*1 SEYMOUR, JR., al., Counterdefendants- et Plaintiffs and FREDERICK P. CHICAGO, as OF BANK AND SAVINGS Appellees, HARRIS TRUST v. al., Counterplaintiffs-Appellants. Trustee, Defendants and et (2nd Division) No. 1 — 92—0743 First District July Rehearing 1994. denied Opinion filed June 1994. *2 HARTMAN, J., dissenting. (Edward Miller, Arlyn Joyce G. Kubasiak, P.C., Chicago T.
Joyce & counsel), appellants. for (John Curato, Randy Bell, Chicago J. Boyd Lloyd, P. Scotellaro and & counsel), appellees. court; opinion delivered the PRESIDING JUSTICE DiVITO Seymour filed this action Plaintiffs Frederick P. and Janet S. alleging that defendants declaratory judgment injunctive relief Stotler, impermis- neighbors, B. their were Robert W. and Katherine on defendants’ sibly interfering with to use two easements their *3 mo- order, granted plaintiffs’ agreed the circuit court property. In an defenses of summary judgment affirmative tion for on defendants’ abandonment, granted laches, plaintiffs nonuse, estoppel. and It later well, merger as but it denied judgment on summary the defense The court of use. summary judgment impossibility on the defense of only clarify that plaintiffs’ subsequent motion to also denied At the close of remaining impossibility trial of use. issue for was defenses, circuit affirmative case in chief on their defendants’ favor, a ordering to remove plaintiffs’ defendants court ruled in easements, plant- gate to remove wrought fence and iron plaintiffs’ that obstructed ings placed by them in the easements access, ask plaintiffs to allow to use the easements. Defendants and on granting summary judgment plaintiffs for for vacatur of the order ask a Defendants also merger issue of and for trial on that issue. reversed, or, alternatively, and vacated that the final be claim, least, they we must very remanded for a new trial. At the We affirm. remand for clarification of the relief ordered.1 3) (Lot Sheridan Road Plaintiffs have owned and resided 303 They ask that appeal challenges three orders. notice of all 1Defendants’ 586 1963;
Winnetka since have resided since 1982 at 301 defendants 2 (Lots 2). by property Sheridan Road is and Defendants’ bordered east; property Michigan on west and Lake there on is a overlooking bluff at the end of the the lake. property, eastern Running along parties’ properties the south lot lines of the is Elder (the Park), by Lane Park which is owned Park District Winnetka (the District). Park The lots at a piece issue were created in 1924 subdivision of a of property. running This subdivision two created easements east- west a between the lake and Sheridan Road: 20-foot easement across 2, 3, sidewalk, uses, roadway, Lots and 4 for utility and a three- foot ents).3 (collectively, easement across Lot access easem lake 1971, Road,
In 1970 or the owners of 303 and 301 Sheridan brother,4 plaintiffs family Seymour’s then respectively, of Mr. separate properties; erected a chain link fence to the Park from their mostly this fence is property located south of the southern line Lot 1. Defendants planted improvements have shrubs and made other easements; within the two across the 20-foot also have a wrought gate. erected iron fence with locked Defendants plaintiffs any denied through gate permitted access the locked but through them separate, gate access the south unlocked wrought According survey, iron fence. on gate partly this partly adjacent easement across Lot on the Park District property. order, order, agreed ground
the first be on the vacated there were nonuse, disputed laches, abandonment, questions estoppel, and that issue, therefore, agreed be remanded for trial. Not this an or- was der, however, present arguments reversing but defendants no it. Therefore, we do not it. address
2Title to defendants’ is held Harris defendant Bank trustee, beneficiary. with defendant Katherine Stotler as sole following plat
3The in which subdivision recorded contained provisions: easement (20) southeasterly twenty
"The feet of each Lots said & are subject perpetual enjoyed easements to be in common owners 1, 2, all said Lots 3 and 4 as follows: sidewalk, sanitary conjunction For sewer and manholes in there-
with; mains, gas mains, telephone water electric and wires and (3) conduits; roadway southeasterly and storm sewer. The three feet subject perpetual enjoyed of said lot 1 to a *4 1, 2, passage common the owners of said access and Lots and for Michigan.” to the waters of Lake family
4Plaintiff’s brother and his at what lived is now defendants’ resi dence between 1963 and 1982. declaratory judgment and for plaintiffs
In filed this action obstructed relief, physically had alleging that defendants injunctive them and had told the easements and interfered with their use of they claimed that defendants In they particular, could not use them. and trees by planting shrubs upon the 20-foot encroached it, and encroaches it, by maintaining an addition that throughout that They also claimed it. wrought iron fence across erecting the trees, throughout shrubs, hedges and planted had defendants making other and planting admitted three-foot easement. Defendants they easements, they that but denied improvements within affirmative They also raised use thereof. proper interfered with easement, they claimed regard to the three-foot defenses: with laches, existing maintain, estoppel due to estoppel for failure easement, lack of running along south side of the path lack of they raised defenses of For the 20-foot ripeness. addition, they for laches, counterclaimed estoppel. ripeness, extinguishment for failure three-foot easement declaration of maintain, abandonment, alternatively, they deemed dangerous, it its use was too termination of the easement because abandoned, 20-foot growth had been natural obstructed They injunctive relief. easement. too asked for affirmative summary judgment then on the Plaintiffs moved granting it that was argument, defenses. At oral the court observed summary except before the Court” judgment for issues now "[a]ll use, impossibility merger question issue of and the factual commenting can’t think doesn’t mean that counsel "[t]hat [defense] found some that’s not now.” The court also up present other issue enough that had not offered evidence on the need for the defendants acknowledged seeking Plaintiffs were not that time fence. alleged into defendants’ house relief encroachment easement. 20-foot order, agreed finding that there were
The court then entered an laches, to the issues of non- disputed respect no material facts with use, abandonment, summary judgment and it entered estoppel, wrought also found that points. favor on these It security and noted required iron fence was not for defendants’ encroaching addition altered plaintiffs seeking were not to have find, however, disputed there was or removed. The court did merger on the 20-foot regarding issue of law the effect of the doctrine regarding of material fact disputed easement as well as issues summary use, judgment so it the motion for impossibility of denied as to these two questions. summary "on all a second motion
Plaintiffs filed *5 issues,” merger remaining they impossibility which defined as they responded regarded use. Defendants with list of what as fact, questions mostly regard of material issue. latter replied purported Plaintiffs that these material factual were disputes not material were so supported not evidence and were summary judgment. they fodder In particular, argued that proof defendants had the burden of as to the extent to which the plantings relocated in the three-foot easement did not obstruct relocating use thereof as well as to the cost for them back the Park property. argument, to District’s After in is not the record, granted plaintiffs’ merger the circuit court motion as to but use, denied it impossibility as to "based on the existence of a question of fact as to or not three-foot whether easement possible to use.”
