No. 2--05--1261 filed: 12/7/06

_____________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ CON RAD GAC KI, ) Appeal f rom the Cir

cuit Court ) of Du Pa ge Co un ty. Plaintiff-Appellant, ) ) v. ) No. 01--CH--1647 ) RAYMOND E. BARTELS and ) LORI A. BARTELS, ) Honorab le ) Bonnie M. Wheaton, Defend ants-App ellees. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE GIL LERAN JOHNSON de livered

the opinion of the c ourt: The plain tiff, Conr ad Gack i, appea ls from the

Novembe

r 22, 2005 , order o f the cir cuit court of Du Page County

denying his motion for summary judgment and g ranting summary judgment to the defendants, Ray mond and Lori Bartels. The plaintiff's second amended complaint requested an easement by necessity over

the defendants' property . The parties filed cross-motions for summary judg ment. The trial court determined that the plaintiff was not entitled to an easement by necessity over

the defendants' property

and thereby

granted the defendants' motion for summary judgment. On appeal, the plaintiff argue s that the trial court erred in granting the def

endants' motion for summary judgment and deny

ing his motion for summary judgme

nt. We affirm in part, reverse in part, and remand f or additional proceedings.No. 2--05--1261

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On Octobe

r 7, 1999, the plain

tiff acq uired, by tax deed, ownership

of real propert y located in the Villa

ge of L ombard. T

he prope rty purchas ed by

the plain tiff was allege dly landlocked. Consequently, on May 13, 2002, the plaintiff filed an amended two-count complaint against the defendants, seeking (1) a declaratory

judgment on the existence of an implied easement by ne cessity over the de fendants' property, and (2) an injunction requiring the removal of the defendants' house beca use it obstructed the plaintiff's access to his property . On October 18, 2002, the defendants filed an amended answer , raising two affirmative defenses. Specifically, the de fendants argued that the plaintiff' s claim was barred by the statute of limitations and that the plaintiff's purported easement was extinguished by adverse possession. On May 9, 2003, th e plaintif

f filed a motion for

summary judgmen t, argu ing that public record s demonstr

ated a pr evious common owne

rship of the plaintif

f's and the defe ndants' properties. The plaintiff argued that whe n their properties were severed, the pla intiff's parcel became landlocked. Additionally , the plaintiff argued that his property was presently la

ndlocked with no means of access except through an ea sement by nece ssity over the defe ndants' property

. In his motion, the plaintiff argued that a s a matter of law, these circumstances cr eated an implied easement by ne cessity over the de fendants' property . On June 27, 2003, the defendants also filed a motion fo

r summary

judgmen t. In t heir motion, the def

endants a rgued that the p laintiff

's clai ms were barred by

(1) the 40-ye ar statute of limitations on claims to real estate (735 IL CS 5/13--118 (West 2002)); and (2) the doctrine of adverse possession. The record reveals that in 1955, the northern ha lf of the defendants' lot was owned by Eugene Hensler. The plaintiff' s lot and the southern half of the defendants' lot wer e owned by Ralph and Lillian Whitsel. On September 25, 1956, Hensler acquire d common ownership of theNo. 2--05--1261

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plaintiff's and the defendants' lots by warranty deed from the Whitsels. On November 26, 1956, Hensler transfe rred ow nership o f the nor

theast portion of h

is land, r etaining the south 6 0 feet, t

o Pasquale and Loretta Saviano by warranty deed. Subsequently, on July 25, 1957, Hensler transfe rred ow nership o f the nor

thwest por

tion of his p

roperty , retain ing the s outh 60 fe et, to Willard an

d Dorothy

Lane . The tra

nsfer to the L anes re sulted in the crea tion of the

allege dly landlock ed parc el now owned by

the plain tiff. The defenda nts acqui red owne rship of their property by

warranty deed from the Lane s on September 12, 1997. Additiona

lly, the rec ord reve als that the Villag e of L ombard is sued Hen sler a pe rmit to build a re sidence

on the pro

perty that was s old to the L

anes, ap proximatel

y ni ne months prior to that sale . The Villa

ge of L ombard a lso issued permits to

install a g arage

on the L anes' propert

y in 1965 and a driveway

in 1970. On July 30, 2003, the trial court conducted a he aring on the parties' motions for summary judgment. Following the hearing, the trial court denied the plaintiff's motion for summary judgmen t and gr anted the defenda nts' motion for summa

