Perbix v. Verizon North

SUPREME COURT CASES

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State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0393 Rel

Case Date: 12/08/2009

Preview:Filed 12/8/09

NO. 4-08-0393 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

GEORGE H. PERBIX, JR., Trustee of the ) Appeal from GEORGE H. PERBIX, JR., TRUST, Dated ) Circuit Court of March 22, 1991; JOHN C CHABUT, ) Morgan County Trustee of the JO ELLEN PERBIX KUZILA ) No. 05L2 TRUST, Dated November 30, 1998; and ) JILL PERBIX CHABUT, Trustee of the ) JILL PERBIX CHABUT TRUST, Dated ) December 24, 1991, ) Plaintiffs-Appellants, ) v. ) Honorable VERIZON NORTH, INC., a Corporation, ) Richard T. Mitchell, Defendant-Appellee. ) Judge Presiding. _________________________________________________________________ JUSTICE POPE delivered the opinion of the court: In January 2005, plaintiffs, George H. Perbix, Jr., trustee of the George H. Perbix, Jr., trust, dated March 22, 1991; John C. Chabut, trustee of the Jo Ellen Perbix Kuzila trust, dated November 30, 1998; and Jill Perbix Chabut, trustee of the Jill Perbix Chabut trust, dated December 24, 1991, filed a two-count complaint seeking (1) declaratory relief, which would require defendant, Verizon North, Inc. (Verizon), to remove its telecommunications cables from a 6.883-acre parcel owned by these three trusts and (2) a finding that Verizon's failure to remove its cables constituted trespass. Hereinafter, for ease, we refer

to the plaintiff trusts as "the Trusts" and the individuals who established the Trusts and their predecessors in interest, who owned the land prior to its placement in these trusts, as "the Perbix family." In March 2005, Verizon filed its answer, (1) denying

the Trusts were entitled to declaratory relief, (2) asserting affirmative defenses, and (3) counterclaiming for (a) declaratory relief and (b) an injunction. In April 2007 and July 2007,

Verizon and the Trusts filed respective motions for summary judgment. In May 2008, the trial court granted Verizon's motion

for summary judgment, finding Verizon possessed an express easement over the contested 6.883-acre parcel. The Trusts appeal, arguing the trial court erred by granting Verizon's motion for summary judgment and denying the Trusts' motion for summary judgment. According to the Trusts,

Verizon was not entitled to keep its utility lines on the 6.883acre parcel of property, which were installed in that particular location pursuant to a revocable license created by an Illinois Department of Transportation (IDOT) utility permit. and remand with directions. I. BACKGROUND Because (1) the parties are familiar with the location of the real property in this case and (2) the precise location and grid coordinates are not fundamental to the issues presented, we have omitted precise locations and coordinates. In October 1965, the Perbix family granted General Telephone Company of Illinois (GTE)--which would later become Verizon--an express easement over a parcel of land it owned that (1) abutted old United States Highway 36 on the north and south and (2) was commonly known as section 26. The easement authoWe reverse

rized GTE "to construct, operate, patrol and maintain its commu- 2 -

nication lines[,] including necessary underground cables, wires, conduits, splicing boxes, surface terminals, markers, and appurtenances upon, over and across" section 26. The next year, GTE

installed underground cables, which ran parallel and immediately adjacent to old U.S. Highway 36 on the north side of the highway. In January 1976, the Perbix family conveyed a 31.53acre parcel of section 26 south of old U.S. Highway 36 to IDOT. IDOT later constructed a highway interchange on this parcel. (GTE's underground cables remained in their original location just north of old U.S. Highway 36.) In June 1981, the Perbix family granted GTE a "right of way easement" to construct, operate, patrol, and maintain its communication lines directly north of the cables it had buried pursuant to the original 1965 easement. GTE later installed

additional cables north of its other lines pursuant to this easement. (At this point, GTE had two sets of cables running

north of and parallel to old U.S. Highway 36.) In June 1995, the Perbix family conveyed an additional 9.109-acre parcel immediately north of old U.S. Highway 36 to IDOT. Both of the sets of cables GTE installed pursuant to the

1965 and 1981 easements crossed this 9.109-acre parcel of property. IDOT thereafter planned a redesign of the interchange to As a result, IDOT determined that

construct an additional ramp.