Subsequently, plaintiffs moved for clarification or modification of order specify to to be The issues tried. motion was denied. The court stated: recognize order],
"I ambiguity might that [in exist the first but I rulings upon think all that I made were the so-called affirmative being defenses asserted. continued, suppose by going
And I and I these remarks I’m to case, in somewhat direction whoever succeeds me on but to this my specific it was intent to limit the to be issues tried those remarks; know, I specifically issues you that referred to in those impossibility purpose and the failure of issues.” yet summary judgment Plaintiffs filed motion another impossibility/failure they it. purpose. Apparently abandoned trial, Seymour explained
At Frederick himself took the stand. He that he had link installed the chain fence between the Park and the issue, 1980, properties top from west of Lot 3 to the of the bluff in permission property. with the Park District’s to do on its The so fence had been extended eastward defendants. When defendants bought 1982, plantings in there had been on the north fence, infringed side this which had on but did not block the privet hedges easement. He stated blocked the three-foot agreed long but he had been there as as he could piling remember. The sheet across the foot of the bluff had been place block wall foot of had but concrete at the the bluff that, began. been installed defendants after this lawsuit Prior sloped bluff at the easement had down to the beach at the same slope as of the bluff the north. the rest following curve, put driveway had in a bed
Defendants flower stated, totally evergreens he as "that crossed the foot well because objected not them. He had easement”; just he walked around not restrict and did improvement” "a remarkable represented these lawn, lake, defendants’ which had been across his access to itself, objection by defendants. without the three-foot relocated object when defendants Similarly, he had felt no need to prop- (i.e., from Park District along from the fence existing plantings easement). It (i.e., within the three-foot erty) six feet north four to wrought iron Seymour first saw April when was not until house, he chain link fence and defendants’ fence between the spoke with Stot- he began rights endangered: were When to think his gate fence, pointed to unlocked ler new the latter about him, your told "There extending the new fence and south from Park gate was on Seymour objected that this easement.” When Seymour "That was that” and property, replied, Stotler had District *6 Seymour to use the had never tried "should do what had to do.” [he] created, after knew he could not pathway defendants but he side; walked down the bluff observing park it from the he had not park. the Hansen, line prepared survey of the south lot
Raymond who the issue, explained how he located the properties of the at testified. He existing survey, he testified that the plants and the fences for the and property. on the Park path "primarily” District’s witness, Robert Stotler. He had As their first defendants called easements, had learned that the chain been aware of the two and he the in 1983. He stated property link fence was on Park District place bluff were in barberry top from the to the bottom the bushes they and that were effective purchased property when he guests plaintiffs or their slowing He had never invited down erosion. yard, they had told them could use onto his beach and never beach, permitted them will, that he had slope but he conceded at 1984, however, stop. early Stot- and had not told them to to do so they unhappy plaintiffs ler had told were and his wife to might path to create yard they and that move bushes use of the through the to walk plaintiffs When continued privacy. ensure their $1,000 to six plantings to four yard, paid defendants move various path plaintiffs. to an unobstructed The estimated feet north create $7,000, guarantee no again and there was moving cost for them was to Nevertheless, their friends continued plaintiffs and survival. he had when yard walk defendants’ at all hours until across to the wrought from his house installed a iron fence north and south having gave reasons for done so: respective property lines. He four them; kidnapping frightened they had received intruder had 1986; against daughter they were worried about threat their possibility wandering driveway of her down the toward Sheridan Road; encourage plaintiffs path wanted to rather use the yard. gate than The their on the north side of the house is left garbage like; unlocked for men gate the south is locked. Stotler described the that had since he erosion occurred purchased his Regarding house the current conditions. the Park south, said, day property thing District’s he "the whole one just in” caved and caused a on He cave-in his land. also recounted his efforts, repair including constructing own rebuilding the bluff and wall, $17,000. slope steel-reinforced concrete which The cost down bluff, grass high, now has and is 25 feet has it, subsequently destroying To family shifted. avoid his never walks get beach, $16,000 instead; on using it to a new replacing stair $30,000. this stair would path cost Stotler also described the current fence, along night the chain link which he had walked the before he testified; go dangerous, down the bluff to the lake so the path is too top According research, ends primary bluff. to his water, high cause of erosion rain bluff is lake levels or waves.
Expert testimony on the condition of easement was heard Collinson, from Dr. principal geologist Charles Illinois State Geological (Geological Survey). Among Survey responsibilities his are monitoring shoreline, the conditions calculating at the current and erosion, past rates of providing consulting free services to land- personal knowledge general owners. He had and specific conditions since 1974 at defendants’ properties and the north and south it. In September the bottom of the bluff was piling, "well protected” by degree slope sheet but the 30 "seriously making oversteepened,” "highly it vulnerable failure” compared portion, when with the lower which was stable. He more *7 described the Park’s bluff it where abutted defendants’ as "essentially exposed spray; [and] unstable to wave and [direct] action” (the explained high year), he that it had in "failed” water falling which he meant that materials were onto the and beach into lake, later, exposing year raw faces of A in vertical earth. piling new been along park, slumping sheet had erected but had at occurred the south end lower on property, of the bluff defendants’ which was May photo attributable to saturation with rain. A wall, retaining purposes showed new defendants’ concrete of support slope protection against which include for the lower impact dewatering upslope. wave as as of of well facilitation the sand built, continued, undoubtedly Had it not been "there Collinson would right” gullying slope have been at easement’s lower increased susceptible land, was adjacent park and the due the fence dry year, he very boring information from gullying. From soil with slope” "essentially a sand-filled that the site was concluded and thus steeper was wet and portion that the southern indications park Survey’s boring in the Geological "highly The vulnerable.” at mid- slippage saw Collinson pictures, similar conditions. showed trial, conclude him to time which led slope through from 1986 unstable; slippage that this inherently he assumed that the area was in the easement, trees which was obscured occurred at the sod testimony, he had seen that day photographs. prior The to his retaining wall. away the new slipping despite Collin- in particular, at regard to conditions With vulnerable, as "highly slope as easement’s son characterized the living think[s] [defendants are] that private, [he] [he] stated failures!,] is, even major edge,” experience could "[defendants] that any time.” He conceded today improvements^] at almost [the] portion north primary his concern had been the he written to property, and that when defendants’ stable,” he kept be well property appears counsel that "the instability on the south vulnerability had not mentioned however, portion. cautioned, he had received additional in- He privet hedge in the Collinson formation since then. The observed, and he had recom- slope was beneficial to stabilization such times to undertake additional mended to defendants several negative effect on plantings. Removing privet hedge would have a removing stability slope slope help because the roots retain exposed. raw plantings bluff would an area with soil on the leave top of plantings from the He further commented that removal would be detrimental along bluff to the house the fence west "undoubtedly a lot of plantings those remove stabilization because acknowledged, underlying layers.” He later water from those sand essentially however, top slope of the would serve that the trees if moved three feet. He added purpose the same were property, Park lower than defendants’ part because area, which would runoff would occur in the easement increased rain slope make the there less stable. cross-examination, major causes of agreed Collinson that the
