i represent literal union street properties and litchfield state street properties in the east to consolidate proceedings there were tried the circuit court of montgomery county its case number sixteen c h forty three and eighteen th sixteen would like to review with the court the party's position and the relief sought into true actions were true believers helpful in understanding the only issue that is pending what on what is in that proceeding there was an evidentiary hearing held on a request for a plenary injunction and it was the night and the court's order indicates a denial was based on the contention that the twenty year period rules or show cause were filed by both parties direction to actions taken the trial court issued a consolidated order on september th two thousand and nineteen and in that car that order establish that there was a and for easement for alleyway purposes along the what would be the western junction of the buildings of the union street property literally your street properties and the edge of their property and the open property owned by the athlete oceans were again filed by both parties a clarification order was entered but that order did not discuss the only issue this raised in this appeal as to where the court failed in entering an order to remove a guardrail of a guardrail that was a step that was installed by the holes connex on the south end of that easement after the close of the evidence which were the subject of the rules to show cause has the garden real honor was to where the easement was located as far as the guardrail the problem with that is the guardrail was not installed until after the close of the evidence the parties closed the evidence after a two day trial and during the court granted the parties to the attorneys time to file post trial brief during that time action was taken by both parties st my clients to his representatives went on to the property and start a movie some parting ballard's there the yellow post that you don't back into a building that had been stalled on a property prior to the time was own but there was evidence that the trial cost to remove those because they were on the easement my client didn't like the cost of the removal of submitted evidence so he did himself or he had help in doing of self although he was stopping for complete really knew it was there until this prestigious while one of the facts it came out is that when the host annex acquired the property d from their daughter and their building by the way is to the west and then there's just open space they actually under the evidence went to the city alicia and said hey you need to come in and fix this other way there's all kind of potholes that needs repaired and they were told then by the city alicia it's not an alleyway you own all the way up to the edge of the building and i did a survey and you are there's a plat survey at your honour's at a nine of our pending that lays out where the buildings are and it also lays out that on the the property on these went to the next property which was a public parking lot owned by the city a little that was often used for my clients employees and general public to park their vehicles now th two corporations had filed bankruptcy and according to the court's interpretation based on another case related to adverse possession said that broke the twenty years we don't agree with that but that was never appealed the actions of the parties in the stalling these guardrails and in digging up the ballard's lead to both parties filing rules to show cause with the trap court and saying to the trial court stop them stop them from moving the ballard's make them take the guardrail down drug court have a hearing on the rule to show cause didn't take any requested of the prescriptive reason filed by the corporations again relying on the same theory of a interrupt every intervening bankruptcy but did not address the issue of the guardrail a driveway that had been used and that was one of the contentions that we filed in the case establishing an affirmative defense that there had been as public roadways that wished that relief was granted but there's no question that there was this open area that had you no access from union street to the north all the way to and through the literal public parking lot but it wasn't city property and so the city said we can't fix it it's not owned by us that was the st time a discovered that their property was actually the alleyway that they own what we'd all would have called it out in the trial scuse me post trial motions were filed by both parties and a clarification order was d entered but the clarification order again did not discuss as to whether that guardrail should be removed let me say for the evidence purposes that there was a guardrail installed not in the exact same location on the boundary previously based on the test where the parties but nobody knew when it was a stall but the evidence was it when the daughter on the property she asked the city of which europe to remove it even though there is no evidence that it was owned by the city of us felt it was just a garden of the winner for an unknown time and not removed which is contrary to a suggestion that well the event was then terminated because there's no evidence that had been there for twenty years the testimony exhibits exhibits five of the holes connect through their witnesses stablished this  city property ten foot easement the guard red block that he's not one of the arguments raised by the friend isn't perhaps the biggest argument if you look at their agree the they are they are the athletes in this case was well public people are proper walking their parking in the city parking lot and walking across our property so we want to put the guard up to stop them except for the fact that when they bought the property they had constructive notice that this easement was there and they can't blot the easement that was granted to the predecessor of my client my client on the property that received the easement back in of it should have been ordered taken down the issues raised by the apple lease and we can get it to those or one of the biggest one was well this is the only way we could enforce our reason in any manner they want but they can't encroach on any easement granted to us they can't say well you know you guys who go there but we want other people not to and we just can't not have a guardrail the width of the ten feet but it was a guardrail there we don't know when it was put in by who there's no evidence that established that and what the evidence establish that there are three year period when the daughter on the property or they s i think my time is expired out answered how the questions otherwise we will reserve our right for about any questions no we have a motion for early show cause that deals soley with the guardrails and issues the safety that was ruled on by the court they don't want to make this issue that old guard never mention where the lower court said yet that we're not going to allow this portion for all show cause to go to have anything to do with we're going to just say no we're going to say no to it and they did and five and somehow it connects with her graph or of the order but we're not sure exactly how that is my point in saying that is that there is no authority cited in the motion to reconsider nor was there any order he cited in the motion for show cause and so therefore to come back and say that there's some type of mis application the law i think is really stretching it there were there was no law to be that was mentioned in the about the a paragraph or and how that was misapplied that argument was not brought up in the apology brief nor was it brought up in regards to the reply brief so in that regard  that's never been understood how's this misapplied for