It is firmly established by our case law that a mandatory injunction may be issued to protect the enjoyment of an easement. ( Gerstley v. Globe Wernicke Co. 340 Ill. 270; Turney v. Shriver, 269 Ill. 164; Espenscheid v. Bauer, 235 Ill. 172.) In the instant case, however, the trial court held that plaintiffs' laches barred such injunctive relief. Inasmuch as defendants failed to set forth that affirmative defense in their answer, as required under section 43 of the Civil Practice Act (Ill. Rev. Stat. 1955, chap. 110, par. 43), it should not properly be considered. ( Bowman v. Pettersen, 410 Ill. 519.

(a) The rights of the purchasers of lots arose in the park even though no express grant of the park was made by deed, since the park was laid out on the ground and a reasonable convenience for use in connection with the lots, enhancing the selling price of the lots. Greisinger v. Klinhardt, 321 Mo. 186; Gertsley v. Globe Wernecke Co., 340 Ill. 270, 172 N.E. 829; Gray v. Loud Sons Lbr. Co., 128 Mich. 427, 87 N.E. 376; Smith v. Heath, 102 Ill. 130; 18 C.J. 63, 64, 65; 19 C.J. 935, sec. 138; Hawkins v. Hendricks, 247 Ill. 517, 93 N.E. 428; Perkins v. Fielding, 119 Mo. 149; Missouri P. L. Co. v. Thomas, 102 S.W.2d 564; 87 A.L.R. 1520. (b) The note holders under the deed of trust and pledge agreement of November 15, 1923, and their trustee, and all persons claiming under them, from the terms of the pledge agreement, the plan of development, and the plat attached to said pledge agreement, had actual notice of the setting aside of the park for the use of purchasers of lots, or had notice of such facts as put them on inquiry as to the rights of the defendants and their predecessors in title. Marshall v. Hill, 246 Mo. 1; Gross v. Watts, 206 Mo. 373; Sicher v. Rambousek, 193 Mo. 113; Beach v. Lynn, 299 Mo. 127; Caruthersville v. Huffman, 262 Mo. 367; St. Louis v. Koch, 335 Mo. 991; K.C. Northern Railroad Co. v. Baker, 183 Mo. 312; Bacon v. Onset Ba

Burks Drywall, Inc. v. Washington Bank Trust Co. (1982), 110 Ill. App.3d 569, 442 N.E.2d 648. Plaintiffs rely on Wattles v. Village of McHenry (1922), 305 Ill. 189, 137 N.E. 114, Marshall v. Pfeiffer (1924), 314 Ill. 286, 145 N.E. 411, and Gerstley v. Globe Wernicke Co. (1930), 340 Ill. 270, 172 N.E.2d 829, as well as the Cook case, as supporting relief in their cause of action. Wattles succinctly summarizes the law regarding the rights of property owners in the streets, alleys, and public places laid out in a platted subdivision:

" In Gerstley v. Globe Wernicke Co. (1930), 340 Ill. 270, 172 N.E. 829, we find a case where defendants sought to erect a bridge of passageway over a platted alley. After considerable controversy the city of Chicago passed an ordinance allowing the same.