On wave high lake and storm-induced severe bluff erosion are levels bluffs, pamphlet at the foot of such stated action Transpor- Department the Illinois of Water Resources in Division Lake, Stabilization, Lake tation, "Harmony Bluff with the Guide to Thus, wave action unprotected, of bluff is Michigan.” if the bottom a pile sheet Where there is collapse, as it had at the Park. will cause *8 however, bluff, at revetment the bottom of "the role the lake [in decreased,” is greatly erosion] lack of as further evidenced protected at a park comparison failure area in to the another south in protected; with failure where was not protection it so when such constructed, heavy key. rainfall becomes
Collinson later with piling mentioned that even the sheet at the bluffs, Park’s and defendants’ storm with severe the main wave front quarter damage east or southeast would southeast face, i.e., corner of signifi defendants’ bluff at due addition, splash. trial, cant wave year prior In in the to the he had end, seen deterioration at the Park bluff’s north which would affect adjacent property defendants’ increasing with destabilization and According concentration of rainfall runoff. to the pamphlet, first step preventing bluff, protection erosion is to erect of a the base followed its reshaping slope to at least as defendants’ 1½ is, if slope possible necessary. when Controlling surface excessive step, runoff by controlling ground water is the next followed excessive seepage, water step revege- defendants had done. The last tois necessary, did, tate the bluff though face as which defendants also (lawn) disagreed Collinson choice defendants’ there. He explained vegetation rain impact shields soil from that her- plants, bacious especially grasses, rapid retard rain runoff. For rainfall, intercepting shrubs, effective, grasses, and trees are equally retarding but for filtering runoff and soil particles, surface shrubs poor compared and trees are grasses. Grass has very stability low having on a steep slope, grass slopes asking mown is "just for it.” any He would recommend that new be plantings "woody type” to preserve the bluff. opinion highly inappropriate
Collinson stated that "it’s it is [his] dangerous that there be traffic there” that it would foot down, person noting walking warning that there would be no addition, collapse. heavy possible cave-in or rainfall would result Although he slope. in further destabilization of the easement’s fence, at the chain appeared to believe that the lot line was link his testimony would different if the line were five feet be no lot four or except adjacent gullying north that fence that the now tended to be relatively maturely slopes, to the fence. Places with wooded low soil, relatively stable, clay slope, thick he slopes, or a well-drained traffic, easement, "there will can foot at the explained, tolerate but damage gullying greater susceptibility be an increase in [and] from foot traffic.” Collinson also mentioned foot traffic could have crews,5 but work by defendants’ gullying if made the current caused agreed He also seeding over. damage repaired could be that such since 1937. it had been position the same that the bluff for someone impossible "it stipulated After defendants lake, the bluff to down along to walk” the three-foot *9 vague, term "destroy” precipitous "a rejected the word Collinson "impact,” nature,” instead prefering in really apply just that doesn’t negatively. He then thing’s by he affect a condition meant *** it, on slope may have some effect agreed "walking down the that conditions, under when, who, what climatic under [depending on children, slow, adults, all sorts conditions, or whether fast what soil "main- were used but things.” if the easement Asked whether of occurred, anything like that by any gullying in or filling tainted] replied: damage slope,” Collinson there would be no then where, during example, period a for "There are conditions occurs, precipitous rainfall, heavy it the traffic causes some and a action of are such that remediation damage, and the conditions delayed such that fixing condition will become it must be by bringing in.” damage will ensue someone more if very a condition” causing He like that serious foresaw "conditions walking saturated, a down ground only people with few even heavy fact, extremely rain slope. In if the soil was saturated and time, person walking a down period single a even fallen over easement; a at the he slope easement cause cave-in could significant of a bluff. If collapse portion himself had of a caused believed, could slope at the he that cave-in failed easement. Col- trigger large a area of failure north of the three-foot that, by walking slope can be damage caused on the linson conceded though great expense, just as defendants have repaired, perhaps at mostly high damage by lake levels. repaired bluff after caused their was not agreed if did occur and the easement He also foot traffic recommended, shrubs, woody as he had dense planted with steps taken. if monitored and other easement could be maintained chief, moved plaintiffs case At the end of defendants’ the Code of Civil 2—1110 of in their favor under section (now (111. ILCS 2—1110 par. ch. Procedure Rev. Stat. (West 1992))) a written impossibility. on the defense of 5/2 —1110 both on memorandum, favor plaintiffs’ circuit court ruled It complaint defendants’ counterclaim. their by fence, had been installed gate, plantings determined that side on the north that the crews had used stair 5Stotler later testified lot. only recently defendants "wholly [plaintiffs’] interfered with use *** of the easement Michigan,” found, access Lake but it also regard to the impossibility use, defense of "the evidence conclusively fails to show that the removal of the plants [in the three-foot will easement] cause the erosion of the Testimony easement. at trial indicated that most erosion of the land is caused lake, the wave action from the rather than *** foot Finally, traffic. gate removal of the fence and pose no threat to the maintenance of the land.” The court further determined that defendants intentionally took action prevent plaintiffs using from the easement installing plantings fence gate with a despite being locked aware of the easement, and that the intentional nature of this conduct allowed the court not to take into account a equities balance when deciding grant whether plaintiffs’ request injunctive relief. It then ordered gate defendants to remove the and fence as well as them, plantings placed by in the obstructing if access, lake permit and to plaintiffs to cross to and from the lake over the easements.
I *10 analyses Prior to our summary judgment of the order and the order, final we believe that an overview applicable of the substantive First, law would be useful. "two necessary distinct tenements are to easement, the creation of an dominant to which right the —the belongs, and the upon obligations servient which (Chicago rests.” Title & (1943), Trust Co. v. Wabash-Randolph Corp. 78, 84, 384 Ill. 51 135-36.) 132, N.E.2d
"An right easement is a privilege another, and, or in the land of if it is exercised in occupancy land, connection with of other it is appurtenant thereto. An appurtenant [Citation.] easement passes conveyance annexed, of land to which it is and an easement appurtenant continues until the easement is either terminated or abandoned. [Citation.] Where an easement is created an instrument, the document must be construed in accordance with parties, the intent of the and such intention is ascertained from the words of the instrument and the ous with the creation of the contemporane- circumstances Additionally,
easement. [Citation.] '[t]he use to which an easement is devoted or for which it is granted determines its character and to the extent for which it is necessary carry to purpose out grant, rights of the of the owner of the paramount.’ However, easement are [Citation.] while the owner of an easement is enjoyment every entitled to full right enjoyment connected to the of the the easement
595 ' convenience, to "merely the sake right, has no owner use of and beneficial control with the owner’s [fee] interfere of his enjoyment necessary for the reasonable land further than is ’ omitted.) Coke Co. v. (Peoples Light Gas & (Emphasis easement.” 368, 357, quoting (1930), App. 256 Ill. CookLumber Terminal Co. 779.) 384, Lastly, a 381, (1923), 141 N.E. Allgood 310 Ill. v. Doan will and it may equitable, it grant relief as deems equity court of in little benefit doing an act which will result require not great hardship [Citation.] to another. one but *** injunctive a discretion- relief is granting denying or [T]he discretion, court, and, its ary ruling by absent an abuse of circuit upon [citation].” ruling review a (Schnuck will not be overturned court’s 957, 974, Markets, (1991), App. 3d v. 213 Ill. (1991), Inc. Soffer 560, 2d 1169,1181-82, 141 Ill. appeal denied 572 N.E.2d 134.) N.E.2d 246, (1993), App. Ill. 3d R.W. Dunteman Co.
