active adverse possession and that was held to be that and an easement is a different animal a different thing altogether and easement is the right to use the property for the purposes of the eas he couldn't have because we don't track the bishop or his agents and so you have her an argument that you have an easement not much bigger than from here to the window and they the property in the seventeenth year route if you don't if you don't of the twenty years i don't have the twenty years that's it's like a statue of limitations it's like a lot of things don't have it she don't have it so they didn't you loose that's all it is not a not a problem if we're down to a show that we use to continuously for that twenty years lives and we have to prove that there's a presumption from twenty years of use that some one should person did it it's not that i'm on a belief set and i'm scared of being caught out i guess that you just don't say things like that and i'm sorry and i am sure that i know for sure that the people from the because you see him there and and so they do they walk not up and down this strip but they welker crafts the end of it and that's that's probably happens every day or once a week or twice a week  used to people who would come and visit people who are squatting in shacks next to the canal all right the limestone development company decided to make a big marine out of it so they started using these men for a big trucks and at the square footage of this property it's about forty one hundred that's not enough really for a high rise building you combine that with person's property and with two properties together enough for a high rise building entity they look after their own interests they have lawyers good lawyers they have property managers and they did not read was required to break the twenty years where the good neighbors they were they were bad neighbors they were just neighbors and the city people are next to each other and they don't assert interact there's no intention of being disrespectful to a man who owned a garbage dump the scrapyard whoever it is the bunch property may show the property has the same obligations and you know our lawyers equal equal all its own property property that it owns to use that property and develop it for its best and highest use whether that means developing itself or selling it for achieving that best and highest use and it has that right to control and dispose of its own property free and clear of any invalid cloud on its title to that property what happened here is that the defendant mr keris who has also expressed interest in purchasing this very valuable piece of downtown property at thirty eight east curio recorded the claim reporting a prescriptive easement or right of use an exclusive right jews over a walkway running from wild bash avenue cross the catholic bishops property up to the side of the building that mr careless owns on the adjoining lot as a circuit court correctly ruled today in oral argument you cannot establish that the catholic bishop was all together deprived of its use of its walkway and its property for the duration of some twenty year period that would give rise to the rightful title holder entirely from the use of the property is necessary to ensure that of the landowner doesn't lose control of his property due to some unintended or involuntary transfer of very critical interest in that property now when judge martin entered his order of summary judgment in favor of the catholic bishop the order declaring it was a declaratory judgment action the order declared the order was entered the catholic bishops use development right to control its own property has been restricted and limited for that entire time only supreme or peace on that as opposed to chicago steel on display and all the best two cases and i'm not aware of an illinois supreme court case directly on on this point but the best two cases are right out of this court  chicago still rule in city of city of displays and there is no ambiguity about the law in illinois as stated twice in those two cases in chicago still rule the court stated very clearly elements for establishing a prescriptive easement are exactly the same as they are for adverse possession with this one difference in an adverse possession case the exclusivity element requires you to entirely deprive the true land owner of possession of whatever property is at issue but the quote was clear that in a prescriptive easement clip case the the critical deprivation is use of the property and when the court turns to the facts before it it uses the words use or possession city of displays does the same thing the exclusivity must be asked to use or possession depending on the interest that's being claimed as adverse possession it has to be possession if it's adverse if it's prescriptive easing than it has to be the deprivation of use there's absolutely no ambiguity in those two cases and i want to be clear about chicago's steel rule because counsel for defendant today suggested that it wasn't decided on that issue but it absolutely was what was before the court was an order of dismissal based on rule two six fifteen failure to state cause of action and what the court said there in its hol is that the failure even to allege that the rightful owner had been altogether deprived of its use of the property was fatal to the case it went on to notice that there was also a two six nineteen basis because the twenty year period been interrupted in your seventeen by a condemnation proceeding but the primary basis for the court's ruling in that case was just four years even state a cause of action for the failure even to allege this necessary element that you must show that the true landowner has been altogether deprived the city of displaying his was a summary judgment case and in that case the court reversed summary judgment saying there were questions of fact what was the first question a fact that the court raised as as grounds for reversing the summary judgment again just as just as in chicago still rule the failure even to allege the necessary and critical element the that the lawful owner was altogether deprived of its use so illinois law is well established it's well established by these two cases out of this court that's the rule in illinois i think i heard defendant's counsel say this morning that it shouldn't be and if i was in defendant's shoes i may think it shouldn't be either but the standard is high and the standard is properly high because the interest is a critical one the interest is the right to dispose of your own property i think the briefs the briefs of of the defendant suggest that use is a more casual plain it doesn't really interfere with the true landowners rights in fact it interferes in exactly the same way that an adverse possession claim would interfere this is a claim that's been recorded with the cook co recorder of deeds it is a clout on title if this claim was valid it would be there until it could be extinguished and the grounds for extinguishing an easement once established are extremely extremely h permitted and use is shared in this case the catholic bishop has allowed mr charisse to use his walkway in fact in two thousand and six he offered him a license to use his walkway and mr harris as counsel at the time said well take twenty years you can you can do it just in the way it arose you can establish your own right over twenty years because now that interest is your neighbors and residents not yours anymore your neighbor can abandon it but that's in his own likely if someone took twenty years to create a right if you're just going to abandon it or you can release a through through an arm's length negotiation but but here in a case where mr perez has interests in the value of this property  way and again it's right that the burden because of because of the in interests that are at stake and it's right that once they're in place the burden is high in order to extinguish but here the record is very very clear and i think it's been