Opinion of the Court.

in that way as well as an easement in it." (Washburn's Easements & Servitudes, (4th ed.) page 154, sec. 28).

On November 6, 1872, Frederick Gritzner conveyed to his son Charles all of said block 5 except what he had previously sold to defendant in error and to Howk and to three other persons. On August 8, 1881, Charles Gritzner made a contract in writing with one Fitch for the sale to him of lot 4 of the subdivision made as above stated in April, 1875. Fitch assigned this contract to McKenzie, the plaintiff in error, and afterwards on September 11, 1885, Charles Gritzner made a deed of said lot 4 to plaintiff in error.

As we understand the plat of 1875, lot 4 includes the piece of ground 39 feet wide on the north and 106 feet wide on the south, which lies to the west of the lot of defendant in error, but it seems to be doubtful whether the strip in question, 16 feet wide and to the east of her lot, is intended to be represented as a part of lot four. The word, "alley," is not marked on the strip, but there is a cross at the foot of it on the east side, and its position on the plat would seem to indicate that the makers of the plat intended to designate the strip as an alley. A lot only 16 feet wide can be of little use.

But, however this may be, we think that Charles Gritzner had full notice of the right of way of defendant in error over the strip. He negotiated the sale of the lot for his father to Mrs. Elliott. He says in his testimony that the strip was to be reserved for an alley when she bought her lot, and that she was so informed when she made her purchase. He speaks of some arrangement that was to be made with other lot-owners in block 5 for the extension of the alley at some time in the future through the part of lot 4 lying south of Mrs. Elliott's lot to Marion Street on the south, and states that, when such extension should be made, the alley as extended would become open to the use of the public. But Mrs. Elliott's right of way over the strip was not lessened, because she did not oppose the arrangement in question. Such extension, however, was

Opinion of the Court.

never made; the alley never became a public one, and her use of it continued for twenty years, and more.

Nor can her rights be affected by the fact that the alley was occasionally used by Howk, whose ground abutted upon the east side of the alley, and by Fitch & McKenzie, who were partners in the coal business having their office on the north side of Washington Street nearly opposite the entrance to the alley, and whose teams were in the habit of going through the alley to the part of lot 4 lying south of defendant in error. "It would seem that it is not necessary that the one who claims the easement should be the only one who can or may enjoy that or a similar right over the same land, but that his right should not depend for its enjoyment upon a similar right in others, and that he may exercise it under some claim existing in his favor, independent of all others." (Washburn's Easements and Servitudes (4th ed.) page 164, sec. 44). (Id. pages 165, 166 and sec. 46).

Fitch and plaintiff in error had full notice as early as 1880 of the rights of defendant in error in the strip in question. Their place of business was so located that they could easily see the alley and observe the daily use of it by defendant in error and her husband. They sold coal to her, and their teams delivered coal into the coal cellar under her house by hauling it through the alley to the opening in the east side of the house. They knew that the alley was her only approach to the barn and shed in the rear. The strip was enclosed on the east by a fence and on the west by the house, barn, shed and fence of the defendant in error, and had been filled in with gravel and other material to a depth of eighteen inches, so as to constitute a travelled road way. These circumstances indicated so clearly its use as an alley, that notice of such use was furnished by a casual glance at its appearance and surroundings. Plaintiff in error sought to show, upon the trial of the cause, that before the expiration of the twenty years and after his purchase of lot 4 in 1885, he had given Mrs. Elliott notice that

Opinion of the Court.

she could no longer use the strip without paying for it. It is not pretended that he gave any such notice in person, but that he did so through one Kaiser, a driver of one of his coal wagons. After a careful examination of Kaiser's evidence we are satisfied that he did not inform Mrs. Elliott of the objections of plaintiff in error to her use of the alley until after the death of Mr. Elliott, which occurred on January 3, 1887, and consequently after the period of twenty years had elapsed.

