author: TRAPP, P. J.

text:
    Joyce M. Froman, Plaintiff-Appellant, v. Thomas M. Froman, Defendant-Appellee.
    Gen. No. 10,726.
    Fourth District.
    July 25, 1966.
    James Caleb Stanfield, of Paris, for appellant.
    Dillavou, Jones, Overaker & Schwartz, of Paris (Wayne S. Jones, of counsel), for appellee.
   TRAPP, P. J.

Plaintiff appeals from that portion of a divorce decree which awarded to the defendant the care and custody of three minor children, the equity in the home and the household furnishings, and a certain income tax refund, denied alimony to the plaintiff, and ordered that each party pay their respective attorneys’ fees. The decree did grant a divorce to plaintiff upon the grounds of cruelty, although this issue does not appear to have been sternly contested and there is no cross-appeal.

The decree terminated the third marriage between these parties to which three children were born in the years, 1957,1960 and 1963, respectively.

The principal issue upon the appeal is the award of the custody of the children. The statement of the trial judge, at the conclusion of the evidence, reflects that the property interests were awarded to the defendant to better provide for the children, while alimony was denied because plaintiff earned more than the defendant.

It is the position of the plaintiff wife that the trial court abused its discretion in awarding custody to the defendant, as there was neither compelling evidence that plaintiff was an unfit mother, nor a positive showing that it was to the best interest of the children to deny custody to the plaintiff.

Strictly speaking, it does not appear that the trial court undertook to pass upon the plaintiff mother’s fitness for custody in a moral sense. The decree finds that it is to the best interests of the children that custody be awarded to the defendant father. The trial court, in an oral statement, said that in view of all of the evidence there was some question of whether either parent “might be proper parents for the children.” The basis for his ultimate conclusion as to custody seems expressed in the language:

“The thing we have to base our opinion on is whether the parents in the past have neglected the children and whether they are about to continue that neglect in the future, and there appeared to be a considerable amount of evidence against the plaintiff on that score.”

Upon the issue of the custody of the children, the testimony in behalf of the plaintiff came from her daughter by a former marriage, two sisters, a sister-in-law and a niece. One witness, a girl who was a close friend of plaintiff’s daughter, appeared to testify from observations made in the home some three years before the parties separated. The other witness for the plaintiff testified along the lines that the children were fed well-balanced meals, were disciplined in a fair manner by the mother, and that their clothing, as well as the home, was neat and clean. So far as it can be ascertained from the Abstract, it appears that the testimony of these witnesses referred primarily to a period when the parties were living together and sharing the responsibility for the care of the children.

The tenor of the evidence in behalf of the defendant is that for several years plaintiff, about once a week, would stop in a tavern upon leaving her employment at midnight to drink with men and women friends, but that during the last two years prior to the separation of the parties, this convivial practice substantially increased in frequency and that plaintiff would remain away from home until the late hours of the early morning, so that there was frequent occasion for defendant to search for her personally, or by telephoning to taverns. There is testimony that plaintiff was seen upon a number of occasions intoxicated in the company of men other than her husband. The defendant’s testimony concerning his morning patrols in search of the plaintiff was corroborated by other witnesses and, at least partially, by plaintiff’s daughter, Linda Harvey. There is also defendant’s testimony corroborated by his mother and sister that upon two occasions when plaintiff had taken the children away from the home and was solely responsible for their care, they were found to be physically dirty, the children claimed to be very hungry, and it appeared that their clothing had been unchanged for several days, which, combined with the frailties of small children, left them in a poor condition, indeed. There is testimony that upon one occasion, the plaintiff left the infant of a few months alone, albeit her planned trip would have been made in some ten minutes.

The evidence offered in behalf of the defendant included the adult baby sitter employed by the parties who testified that defendant was an attentive father and thought him “highly recommended” for keeping house, cooking, doing the washing and caring for the children. Plaintiff’s teen age daughter testified that the defendant helped take care of the home and children, and that she “did a lot” herself prior to the time she had gone away to school. Two neighbor women testified in behalf of the defendant that he paid more attention to the children than the plaintiff did.

The trial court concluded that the evidence showed adversely to the defendant that he had been intoxicated on one or two occasions during the course of the last two or three years.

Plaintiff urges that this cause must be reversed upon the authority of Nye v. Nye, 411 Ill 408, 105 NE2d 300, and Jayroe v. Jayroe, 58 Ill App2d 79, 206 NE2d 266, but these cases involve substantially different issues. In each, the custody of the children had originally been awarded to the mother and the question was whether such custody should be changed because of the evidence relating to the mother’s moral conduct. The opinion in Nye v. Nye, states that there was no showing of unfitness on the ground of lack of personal care for the child, while in Jayroe v. Jayroe,. the opinion notes that the personal care of the children was adequate. In each case the court reached the conclusion that there was no such change of circumstance as required a change of custody. See also Brown v. Brown, 13 Ill App2d 56, 140 NE2d 528.

In Fountaine v. Fountaine, 9 Ill App2d 482 at p 485, 133 NE2d 532, it is said that “other things being equal” the custody of small children will usually be awarded to the mother.

It seems clear that the trial judge exhibited greatest concern in seeking the best interests of the children in the sense of providing the care for daily needs and welfare. In Day v. Day, 33 Ill App2d 247, 178 NE2d 203, the reviewing court affirmed the trial court’s decree in taking custody from the mother where the evidence indicated she lacked a sense of judgment in protecting the interests of the child in degrading circumstances.

Each party contends that the evidence presented by him is the credible evidence in the cause and each argues that the issue must be determined from the evidence presented in his behalf. This is a case where the trial court’s observation of the demeanor and conduct of the witnesses, and his judgment of their credibility, must be carefully considered in the light of the conflicting testimony, and should not be disturbed unless clearly wrong. Horn v. Horn, 5 Ill App2d 346, 125 NE2d 539; Day v. Day, 33 Ill App2d 247, 178 NE2d 203. Here the trial court noted the evidence of past maternal neglect and seemed concerned with the prospect of future neglect.

The trial court, in exercising his wide discretion and in searching for a wise solution, could reasonably conclude, under the evidence, that the plaintiff’s interest in caring for the children had deteriorated during the last two years, and that their future care by the plaintiff would be neglected insofar as an estimate of the future might be projected from the evidence as to plaintiff’s manner of living.

Plaintiff appellant’s Abstract must be criticized for its inadequacies and for failure to present the evidence in clear and concise substance as provided by rule, chap 110, § 101.38 and § 201.6 (Ill Rev Stats). We note that an additional Abstract was required as to the testimony of six of seven witnesses called in behalf of the plaintiff, and that an additional Abstract was required as to each of the witnesses who testified in behalf of defendant, while two witnesses testifying for the defendant were omitted entirely from the Abstract. The omitted evidence was relevant to the issue presented in this appeal.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BRYANT

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Morris J. Seawright, Appellant.
    Gen. No. 50,954.
    First District, Second Division.
    July 26, 1966.

