jurisdiction in chancery —of the basis thereof. The jurisdiction of courts of equity over the subject of private nuisances is not an original one. It does not arise from the mere fact that a nuisance exists, but results from circumstances which call it into exercise upon other grounds, such as irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits. 2. To entitle a party to equitable relief against a private nuisance before resorting to a court of law, his case must be clear, so as to be free from all substantial doubt as to his right to relief. In doubtful cases he will be turned over to his legal remedy. To entitle him to come into a court of equity in the first instance, there must be "a strong and mischievous case of pressing necessity." 3. SAME-obstructing private right of way—whether equity will interpose. Where one has not for a long time been in the quiet and uninterrupted enjoyment of a private right of way over the land of another, or his right has not been established at law, or is not clear, but is disputed and doubtful, a court of equity will not enjoin another, claiming adversely, from obstructing such right of way. 4. PRIVATE WAY-when the right will pass by implication--and when the right will expire. Where the owner of land grants a part of it, so situated that there is no access to it from any street or highway except over the land of the grantor or of a stranger, a right of way to the same over the remaining land of the grantor will pass by implication, as a way of necessity. Such a right of way will expire when the necessity for the same ceases, as, where a public street is laid out along and over the land so granted. 5. SAME a deed construed as granting a private way. The owner of a tract of land bounded on the east by a street, conveyed the west third thereof, the deed containing this clause: “And also the right of way on a strip of land fourteen feet in width, running east and west, from the one-third herein conveyed to H. street, bounded by two lines running parallel to the center line of the remaining two-thirds of said tract, east and west, each being seven feet distant from the said center line:" Held, that the deed vested in the grantee an easement in fee, in the nature of a private way over the land of the grantor. Statement of the case. 6. In such case, the grant was not of an alley, public or private, and was in no sense an appropriation of the strip of land over which the right of way ran, to the exclusive use of the grantee, but was a grant of a mere right of way appurtenant to the land granted, which vested in the grantor and his grantees only a right to pass and re-pass along the prescribed line or route, between the land conveyed and the street. 7. SAME-tax title-whether paramount to the right of way, or easement. A tax title, if valid, is paramount to all other titles and interests in the land, and the sale of a tract over which a party has a right of way, when valid and followed by a proper deed, will cut off and extinguish the right of way. 8. TAX TITLE-by whom it may be acquired. Persons who, by reason of their ownership of lands, or otherwise, are under a legal, or perhaps a moral, obligation to pay taxes and assessments thereon, are precluded by the policy of the law from becoming purchasers of such lands at tax sale. In case of a purchase, such party obtains no independent title, the purchase being deemed in law only a mode of paying the taxes. The same will probably apply to one under a legal obligation to pay the taxes who afterward purchases an outstanding tax title acquired by a stranger. 9. But when the land owner holds by a title acquired subsequent to the levy of the tax, and has not assumed its payment, or in any way become liable to see it paid, the reason of the rule which disqualifies one whose legal duty it is to pay the taxes from acquiring a tax title, manifestly does not exist. 10. PURCHASER-taking subject to a lien for taxes. In case land is sold by the owner after taxes levied thereon have become a lien, the purchaser will take his title subject to the lien; but in the absence of any express or implied covenant or undertaking to pay the taxes, he will not assume any legal liability in respect to them. He will stand in the same relation to the taxes as any other grantee whose deed is made subject to an existing incumbrance. WRIT OF ERROR to the Superior Court of Cook county; the Hon. GWYNN GARNETT, Judge, presiding. This was a bill in chancery, brought by Peter Wolf against Joseph Oswald, to remove certain obstructions from a private way which the complainant claims to have over the lands of the defendant. Issues were duly formed by answer and replication, and the cause being heard on pleadings and proofs, a decree was entered in favor of the complainant. Statement of the case. The bill alleges that, on the 22d day of December, 1855, Peter Duffy, being the owner of a tract of land in Cook county lying on the west side of Halsted street, having a frontage on that street of twenty rods and running west eighty rods, conveyed to the complainant the west one-third of said land, together with the right of way over a strip of land fourteen feet in width running through the center of the easterly two-thirds of said tract from the land so conveyed to Halsted street; that the complainant, in pursuance of said conveyance, entered into possession of the premises conveyed to him, and has continued to enjoy the same from thence hitherto, except as hereinafter stated; that the defendant, subsequent to said conveyance, became possessed