Some testimony was also introduced with a view of showing that the use of the alley was interrupted during the running of the twenty years, so as to prevent any prescriptive right from accruing. We think the testimony so introduced was insufficient for the purpose intended by it. For instance, Fitch or McKenzie at one time piled some wood in the alley near the north end of it and just south of the entrance to it from Washington Street. The evidence of Kaiser shows that the wood was on the east side of the alley, leaving a space of twelve feet on the west side of it, so that Elliott could easily pass it with his team in going to his barn in the rear. The fact, that defendant in error did not insist upon the immediate removal of the wood when it could be so easily passed, did not operate as a waiver in any way of her right to an easement in the strip in question.

Plaintiff in error showed Mrs. Elliott, upon her cross-examination, a letter purporting to have been written by her to "Mr. Gritzner." The letter bears no date. It is not certain whether it was addressed to the elder Gritzner or his son. It is said to have been delivered to Charles in 1873, but it speaks of a sale of the part of lot 4 lying South of Mrs. Elliott's lot, and there was no sale of such part by Charles Gritzner until 1881. Neither Charles Gritzner nor the plaintiff in error says anything about the letter in his testimony. It is said that in this letter defendant in error proposed to buy the strip of ground of Gritzner, and that, by making such proposition, she admitted Gritzner's right to sell the strip and thereby divert

Syllabus.

it from its use as an alley. We do not think the letter is capable of any such construction. She swears that what she proposed to buy was not the alley, but the fraction of lot 4 lying south of her lot. She is confirmed by the language of the letter, wherein she says: "I have lernt that you had sole your land back of us; now you know that I tole when you sole it and did not need a alley, that I would buy what was left."

Her own testimony and that of Charles Gritzner show that the words, "did not need a alley," refer to the contemplated extension of the alley on the east side of her lot southward to Marion Street. Such extension would necessarily take a strip sixteen feet wide from the east side of the fraction of lot 4 south of her lot. The proof shows that Gritzner had had much trouble with the lot owners about the opening of the alley, and had failed to consummate it. Inasmuch as the idea of taking a part of said fraction of lot 4 for an alley seemed to be abandoned, Mrs. Elliott proposed to buy such fraction of lot 4, but her proposition by no means included the strip of land east of her lot.

We find no error in the action of the court below. The decree of the Circuit Court is accordingly affirmed.

Decree affirmed.

HUBERT KUENSTER

v.

THE BOARD OF EDUCATION.

Filed at Mt. Vernon April 22, 1890.

1. SCHOOLS-general School law of 1872-effect upon special acts. The object in the passage of the School law of 1872 was to establish one general system under which all the schools in the State might be conducted, except where schools were conducted under special acts in cities having less than one hundred thousand inhabitants, or incorpo

Opinion of the Court.

rated towns, townships or districts. Such special acts were not repealed or changed by the general law.

2. SAME-certificate of qualification—whether necessary-in order to teacher's pay. Section 52 of the School act, which prohibits the paying of any teacher not having a certificate to teach before his employment, out of any school moneys, has application only to those school districts which are acting under the general law. It does not apply to boards of education elected under section 80 of the act. Such boards are expressly authorized to examine teachers, and to fix the amount of their salaries.

APPEAL from the Appellate Court for the Fourth District;heard in that court on appeal from the Circuit Court of Monroe county.

Messrs. WINKELMAN & MORRISON, for the appellant.

Mr. J. W. RICKERT, and Mr. E. P. SLATE, for the appellee. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill brought by Hubert Kuenster, to enjoin the board of education of district No. 3, town 2, south, range 10, west, in Monroe county, from drawing an order on the township treasurer to pay J. F. Wexford, a teacher, for his services, and to restrain the treasurer from paying any money to Wexford, as teacher, for the board.

The district in which the board of education was duly elected contained more than two thousand inhabitants. Wexford had been examined by the board of education as to his qualification as a teacher, and found qualified. After such examination he was employed by the board to teach in the public schools, and he had discharged his duties to the entire satisfaction of the board. But it is insisted that Wexford can not lawfully receive pay for his services, because he had received no certificate of qualification from the county superintendent of schools, as required by section 50 of "An act to establish and maintain a system of free schools," and that in pursuance of section 52 of the same act, he was not entitled to draw any portion of the school fund in payment for his services.