      Frank H. Burke, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a judgment entered upon a verdict of guilty of the crime of armed robbery (Ill Rev Stats 1959, c 38, § 501). The appellant admits that he committed the act complained of, but interposes the defense that he had been found insane by a jury in Lake County, Illinois. It is not argued that the later finding by a Cook County jury in this case that he was sane is against the weight of the evidence; the only argument is that the Lake County jury’s verdict constituted either res judicata or collateral estoppel on that question, and prevented the jury which heard this case from finding that he was sane at the time of the commission of the crime.

The evidence shows the appellant suffered head injuries in an automobile accident March 31, 1959. Two psychiatrists said they believed that these injuries caused insanity in the appellant. A dentist who treated the appellant at an air force hospital in Illinois from May 24, 1959, to July 27, 1959, said he observed him during this period and said that his behavior seemed normal.

On July 6, 1959, the appellant committed the crime complained of here. On September 15 of that year, he committed the crime which led to the proceedings in Lake County. On February 24, 1960, a Lake County jury found, “that the defendant, Morris Seawright, at the time of the impaneling of this jury and now is insane.” The record shows that the jury was called to determine the sanity of the appellant to see whether he was fit to be placed on trial for the crime of September 15, 1959. On January 26, 1961, the appellant was released from the Illinois Security Hospital, and on April 24, 1961, a jury found that, “the defendant Morris Sea-wright, has permanently recovered from his insanity.” On June 14,1961, the indictment was nolle pressed.

The only question raised by the appellant is whether the findings of the Lake County juries estop the jury which heard this case from finding he was sane at the time he committed the crime of July 6,1959.

We first note that the Lake County jury made no findings as to his sanity before February 24, 1960. The record shows only that he was found insane on that date and that a jury said he had recovered when it returned the verdict of April 24, 1961. We also note that the question before the Lake County jury was not the same as the question posed by trial in Cook County. The Lake County jury found that the appellant was not fit to stand trial. The test to be applied at such a hearing is whether or not the defendant understands the nature of the charges against him and whether he can cooperate with his counsel and conduct his defense in a rational and reasonable manner. People v. Bender, 20 Ill2d 45, 169 NE2d 328 (1960). The test for insanity when it is used as a defense to relieve one from criminal responsibility for an act is whether the defendant was capable of discerning right from wrong as to the particular act in question, or whether he was incapable of choosing to do or not to do the act, and governing his conduct in accordance with such choice. People v. Neirstheimer, 401 Ill 260, 81 NE2d 900 (1948). The two questions are not the same, and the verdict of the Lake County jury that the appellant was not fit to stand trial does not necessarily answer the question whether he was insane by the standards set forth in People v. Neirstheimer, supra. There was no finding by any jury that the appellant was insane on July 6, 1959, under any standard or test.

There is also raised a question as to whether the court below was correct in not allowing the testimony of the two psychiatrists at the Lake County hearing to go to the jury. These two psychiatrists testified at the trial below and the court found that their testimony was substantially the same as at the Lake County hearing.

The appellant has shown us nothing that could indicate that the previous testimony of these two men differed in any meaningful way from the testimony they gave at the trial. We hold, therefore, that the court below acted within the proper scope of his discretion in not permitting the earlier testimony to be admitted as evidence at the trial.

Since the verdict of the Lake County jury could not be res judicata of the issue, and since there is no basis for declaring the People to be collaterally estopped from denying the appellant’s insanity, we find that the jury was within its rights to find the appellant sane at the time he committed the acts constituting the crime of armed robbery on July 6,1959.

Affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael Lubas, Defendant-Appellant.
    Gen. Nos. M-51,129, M-51,130.
    First District, Second Division.
    July 26, 1966.
    Joseph Reiff, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago, for appellee.
   MOTION TO DISMISS APPEAL

MR. JUSTICE BURKE

delivered the opinion of the court on motion to dismiss appeal.

The People have moved to dismiss the appeal because of failure of the defendant to file a “Proper Record on Appeal.” The defendant states that he was unable to file a Report of Proceedings because the presiding magistrate ceased to be a magistrate at the close of business on December 31, 1965. On January 12, 1966, the presiding judge of the traffic court entered the following order:

“It appearing to the Court that there was no court reporter present during the hearings on the above entitled cause and that the usual tapes employed by the Municipal Court, Traffic Court, for the purpose of recording testimony are unavailable and defective; and it further appearing to the Court that Magistrate Ernest Greene who presided over the hearings is no longer a Magistrate;
“IT IS HEREBY ORDERED that leave is hereby granted defendant to file a Motion and an Affidavit entitled ‘Report of Proceedings.’ ”

The defendant says that the “Report of Proceedings” was filed pursuant to the order.

The document called “Report of Proceedings” is not a Report of Proceedings. It is a verified statement by the defendant of what he “represents” to be the Report of Proceedings. Supreme Court Rule 36-1 governs appeals from judgments in all cases which are assignable to magistrates whether or not the particular case was tried before a magistrate. The case at bar falls within this category. Paragraph (3) (c) of this rule reads:

“If no verbatim report of the evidence or proceedings is available, the appellant may prepare a report of proceedings from the best available sources, including recollection. The proposed report of proceedings shall consist of such portions of the evidence, of the rulings of the trial judge, and of other proceedings as the appellant deems relevant to the issues to be raised on appeal. It shall be served on appellee within 10 days after the filing of the notice of appeal, and within 10 days after receipt thereof the appellee may serve on appellant proposed amendments or additions thereto. Within 5 days thereafter, the appellant shall present the proposed report of proceedings and amendments and additions to the trial court for settlement and approval. Within 14 days after presentation, the court shall settle, sign and order filed an accurate report of proceedings.”

The defendant did not comply with the provisions of the above quoted Paragraph (c). Without a proper Report of Proceedings the court cannot review the judgment. The common-law record cannot be the basis for deciding the points upon which defendant relies for reversal. The fact that the presiding magistrate or judge is no longer on the bench does not excuse the filing of a Report of Proceedings, or an agreed statement of the facts. We cannot accept as a Report of Proceedings the contentions of the respective parties. It is for the trial court to settle the Report of Proceedings. We have the power to require the trial court to do so. We cannot know what the Report of Proceedings should contain. See People v. McConnell, 155 Ill 192, 202, 40 NE 608; People v. Holdom, 193 Ill 319, 323, 61 NE 1014; Village of Hinsdale v. Shannon, 182 Ill 312, 318, 55 NE 327; People v. Williams, 91 Ill 87; People v. Gary, 105 Ill 264; and Feldman v. Munizzo, 16 Ill App2d 58, 147 NE2d 427.