See also McCann v.
(1993),
law),
Ill.
(general
appeal
easement
denied
As for the of the owners relative dominant and servient estates: contrary, agreement _
"In the owner of the absence of duty keep the has but the the easement has repair while owner of the servient tenement repair. put keep [Citation.] the easement in duty no to either necessary use The owner of the dominant estate entitled to Necessary defined as such use the easement. use has been of reasonably necessary premises. enjoyment of the for the full Moreover, although owner of dominant estate [Citation.] easement, he duty repair cannot has the to maintain easement, even in the character of the make material alterations so, if the though do it would be more his convenience upon the servient estate or places greater burden alteration enjoyment of the servient estate. with the use and interferes *11 [Citation.] *** egress right way ingress and has the of owner of [T]he having strip right of or definite to use the full width the area placed [Citation.] thereon. unhampered boundaries obstructions trees, obstructions, which However, bushes and such as natural grant and were not time of the of the easement existed been of the servient estate have placed there the owner (Flower recognized exception as an to this rule.” v. Valentine 687.) (1985), 1034, 1039-40, 682, App. 135 Ill. 3d 482 N.E.2d (See Page (1991), also 18, 22, v. Bloom App. 223 Ill. 3d 584 N.E.2d (the 813, duty to maintain the easement rests with the tenement, owner of the dominant keep who must be allowed to usable).) repair easement reasonably so as to make it When the parties interests, two have irreconcilable the owner of the dominant may repair estate or maintain necessary preserve the easement as use, his but he unreasonably cannot interfere with the servient estate (1983), 333, 337-38, owner’s (Beggs Ragsdale use. v. App. 120 Ill. 3d 1082.) 1079, 457 N.E.2d question The of reasonableness is of fact one in the circumstances. Executive v. Center La Salle Professional (1991), 368, 379, National Bank 211 App. 366, Ill. 3d 570 N.E.2d 373.
For quantum of necessary grant injunctive evidence one, relief in a case like this
"the
equity
jurisdiction
rule is that before
will
protect
take
rights under
an
proof
such
easement
must be clear and
convincing,
every
so as to remove
substantial doubt of the exis-
rights.
tence of such
[Citation.] It has also been said that
favored,
property
'Restrictions on the
use
held in fee are not
yet where the
parties
clearly
intent of the
manifested in the
upon
grantee,
creation of restrictions or limitations
the use of the
grantor,
assigns,
for the
equity
benefit of the
his heirs or
a court of
”
Title,
84,
will
(Chicago
enforce the same.’
The case cited parties special most often both deserves (1985), attention. Flower v. Valentine 135 Ill. 3d 482 N.E.2d that, pair properties concerned a similar coincidentally, lie subject not far properties; there too the easement was for case, In lake access. the owner of the servient estate moved to enjoin the dominant permanently entering estate’s owners from her moving removing any vegetation and from in the injunctive easement. The defendants counterclaimed for relief to easement, prevent interference with the use their and asked that plaintiff be ordered to remove certain obstructions. Flower, precipitating event had occurred when the defendants, owners, vegetation began new to remove to clear the rejected court had fallen into disuse. The extinguished for plaintiff’s contention that the easement had been *12 estate, commenting that an by lack of use the owner of the dominant accompanied be by nonuse but must express grant cannot be lost mere the that by court then held an to abandon the use. The intent in easement those defendants could remove shrubs created, that all but easement was plaintiff planted after the granted were was time the easement bushes that had existed way should right of easement exempt general rule that the The court by any obstruction, they could remain. unhampered so barbecue, though obstruction permanent a a similarly found that even easement, could by granting of the prior erected the owner light of the inequitable in remain because to order removal would be ease lessening of estate as well as the cost and of value the servient it. simply walk around with which the dominant estate owner could ordered, however, interfering with the plaintiff The was to cease tables, chairs, by placing plantings, she had as done gate, by as use of objecting and debris in it well as defendants’ steps down to plans and to to build new thereon easement their plaintiff’s Lastly, hearing for a on the the lake. court remanded testimony regarding resulting erosion from the defendants’ expert’s injure vegetation, owner clearing noting that an easement cannot not adjacent property plaintiff the easement area or and that the did injunctive damage requesting have to wait until the was done before relief. mind, principles
With we to the merits. these turn
II granted summary plaintiffs’ favor The circuit court merger defense of of the 20-foot easement defendants’ affirmative The unity ownership in Lot 2 Lots and 2. record virtue underlying ruling. the court’s does not reveal the reasons merger begin argument general rule of Defendants their with the (benefited) (burdened) that when the dominant estate the servient person, extinguished an estates are owned the same easement unity given that one has no need possession, virtue of of title and property. They argue an that under a easement over one’s own "logical reading” grant of 20-foot easement over Lot of the grant utility roadway solely the benefit of Lot l’s service and access, or Lot 4. (plaintiffs’ property) for the of Lot 3 not benefit conclude, therefore, Lot 2 was They the 20-foot easement on extinguished by Lots 1 and 2 came under operation of law when ownership. same contend that their construction Defendants roadway Lot 2 grant conferring solely on Lot 1 the easement over terms, grant’s was limited to does conflict with the for its intent not providing the roadway only owners of each lot with access to and from Sheridan Road only and with access to from Sheridan utilities Thus, opinion, Road. in their aspect of the 20-foot easement merged plaintiffs’ is not necessary easement across use use, Lot 2 to reach the three-foot easement across Lot 1. This maintain, "logically” is limited to the southernmost three feet of Lot just grant as the locates the three-foot 1 in that easement over Lot lot’s southernmost three feet. Defendants add that literal reading of grant nonsensical, the easement renders it for under that interpretation, itself, Lot 4 has an easement over Lot 3 has itself, on, apparently noticing over and so that such easements would not have been created in the first place as matter of law. Defendants any roadway also contend that *13 use of the 20-foot easement would in a result dead-end road and in thus should result use, termination of that only merger, but we address the issue of subject which was the of summary judgment order.
