Emanuel v. Hernandez

728 N.E.2d 1249 (Ill. App. 2000)

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Nature of the Case

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Facts

Ps own 920 Pearl Street, and Ds own 914 Pearl Street. The property line bisects a driveway, but most of the driveway is on Ds' land. Ps had owned the property at 920 Pearl since December 1965. ds had recently acquired the property at 914 Pearl. 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. Ps' complaint alleges in part that Ds blocked the driveway with railroad ties and had begun constructing a fence on the property line so that Ps could not use the driveway. Ps sought an easement by prescription and or an easement by implication over the driveway. Affidavits from Wayne Emanuel, Ruth Garrigan, and John H. Maville were offered. Wayne's affidavit stated 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. Ps had several times shared the costs of improving or repairing the driveway with their neighbors at 914 Pearl Street. Wayne no longer lived at 920 Pearl, but his tenants continued to use the driveway to get to the garage until early 1996 when Ds started to block the driveway. Anyone who 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. Ruth'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. Ruth used the driveway the whole time they lived at 920 Pearl, and they shared upkeep costs with the occupants of 914 Pearl. John, Ps' lawyer, filed an affidavit showing the chains of title to the two properties which were severed in 1890 by Brock. The affidavit also included a 1922 map prepared by the Belvidere public works department showing the locations of residences and garages on the properties. Ps argued that for an easement by implication all they had to prove 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 Ps' property could be used without disproportionate effort or expense. Ds contend that, at the time of the severance of title, there must be an existing use of the property that was of such a character that it would have survived as an easement by implication. Ps claim that no such proof of prior use was required if the easement was reasonably necessary to the beneficial enjoyment of Ps' land. The trial 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. Ds appealed. Ds assert that there are two types of easement by implication--easements by prior use and easements by necessity--and that Ps did not prove all the elements of either one.