2019 IL App (3d) 180677
Ill. App. Ct.2019Background
- Adjoining properties at 4610 and 4612 N. Prospect Ave. share a common (party) wall. In 1996 Stewart (then owner of 4610) obtained an oral permission from the 4612 owners (the Halls) to construct a sloped metal roof that overhung ~32 inches past the common wall onto the Halls’ side.
- The roof remained in place when defendants purchased 4610 in 2001 and when subsequent owners held 4612; title to 4612 was conveyed subject to apparent or recorded matters.
- Plaintiff JCRE Holdings later acquired 4612 and sued defendants (GLK Land Trust and trustee Kempf) for trespass, nuisance, and damages, seeking a mandatory injunction ordering removal of the encroaching roof.
- After cross-motions for summary judgment and reconsideration, the trial court granted plaintiff summary judgment on trespass (count I) and ordered removal of the portion of the roof extending from the centerline of the party wall onto plaintiff’s property.
- On appeal, defendants argued the roof was permitted by an easement or at least an irrevocable license, and that injunctive relief was inappropriate given the cost of removal relative to plaintiff’s minimal injury. The appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the roof encroachment was a trespass | The prior oral permission was revocable; license was terminated on transfer and the roof is now a trespass | The long-standing encroachment created an apparent easement or otherwise protected the roof from trespass claims | The oral agreement was a license (not an easement) that terminated on transfer; the continuing overhang constituted a trespass |
| Whether mandatory injunctive relief ordering removal was proper | Removal required; plaintiff has clear right and irreparable harm; no adequate remedy at law | Removal would impose great hardship and expense on defendants while plaintiff’s injury is minor; damages suffice | Injunctive relief was abused: encroachment was non‑intentional (authorized originally), removal cost great vs. minimal benefit; damages may be adequate — injunction vacated and case remanded |
Key Cases Cited
- Mueller v. Keller, 18 Ill. 2d 334 (Ill. 1960) (distinguishes easement from license; easement not created orally)
- Maton Bros., Inc. v. Central Illinois Public Service Co., 356 Ill. 584 (Ill. 1934) (license ends on transfer of title)
- Petersen v. Corrubia, 21 Ill. 2d 525 (Ill. 1961) (presumption that oral servitude agreements create licenses, not easements)
- Kamphouse v. Gaffner, 73 Ill. 453 (Ill. 1874) (acts done under a license protect against trespass until license termination)
- Ariola v. Nigro, 16 Ill. 2d 46 (Ill. 1959) (injunctive relief generally appropriate for intentional encroachments)
- Taubert v. Fluegel, 122 Ill. App. 2d 298 (Ill. App. Ct. 1970) (mandatory injunction is extraordinary; may be denied for unintentional encroachments)
- Stroup v. Codo, 65 Ill. App. 2d 396 (Ill. App. Ct. 1966) (defines intentional encroachment; authorization negates intent)
- Terwelp v. Sass, 111 Ill. App. 3d 133 (Ill. App. Ct. 1982) (courts deny injunction when removal cost is high, benefit to neighbor is small, and damages are adequate)
- Cammers v. Marion Cablevision, 26 Ill. App. 3d 176 (Ill. App. Ct. 1975) (similar analysis on denial of injunctive relief for unintentional encroachments)
- General American Realty Co. v. Greene, 107 Ill. App. 3d 1011 (Ill. App. Ct. 1982) (supports injunctive relief for intentional encroachments)
- County of Kendall v. Rosenwinkel, 353 Ill. App. 3d 529 (Ill. App. Ct. 2004) (equitable balancing required for injunctive relief)