Because of the failure of the defendant to present a Report of Proceedings in accordance with the rules, the Appeal in each of cases M-51129 and M-51130 is dismissed.

Appeal dismissed.

BRYANT, P. J. and LYONS, J., concur.


author: CRAVEN, J.

text:
    Delbert Neece, Plaintiff-Appellant, v. Walter Dohren, Defendant-Appellee.
    Gen. No. 10,699.
    Fourth District.
    July 27, 1966.
    Rehearing denied August 29, 1966.

      Giffin, Winning, Lindner & Newkirk, of Springfield (James M. Drake, of counsel), and Niven & Clay, of Pontiac (Alonzo Clay, of counsel), for appellant.
    Adsit, Thompson, Strock & Strong, of Pontiac, for appellee.
   CRAVEN, J.

The plaintiff, by this action, sought specific performance of an alleged contract for the sale of real estate or as alternative relief damages for breach of the contract. Ultimately, on motion of the defendant, the court entered an order striking the plaintiff’s complaint and dismissing the action. Judgment was entered for the defendant and this appeal is from that judgment.

The material facts relating to this controversy are supplied by the complaint and its attendant exhibits. From these pleadings the following factual situation may be determined. The defendant was the owner of a 195-acre farm'. In January of 1965 the parties discussed the sale of the farm by telephone at a price of $500 an acre. This telephone conversation was by long-distance phone, the plaintiff in Illinois and the defendant in California. Subsequent to this conversation and allegedly pursuant thereto, the plaintiff sent to the defendant a written offer for the purchase of the farm. On January 18, 1965, the defendant wrote the plaintiff a letter in which the sale of the farm was discussed in considerable detail as was the sale of certain crops then in storage and the tax consequences of the sale. The letter concluded the discussion by inquiring of the plaintiff:

“How does this sound to you?
“Let me hear your decision as soon as possible because if you don’t buy it, I will put it in the hands of Alex McWilliams.”

The complaint then alleges that on January 24, 1965, the plaintiff telephoned an acceptance of the terms as set forth in the letter, followed on January 30 by a check to the defendant in the amount of $2,500 as an alleged down payment. On February 8 the defendant returned the check and by his letter of transmittal the defendant stated that he had been waiting for a letter, as well as a contract to evaluate, and since these items had not arrived he had reconsidered his position and was cancelling further progress on the projected sale. Thereafter the plaintiff, through his attorney, sent the defendant two checks totalling $10,500 and a proposed contract, signed by the plaintiff, describing the premises and making provisions for the payment of the purchase price and the usual provisions relevant to a contract for the purchase of land. The checks and contract were returned by the defendant to the plaintiff, and again by the letter of transmittal, the defendant stated:

“. . . I thought that we had agreed on terms and you promised to have a contract sent. I waited for many days for this contract and it never arrived. On January 30, 1965 — many days after our tentative agreement — Mr. Dunn sent a check for $2,500 and again promised that a contract would follow. None came.
“. . . I returned the check and cancelled out any further dealings.” . . .

The complaint alleges that thereafter the defendant entered into a contract with a third party to sell the premises at a price substantially higher than that involved in the negotiation between these parties.

The motion of the defendant asserts the absence of an agreement between the parties, the invalidity of an agreement if one was in fact made by reason of the statute of frauds, and other grounds relating to the sufficiency of the memoranda under the statute of frauds. This court has for consideration only the complaint, its exhibits and the motion, and in testing the sufficiency of these pleadings we must take as true all well-pleaded allegations of fact. Pierce v. Carpentier, 20 Ill2d 526, 169 NE2d 747 (1960). Schreiner v. City of Chicago, 406 Ill 75, 92 NE2d 133 (1950). This rule does not, of course, apply to conclusions of law. In considering these pleadings, the exhibits constitute a part of the pleadings for all purposes, in accordance with section 36 of the Practice Act (Ill Rev Stats 1963, c 110, par 36).

It is the essence of the plaintiff’s contention that the initial phone call constituted an offer by him to buy and that the defendant’s first letter was a counteroffer, which counteroffer was accepted by the plaintiff in the manner intended, thereby establishing as between the parties an enforceable contract, the letter being signed by the party sought to be bound and the mutuality of remedy being no longer an essential part of specific performance for the sale of land.

The parties have filed excellent briefs, detailing their positions with reference to the applicability of the statute of frauds as well as mutuality of remedy. These questions are not reached, however, unless from these pleadings the plaintiff establishes that the negotiations between the parties ultimately culminated in an agreement to buy and sell. Then and only then would the sufficiency of the memoranda of their agreement be considered.

It is our conclusion that these pleadings establish only negotiations that did not ripen into an agreement between the parties. The letter of the defendant of January 18 is not a counteroffer, but rather one step in the negotiation process. It is further clear that the actions of the plaintiff subsequent to that letter were clearly inconsistent with the present contention that the letter and the telephone acceptance constituted a binding agreement. The fact that in January the parties were engaged in a process of continuing negotiation is apparent by examining plaintiff’s exhibit C in which, over a month after the alleged agreement, he caused the terms and conditions of a proposed contract to be reduced to writing and mailed the same to the defendant, together with two checks representing a down payment. In the case of Whitelaw v. Brady, 3 Ill2d 583, 590, 591 (121 NE2d 785, 790 (1954)), in discussing offers and acceptances, the court said:

“. . . These propositions are aptly stated in Selections from Williston on Contracts, Revised Edition (1938), at page 42: ‘It is a necessary requirement in the nature of things that an agreement in order to be binding must be sufficiently definite to enable a court to give it an exact meaning. If an offer contemplates an acceptance by merely an affirmative answer, the offer itself must contain all the terms necessary for the required definiteness. An offer may, however, contain a choice of terms submitted to the offeree from which he is to make a selection in his acceptance. Such an offer is necessarily indefinite but, if accepted in the way contemplated, the ultimate agreement of the parties is made definite by the acceptance. A lack of definiteness in an agreement may concern the time of performance, the price to be paid, work to bé done, property to be transferred, or miscellaneous stipulations in the agreement.’ ”

The reasoning of the court in Whitelaw is determinative of the issues here. That which is here sought to be enforced as an agreement between the parties is but one step in a negotiating process wherein the proposals and counterproposals, each to the other, resulted in a narrowing of the differences between the parties on certain matters, leaving always specifics yet to be determined.

The circuit court of Livingston County, therefore, properly entered judgment for the defendant in this case, and that judgment is affirmed.

Affirmed.