ry judgmen t. In g ranting the defe ndants' motion, the

trial cou rt found t hat the pu rported easeme nt, reg ardless

of its loca

tion, "wo uld crea te more of a hardship to the homeowners than it would be [a] benefit to the plaintiff." Ther eafter, the plaintiff appealed to this court. In Gacki v. Bartel s , No. 2--03--0888 (2004) (unpublished order under Supre me Court Rule 23), this court determined that the 40-y ear statute of limitations on claims to real estate (735 IL CS 5/13--1 18 (West 20 02)) did n ot apply to implied e asement s by

necessi ty. Additiona

lly, this court determined that the defendants had adversely possessed any implied easement that was located through the defe ndants'home. I

n so ruling , we note d that section 22-- 70 of the Pr opertyNo. 2--05--1261

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Tax Code (35 IL CS 200/22--70 (West 2002)) refuted the plaintiff's contention that his tax deed extinguished the de fendant s' clai m of adve rse posse ssion. Tha

t section s tates in pa

rt: "When the property

described in a tax deed issued under this Code is a dominant or a servien t tenemen t with res pect to a ny private e asement

or ease ments, cr eated in good fa ith expressly or by operati on of law

for the b enefit o f a domina nt teneme nt or tene ments, with resp ect to the

easeme nt or eas ements the

tax deed shall have

the same effec t as a deed of convey

ance made by

the owner of the property to the tax deed grantee, just prior to the issuance of the deed." 35 I LCS 200/22--70 (West 2002). Based on section 22--70, relative to any easements, the tax deed had the same effect a s a deed of conveya nce directly

from the previous owner to the plaintiff. Howeve r, this co urt also d etermine d that the

re was a genuine issue of

materia l fact as to wh et he r a n i mp li ed ea se me nt by n ec es si ty e xi st ed an ywh er e e ls e o n t he de fe nd an ts ' p ro pe rt y, other tha n throug h their ho me, beca

use the r ecord di d not provi de a lay out of the defenda nts' property showing

the location of any e

xisting structures or driveway s. Accordingly , we reversed th at po rt io n o f t he tr ia l c ou rt 's or de r g ra nt in g s um ma ry j ud gm en t t o t he de fe nd an ts . A dd it io na ll y, we affi rmed the trial cou rt's or der deny ing the p laintiff

's motion for summa

ry judgmen t, becau se the plaintiff had failed to demonstrate that there were no other reasonable alternatives allowing access to his allegedly

landlocked property . Accordingly , we remanded the cause for a dditional procee dings. On remand, the plaintiff was granted lea ve to file an amended complaint. I n his second amended complaint, the plaintiff requested a declar atory judg

ment declaring (1) that he is entitled to an easement by

necessity ac

ross the defendants' property ; (2) that the easement be no less thanNo. 2--05--1261

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9.31 fee t in width; ( 3) the loc ation of the plaintif f's ea sement; a

nd (4) tha t he is enti

tled to improve said easement with a concrete, asphalt, or g ravel surface, and with electrica l, gas, water, and sewer utilities. The plaintiff attached to his second amended c omplaint a plat of survey showing his parc el and the

defenda nts' par cel. The plat showe d the loca

tion of the

defenda nts' house, driveway , and garage. Additionally , the plaintiff cross-hatched the portions of the defendants' parcel wher

e he believed an easement could be loca ted. Based on his second amended complaint, the plaintiff filed another motion for summary judgment. In his motion, the plaintiff arg ued that his parcel and the defendants' parcel were create d by

division by

a previo us common g

rantor a nd that his

parcel is curre ntly landlock ed with no access to a public highway or right of way . Accordingly , the plaintiff argued, because of the landlocked nature of his parcel, there is no re asonable access to a public highway other than over the defendants' parcel in some par t of the cross-hatched area on the plat of sur vey that he a

ttached to his amen

ded compl aint. As su

ch, he a rgued that he is e

ntitled to a

n easeme nt by necessi ty over the defendants' property

. The def endan ts als o file d a mot ion fo r summ ary judgme nt, ar guing t hat th e plai ntiff 's claim should be denied because any easement would adversely affect their property

and substantially impair and reduc e it. The defendants argued that a n easement could not be located along the wester

n edge of their p roperty because there is only

9.31 fee t betwee n the base of their house foundation and the lot line. The defendants arg ued that the Village of L ombard requires that a driveway

be a minimum of 12 feet in width. Additionally, an ea sement on the western side of the prope rty would cause t he fol lowi ng prob lems: (1) th eir ho use ha s a two -foot overh ang, which emergency

vehicles would not be able to clear; (2) landscaping would be destroye d; (3)No. 2--05--1261