There should question be little about the standard of review for grant summary judgment denial of a motion for under section (111. 1991, 110, 2—1005 of the Code of Civil Procedure Rev. Stat. ch. (now (West 1992))): par. 2—1005 735 ILCS 5/2 —1005 "Although summary judgment encouraged the use of as aid expeditious lawsuit, in disposition of a a it is drastic means of disposing litigation of and should be allowed when the moving party of the determining is free from doubt. 'In [Citation.] moving party summary judgment, whether the is entitled to pleadings, depositions, court must construe the admissions and against strictly liberally affidavits the movant and in favor of the short, opponent.’ summary judgment In [Citations.] '[a] motion for is to be decided on the of the basis record as it exists at the time the motion is heard.’ [Citation.]
Furthermore, deciding it is well in established that a motion for summary judgment, may the court draw inferences However, undisputed persons facts. where reasonable could draw divergent facts, undisputed inferences from the the issue should be decided the trier of fact and the motion should be denied. standard, light [Citation.] the trial court does not have any deciding (Loyola Academy discretion in the matter.” v. S&S Maintenance, (1992), 263, 271-72, Inc. 146 Ill. 2d 586 N.E.2d Roof 1215.) 1211, (In Accordingly, applies the de novo standard of review re Estate of (1992), 422, 427, 899, 903, App. Hoover 226 Ill. 3d 589 N.E.2d affirmed (1993), 402, 736), part part & in vacated 155 Ill. 2d 615 N.E.2d so summary judgment may "[t]he trial court’s be affirmed on basis appearing in the record whether or relied on that not court basis
599 (1992), Dancer, Corp. Inc. v. DMC reasoning Ray or its was correct.” 1344, 40, 50, 1351. App. Ill. 594 N.E.2d 230 3d affirma summary on the judgment for On motion defendant, a like that of merger, role was tive defense of their proof of without the burden proof. When one they had no burden of satisfy party not need summary judgment, the burdened moves for (Gatlin to prevail preponderance of the evidence its trial burden a 589), 292-93, 586, but if 284, (1990), Ill. 560 N.E.2d v. Ruder 137 2d movant, by the submitted by affidavits and other evidence confronted may It not rest submit counteraffidavits. party the burdened must issue of fact that solely allegations its to raise an pleadings on the (Fooden (1971), 48 v. Board Governors would thwart such a motion. (1972), 580, 497, 500-01, 408 U.S. 586, cert. denied Ill. 2d 272 N.E.2d 2847; District 943, 766, Protection 33 92 S. Ct. East Side Fire L. Ed. 2d 654, 755, (1991), N.E.2d City App. 221 Ill. 3d v. Belleville on a his case ("Although plaintiff required prove provide he a factual summary judgment, defendant’s motion for must Thus, entitling judgment”).) arguably basis him moving summary judgment supporting party files "where party opposing containing well-pleaded facts and the affidavits counteraffidavits, the material facts set forth in motion files no opponent If fails to the movant’s affidavits stand as admitted. support of motion and the mo- proofs controvert the offered him to showing of facts would entitle vant’s uncontradicted law, summary judgment is proper.” a matter then District, Ill. at Fire Protection 3d East Side N.E.2d 758.
Keeping in are defined their uses mind that easements *14 creating language the the this court looks to the of instrument to ascertain the contemporaneous easements and to circumstances creation, plain grant the 20-foot easement in intent of it is of the utilities, 4, 3, roadway, 2 and Lots envisioned three uses: summary at though presented no evidence the sidewalk. Even one utilities, concerning of the defendants stage the location only Sheridan Road. dispute that the utilities come from did not Therefore, fact intent question there exists no of there 4 and 3. utility Lot 2 for Lots whatsoever to create easement over in merger of results say, application the of the doctrine Needless purpose. 2 this extinguishment of Lot easement over Lot l’s conclusion, resulting straightforward, opposite in the Equally but creating easement over of intent in the sidewalk question is the the conjunction 2 4. in with the simultaneous Lot for Lots 3 and Read 1 lake access the the easement across Lot grant of three-foot 600 2, 3, 4,
owners of Lots question there is little the intent creating when the sidewalk easement was to allow the owners of Lots pedestrian 3 and 4 edge access from Sheridan Road to the of western the three-foot easement as well as for Lot 1 pedestrian to have access Thus, although to Sheridan Road. Lot 2’s use of sidewalk easement extinguished doctrine, merger under the the sidewalk easement rights location, of Lots 3 remain. As for the sidewalk’s we agree likely that it along edge was intended to run the south of Lot 2 to connect to the three-foot easement across Lot 1. granting roadway
The intent
pre
easement
for the
use
sents a
complicated question:
more
whether the easement across Lot
only
ingress
egress
was intended
for Lot l’s
from and
to Sheridan
determining
easement,
Road. In
purpose
of that
we note that
(1989),
634,
Delgado
969,
v.
App.
Wilson
178 Ill.
3d
533 N.E.2d
grant
right
court commented that a
of an easement worded as
of
"[a]
way
driveway”
to be used as a
park
did not include the
(178
except
easement
to load and
passengers.
App.
unload
Ill.
3d
635.)
Here the easement
is for a "roadway,”
permitted
so its
uses
ingress
egress,
are not limited to
encompass
but instead
activities
parking,
may
such as
for an easement
park
holder
on an easement so
long
doing
as
so
unreasonably
rights
would not
interfere with the
641,
the holder of the servient
(Delgado,
App.
estate.
178 Ill.
3d at
(Dunn, J.,
Furthermore,
dissenting).)