TRAPP, P. J. and SMITH, J., concur.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William H. Nation, Defendant-Appellant.
    Gen. No. 10,724.
    Fourth District.
    August 11, 1966.
    Rehearing denied August 29, 1966.

      Harold Broverman, of Taylorville, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Milo J. See, Jr., of counsel), for appellee.
   SMITH, J.

Defendant appeals from a judgment of conviction by a jury of aggravated battery. Defendant was “keeping company” with the victim’s wife. The victim and his friend had been following the couple. When they stopped at a stoplight, the victim jumped out of his friend’s car and took a picture of the defendant showing a gun leveled and the admission of this photograph is said to be error. Defendant then shot at the victim striking him in the chest but without serious injury as a fountain pen furnished obstruction. The trial court refused to permit the defendant to state why he was afraid of the victim and this too is assigned as error.

The circumstances of the photograph as well as occurrence events are best stated by defendant’s own testimony as abstracted.

“. . . When I stopped at intersection previously described they came up behind me in their car. As soon as their car stopped, it was still rocking, he jumped out of right hand door and headed for my car. When I seen him heading for my car I reached over for my gun that I knew was laying in seat. It is double action five shot revolver, thirty-two caliber. It was laying in holster on right hand side about half way down in crack of right front seat. . . .
“Gun does not have safety on it. Gun holds five shells. When I reached for gun Lilly was about even with right rear wheel of my car, just when I reached up with my gun in my hand then flash bulb went off. As soon as flash bulb went off I seen his image at right door and I followed him with gun. Then told him to get away from car and I felt car door jiggle and heard it jiggle and felt it jiggle. He was trying to open door. Then gun went off. I was still sitting behind steering wheel when gun went off. Mrs. Lilly was to my right in front seat.
“. . . Fired gun one time. Didn’t intend to fire gun. It went off by itself. Lilly was attempting to open right front door. Felt door jiggle. . . . This was after bulb exploded and picture was taken. . . .”

Defendant asserts that there was no foundation proof that the photograph is an accurate and faithful presentation of the place, person, or subject which it purports to portray. Brownlie v. Brownlie, 357 Ill 117, 191 NE 268. In our judgment defendant’s own words describing its taking belies and effectively scuttles such a contention.

Defendant further contends that photographs should be excluded where they would confuse or mislead rather than aid the jury, distract the jury from the main issues, unduly emphasize the evidence of one of the parties or where the natural effect of their introduction would be to arouse the sympathies or prejudice of the jury rather than to throw any light on the issues and cites 32 CJS, Evidence, § 709 at 988, 989. Accepting these benign rules, we are unable to see how the testimony of the defendant or the description of the occurrence events by other witnesses can possibly besmirch these photographs with any of the exclusionary disabilities. It is true that it portrays only one moment in a chain of events, albeit an apparently accurate and vivid portrayal of that moment. There was no error in admitting the photographs.

The court sustained an objection to this question asked of the defendant, “Now, were you afraid of Mr. Lilly on September 21, 1965, immediately prior to the time that your gun was discharged?” What the answer would have been is not disclosed. No offer of proof was made. Neither the trial court nor this court knows what justification if any might have existed. It isn’t for us to guess or speculate as to what it might be. There seems to us little doubt that the defendant has not brought himself within our statute authorizing force in the defense of one’s person. That statute, Ill Rev Stats 1965, c 38, § 7-1, so far as applicable reads:

“. . . However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Indeed defendant’s own statement that he “didn’t intend to fire gun — it went off by itself” precluded any thought that he then felt the necessity for anything more than to threaten the victim or that his frame of mind had any bearing on the matter. A reasonable apprehension of the victim-husband is readily inferable from this record but nothing is shown justifying the force used. There was no error in the sustaining of the objection under such circumstances.

Perceiving no error in this record, the judgment is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: JUSTICE CRAVEN.

text:
    Wendell W. Diez, Plaintiff-Appellant, v. Mary Lou Diez, also known as Mary Lou Boyer, Defendant-Appellee.
    Gen. No. 10,680.
    Fourth District.
    July 27, 1966.
    Rehearing denied August 29, 1966.
    Jasper S. Gullo, of Springfield, for appellant; James T. Londrigan, of Springfield, for appellee.
   Opinion by

JUSTICE CRAVEN.

Not to

be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles J. Pughsley, Defendant-Appellant.
    Gen. No. 49,656.
    First District, Third Division.
    July 28, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. McDonnell and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John J. DiVane, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Following a trial by jury, defendant was convicted of burglary and sentenced to ten to fifteen years in the state penitentiary. He contends that he was not proved guilty beyond a reasonable doubt, that he did not receive a fair trial, and that the court erred in instructing the jury. The facts follow:

Complaining witnesses testified that between 2:00 and 4:00 p. m. on October 11, 1963, their apartment at 51 East 44th Street, Chicago, was burglarized. At approximately 4:30 p. m. on the same day, defendant was arrested at 44th Street and Vincennes Avenue, Chicago, while riding in a car driven by one Alfred Nunnally. Nunnally was also arrested and the two men were taken to the police station, where a police search revealed two suitcases in the trunk of the car. Defendant repeatedly asserted that he had purchased the suitcases and their contents from Nunnally and that these goods belonged to him. The complaining witnesses identified the suitcases and the items therein as the property which had been stolen from them.

As to defendant’s first contention, the law is settled that recent, exclusive and unexplained possession of stolen goods is sufficient to sustain a conviction of burglary, unless other circumstances create a reasonable doubt as to guilt. People v. Woods, 26 Ill2d 557, 188 NE 2d 1. Defendant argues that he was merely a passenger in the car, that he did not have the key to the trunk, and therefore cannot be considered to have had exclusive possession of the stolen items. This argument ignores the unrebutted testimony of one Elmer Perkins, a detective, that defendant had repeatedly claimed ownership of the goods. Additionally, the possession was recent, occurring within a minimum of twenty minutes and a maximum of two hours from the time of the burglary, and the arrest took place in the vicinity of the burglarized premises.

It is argued on behalf of defendant that he was dealing with the driver of the car for the purchase of the goods and since they had agreed on a price, he considered himself the owner, although no payment had been made. This, counsel for defendant contends, is naturally a layman’s point of view. It appears to us a much more legalistic point of view. The jury was justified in rejecting defendant’s explanation that he had purchased the goods immediately prior to his arrest.

Defendant’s third contention is that the court erred in giving the following instruction:

“The exclusive possession, shortly after the commission of a larceny, robbery or burglary, of stolen property, the proceeds of the crime, if unexplained, may of itself raise an inference of guilt of the person having such possession, sufficient to authorize a conviction in the absence of any other evidence of facts or circumstances in evidence which leave in the mind of the jury a reasonable doubt as to the guilt of such person.”