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the easement would run up against bedroom windows; and (4) a window well would be covered. The def endants f urther a rgued that an e asement

located on the ea st side of t

heir hous e would require the plaintiff to drive up their driveway , between their house and gara ge, and through the middle of their backyard over a patio and through a lar ge shade tree. On Novemb er 22, 20 05, follow ing a he aring, the trial

court g ranted t he defe ndants' motion for summary judgme nt. In so ruling, the trial court stated tha t the plaintiff's claim for an easement by ne cessity was def eated by the

fact that an easement would substantially reduce the value of the defendants' proper ty. The trial court e

xplained that based on the photographs that were presented, there was no wa y to establish an ease

ment withoutmoving a telephone pole, tearing down the defendants' garage, or ha

ving the easement wend its way through a substantial portion of the defe ndants'propert

y. T hereaf ter, the plaintiff filed a ti mely notice of appeal. On appeal, the plaintiff argues that the trial c ourt's order granting the defendants' motion for summary judg

ment and denying

his motion for summary judgment should be re versed. The plaintiff argues that it was improper for the trial c ourt to deny his claim for a n easement by necessity on the ba sis that the value of the defendants' property would be substantially reduce d. Summary judgment is proper when the pleadings, depositions, and other matters of rec ord establish that ther e is no ge nuine issue of mate

rial fac t and that the moving

party is entitle d to judgmen t as a matt

er of la w. 735 I LCS 5/2 --1005( c) (West 2 002); Emanuel v. Hernandez , 313 Ill. App. 3d 192, 195-96 (2000). On appea l from the entry of

summary judgme

nt, we review the matter de novo . Emanuel , 313 Ill. App. 3d at 196. There are two ty

pes of implied easements--the easement by necessity and the

easement implied from a preexisting use. Granite Properties Limited Partnership v. Manns , 117 Ill. 2dNo. 2--05--1261

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425, 435 (1987). It is crucial to rec ognize that an implied easement is the product of the intention of the parties to the convey ance. Emanuel , 313 I ll. App. 3d at 196. Th e easement is "implied" in that courts attempt to ascribe an intention to the parties who themselves did not put any such intention into words at the time of c onveyanc e. Emanuel , 313 Ill. App. 3d at 196. Because the intention of the parties to the convey ance that severs title is the crucial consideration, whether an easement exists depends wholly on the circumstances at the time of the severanc e of title. Emanuel , 313 I ll. App. 3d at 196. I t is the bur

den of the party claiming an ease ment to show the facts necessary

to create an easement by implication. Rexroat v. T horell , 89 Ill. 2d 221, 229 (1982). Furthermore, the party claiming the easement must meet this burden of proof by clear and convincing evidence

. Evanik v. Janus , 120 Ill. App. 3d 475, 489 (1983). Where an implied easement by necessity is claimed, pr

oof of necessity

alone furnishes the probable inference of intention, on the presumption that the g rantor and the grantee did not intend to render the land unfit for occupancy

. Manns , 117 Ill. 2d at 438. The easement by necessity usually

arises when an owner of land convey s to another an inner portion thereof, which is entirely surrounde d by lands owned by either the grantor or the g rantor plus strangers. Manns , 117 Ill. 2d at 435-36. Unless a contrar y intent is manifested, the g rantee is found to have a right-of-way

across the retained land of the gr antor for ingress to, and egr ess from, the landlocked parcel. Manns , 117 I ll. 2d at 43 6. Similarl y, a n easeme nt is implied

by necessity when the owner of lands retains the inner portion, convey ing to another the balance. Manns , 117 Ill. 2d at 436. To establish an easement by implication, three conditions must exist: (1) ownership of the dominant and servient estates by a common grantor, followed by separation of title; (2) use of theNo. 2--05--1261

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easement, before separation, in an appa rent, obvious, continuous, and manifestly per manent manner; and (3) necessity of the easement to the beneficial enjoy ment of the dominant estate. Deem v. Cheeseman , 113 Ill. App. 3d 876, 882 (1983). Proof of prior use is not requir ed when the land presently c ould not be used absent the easement or without disproportionate effort and expense. Deem , 113 Ill. App. 3d at 883. Furthermore , where available alternatives exist that afford reasonable means of ing ress and egress, easements by implication should not be granted. Deem , 113 Ill. App. 3d at 883. All doubts as to the existence of an easeme nt by necessity

are resolve d in favor

of the convey

ee and a gainst t he conve yor , who has t

he power to protect his interest by a re servation of access in the instrument of convey ance. Shive v. Schaefer , 137 I ll. App. 3d 13, 16 (1985). "[T]he right to a way by nece ssity may

lay dormant throug

h several transfers of title and y

et pass with each transfer as appurtena nt to the dominant estate and be exercised at any time by the holder of the t itle theret o." Finn v. Will iams , 376 Ill. 95, 99 (1941). In Gacki , No. 2--03--0888, we had explained that there was " no legal foundation for the trial cou rt's impl ication that the cr eation of an implied