601 & Trust v. Northbrook & Sons Joseph resolve these matters. Giddan 757, 537, 541, (1986), 760 501 N.E.2d Savings App. 151 Ill. 3d Bank (where it), may set court define location of deed does not (1987), 546, N.E.2d 729. 114 Ill. 2d 508 appeal denied
Ill in their favor after judgment plaintiffs’ motion for response In to chief, found that the circuit court case in defendants concluded their side gate on the south wrought iron fence and removal fence of the land and posed house no threat to maintenance It right to the lake. "wholly of access plaintiffs’ interfered with” any plant- as gate and as well ordered defendants to remove the fence ings easement. they placed had within the limits of the three-foot challenge ruling, recount Stotler’s
In their to this defendants prompted erec- testimony security safety and concerns that about are wrought They their concerns tion of the iron fence. claim chain link fence plaintiffs’ earlier installation "validated” a permitted and are properties between the Park and the at issue terminus, way private a at its interference with the use of reasonable ("[t]he 975, (1894), 534, 536, v. 153 39 N.E. 976 citing Green Ill. Goff are as are nec- upon [a owner] limitations servient estate’s such They argue way”). essary proper use of the enhance gate and were reasonable under the circumstances to fence trespassers safety privacy injury unsuspecting and and who avoid bluff, might assert that inconve- fall down the further by giving be eliminated nience to use for lake access could it after use. key gate ordering them to lock them the locked 464, (1958), 13 Ill. 2d distinguish v. Burnstine Defendants Schaefer ceased, gate’s 113, purpose in that there the use N.E.2d longer al- estate owner no existed advantage to the servient so remained, unlike though to the easement holder the inconvenience They distinguish Nopolous v. gate’s remains. purpose here where 734, (1981), 852, on a similar Ill. 3d 420 N.E.2d McCullough (use gate, former use for ground crops of land for needed no unlike livestock) problems access that case also concerned and stress rights. parties for third similar states as follows: 2—1110 of the Code of Civil Procedure
Section jury, may, at the close "In all cases tried without a defendant case, her finding judgment his or favor. plaintiff’s move for a evidence, weigh shall ruling on the motion the court weight credibility and the considering of the witnesses ruling the motion is favorable quality of the evidence. If the defendant, dismissing action shall be entered.” (111. (now Rev. Stat. par. ch. 2—1110 735 ILCS 5/2— (West 1992)).) In applying statute, this *** trial *16 "[t]he court first must [the determine whether nonmo-
vant, who had proof] the burden of presented prima has a facie ***not, If case. then grant the trial court should the motion and judgment enter in [the party] movant]’s [the favor. If burdened case, prima has set forth a weighs the trial court then facie evidence. A trial [Citations.] court’s determination on the motion will appeal not be contrary reversed on unless the decision is weight the manifest of the evidence.” Zannini v. Reliance Insur (1992), 437, 449, 457, ance Co. 147 Ill. (emphasis 2d 590 N.E.2d 462 original). in explained by (1980),
As
our supreme court in Kokinis v. Kotrich
151,
43,
cases,
81
alike,
Ill. 2d
407 N.E.2d
jury
nonjury
all
a
plaintiff must make out
prima
by presenting
case
at least
facie
every
some evidence on
element essential to the cause of action. If
plaintiff
this,
fails to do
the defendant is entitled to
a matter of
If
plaintiff
law.
prima
does establish a
case in a
facie
nonjury matter, however,
weighs
the court then
the evidence. If this
weighing
negation
results
of some
necessary
of the evidence
case,
plaintiff’s prima
judgment.
the defendant is entitled to
See
facie
also Wehde v. Regional Transportation
(1992),
Authority
App.
237 Ill.
664, 675-76,
446, 455,
3d
(1993),
604 N.E.2d
appeal denied
149 Ill. 2d
662,
We first installing must disabuse defendants of their belief that private the chain link fence public between land is analogous erecting this fence plaintiffs’ across easement. The for- mer prohibit was intended to people right access who had no to be on property, so its interference did not have to be "reasonable.” As for the finding circuit court’s wrought that removal of the iron posed fence no threat property,” "maintenance of the this observation addressed defendants’ affirmative defense of the impossibility of use rather than the reasonableness of their interfer- ence plaintiffs’ with use. argue ruling Defendants do not that this against evidence, weight manifest of the so we do not address it. (and end) analysis question presented begin
Our of the could general with right way ingress rule that owner of a "[an] *** egress unhampered by has the to use the full width placed except obstructions thereon” for natural that obstructions placed existed at the time of the easement and were not there (Flower, 1040, owner of the App. servient estate. 3d at Ill. 687.) 20-foot wrought lies across the iron fence at The N.E.2d roadway uses of 2, the sidewalk easement across Lot and because by merger, the fence must extinguished that have not been is unobstructed. that easement the full width of be removed so that obstruc- fence was reasonable Although defendants insist circumstances, need for the on the light the evidence tion of the by the was, greatly undermined best, conflicting, and it was fence side of the gate the north and unlocked evidence about the fence Therefore, say implicit court’s we the circuit house. cannot use of finding unreasonably that the fence interfered weight evi- against the manifest the 20-foot easement was dence.6 the circuit court should
As for insistence defendants’ case, we are mindful that courts equities have balanced the in this deciding when equities are free to whether to balance the decide culpably grant injunction whether to in a case of intentional or (Borrowman (1983), negligent encroachment v. Howland Ill. 108). 103, Here, noted that 3d 457 N.E.2d the circuit court *17 (1975), under v. 328 N.E.2d LeClerq Zaia 28 Ill. 3d general it avoid the rule that intentional interference would allow to relief, compare deciding injunctive may grant whether to court that party against the to suffered one the benefit hardship be creating party. the intent in would accrue to the other Because obviously give other lots access was to three three-foot easement lake, showed that defendants and because the evidence knowledge despite purposefully interfered with that use actual plaintiffs’ rights, equities circuit court’s decision not take the not an discretion. of the matter into account was abuse of its Furthermore, raise are rele "equities” of the defendants most vant, through Park and plaintiffs’ access such as alternative land, pathway plaintiffs on Park creation defendants’ with to use this easement nothing have do their plaintiffs’ problem "creation” of the property, defendants’ and land, though defendants link on Park even locating the chain fence wrought knowing installing plantings prior admit this fence. iron merged, roadway the sidewalk if Lot 2 had been
6Even use across remain, running a fence court stated that would the Flower minimum, then, portion that At a the full width of an easement cannot stand. gate, there is no would crossing in which of the fence the sidewalk removed. and would have obstruct use thereof IV Defendants finding next contend that the circuit court’s that only issue to be impossibility resolved at trial was of use or fail original ure in its purpose was incorrect because there still remained questions concerning the nature of plaintiffs’ permissible uses of the easements and whether defendants impermissibly had interfered with They those uses. explain why do not they appealing are this is, point; they do they not indicate what harm suffered from this alleged error.
The circuit ruling court’s observation on the result of its only concerned those presented by yet issues the motions but not decided. The only motions addressed the affirmative defenses. As the judge ruling stated, on the motions pre- he decided the issues Thus, sented those underlying motions. there remained com- counterclaim, plaint and plaintiffs so prove their case to obtain to. they sought the relief and could not have obtained in their merely by blocking favor the affirmative defenses.
V quarrel wording Defendants also with the circuit court’s order to the effect that conclusively "the evidence fails to show the removal plants will cause erosion of the [three-foot] They burden, assert, easement.” did not have this apparently believing plaintiffs proving had the burden of that removal of view, plants however, would not ignores cause erosion. This use, impossibility fact that question the issue for which this dispositive, was raised their affirmative defenses counterclaim relief, injunctive proof lay so the burden of with them.