He argues that the evidence did not show that his possession of the stolen property was recent, exclusive, and with a “distinct, implied or express assertion of ownership,” relying on People v. Urban, 381 Ill 64, 44 NE2d 885. Accepting the testimony of the policeman and that part of defendant’s own testimony with respect to his possession of the goods, which supports the policeman, the evidence showed that defendant had sole ownership of the goods, in addition to showing recent possession.

Remaining for consideration is the second point raised by defendant, that he was denied a fair trial because the jury was prejudiced by the misconduct of the prosecutor. The State presented the detective Elmer Perkins for the purpose of having him testify to an alleged oral confession made by defendant on his arrest. At that point in the trial the prosecutor asked:

“Q. Were there certain questions asked at that time and certain answers given ?
“A. Yes, there was.
“Q. Would you tell the ladies and gentlemen of the jury . . . what those questions were and what those answers were to those questions ?”

Before the witness answered, defendant’s counsel objected, and a hearing was held in chambers. The court ruled that evidence as to the confession could not be adduced because the State had not presented defendant’s counsel with a list of all the witnesses present at the time the confession allegedly was made. Notwithstanding this ruling, the prosecutor renewed this line of questioning. When the defendant took the stand on his own behalf, on cross-examination the following question was asked and answer given:

“Q. Do you remember telling Detective Perkins about crawling through a screen that you broke through, do you remember that?
“Mr. McDonnell; Object, and ask for the withdrawal of a juror and a mistrial declared.”

Again a hearing was held in chambers and the court ruled that the defendant might answer. Defendant replied that he did not remember. The prosecution recalled Detective Perkins for the purpose of rebutting defendant’s testimony on cross-examination, and the following testimony was heard:

“Mr. Fleming (State’s Attorney): Q. Did you ask the defendant Pughsley at that time whether or not he had committed the burglary on October the 11th, 1963 ?
“Mr. McDonnell: I object.
“The Court: Objection sustained.
“Mr. Fleming: Q. In your questions with the defendant Pughsley, did he ever tell you that he crawled from a vacant room through the screen, taking the screen off?
“Mr. McDonnell: I object.
“The Court: Objection overruled.
“Mr. McDonnell: Now, I want to be heard and I want to bring a case in.”

Another hearing was held in chambers, where defendant’s counsel cited People v. Pelkola, 19 Ill2d 156, 166 NE2d 54, as supporting his position. The court then sustained defendant’s objection and instructed the jury to disregard testimony “as to what the defendant is supposed to have said about crawling through a screen.”

Three references to defendant’s statement that he crawled through a screen to get to the burglarized premises were made in the presence of the jury — two by the prosecutor and one by the judge. Under such circumstances we cannot say that instructing the jury to disregard such statements was sufficient to cure the damage caused by the error, and we must reverse the judgment and remand the cause for a new trial.

Judgment reversed and cause remanded.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: PRESIDING JUSTICE SULLIVAN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank E. Brown, Defendant-Appellant.
    Gen. No. 50,056.
    First District, Third Division.
    July 28, 1966.
    Rehearing denied September 12, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John S. Fraschetti, Defendant-Appellant.
    Gen. No. 50,219.
    First District, Third Division.
    July 28, 1966.
    Joseph I. Bulger, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James Zagel and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a judgment finding defendant guilty of operating a truck in excess of the statutory limit and imposing a fine of $1,780. The truck weighed 89,800 pounds, or 17,800 pounds in excess of the prescribed statutory maximum of 72,000 pounds. The fine was computed on the basis, of the method provided by statute, and the computation is not disputed. The sole point raised by defendant is that the State failed to prove beyond a reasonable doubt that defendant was guilty of the violation with which he was charged.

Section 132 of the Illinois Motor Vehicle Act (Ill Rev Stats, c 95½, § 229 (1963)) provides that:

“(a) Any police officer having reason to believe that the weight of a vehicle and load is unlawful shall require the driver to stop and submit to a weighing of the same either by means of a portable or stationary scales. If such scales are not available at the place where such vehicle is stopped, the police officer shall require that such vehicle be driven to the nearest public scales.”

On September 7, 1963, Sergeant Richard Walsh of the Special Investigation Traffic Unit observed a five-axle tractor-trailer unit operating in the 1000 block of East 130th Street in the city of Chicago. He testified that judging from the size of the load, pull of the motor and the position of the springs, he had reason to believe the truck was overweight. He stopped the vehicle and directed defendant to proceed to a scale located at 95th Street and Stony Island Avenue in Chicago. The scale had a 10' x 8' platform and bore a seal issued by the office of the City Sealer of the city of Chicago.

Since the scale could not accommodate the entire vehicle, Sergeant Walsh directed the driver to position the steering axle on the scale while Walsh and the weigh-master observed the scale indicator. When the steering axle was in position on the platform, the scale registered 8,540 pounds. The weighmaster had placed a weight ticket in the scale and the scale automatically printed the finding of 8,540 pounds on the ticket. The procedure was repeated for each of the remaining four axles, and they registered 18,830, 18,910, 21,780 and 21,740 pounds, respectively, bringing the total weight of the vehicle to 89,800 pounds. The second and third axles of that particular vehicle operate in tandem and are separated by a distance of 4' 3". The fourth and fifth axles, or trailer axles, are also in tandem and are separated by a distance of 4' 3".

Sergeant Walsh testified to the weights indicated by the scale. The weight ticket prepared by the weigh-master was also admitted into evidence over the objection of defense counsel. Defendant offered no defense and in no way attempted to rebut the testimony regarding the weight measurements.

On appeal, defendant contends that the method of weighing used by Sergeant Walsh was inaccurate and that it necessarily produced a speculative result. For that reason the defendant argues that the State failed to meet its burden of proof.

The issues in the instant case have been definitely settled by the decision of this court in People v. Fair, 61 Ill App2d 360, 210 NE2d 593 (petition for leave to appeal denied, 33 Ill2d 625). In that case a police officer halted a five-axle, semidump truck on his observation that it was overloaded. He followed the vehicle to the nearest available scale and weighed it by taking three separate measurements and totaling them. The scale had been recently tested and bore the decalcomania of the Department of Agriculture of the state of Illinois. In the instant case the scale bore the seal of the city of Chicago. The truck in the Fair case was found to be 18,980 pounds overweight, and the defendant was accordingly fined $1,890.

The statute directs police officers to weigh vehicles “either by means of a portable or stationary scales,” and as we noted in the Fair case, portable scales which could weigh such trucks in a single draft are obviously impractical. Stationary scales capable of weighing an entire tractor-trailer combination of this size are, of course, rare and it would frustrate the purposes of the Act to limit the probative evidence on weight to that shown by a scale capable of accommodating the entire vehicle.