easeme nt by necessi ty in volves a balan cing of

hards hips ." Howe ver, we later state d, cit ing Canali v. Satre , 293 Ill. App. 3d 407, 411 (1997), that "an easement by necessity may

not be granted if it adversely affects the defendants' property

or if the defendants' property would be impaired." The trial court relied on this statement in granting the defendants' motion for summary judgme nt when it stated: "I t hink I can make

a finding that the a ffect [ sic ] on the value of the property by gr anting this easement for access would be substantial, and that would defe at the claim of the plaintiff for an easement by necessity."No. 2--05--1261

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In Canali , the reviewing court determined that the plaintiff ha d met the requirements for an easement by

necessity. Canali , 293 Ill. App. 3d at 411. The Canali court went on to state: "The court will not create an implied easeme nt, however, if there are other

reason able al ternat ives a llow ing acce ss. [ Cita tion .] Her e, the confi gurati on of p laint iff's and defendants' parcels a

nd the narrow strip leading to the roadway , logically, a s well as logistic ally , creat

es a rea sonable means of i ngress and eg ress for both prope

rties. Th ere is no proof that allowing plaintiff to use the driveway would adversely

impact the defendants. Nor is there evidence that def endants' property

would be impaired or reduced." Canali , 293 Ill. App. 3d at 411. Upon further review of the Canali decision, and in consideration of the case law g overning easements by ne cessity, we find no support f or the Canali

court's implication that an easement by necessi ty mu st be deni ed if it imp airs or r educes t he servi ent esta

te. As suc

h, our cit ation to Canali for this proposition in Gacki , No. 2-- 03--0888 , was mispl aced. A ccordin gly , we rev erse the trial court's order gra

nting summary judg

ment to the defendants. See Bond Drug Co. v. Amoco Oil Co. , 323 Ill. App. 3d 190, 198 (2001) (the law of the c ase doctrine is not a limitation on our power to revisit an issue under circumstances in which our initial dec ision was in error). Nonetheless, we affirm that portion of the trial court' s order deny ing the plaintiff's motion for summary judg

ment. The burden is on the plaintiff to show the facts necessary to create an easement by ne cessity. Rexroat , 89 Ill. 2d at 229. I n order to claim an easement by necessity, the pl ai nt if f m us t p re se nt ev id en ce th at hi s p ro pe rt y an d t he de fe nd an ts ' p ro pe rt y we re ow ne d b y a common grantor, that the properties were severed, and that at the time of severance his parcel became landlocked. Deem , 113 Ill. App. 3d at 882. The plaintiff must also present evidenc e thatNo. 2--05--1261

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his parcel of property

is still landlocked. Deem , 113 Ill. App. 3d at 885-86. Accordingly, the plaintiff must demonstrate that the easement was necessary at the time of severance and that the easement is presently

necessary . Deem , 113 I ll. App. 3d at 884. Ad

ditionally , the plai ntiff must show that there were and are no a lternative means of access to his property

. Deem , 113 Ill. App. 3d at 883. In his motion for summary judgment, the plaintiff claimed only that his parcel and the defenda nts' par cel wer e crea ted by division by

a previo us common g

rantor a nd that his

parcel is currently la

ndlocked with no access to a public highway or right of way . The plaintiff does not point to any evidence

showing that his parcel became landlocked a t the time of severance or that

an ea se me nt wa s n ec es sa ry to the common grantor, Hensler, at the time of sever ance in 1957. For examp le, the pl aintiff d oes not of fer any evidenc e, such a s a map of the parc els in 1957 , to show that another public way was not available to his parcel at that time, or any evidence showing that Hens ler did no t own any propert ies adjoin ing the p laintiff

's parc el that wo

uld provide access to a public way . Accordingly , the plaintiff is not entitled to summary judgment. On remand, the trial court must determine whether the plaintiff ha s provided sufficient evidence to establish all the elements for an easement by necessity. In so ruling, we note that a n easement may

be extinguished by adve

rse possession (see Deem , 113 Ill. App. 3d at 883), abandonment (see Miller v. Sc hmitz , 80 Ill. App. 3d 911, 915 (1980)), merger (see Ellis v. McClung , 291 Ill. App. 3d 448, 459-60 (1997)), or re lease (see Beloit Foundry