of the remaining two-thirds of said tract of land, subject, however, to the right of way granted to the complainant; that there is no communication to the complainant's premises from the north, south or east, except by said private way; that the defendant has erected obstructions upon said way, consisting of a high board fence across its western terminus, a gate at its eastern terminus, and an instrument of pleasure called a "Flying Dutchman" erected on the way between said points, which obstructions the defendant refuses to remove, and thereby prevents the complainant from enjoying the privilege of passing over said way; that the complainant has made a proposed subdivision of his premises, and that without said way, he will be greatly hindered and delayed in the sale of the same, as the most available means of access thereto is thereby cut off; that Halsted street is much travelled and has a line of street railway in operation, and is the nearest and most direct means of access to the complainant's property, over and by virtue of said private way; that the complainant will suffer irreparable injury, unless the obstructions to said way are removed, and uninterrupted enjoyment thereof given him; that the complainant has applied to the defendant to remove said obstructions, but that the defendant has wholly refused to remove the same, and by pre Statement of the case. tenses that he has no objection to the use of said way, is endeavoring to obtain possession thereof, and wholly prevent the use of the same by the complainant. The bill prays that the defendant be decreed to remove all obstructions from said way, and permit the unobstructed passage of the complainant and those claiming under him, over and upon said way, and forever maintain said way in a condition to be used by the complainant and those claiming under him, and also a general prayer for relief. The answer, among other things, denies the complainant's title to said way, and claims title in the defendant to the east two-thirds of said tract of land superior to the complainant's right of way. It alleges that, since the time the complainant claims to have obtained his title, numerous streets and alleys. have been opened to and around said west one-third of said land, by means of which access to and egress from the same for any and all purposes is made easy and convenient, and that said west one-third of said land has been subdivided, platted and laid out into lots, streets and alleys by the complainant, so that there are streets and alleys running immediately through the same, furnishing easy access to each and every part thereof. It denies that the defendant is obstructing or interfering with the right of way or easement claimed by the complainant, or that he is in any way preventing the complainant from enjoying any privilege to which he is entitled; and also denies that said right of way would or could work any advantage to the complainant in the sale of his premises or any part thereof. It sets up title in the defendant to the east two-thirds of said land through conveyances of the same to him from the former owners, and also through several sales thereof made in October, 1874, for certain delinquent taxes and assessments before that time levied and assessed thereon, and certain tax deeds executed in pursuance of such sales, and a conveyance of said. land to the defendant from the grantee in said tax deeds. Statement of the case. The answer alleges that the defendant, immediately after obtaining title to the east two-thirds of said land, enclosed the same with a high board fence, and proceeded to erect improvements thereon; that at the east terminus of the alleged private way, he constructed and has since maintained a large gate; that he improved said premises with a view of using the same for picnic grounds, and that the same have been used and devoted to that purpose almost exclusively ever since, with the full knowledge of the complainant; that during all that time the defendant has never had occasion to or desired to use said way over said grounds, and that if a right of way has ever existed, as alleged in the bill, it has been abandoned and extinguished by non-user. The answer denies that the complainant has sustained or will sustain irreparable injury, or any injury whatever, by being denied a right of way over the defendant's premises, and also denies that the complainant is entitled to any relief, and prays the same advantage as if the defendant had pleaded or demurred to the bill. The evidence shows that, by deed dated December 22, 1855, Peter Duffy conveyed said west one-third of said tract of land to the complainant, which deed also contained the following clause: "And also the right of way on a strip of land fourteen feet in width, running east and west, from the one-third herein conveyed to Halsted street, bounded by two lines running parallel to the center line of the remaining two-thirds of said ten acre tract east and west, each being seven feet distant from the said center line." Some three or four years after said conveyance the complainant enclosed his land with a fence, and it has so remained ever since, although for the last fifteen or twenty years, the complainant himself has made no use of the land, but on one or two occasions during that time he has permitted other persons to make hay on it. At no time since the complainant owned said land has he had occasion to make use of his right of way over the defendant's land except at rare and distant intervals. According to the defendant's testimony, |