Emanuel v. Hernandez, No. 2-99-0656

2nd District, 4 May 2000

JUSTICE BOWMAN delivered the opinion of the court:

Defendants and third-party plaintiffs, Jose and Lisa Hernandez, appeal an order granting plaintiffs, Wayne and Katherine Emanuel, summary judgment (735 ILCS 5/2--1005(c) (West 1998)) on one count of a complaint for declaratory judgment. The trial court ruled that plaintiffs have an easement by implication over defendants' property. Defendants argue that the judgment cannot stand because plaintiffs failed to prove all the elements of either an easement by necessity or an easement by prior existing use. We agree with defendants and reverse.

Plaintiffs own the property at 920 Pearl Street in Belvidere and defendants own the property immediately north of them at 914 Pearl Street. Pearl Street is on the west side of the properties. Other residential property is to the east. The property line bisects a driveway, but most of the driveway is on defendants' land. Plaintiffs' two-count complaint alleged in part that defendants had blocked the driveway with railroad ties and had begun constructing a fence on the property line so that plaintiffs could not use the driveway. Count I of the complaint sought an easement by prescription over the driveway. Count II sought an easement by implication over the driveway.

As pertinent specifically to count II, the complaint alleged the following. Plaintiffs had owned the property at 920 Pearl since December 1965. Defendants had recently acquired the property at 914 Pearl. Originally, one person owned both properties. Before title was separated, the use of the driveway to gain access to the garage was so long continued, open, and obvious as to show that it was intended to be permanent. The use of the driveway is essential to the enjoyment of the property at 920 Pearl, as the driveway is the only way a car can get to the garage.

Defendants answered and filed a third-party complaint against Kit E. and Carol L. Scheidenhelm, who sold them the property at 914 Pearl. Plaintiffs moved for summary judgment on count II, attaching affidavits from Wayne Emanuel, Ruth Garrigan, and John H. Maville. Wayne Emanuel's affidavit stated the following. When plaintiffs took possession of the property in 1965, there was a driveway on the north side of the property. The driveway served both 920 Pearl and 914 Pearl and an attached garage at the rear of his property. The garage could be reached only via the driveway. Since moving in, plaintiffs had several times shared the costs of improving or repairing the driveway with their neighbors at 914 Pearl Street. Emanuel no longer lived at 920 Pearl, but his tenants continued to use the driveway to get to the garage until early 1996, when defendants started to block the driveway. Whoever lived at 920 Pearl could not get to the garage without using the driveway and, for much of the year, could not park on Pearl Street itself. Therefore, without the use of the driveway, the property could not be used without disproportionate expense or effort. Emanuel's affidavit attached photographs of the properties and a copy of the deed from the Garrigans to the Emanuels.

Ruth Garrigan's affidavit stated that she and her husband purchased the property at 920 Pearl Street in 1953. At that time, at the rear of the house was an attached garage that could be reached via the driveway. The Garrigans used the driveway the whole time they lived at 920 Pearl, and they shared upkeep costs with the occupants of 914 Pearl.

John H. Maville, plaintiffs' lawyer, filed an affidavit describing a variety of attached exhibits, primarily deeds showing the chains of title to the two properties. As pertinent here, these deeds show that title to the properties was severed in 1890, when Benjamin Brock, who owned the west eight rods of lots 1, 2, and 3 in block 5 of Allen's Addition, conveyed the west eight rods of block 3--what is now plaintiffs' property--to Arthur E. Bassett. (Defendants' property is the west eight rods of block 2.) The affidavit also included a 1922 map prepared by the Belvidere public works department showing the locations of residences and garages on what are now plaintiffs' and defendants' properties.

In seeking summary judgment on count II, plaintiffs asserted that the undisputed facts demonstrated that they had an "easement by implication." Relying on Deem v. Cheeseman, 113 Ill. App. 3d 876 (1983), plaintiffs argued that all they had to prove to establish such an easement was that (1) title to the properties had been severed at some point; and (2) at the present time, the easement was necessary so that plaintiffs' property could be used without disproportionate effort or expense. Defendants countered that plaintiffs could not prevail because they had not shown a third element of such an easement--that, at the time of the severance of title, there was an existing use of the property that was of such a character that it would have survived as an easement by implication.

Plaintiffs disagreed. They did not claim they had proved that, before title was severed, there had been a use of the property akin to the easement they now sought. However, they maintained that, under Deem, no such proof of prior use was required if the easement was reasonably necessary to the beneficial enjoyment of plaintiffs' land.

The trial court agreed with plaintiffs and held that, under Deem, it was not fatal to the claim of an easement that plaintiffs had not shown either that their property was landlocked or "that the easement was created prior to the severance of the common ownership." The court considered it sufficient that there had been a severance of title and that, at present, the easement was highly beneficial because, without it, plaintiffs could not use their garage. Later, the trial court severed defendants' third-party action from this suit and added language making the grant of summary judgment in this case immediately appealable (see 155 Ill. 2d R. 304(a)). Defendants timely appealed.

On appeal, defendants argue that plaintiffs were not entitled to summary judgment on count II of their complaint because plaintiffs failed to introduce evidence from which the court could find they had an easement by implication. Defendants assert that there are two types of easement by implication--easements by prior use and easements by necessity--and that plaintiffs did not prove all the elements of either one. We agree.

Summary judgment is proper when the pleadings, depositions, and other matters of record establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998). Our review is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

An easement may be implied when the owner of property conveys or otherwise surrenders title to part of the property. There are two types of implied easement--the easement by necessity and the easement implied from a preexisting use. Granite Properties Ltd. Partnership v. Manns, 117 Ill. 2d 425, 435 (1987). An easement by necessity arises when the owner of land conveys or retains an inner portion of the land thereof which is entirely surrounded by the rest of the property or by the property of strangers. Manns, 117 Ill. 2d at 435-36; Finn v. Williams, 376 Ill. 95, 99 (1941). An easement from a prior existing use will be implied when the owner of a tract or of two parcels conveys part of the property after having used the land so that one part of the parcel derives from another a benefit that is apparent, continuous, and permanent. Manns, 117 Ill. 2d at 436; Sheehan v. Sagona, 13 Ill. 2d 341, 345 (1958); Canali v. Satre, 293 Ill. App. 3d 407, 411 (1997).

It is crucial to recognize that an implied easement is the product of the intention of the parties to the conveyance. Manns, 117 Ill. 2d at 437; Canali, 293 Ill. App. 3d at 410; Restatement of Property