The language of the Act directs the arresting officers to reduce the load of an overweight vehicle before allowing it to return to the highway. The great overweight in the instant case made such action impractical, and as a result the State can protect its highways against these excessive loadings only by imposing penalties. It would be unreasonable to interpret the Act as requiring weighing procedures which would in turn require operating a heavy load to a distant point where a scale could be found which could weigh the entire truck in one weighing.

We said in People v. Fair, supra, (p 367):

“The statute in question is designed to regulate an area of transportation, one important to the health and welfare of the people of the state, but it also involves abuses and dangers. Assuming the validity of the statute, which is not questioned, we must recognize that to impose upon its legal enforcement impractical requirements for proof of such matters as men in the ordinary course of business take for granted would make detection and punishment of violations impossible.”

The officer who made the arrest in the instant case was a member of the Special Investigation Traffic Unit, and it was his duty to observe and judge the weight of vehicles. The vehicle in question was a dump truck. Hence, the size and nature of its cargo was readily observable. The officer further testified, as we have said, that he judged this to be an overload by the size of the load, the pull of the motor, and the position of the springs. No testimony was presented to rebut that finding, and the excessive overweight makes objections to the method of weighing appear hypertechnical. The State has proved the violation beyond a reasonable doubt.

Although defendant does not make the point in his Statement of Points and Authorities, he casually questions the adequacy of the complaint filed by the State. The State appears to have filed a proper information under oath before the case went to trial.

Finally, defendant challenges the admissibility of the weight ticket as evidence, although this was not included in his Points and Authorities either. The ticket was printed by the scale itself and merely constitutes corroborative evidence as to measurements taken by the device. In our opinion the ticket produced by the scale itself is as sound evidence as the figures on the indicator, but since the testimony of the arresting officer was not controverted, the admission of the weight ticket even if erroneous is not reversible error.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE DAVIS

text:
    Horace O. Wetmore, Plaintiff-Appellee, v. The Ladies of Loretto, Wheaton, an Illinois Not-For-Profit Corporation, Defendant-Appellant.
    Gen. No. 65-116.
    Second District.
    July 28, 1966.
    Rehearing denied October 26, 1966.

      McMahon & Plunkett, and Edward W. Nicewick, all of Chicago, for appellant.
    Rathje, Woodward & Dyer Associates, and John S. Woodward, of Wheaton, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from a judgment entered by the trial court in which the issues on both the complaint and counterclaim were found in favor of the plaintiff, Horace O. Wetmore, and against the defendant, The Ladies of Loretto, Wheaton, an Illinois not-for-profit corporation. The nature and extent of the right of the defendant to use a certain roadway is the critical issue involved in this litigation.

Since 1928, the plaintiff, and his family before him, owned a tract of land near Wheaton, consisting of approximately 80 acres. The principal access to this tract was by means of Hawthorne Lane, a roadway extending north from the easterly edge of the tract.

The plaintiff sold 10 acres of this tract to the defendant in 1946. These acres, located along the north edge of the larger tract, were carved out of its middle and were improved with a large mansion house, swimming pool, sunken gardens, and various outbuildings. The 10-acre parcel was landlocked, and the plaintiff granted to the defendant an express easement across the remainder of his tract to the east. This easement was over an existing driveway which ran in front of plaintiff’s residence — to the east of the property sold to defendant — out to Hawthorne Lane, and then north, along Hawthorne Lane.

In 1957, representatives of the defendant approached the plaintiff, stating that it would like to open its own roadway west from its 10-acre tract, to Orchard Road. A portion of the land retained by the plaintiff, after his conveyance to the defendant, consisted of 40 acres west and south of the 10-acre tract which the defendant had purchased. The west line of this 40-acre tract was approximately 1,400 feet east of Orchard Road — a public road. The plaintiff, however, also owned a strip of land 33 feet wide, extending westerly from the west line of this 40-acre tract to Orchard Road.

Presumably, plaintiff could have sold that 33-foot strip to defendant, together with a strip of land 33 feet wide extending easterly therefrom over the 40-acre tract to the 10-acre tract. This would have given defendant its own road. However, the plaintiff told the defendant that he was not interested in selling just a roadway to the west out of the 10-acre tract but said that he might sell the entire 40-acre tract, including the 33-foot strip extending to Orchard Road. The defendant advised the plaintiff that if it could purchase the 33-foot strip of land, it would build a new road out to the west — which was in the opposite direction from plaintiff’s residence and Hawthorne Lane.

At the time of the negotiations for the sale of the 40-acre tract, plaintiff attempted to get the defendant to give up its express easement appurtenant to the 10-acre tract — over the driveway in front of his house and over Hawthorne Lane. The defendant declined but said that as soon as its roadway to the west was built it would direct the bulk of its traffic over that road; and that, consequently, the driveway in front of the plaintiff’s residence would receive less use. Apparently, this was satisfactory to the plaintiff, who prepared a memorandum dated October 28,1957, in which he acknowledged that defendant wished to continue its easement on Hawthorne Lane and the driveway in front of his house. The 40-acre tract was then sold to defendant in 1957. No reference was made to any easement in the conveyance of the 40-acre tract.

The defendant built a road westerly to Orchard Road, which was called Loretto Lane. It ran through the 40-acre tract and across the 33-foot strip of land which the defendant purchased from the plaintiff. It was completed in June of 1960. Prior to that time, the relations between the plaintiff and the defendant had deteriorated. Throughout the 1950’s, the defendant conducted a kindergarten and music classes on the 10-acre tract and the plaintiff became quite upset by the extent of the attendant use of the driveway and Hawthorne Lane, which totaled 40 to 50 vehicles daily, as well as limited use by pedestrians. On rare occasions the defendant also had picnics, garden parties and other parties which would result in additional traffic over Hawthorne Lane and in front of plaintiff’s residence. All of these activities, however, were conducted on the 10 acres.

After the conveyance of the 40-acre parcel of land to the defendant, the plaintiff continued in his efforts to obtain defendant’s release of the easement in front of his house. As early as 1958, he threatened suit if the defendant would not give up its easement. After Loretto Lane was opened in June of 1960, the defendant made verbal requests and sent out maps and directions to those going to and from the convent, asking them to use Loretto Lane rather than Hawthorne Lane. Apparently, these efforts were quite successful in that the traffic over Hawthorne Lane, within a reasonable time after the construction of Loretto Lane, was reduced generally to about 5 cars per day.