GTE's cables needed to be relocated to the south side of old U.S. Highway 36. Sometime between June 1995 and the completion of

IDOT's redesign in 1996, GTE requested a new easement from the - 3 -

Perbix family, instead of an easement or license from the state, to install its cables south of old U.S. Highway 36 on the west side of the remaining property the Perbix family still owned. The Perbix family declined. According to an uncontradicted affidavit from George H. Perbix, which was attached to the Trusts' memorandum in support of their motion for summary judgment, he became aware sometime prior to June 10, 1996, the State might not continue to use a portion of the 31.53-acre parcel of land the Perbix family sold to the State in January 1976. On June 10, 1996, an attorney for

Perbix wrote to IDOT expressing an interest in purchasing any of the surplus property. On June 12, 1996, IDOT responded:

"Presently within the development of the U.S. 67 extension, or Jacksonville Bypass to which it is commonly referred, there is not excess land. A new interchange is to be con-

structed at the above reference location. The existing ramp which is currently servicing traffic in the southeast quadrant of the proposed interchange will be redesigned during construction. There is the possibility that there may be some excess land at this location created with the redesign of this interchange. It

will not be known for certain until the construction project is completed, and there is - 4 -

no longer a transportation necessity for all properties. Should any potential excess land

be designated after completion of construction, we will notify your office of such a situation and proceed with the process of disposal of excess land." In August 1996, following the Perbix family's denial of GTE's request for an easement, GTE submitted a request to IDOT for a utility permit for the relocation of its cables south of old Highway 36 onto the land IDOT purchased from the Perbix family in 1976. Contrary to its actions with respect to its

request of the Perbix family, GTE did not ask the State to grant it an easement. In September 1996, IDOT approved GTE's request That same month, IDOT

and granted utility permit No. 6-25303.

and GTE entered into an agreement for a reimbursable utility adjustment in which IDOT agreed to pay 39.7% of the costs associated with relocating the underground cables. In 1997, GTE in-

stalled its cables on (1) IDOT's parcel and, at that time, (2) current state right of way that ran on the eastern edge of the land south of old Highway 36 that the Perbix family sold to the State in 1976. The redesign of the interchange resulted in unneeded excess land, i.e., the 6.883 acres. In June 1999, IDOT informed IDOT stated it would

George H. Perbix of the excess property.

prepare an excess land plat and obtain an appraisal of this parcel. According to George H. Perbix's uncontradicted affida- 5 -

vit, prior to IDOT obtaining the appraisal of the 6.883-acre parcel, IDOT removed the original exit ramp from the southeast quadrant of the interchange, filled the ditch that was parallel to the ramp, and created a surface on the 6.883-acre tract with contours similar to those in existence in 1976. In November 2001, IDOT informed George H. Perbix it had received and reviewed the appraisal for the 6.883-acre parcel. IDOT told George H. Perbix to remit a $3,000 cashier's check to IDOT for the property so that IDOT could request the directed sale of the 6.883-acre parcel of property to George H. Perbix be included in the annual highway bill submitted to the Illinois General Assembly during the 2002 spring legislative session. IDOT was authorized to sell the parcel to the Trusts in August 2002 pursuant to Public Act 92-0843. In September 2002, the State of Illinois, acting through IDOT, executed a quitclaim deed conveying the property at issue in this case to the Trusts. (GTE's underground cables,

which it had moved in 1997, ran, in part, along the eastern border of this 6.883-acre parcel.) The quitclaim deed did not

reserve a license or easement for Verizon to keep and/or maintain its utility lines on the 6.883-acre parcel. According to the

uncontradicted affidavit of George H. Perbix, no one from IDOT informed him or anyone else acting on behalf of the Trusts of the issuance of utility permit No. 6-25303, dated September 24, 1996, or revised utility permit No. 6-25303, dated October 30, 1996, or of the existence of the underground cables on the 6.883-acre - 6 -

parcel. In the spring of 2003, the Trusts began excavation work on the 6.883-acre parcel acquired from IDOT in 2002. Preparation

for this excavation work revealed the underground cables that GTE--which was then Verizon--had installed on the eastern border of that parcel pursuant to its September 1996 agreement with IDOT. In June 2003, George H. Perbix wrote to IDOT, inquiring about permits or agreements between IDOT and GTE regarding the cables running across the 6.883-acre parcel. In September 2003,

George H. Perbix requested a copy of associated utility agreement No. U-6-97-009. In October 2003, IDOT provided copies of utility In

agreement No. U-6-97-009 and utility permit No. 6-25303.