Defendants also insist that servient estate owners need not wait adjacent until an easement or damaged requesting before judicial intervention, citing They Flower. note that Collinson’s testimony failure, highly was that the bluff was vulnerable to slope the easement’s the most gullying along vulnerable due to the They testimony concerning fence. also focus on Stotler’s expe- his failure, rience with slippage, repairs. Defendants assert that this unrebutted evidence established that foot traffic at the three-foot *18 very easement property generally is real and serious threat to their particular. and to the easement in they necessary
Defendants’ error is that the misunderstand quantum proof recognize supply of and do not that it on to Although generally probably this issue. the "more than true not” trial, relief, applies asking injunctive standard in a civil when for here, convincing a party present defendants did must clear and evi dence, Title, just preponderance. (Chicago not 384 Ill. at easement).) enforcing an (deciding plaintiffs burden N.E.2d at presented addition, was evidence of erosion the issue which obstructing removing plantings was defendants’ that defense encouraging by erosion. injure use area would easement obstructing clearing the decided that apparently The circuit court if were certain erosion plants would be harmful impermissibly to defendants needed plants, of for which occur after removal demonstrate failed to Because defendants present proof. "conclusive” of three-foot the erosion plants will cause that removal of the because the evidence replaced, if easement even relocated prevent would relocating plantings fact did demonstrate that demonstrating of erosion, their burden defendants did not meet convincing use of the three-foot clear and evidence that qualify as erosion and thus removing plantings would cause Therefore, may type harm a owner not inflict. of dominant estate to allow plantings the circuit court’s that location of the conclusion harm defendants’ plaintiffs to three-foot easement would not use the of against weight was not the manifest the evidence.7 VI demonstrate, plaintiffs
Defendants’ final salvo is that did not list, their precisely plantings and the court did not obstruct easements, permitted so the court’s order to "remove uses "finding supposed 7The calls our conclusion dissent attention to proof impermissible harm would occur should absence of 'conclusive’ that (264 606.) App. vegetation 3d at This within the easement be removed.” Ill. word, ours; quantum required proper proof was the court’s circuit above, analyzed convincing, as we the issue with is clear and outlined requirement this mind. above, Further, here, "against again of review as outlined the standard is, evidence”; to re weight that in order for this court the manifest court, that no rational trier of fact could verse the circuit we must determine requires us to circuit court did. This have reached the conclusion instances, findings dissent court in most which the defer circuit unwilling example, claims that there appears where the dissent do. For " finding testimony support 'most no at trial the circuit court’s lake, by delayed rather than the land is caused action erosion of ” (264 608), finding directly supported Ill. 3d at foot traffic’ testimony Division and the reference to the Collinson’s on cross-examination pamphlet. of Water Resources reaching freely possibility a different conclusion we While admit the court, are unable to circuit unlike the dissent we
than that reached reached the categorically of fact could have state that no rational trier circuit court’s conclusion.
plantings placed by in the easement which obstruct [defendants] plaintiffs” access to permission "replace and the concomitant plantings they vegetation installed with other which will allow [plaintiffs] sufficiently traverse the easement” clear to is not tell them what is or required, mandatory injunction forbidden orders must do. above,
As noted the Flower court stated that owner of a "[a]n right of way ingress egress for has the to use the full width *** unhampered by placed except obstructions thereon” for natural obstructions that existed at the time of the and were not placed (Flower, there the owner of the servient Ill. estate. 687.) general 3d at 482 N.E.2d at This rule creates a presumption anything in an easement will be considered an remain, defendants, may obstruction and plaintiffs, thus so not had the burden of proving plantings came the exception under general Having they placed plantings rule. conceded that easement, having presented little evidence to demonstrate they which ones plant, did not have defendants little basis for challenging ground. event, order on this In appears the order sufficiently plain: if agree plaintiffs defendants cannot on which (the they ones planted recently only requires ones the order them to remove), they may petition hearing modify the circuit court for a order, hearing evidence, so that after may the court determine the fate of each root.8 sum, correctly the circuit court determined that there was no
question concerning merger fact the affirmative defense of of Lots rights easement, 3 and 4’s to use of the 20-foot for the sidewalk and uses, roadway plaintiffs were entitled to as a matter of law on that Similarly, granting issue. the circuit court’s order injunctive plaintiffs mandatory injunction relief to in the form of a any plantings they placed defendants to remove themselves in the against evidence, weight easement was not the manifest sufficiently the order clear performance. portion The of the or- requiring wrought der proper removal of the entire iron fence was required equities, because the court was not to balance the and even favor, if they it had would have in plaintiffs’ balanced but we remand for the circuit court to determine the width and location of these uses within the 20-foot easement. plants they
8Defendants’ concern about other than the ones themselves planted mystifying, circuit court’s order tells them to relocate plants they placed plants in the not all the now in the hedge, example, plant privet easement. do For defendants did not so not have to remove it. above, of the circuit affirm the order
For the reasons stated we proceedings. court but remand for additional Affirmed and remanded.