The plaintiff, however, was not satisfied with the efforts of the defendant in this respect. He hired a deputy sheriff to turn back traffic going to the convent on Hawthorne Lane. This officer admonished such persons that they were trespassing on a private road. He also personally stopped vehicles on the Lane, told the drivers that they were trespassers, and directed them to turn around. Plaintiff also ejected pedestrians from the driveway in front of his house. At times his conduct was such that it obviously frightened the young people at the convent, as well as the Sisters. On one occasion, when the plaintiff came on defendant’s property to object to the use of the Lane, one of the Sisters was compelled to call the sheriff to remove him. The plaintiff also installed a gate on the roadway which set off an alarm bell — both by the gate and in his house — when the gate was opened. There were numerous incidents and confrontations resulting from plaintiff’s assertions that the defendant was without right to use or enjoy the easement previously expressly granted to it.

In 1962, the defendant began the construction of a House of Studies, part of which was on the original 10-acre tract purchased by the defendant and part on the 40-acre tract. The building was completed in August of 1963. It is one inseparable structure with the portion on the 10-acre tract being indivisible from the portion on the 40-acre tract. While this building is joined by a passageway to the chapel, it is, however, separate, distinct and apart from the other structures on the 10-acre tract.

The completion of the House of Studies building was the catalyst which gave rise to this suit. 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 extended by the defendant to the 40-acre tract; that the entire installation (all of the buildings) of defendant on the two tracts are operated as a composite unit and 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 enjoined by reason of its extension to the 40-acre tract.

The defendant’s answer stated that upon the conveyance of the 40-acre tract to it in 1957, there was created an implied easement benefiting this tract over the route previously granted by the express easement. It 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. Other issues were raised which we will discuss later.

The trial court found that there was no implied easement upon conveyance of the 40-acre tract to the defendant ; that defendant’s use of the 10 and 40-acre tracts cannot be segregated; and that the express easement appurtenant to the 10-acre tract was thus abandoned and suspended by operation of law. 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.

The essential elements of an easement by implication are: (1) The existence of a single tract of land so arranged that one portion of it derives a benefit from the other, the division thereof by a single owner into two or more parcels, and the separation of title; (2) before the separation occurs, the use must have been long, continued, obvious or manifest, to a degree which shows permanency; and (3) the use of the claimed easement must be essential to the beneficial enjoyment of the parcel to be benefitted. Sheehan v. Sagona, 13 Ill2d 341, 345, 148 NE2d 795 (1958); Gilbert v. Chicago Title & Trust Co., 7 Ill2d 496, 499, 131 NE2d 1 (1956).

The existence of these three requirements, absent any expression to the contrary, is sufficient to warrant the conclusion that the parties intended to include such an easement in the conveyance. “The doctrine of implied easements is based upon the principle that, in the absence of an expressed contrary agreement, a conveyance imparts a grant of property with all the benefits and burdens which existed at time of sale, and it is designed to give effect to the actual intent of the parties as shown by the facts and circumstances of a particular case.” Frantz v. Collins, 21 Ill2d 446, 449, 173 NE2d 437 (1961).

We believe that the first two requirements are clearly present in this case. The plaintiff owned the entire 80-acre tract in 1946, and after the conveyance to the defendant of the 10-acre tract, still owned the 70-acre tract, which he severed in 1957. At the time of the conveyance of the 10-acre tract to the defendant in 1946, there was a well-defined roadway — extending from the north where the driveway was located — over which an express easement had been granted, within and along the east side of the 10-acre tract to its south edge, where a corner of the 40-acre tract adjoined.

This roadway extended to the groom’s cottage located in the corner of the 40 acre tract. The roadway was surfaced with some semipermanent material, was clearly visible, and had been long and continuously used. The defendant’s 10-acre tract separated the 40-acre tract from the driveway in front of plaintiff’s house and the balance of Hawthorne Lane. As a result, if we were to imply an easement, the dominant 40-acre tract would not be adjacent to the servient estate. However, such fact alone would not defeat an easement appurtenant. Beloit Foundry Co. v. Ryan, 28 Ill2d 379, 388, 192 NE2d 384 (1963); Allendorf v. Daily, 6 Ill2d 577, 588, 129 NE2d 673 (1955).

We do not believe, however, that the third requirement — that the easement be essential to the beneficial enjoyment of the land — is present. To satisfy this requirement, the claimed easement need not be really necessary for the enjoyment of the dominant estate, but it is sufficient if highly convenient and beneficial. Sheehan v. Sagona, supra, 347; Cosmopolitan Nat. Bank of Chicago v. Chicago Title & Trust Co., 7 Ill2d 471, 477, 131 NE2d 4 (1956); Gilbert v. Chicago Title & Trust Co., supra, 499, 500.

The determination of this requirement, of necessity, must turn on the particular facts present in each case. The deed, whereby the plaintiff conveyed the 40-acre tract to the defendant, also included the strip of land 33 feet in width which connected the 40-acre tract to a public road — Orchard Road. At that time, the 33-foot strip was not a roadway and was used only by farm vehicles in connection with the tilling of the land. However, the nature of the construction in connection with the means of access was immaterial. The strip of land afforded a reasonable alternative means of ingress and egress to the 40-acre tract. The easement, which defendant seeks to have us imply, was convenient to the use of the 40-acre tract, but at the time of the severance it was not so highly convenient that closing it would seriously interfere with the beneficial enjoyment of the property. Fels v. Arends, 328 Ill 38, 45, 159 NE 244 (1927).

Where alternate means of access to property are available without passing over the lands of another and the use of such means does not result in an unreasonable burden, courts should exercise due continence in implying and imposing a burden over the lands of another. The land conveyed to the defendant gave it direct access to a public road. Under such circumstances, an easement by implication was not sanctioned. Walker v. Witt, 4 Ill2d 16, 22, 122 NE2d 175 (1954). While we grant that from one point on defendant’s property it was approximately 1.8 miles by Loretto Lane to the point to the north where Hawthorne Lane joins a public road and only 1 mile to this point by means of Hawthorne Lane, yet we do not believe that this imposes an unreasonable burden on the defendant in view of the fact that Loretto Lane provides correspondingly shorter and a much more convenient means of access from the other direction.

The case at bar is unlike those in which the denial of an easement over a common walkway would compel the person seeking the easement either to carry lawn equipment through his house, or use a very circuitous route to travel from the front of his yard to the back. Gilbert v. Chicago Title & Trust Co., supra. Likewise, this case is unlike those in which, at the time of severance of title, improvements had already been constructed on the premises in such a way that to compel one to use a proposed alternate means of access would result in an unwarranted burden. Sheehan v. Sagona, supra; Koubenec v. Moore, 399 Ill 620, 78 NE2d 234 (1948).

