dissenting:
The following are the facts out of which the controversy in this case grows: The lot is forty feet wide and is covered by a three-story brick and stone flat-building. The building is a double one, having the halls and stairways on the center line, three flats being in the north half pf the building and three in the south half. The building was erected by Edward E. Yarlott and completed in 1892. On March 22, 1892, he and his wife, Mary Yarlott, executed their note for $5000, payable to their own order, with six per cent interest thereon, payable semi-annually, and secured the same by a trust-deed to Frank R. Chandler, trustee, of the south twenty feet of the lot. On March 23, 1892, Edward L. Yarlott and his wife executed their note for $5000, payable to their own order, secured by a trust deed of the north twenty feet of said lot. The heating plant was put in the building in 1894,—two years after the building was completed and after the mortgages were given. The furnace and boiler were installed in the basement of that part of the building standing upon the north twenty feet of the lot. The heating plant was put in to heat the whole building and was used for that purpose. Sara R. Foote having become the owner of the note secured by the trust deed on the south half of the lot, on default of payment filed her bill for a foreclosure, charging the construction and operation of the heating plant in the manner above described; that the building has been, ever since its erection, owned and operated as one property; that the ownership. of the equity of redemption in the whole is in Buckingham Chandler, and that there is a trust deed for $5000 on the north half of the lot. Nora Marggraf was made a party defendant, it being alleged that she is interested or claims an interest in the premises. It is charged that the south twenty feet of the lot has ah easement or licen'se and continuous contract with those in possession of the north twenty feet of said lot for the furnishing of heat for the tenants of that part of said building located upon the said south twenty feet as an appurtenance thereto, upon payment of the just, fair and proper proportion of the cost of maintenance and operation of the heating plant.
The easement is claimed to exist by operation of law. In Martin v. Murphy, 221 Ill. 632, the law on this subject as administered in this State is said (p. 639) to be dearly expressed in the following from Lampman v. Milks, 21 N. Y. 505 : “The principle is, that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement or portion sold, with all the benefits and burdens which appear at the time of the sale to belong to it, as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists so long as there is a unity of ownership, because the owner of the whole may at any time re-arrange the qualities of the several parts. But the moment a severance occurs by the sale of a part, the right of the owner to re-distribute the properties of the respective portions ceases, and easements or servitudes are created, corresponding to the benefits and burdens mutually existing at the time of the sale.” And easements so created become appurtenant to the portions of the property in whose favor they are created and pass by a conveyance of such respective portions of the property, whether mentioned in the deed or not.
The severance of the title occurred in this case at the time of the execution of the two trust deeds, in March, 1892. At that time the heating plant had not been put in, and it does not appear that any arrangement of the property had been made by which one part derived an advantage from the other. There were no benefits or burdens mutually existing at the time and therefore no easements 01-servitudes were created. The act of the owner of the equity of the redemption after the trust deeds were executed could not affect the estates granted by them. The trust deed of the north half gave to the holder of the note mentioned therein, as security therefor, the north half of the lot free from any incumbrance. The owner could not afterward impose upon such north half the burden of an easement in favor of some other person or some other property. The trust deed of the south half gave to the holder of the note mentioned therein, as security therefor, the south half of the lot. There were no benefits or burdens appearing at the time of the sale to belong to it and with reference to which it was made. The grantee took the property as it then was, with such appurtenances as then existed, if any, and complainant was entitled to have such property only subjected to sale for the payment of her lien. This relief was' granted by the decree of the superior court, and that decree, in our judgment, should be affirmed.