November 2003, George H. Perbix wrote to IDOT requesting further information about the utility permit and utility agreement. December 2003, IDOT responded to George H. Perbix, indicating IDOT was unable to find documents or notes of conversations about the utility permit and agreements relative to the sale of the 6.883-acre parcel of property. In January 2004, George H. Perbix wrote to Verizon, informing Verizon that it must remove the cables on the 6.883acre parcel because Verizon did not have an easement over that tract. In August 2004, Verizon responded it was not legally In November 2004, the Trusts sent In

obligated to move the cables.

Verizon a notice, purporting to terminate its "license" under utility permit No. 6-25303, which IDOT had previously granted to - 7 -

GTE, Verizon's predecessor in interest.

In December 2004,

Verizon responded it had the right to occupy the property pursuant to the utility permit, as well as the easements previously granted to GTE by the Perbix family. Verizon stated in the

letter the costs to relocate its facilities would be approximately $40,000. In January 2005, the Trusts filed a two-count complaint against Verizon, seeking (1) declaratory relief, which would require Verizon to remove its telecommunications cables from the 6.883-acre parcel owned by the Trusts and (2) a finding Verizon's failure to remove its cables constituted trespass. In March

2005, Verizon filed its answer, (1) denying the Trusts were entitled to declaratory relief, (2) asserting affirmative defenses, and (3) counterclaiming for (a) declaratory relief and (b) an injunction. In April 2007 and July 2007, Verizon and the Trusts filed respective motions for summary judgment. In May 2008, the

trial court (1) granted Verizon's motion for summary judgment, finding that, as a matter of law, (a) the cables were originally placed on the eastern border of the 6.883-acre parcel with the consent of IDOT, the then fee-owner of the parcel, and (b) that consent, together with the October 1965 express easement over all of section 26 from the Perbix family, authorized Verizon to place its cables south of Highway 36--which included the eastern border of the 6.883-acre parcel--and (2) denied the Trusts' motion for summary judgment. - 8 -

This appeal followed. II. ANALYSIS The Trusts argue the trial court erred (1) in granting Verizon's motion for summary judgment, finding Verizon was entitled to maintain its telecommunication cables in their current location pursuant to the 1965 easement and the utility permit, and (2) in denying the Trusts' motion for summary judgment because Verizon's lines were installed pursuant to a license, subject to revocation by the Trusts. "With a summary-judgment motion, the trial court does not decide a question of fact but, rather, determines whether one exists." Coole v. Central Area Recycling, 384 Ill. App. 3d 390, Therefore, a court may not

396, 893 N.E.2d 303, 309 (2008).

weigh evidence or make credibility determinations when deciding a summary-judgment motion. N.E.2d at 309. We review de novo rulings on motions for summary judgment, (1) examining the pleadings and depositions anew to determine whether a question of material fact exists and as a matter of law, that the movant was entitled to judgment, and (2) giving no deference to the trial court's ruling. Interior Crafts, Inc. Coole, 384 Ill. App. 3d at 396, 893

v. Leparski, 366 Ill. App. 3d 1148, 1151, 853 N.E.2d 1244, 1247 (2006). "[W]e may affirm a trial court's grant of summary judgState Automobile

ment on any basis appearing in the record."

Mutual Insurance Co. v. Habitat Construction Co., 377 Ill. App. 3d 281, 291, 875 N.E.2d 1159, 1168 (2007). - 9 -

Both the Trusts and Verizon agree the 1965 easement the Perbix family granted to GTE was a "floating easement." A float-

ing easement is "[a]n easement that, when created, is not limited to any specific part of the servient estate." tionary 528 (7th ed. 1999). "[W]here an easement granted by deed is undefined as to its location and width, the dimensions depend upon the intent of the parties, which can be shown by the extent of the actual use. Consequently, '"[w]hen the charBlack's Law Dic-

acter of [the] easement is once fixed, no material alterations can be made by either the servient or easement owner without the other's consent."'" Peters v. Milks Grove

Special Drainage Dist. No. 1, 243 Ill. App. 3d 14, 18-19, 610 N.E.2d 1385, 1389 (1993), quoting Vallas v. Johnson, 72 Ill. App. 3d 281, 284, 390 N.E.2d 939, 942 (1979), quoting 25 Am. Jur. Easements

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