SCARIANO, J., concurs. HARTMAN, dissenting:
JUSTICE finding majority’s I conclusion respectfully must dissent from the would harm proof impermissible an absence of "conclusive” removed, thereby vegetation occur should within the easement *20 causing damage to the easement. further erosion charge Collinson, in of plaintiffs’ expert, who was
Dr. Charles the Michigan shoreline for monitoring the condition of the Lake Illinois, of the concerning State of testified the vulnerable condition is situ- property, property bluff on the on which the easement Stotler highly seriously over-steepened grassy slope a ated. This bluff is very stability steep slope a vulnerable to failure. Grass has low on along Michigan many the Lake shoreline and there have been cases slopes, according upper part of failure of The of such to Dr. Collinson. soil; slope essentially right up the in the without sand found grass bluff; through top roots. Sand showed of the Stotler as far the sand, essentially west as the Stotler veranda which is weak. it is samples property, Five bore hole were taken on the Stotler as borings report prepared by well as in Elder Lane Park. A was Terra Inc., Testing, regarding all property, the soil condition of the Stotler admitted at trial. Dr. Collinson testified that there is a minimum of surface, layer right up feet of sand in the at the uppermost 5V2 bluff, moving to seven and nine feet of sand east toward the Stotler essentially slope, causing extremely an unstable condi- sand-filled borings, Testing Report, varying slopes tions. The the Terra and the property between Elder Lane Park and the Stotler indicate that the side, side, property, south side of the Stotler the easement is the wet making it even more vulnerable and less stable because the signs along slope, increased water flow. He of movement the found making inherently susceptible becoming it mobilized. unstable and signs He saw in the same bluff area as late of additional movement days testimony. report the Terra he noted prior to his From failure, continuing upper edge slope predictor which could be a increasing during in his slope gap failures. He also noted an the sod testimony. investigation day prior the his photographs
Dr. in evidence erosion and Collinson noted from it sloughing of Elder Lane Park where of the on the north side bluff in Lane prior improvement the Elder property, abuts Stotler the 1974 to the in from Park which soil conditions have existed Elder Lane present immediately on the north of property Stotler Park, He the erosion and as in Elder Lane Park. noted have existed of the property depicted on north on one properties Stotler had been cave-in explained exhibits in evidence and that there This cave-in property immediately property. north of the Stotler adjoining property end of the where it abuts occurred at south today has property; stability problems. the Stotler even it day prior property When Dr. Collinson examined Stotler away again in the area at testimony, slipping to his the sod was same opinion, woody as far as the south side. his least shrubs on is the part slope property of the on the Stotler most vulnerable three-foot slope, half of the the area within the southern lower easement; He highly location is vulnerable to failure. noted this along progressing line which had been gullying the south fence along testimony, area prior months to his and the the recent vulnerability. contributing being steep, thereby line to this fence more opinion steepness of the It Dr. Collinson’s further line affects the slope along the south lot Stotler bluff, failure stability stating: gullying "If there’s there and of the *** in gullying, steepening, and over there would be increase traffic, damage greater susceptibility to from foot we’ve seen past in the slope has area the lower there been failure be saturated period. part expect of that area we can And lower when- slope saturated with water parts before other are *21 *** [Further,] oversplash. this rainy periods we have or wave ever *** vulnerable, highly slope presently [and is] is unstable area the living I Mr. is on the private, I think that Stotler and as stated *** major even [meaning] experience he failures edge, that could any time.” today improvements with his at almost slope woody shrubs on the Stotler Dr. testified that the Collinson slope opinion, grassy In "the slope his are beneficial stabilization. badly oversteepened. It’s highly is now. It’s vulnerable shrubs, you then would you And if remove the supported. it would be steep, perhaps steeper, as but an area that is but have vulnerable to highly No all to retain it. It would be bare. roots at *** highly inappropriate [I]t foot and failure. gullying, to traffic there, dangerous for the be [and would] foot traffic that there be *** very steep slope this is walking [because] person down slope.” foot traffic also should further
Dr. Collinson testified Park, are the soil conditions Lane where prohibited Elder fence and that property, Stotler substantially similar to the pro- type installed is the Park District installed the Winnetka underscores Park District taken hibit foot traffic. The action property. their regarding validity of the Stotlers’ concern during satu- cross-examination, Dr. testified On Collinson slope the Stotler walking down people rated a handful of conditions conse- result in serious in the could area the three-foot easement remedial are such that quences, particularly where the conditions from damage could ensue delayed, action must be because further re-cross-examination, Dr. Collin- very On remedial action itself. cause a cave- much foot traffic to son testified that it would not take area of the three-foot in. Another failure on the bluff large slope. very could well affect a area of the testimony conclu- my opinion, In Dr. Collinson’s uncontradicted area particularly sively property, establishes that the Stotler to failure. He highly within the three-foot vulnerable slope could woody shrubs on the Stotler testified that removal Moreover, many damage because property. cause severe Stotler predate ownership property, of these of their shrubs the Stotlers’ that these shrubs Seymour their removal is not mandated. testified through ability get Michigan block his to Lake the three-foot easement. stated as a conclusion of opinion, its memorandum the court
law, "Testimony erosion of the land is at trial indicated that most lake, by delayed rather than traffic.” caused action from the foot testimony effect. Dr. Collinson’s There was no at trial to this testimony is that foot traffic causes a substantial hazard to traversing stability property persons well as to of the Stotler as property. testimony, that wave action from the lake and other His slope instability, explains why foot traf- environmental factors cause adding instability slope fic be allowed to the on the should not the hazards which exist for those who would use it. slope property of his had been Stotler testified that the north side bluff, way becoming worse gullying badly top all the rained; top slipped the whole of the bluff subsequently each time it eroding, property his down. As the Elder Lane Park began shifting dropped bluff in and as well. He had seen his caved substantially. although there had been explained down Stotler damage happened in gradual shifting, greatest some amount of day any warning. one without regard the Stotlers took to address
With to the remedial measures they built a steel reinforced problem, the erosion Stotler testified that *22 rock subsequently filled with concrete wall the stairs which was and a curbed had bluff rebuilt installed dirt. The Stotlers designed help water engineer wall which an to of concrete blocks install the bluff. The cost to help support drain off the bluff and to approximately the wall and certain related remedial work was $17,000 themselves without contribution paid which the Stotlers engineering study done of his Seymours. from the Stotler had an borings property and drilled. bluff the center of the lower
The stairs been installed near of foot posts pylons help keep pressure concrete or explained that this was traffic off the surface of the bluff. Stotler installing The of protect damage. from cost done to bluff further $16,000. The the stairs if approximately replace the stairs was cost $30,000. much, over there were another cave-in would be twice as go straight vertically The do down bluff stairs he installed not designing zigzag laterally but across the bluff because the rather steps engineer dangerous to install advised that it would be too design straight vertically required the lateral was down and that testified he and weight distribute a broader area. Stotler over family his not down the other than on the stairs to do walk bluff dangerous destroying would be prevent the bluff because it stairs, walking. installing the he often fell and person Prior to time, shifting slipped when he walked down the bluff. Over there Notwithstanding damage traffic. the reme- to the bluff from foot taken, erosion, continuing dial have there has been action Stotlers underlying clay or including have shifted and where areas which months after he installed the Approximately can seen. six sand be wall, began to shift and was even worse as concrete the bluff testimony. his time of when granted particular terminates purpose
An easement abandoned, exist, impossible is rendered such ceases to or purpose (URS (1981), 229, App. accomplishment. Corp. v. Ash Ill. 3d 1300.) 1295, that harm The circuit court’s conclusion 427 N.E.2d "conclusively” removal must be demonstrated after shrubbery flies plants and within easement of the testified, it As Collinson and the law. Dr. the face common sense is, it can impact, no what adverse matter wrong to assume that causing potentially through maintenance without ameliorated noted, Valentine has damage. the court in Flower v. As additional the law to obligated under plaintiff was is evident that the "[i]t of the easement was or off easement area wait until brought enjoin an action to she damaged destroyed before N.E.2d (Flower, 3d at 135 Ill. actions defendants.” 690.) trial at clear, convincing unrebutted evidence The very poses easements in the area of the that foot traffic established condition already vulnerable threats to the real and serious *23 beyond, easements the area of the both within property, Stotler Accordingly, under bluff. traversing the Stotler persons as well as to extin- be easements should purpose, the doctrine of failure created, access safe they were guished purpose for which since harm to Michigan without Seymours waters of Lake court’s conclusion has failed. The circuit property, weight the evidence should contrary against the manifest reversed. al., SPENCER, Plaintiff-Appellee, et JOSEPH WANDOLOWSKI
JACK v. Defendants-Appellants. (2nd Division) District No. 1 — 92—0749
First July Opinion May Rehearing 1994. filed denied 1994.