When all of the circumstances surrounding the sale of the 40-acre tract are examined — including its physical properties — we are convinced that to imply an easement over Hawthorne Lane for the benefit of the 40-acre tract would not give effect to the actual intent of the parties. The defendant advised the plaintiff that it wanted its own road to the convent. It was this representation which gave rise to the subsequent sale of the 40 acres, which included the access strip of land to a public road. At the time of this conveyance, the plaintiff even sought to get the defendant to relinquish its express easement benefiting the 10-acre tract. The communications between the parties all negate the suggestion that they intended that the existing easement in favor of the defendant would be extended to the 40-acre tract. Further, the third fact criteria listed above as essential for the creation of an easement by implication is not satisfied. We thus hold that there is no implied easement over Hawthorne Lane and the driveway in front of plaintiff’s home for the benefit of the 40-acre tract.

The plaintiff 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. The defendant contends that not every extension of the use of an easement to an additional tract is a nuisance; and that it is 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.

We do not understand that to be the law. If an easement is appurtenant to one tract of land, any extension thereof to another tract of land is a misuse. Miller v. Weingart, 317 Ill 179, 183, 147 NE 804 (1925); D. M. Goodwillie Co. v. Commonwealth Elec. Co., 241 Ill 42, 81, 89 NE 272 (1909); Penn Bowling Recreation Center v. Hot Shoppes, 179 F2d 64, 66 (App DC 1949); Crimmins v. Gould, 149 Cal App2d 383, 308 P2d 786, 791 (1957); McCullough v. Broad Exchange Co., 101 App Div 566, 92 NYS 533, 536 (1905); 25 Am Jur2d, Easements and Licenses, § 77 p 483.

Conceding, that when the defendant constructed the House of Studies principally on the 10-acre but partly on the 40-acre tract the use of the easement for the benefit of this building constituted a misuse, the court is still confronted with the question of whether the remedy of injunction sought by the plaintiff and granted by the trial court, was proper. In all of the cases cited by the plaintiff, it was held that either an 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. The majority of these cases pertained to the construction of a single, inseparable building, partly on the dominant and partly on the nondominant estate. The authorized and unauthorized use made of a roadway or easement for access to such building was quite understandably held to be indistinguishable.

Such is not the factual situation here. The House of Studies building, constructed partly on the 10-acre tract and partly on the 40-acre tract, is separate and distinct from the other buildings on the 10-acre tract. As to the use made of the chapel, mansion house, sunken gardens and other facilities on the 10-acre tract, access to these areas and the functions to take place thereon can be separated and distinguished from the functions to take place on the 40-acre tract relating to the House of Studies building. We find no factual justification for the finding that the entire installation of defendant on the 10 and 40-acre tracts cannot be segregated, or for the injunction prohibiting any use of Hawthorne Lane until such time as defendant’s “Installation” be changed or altered.

Two other factors impress us in this respect. First, in the cases cited relative to extending the benefit of an easement to nondominant lands, the owner of the dominant tract was responsible for the extension of the burden and the owner of the servient tenement had no connection or control over such an extension. The plaintiff here, however, was the one who conveyed the additional 40 acres to the defendant. He made this conveyance with full knowledge that the defendant intended to use the additional land for purposes other than as a roadway to the west, and that the defendant would not give up its existing easement benefiting the 10-acre tract. The plaintiff was not totally without command or control over the extension of the use of the easement.

Second, and most significant in this respect is the fact that prior to the construction of any facilities on the 40-acre tract or any use thereof, the vehicular traffic over the easement, solely for the benefit of the 10~acre tract, reached 40 to 50 cars per day, and there was also certain pedestrian use of the easement. On special occasions the traffic was greater. After the erection of the facilities on the 40-acre tract and after the construction of Loretto Lane over the 40-acre tract and the concerted efforts of defendant to direct traffic over this Lane rather than over Hawthorne Lane and the driveway in front of plaintiff’s house, the traffic over Hawthorne Lane and the driveway was reduced to 4 to 5 cars per day. Yet, with knowledge of these facts, the plaintiff sought and invoked the equitable powers of the court to enjoin the defendant’s limited use of such access way.

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. Beeman v. Pawelek, 96 NYS2d 204, 214 (Sup Ct 1949); 28 CJS, Easements, § 62, p 729; 25 Am Jur2d, Easements and Licenses, § 107, p 511. 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. Beloit Foundry Co. v. Ryan, supra. Under the facts of this case, it would be unconscionable to enjoin the use of the easement granted to defendant in 1946.

The trial court denied defendant the actual and punitive damages sought in its counterclaim against the plaintiff. These damages were claimed to result from the conduct of the plaintiff in enforcing and asserting his supposed right to block off Hawthorne Lane to the defendant. Such conduct included his entering the land of defendant on numerous occasions, without invitation or authority to do so, to complain in rather forceful manners of the supposed trespasses by defendant.

Counsel for defendant claimed in the trial court that there was little actual damage, but a great deal of mental damage. The trial court found that there was no proof of actual damage, and we do not find that the corporate defendant and counter-plaintiff has suffered mental damage. However, we believe that the trial court should have awarded nominal damages to the defendant and counter-plaintiff for the trespasses of plaintiff.

As to the punitive damages claimed by defendant, such are not a favorite in the law. It is only where a wrongful act is accompanied by aggravating circumstances such as willfulness, wantonness, malice or oppression that such damages are recoverable. City of Chicago v. Shayne, 46 Ill App2d 33, 38, 196 NE2d 521 (1st Dist 1964); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill App 79, 91, 92, 86 NE2d 875 (1st Dist 1949). The plaintiff’s trespasses and actions were under a claim of right, albeit a mistaken claim. Under the circumstances it was not error for the trial court to find no malice and refuse to award punitive damages. Thompson v. Evans, 49 Ill App 289, 291 (4th Dist 1892). Defendant is entitled, however, in view of plaintiff’s past conduct, to an injunction sought in its counterclaim, restraining the plaintiff and his agents from wrongful entries upon defendant’s property and from interfering with defendant’s proper use of the express easement.

We are also asked by defendant to decide the question of whether or not Hawthorne Lane is a public road. The parties agree that the northerly section thereof is a public road and that the portion thereof in front of plaintiff’s house is a private road. It is the nature of the intervening section of Hawthorne Lane which we are asked to determine. Such decision is neither required, nor would it be propitious at this time, when all necessary parties for a conclusive determination of the question, are not before the court. LaSalle Nat. Bank v. City of Chicago, 3 Ill2d 375, 378, 379, 121 NE2d 486 (1954).

The decree is reversed and the cause is remanded to the trial court with directions to enter a decree in conformance with the views expressed herein and to take such further and other steps as may be necessary to implement such views.

Reversed and remanded.

MORAN, P. J. and ABRAHAMSON, J., concur.