of proceedings upon existence of good faith in finishing offending structures are: Bainton v. Clark Equipment Co., 210 Mich. 602, 178 N.W. 51; Turney v. Shriver, 269 Ill. 164, 109 N.E. 708; Felsenthal v. Warring, 40 Cal.App. 119, 180 P. 67; Tex. N.O.R. v. Northside Belt Ry., 276 U.S. 475, 48 S. Ct. 361, 72 L. Ed. 661; Hayes v. Hoffman, 192 Wis. 63, 211 N.W. 271; Bouchard v. Zetley, 196 Wis. 635, 220 N.W. 209; Armstrong v. Leverone, 105 Conn. 464, 136 A. 71; Howell v. Cooper, 33 Ohio App. 287, 168 N.E. 757; O'Brien v. Goodrich, 177 Mass. 32, 58 N.E. 151; Tucker v. Howard, 128 Mass. 361; Supplee v. Cohen, 80 N.J. Eq. 83, 83 A. 373; Todd v. North Ave. Holding Corp., 121 Misc. 301, 201 N.Y.S. 31; Stewart v. Finkelstone, 206 Mass. 28, 92 N.E. 37, 28 L.R.A. (N.S.) 634, 138 Am. St. Rep. 370. Decisions wherein courts of equity have refused to balance equities and consider the comparatively great financial loss which would ensue to defendant upon the issuance of the mandatory injunction are: Gerstley v. Globe Wernicke Co., 340 Ill. 270, 172 N.E. 829; Del Giudice v. Shanley, 139 A. 311 (R.I.); Hartman v. Wells, 257 Ill. 167, 100 N.E. 500, Ann. Cas. 1914A, 901; Baldocchi v. Four Fifty Sutter Corp., 129 Cal.App. 383, 18 P.2d 682; Curtis Mfg. Co. v. Spencer Wire Co., 203 Mass. 448, 89 N.E. 534, 133 Am. St. Rep. 307; Pradelt v. Lewis, 297 Ill. 374, 130 N.E. 785, 14 A.L.R. 828. See, also, Lynch v. Union Inst. for Savings, 159 Mass. 306, 34 N.E. 364, 20 L.R.A. 842; Hard v. Blue Points Co., 170 App. Div. 524, 156 N.Y.S. 465; Mobile O.R. Co. v. Zimmern, 206 Ala. 37, 89 So. 475, 16 A.L.R. 1352. We have earnestly endeavored to place ourselves in a position to fully appreciate appellees' argument to the effect that enforcement of a right which arises out of an effort to give light and air to metropolitan areas is an equity that is outweighed by the dollars advanced by builders of twenty story buildings in defiance of zoning ordinances.

Quite simply, the county had no authority to permit a permanent fixture within the subsurface of the public highway easement for an exclusively private benefit. See Hale County, 572 S.W.2d at 65 ("[T]he county possesses no authority in law to grant an easement in the road’s subsurface owned by an individual for the exclusive private use of a nonowner."); see also Gerstley v. Globe Wernicke Co., 340 Ill. 270, 280, 172 N.E. 829 (1930) ("[A] municipality has no power or authority to grant the exclusive use or control of any part of the highway to any private person or for any private purpose."). In other words, the county lacks authority to authorize uses that exceed the scope of the highway easement and encumber the private property rights of the landowner.

Upon the basis of the foregoing principles and authorities, it has been held that objects, such as advertising signs, which project over a public sidewalk or street, are encroachments on the public way, in the nature of a purpresture, which an abutting owner has no right whatsoever to erect and maintain, or a municipality to permit, in the absence of special legislative authority. (See: Hibbard, Spencer, Bartlett Co. v. City of Chicago, 173 Ill. 91; People ex rel. Faulkner v. Harris, 203 Ill. 272; Gerstley v. Globe Wernicke Co. 340 Ill. 270.) In the present case the legislature has specifically delegated authority to the city to act in the field and there remains only the question of whether the ordinance relating to electric signs is a reasonable exercise of that authority.

The public streets are held in trust for the use of the public. ( People ex rel. Burton v. Corn Products Refining Co. 286 Ill. 226; Gerstley v. Globe Wernicke Co. 340 Ill. 270.) And while power may be granted by the General Assembly to permit the use or the restriction of the use of the streets, such power is to be strictly construed.

In addition to an unreasonable delay, the opposite party must show that he relied upon the other's inaction to his detriment. (Brunotte v. DeWitt, 360 Ill. 518; Gerstley v. Globe Wernicke Co. 340 Ill. 270.) Defendants do not contend they have been prejudiced by plaintiff's failure to assert her rights. Furthermore, the record discloses no testimony which might serve as a foundation for such an assertion.

First, as to an easement implied upon a severance of ownership of the larger tract of which lot 5 was a part, it is well settled that where an owner of a tract of land or of two or more adjoining parcels uses it so that a part derives an advantage from the other part, which benefit or advantage appears to be of a continuous and permanent nature, and then such owner sells the part in favor of which the use is made, the purchaser, in addition to the title conveyed, receives the advantage or benefit by implication. If the part conveyed is burdened with an advantage or use for the benefit of another part, then the purchaser of the part so conveyed takes title subject to the burden by implication. Walters v. Gadde, 390 Ill. 518; Gerstley v. Globe Wernicke Co. 340 Ill. 270; Fels v. Arends, 328 Ill. 38. The essentials of an easement by implication on severance of unity of ownership are well defined in the cases.