that reason i am tacking that motion to reconsider as being improper and not pulling the appeal as far as preserving the appeal what i'm saying is that with a motion to reconsider there has to be a reason for it and we know that it's got attacked a judgment i dislike that case but at the same time we look at it as bringing to the court new evidence we're looking at new law that needs to be brought to the court or that there was an error as far as the mis application we don't have that here because even though he wants to say  motion to reconsider it was not there nor do we see anything that shows clearly what that argument was when we get into the brief or into the reply period now what we what we see here is that  must make a deal that oh well there was a situation where in between the times of the hearing of the evidence and then the motion to for really show cause was filed and then there was a ruling  this is bacon land that this is a parking lot area and also i don't see anything cited in his brief or he says that the next went to the city of litchfield and that  this was all that agreement as far as how the guard really was taken down the appellate uses exhibit one to show that somehow the guardrail did not go all the way to the east as i'm looking at that exhibit one the guard il does go all the way to the east least from my exhibit one i'm not sure which one he's referring to because he doesn't really specify which exhibit one that is so in that regard your honors i'm also doubling back he was talking about how been there for some time cary holtz connect which is the former owner of this property talking about the guardrail being there and she was really one to remove them in order to have the parking lot area accessible for having furniture moved into them and then we also hear about the carla nail the surveyor who also was talking about the  you can't get to the park where your honour's the original purpose of the easement re is that there was if i may there was a building on as i would say my left which is owned by the another originally but now that and then there's the buildings on the left on the right i'm sorry there own by the pellets there are two locks on the right there's a lot one and a lot to let you was to allow the lot to people to have access to the street and for the last one so it has no bearing guards that the south entrance is blocked as far as with that easement goes the evidence doesn't  for th two thousand nine hundred dollars or which sets out the restrictions as to how that easement has to be used and as we look at they said before the two buildings with the property the parking lot in between lot to have to have access somehow at some point to get to the road in front of a lot one and that's appears to be the purpose of lot one or of the event itself but at same time if we're looking at trying to protect the interests of the property owners who are the hold in acts of just this lot this parking lot area we claim that as a result of the attempt by the appellant certainly t that there was a public use meant that it makes sense that it be closed up we also claim that it is for safety purposes for not for even the appellant's if we have cars running up and down there that is going to be a deterrent for their use as well and let's talk about where that guardrail it that guardrail is a budding these south in and of that easement is not obstructing anything as to the ability to get into the buildings as far as coming from the north side is not instructing the use of the law to door in regards to getting to the north side and regards to an alley having two exits but that is what the emphasis here of their argument have they presented anything to show that no they have not is the acceptance or the reliance on the so the purpose of the easement i believe was to grant access for lot to to go to the north side but as far as the parking lot there that's a new situation that parking lot had not been there at the time that the easement had or as we know it was created there is out now let me ask you this if someone comes and i believe from the north side and drives down the east meant how can they get how then can they get out if the other end is blocked off and there is no other way to get out or out of the easement is there room for them to turn around how do they get back out yes they can back or turn around there's  there's quite a bit of room there actually to do a u turn and get out and for the most part of it had been used for walking purposes and not for be here for some time yet or that one about the lady that was using it to unload birger yes that was an exception your honor and the reason that she had to do it was that the parking lot did not allow the semis to come in at a proper angle too far as getting into the the appropriate area to unload so there were some reason why the the you're right that the guardrail were removed but at the same time were claiming that there was no reason that it could not be replaced if they had been there for some time and temporarily removed just for the purposes of the business and as we look at the case involving  hands his access to the easement without proving that he actually has that ability to do that he didn't prove that in the trial or even as to the and that as far as how this was restricting no testimony was presented at least nothing has been cited in his brief or in his reply brief as to the bill of justifying well this really affects my use of the of the easement ok well if you can't if you don't have that then we're left with what the guardroom rule was there the guardrail was there for the purpose of keeping out traffic that it had been there for some time and that it was there for the purpose of in preserving the interest of my client as to the right to use their property traffic going through their request that the appellant relief be denied and that he as far as the a ruling on the motion for rule is your cause be allowed to stand thank you very much having particularly  because at the trial the gardener wasn't up they only put up after the close of the evidence we made that argument and cited in our rule to show cause and i disagreed with counsel the record will establish neeraj a look at the record that at the guardrail again after the close of all the evidence and encroached upon the easement right granted to my client who is predecessor to receive these men but the client is litchfield union street properties council site well you know there was an easement there i think he's trying to argue what these miss been blocked off for sufficient amount of time take twenty years counsel keeps on saying what the evidence was it was there for some time couple of people said it was there for some time some time is that the standard twenty years is a standard for the block off an easement that was granted it was granted there was no evidence in the record to show it been there for twenty years a gardener a bit there blocking off for twenty years and then and a distinguished east there was no action taken by the trial court on the request of the incorporated into the post trial grief and there was no action in the can the clarification order the trout court did not act on the guard rail but let's just say that council is right that well by not granny it it acted on it didn't say that what did not but that's to say council is right i think that simply means now the standard to review the street a lot one doesn't say that at all he making that up the court didn't act if it did act the standard still can be met the godhra wasn't there for twenty years nobody knows how long was there prior to the time it was taken down by the pri well thank you counsel obviously the matter will be taken under advisement and a disposition will be entered in due course thank you all of you on your