made even clearer here to that that the defendant admits they cannot establish that the catholic bishop was altogether deprived of its use use of this property and even go so far as to concede that the catholic bishop did use its property and i think it's worth looking at the record that the circuit court made its decision on going back to the first amended complain the catholic bishop alleged that no relevant time as a catholic bishop then altogether deprived of the use of the walkway and here is the defendant's answer the nature of the easement does not deprive the bishop of access to and property this is just one of the series of statements where the defendant admits that the use hasn't been exclusive admits that to the contrary it's been shared after that request to admit were issued and the request was ed met that the catholic bishop has used the walkway during the easement period and the response to that was the defendant has no knowledge of any use of the  bishop again the defendant has no evidence no information put forward that the catholic bishop has excluded counsel said this morning that didn't do anything to let mr harrison know that his use was an exclusive besides the fact of physically sharing the walkway but that gets the duty and the burden exactly wrong it's mr kerry says claim it's his notice if you're claiming such a right over a neighbor's property and when they try to use what you think you have an exclusive right or right to that excludes than you need to exercise that right you need to make it clear you need to put them on notice that hey as far as i'm concerned this is no longer yours i'm asserting my right over it that puts the landowner on notice that gives him an opportunity to say i mean danger of losing a critical interest in my own property i better do something about it unless of course the landowner doesn't care or a has abandoned his property or has aband that part of his property and i think that some of the older cases which involve large tracts of farmland where an adjoining landowner claims a right over some corner right of access or something it may have been less critical and landowners may in some cases abandon that interest not share we're talking about trying downtown chicago real estate the catholic bishop does here the catholic bishop shared use of the walkway but in no time was put on notice  that it was in danger of losing its rights over this part of its property all together which makes the property unmarketable going back to the record that the judge decided summary judgment on below there were several in court judicial admissions that we cited in our brief various times in arguing this issue counsel for defendants have the bishop can use the walkway  probably does we've heard something much to the same effect this morning obviously of the catholic bishop wishes to walk this alleyway he can and again the catholic bishop of course owns the road they can walk so again the record is replete with references defendant doesn't really question that the use was shared with defendant seems to question is what the law is on that use and the law on that use is very very clear he can even go back to the very document that was recorded asserting this claim and on its face it says again as we heard again this morning it's one of the first things counsel said this morning it is for the non exclusive use of the walkway that's in the record at c four eighty nine i believe it's the the second page of the actual claim to be spent the claim of these men also says that the use is permitted by the catholic bishop it acknowledges permission another statement that defeats a critical element of the script if he's made a claim that it can't be with permission has to be with the knowledge of the true owner but can't be with his permission right off the bat we have a document recording an interest in the catholic bishops land that on its face says it's in effect it's in a valley it's invalid to the extent it's claiming a prescriptive easement because it's no and again in its reply greek before this before this court the defendant says on page two of his reply brief harris cannot allege that the bishop never walked across the narrow walkway that is the easement property so that obviously wasn't before the trial court but all of those other admissions were the key ones or the answer in the complaint and the and the answer on a request with net and on that basis judge martin decided that the summary judgment  had to be granted in the catholic bishops favor there's one element here this this panel asked counsel for defendant this morning isn't it that you just want to go back and put forward new evidence or more evidence and i think the answer to that question in effect was yes but summary judgment means if you can show as an outer of law that you're entitled to judgment on the dispositive issue then you're entitled to summary judgment no matter what someone several elements and there are a lot of facts give you know given the case that can they can be relevant and dispositive to the final issue but in this case the defendant admitted that on one no i'm not not as far as a summary judgment motion goes there is no fact in dispute because again as i as i just demonstrated again and again and again this done this defendant admitted three times under oath if issue it only takes one element to knock out a claim of this sort of prescriptive easement claim you don't have to go down the rest of the list permission i still ety all all of the others you just need on this one issue they like to address i'm sorry i'm trying i'd like to address some of the other illinois cases that were that were discussed this morning i don't think i don't think they affect the outcome of this case  case the case involving the trend in the train tracks that was discussed at great length ows discussed at great length and in the party's briefs none of these other cases addressed this issue none of the other cases address the element of ex down and the issue in that case was whether that one interaction was enough to stop the continuous use that needs to run for twenty years so that court didn't even address the exclusivity issue it never came up the limestone case which does talk about what the the proper or permissible scope of uses for prescriptive easement the point for one stone case made is what you look to is the use that the easement claimant has made of that part of the land has nothing to do with what the true land owner how the true landowner uses that property what's critical for our purposes here today is that in that case the prescriptive easement was already established now you're looking at how can it be used what's the scope of that use what's the limit of that use and all the court said was in answering that question we look at the use that the claim has made of it not of the use that the true landowner makes of it so not one of these other illinois cases addresses the issue of exclusivity the cases on that issue are chicago's steel rule and city of displays in those cases are are very straightforward and very clear on what the law in illinois again i think the policy underpinnings for this are the interests that are at stake and again in the final analysis a prescriptive easement has the same effect the divers position it's a cloud on title it's very difficult to remove once it's there it's proper that there should be a high burden the courts and the law disfavor involuntary transfers of land they favor arm length transfers of land and that's the reason that the burden is  the out ahead of the nation over the rest of the alley and everybody drove up and down the alley and the i think it's so i wrote case it's a nerve both case but there was an alley and a man right at the end of the alley decided to block the noted if the case goes back it will have to be tried but we're we're ready to try it we're confident that we can try the case and show the twenty years is actual i would point out also that there's a case that holds that twenty years