Co. v. Ryan , 28 I ll. 2d 379, 3 90-91 (19 63)). To establish title by adverse possession as provi ded by section 1 3--101 of

the L imitations Act (735 I LCS 5/1 3--101 (

West 2002)), t he asser ted adve rse posse ssor must po ssess the disputed l and for 2 0 ye ars. 735 I LCS 5/13--10 1 (West 200 2); Dwyer v. L ove , 346 Ill. App. 3d 734, 739 (2004). Furthermor e, the 20No. 2--05--1261

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years of possession must have been: (1) continuous; (2) hostile or adverse; (3) actual; (4) open, notorious, and exclusive; and (5) under claim of title inconsistent with that of the true owner. Dwyer , 346 I ll. App. 3d

at 739. With

respect to aband

onment, th e rule is t

hat mere nonuse wi ll not constitute an abandonment of an easement. Egidi v. Town of L iberty ville , 251 Ill. App. 3d 224, 232 (1993). Rather, the abandonment of an easeme nt requires, in addition to nonuse, circumstances showing an intention of the dominant owner to relinquish his rig ht. Egidi , 251 I ll. App. 3d at 236. The intention to permanently abandon requires proof, and the determination of whether there has been an aba ndonment is within the discretion of the trial court. Egidi , 251 I ll. App. 3d at 236. In addition, an action to enforce an easement may

be barred by

the doctrine of laches

. See Erday' s Clothiers, Inc. v. Spentzos , 228 Ill. App. 3d 540, 547 (1992). Lachesis an equi table doctrine that bars an action if, because of the plaintiff's unreasonable delay in bringing suit, the defendant is misled or prejudiced or takes a course of action that he or she would not have otherwise taken. Erday' s Clothiers , 228 Ill. App. 3d at 547. Mere delay in bringing suit is not enough to establish laches ; the defendant must show prejudice or hardship from the delay , i.e. , the delay induce d him to change his position adversely

. Erday' s Clothiers , 228 Ill. App. 3d at 547. A trial court's application of the doctrine of laches will not be reversed unless the trial court abused its discretion. Erday' s Clothiers , 228 Ill. App. 3d at 547-48. Finally , we note that, in I llinois, g rants of implied ea sements by ne cessity , for ing ress to and egress from landlocked par cels, have generally

been created over existing roadwa ys or driveways. See Canali , 293 Ill. App. 3d at 412 (implied easement by ne cessity g ranted over existing d riveway ); Martin v. See , 232 Ill. App. 3d 968, 980 (1992) (same). Once an easementNo. 2--05--1261

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by nece ssity is established, there is no I llinois case law addressing the actual cre ation of the easement in terms of its location, width, and scope of use. However, w here an easement by

deed is undefined as to location and width, these details can be ascer tained and fixed by the cour t. Seymour v . Harri s Trus t & Sav ings Ba nk of C hicago , 264 I ll. App. 3d 583, 601 ( 1994); Joseph Giddan & Sons v. Northbrook Trust & Savings Bank , 151 I ll. App. 3d 537, 541 ( 1986); Vallas v. Johnson , 72 Ill. App. 3d 281, 282 (1979). We see no rea son why the same princ iple would not apply to implied easements. Moreove r, when a n easeme nt is "impl ied," c ourts must a ttempt to a scribe a

n intention

to the parties who themselves did not put any such intention into words at the time of the conveya nce. See Emanuel , 313 Ill. App. 3d at 196. As such, in determining the location, width, and scope of an easement, a court must rely upon the implication at the time of severance. See Emanuel , 313 Ill. App. 3d at 196. U ntil rece ntly , acces s for foo t and vehi cular tr affic te nded to be the only rig

hts regarded as necessa

ry for the e

njoyment of surfac e possessory esta tes. Restatement (Thir

d) of Prop erty

(Servitu des) §2.1 5 (2000). In re cent y ears, imp lied eas ements by nece ssity have been r

ecognized for purposes such as acc ess for utilities and other services. Restatement (Third) of Property (Servitudes) §2.15 (2000). Accord ingly, in the pr

esent ca se, if the plaintiff is able to prove his claim for an easement by necessity, the trial c ourt must determine if the impl ied ease

ment inclu

des one or all of the followi ng uses : foot ac cess, ve

hicular access , and access for utilities and other services. For example, because the distance from Maple Street through the defe ndants'propert

y to the plain tiff's p roperty is only about 50 y

ards, a walking p ath may be the only

type of ea sement that was implied at the time of severance.No. 2--05--1261

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For the f orego ing rea sons, the j udgmen t of the c ircuit co

urt of Du P age Cou

nty is affirm ed in p art and revers ed in p art, an d the c ause i s rema nded f or add itio nal pr oceedi ngs consistent with this opinion. Affirmed in part and reversed in part; ca use remanded. O'MALL EY and KAPALA, JJ., concur.