2022 IL App (1st) 210423-U 

FIFTH DIVISION

 June 30, 2022

No. 1-21-0423 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

EMILY DIVARCO, ) Appeal from the 

 ) Circuit Court of

 Plaintiff-Appellee, ) Cook County. 

 ) 

v. ) No. 19 CH 7874 

 ) 

5935 N. ODELL CONDOMINIUM, ) 

ASSOCIATION, an Illinois not-for-profit ) 

Corporation, ) Honorable 

 ) Eve M. Reilly,

Defendant- Appellant, ) Judge Presiding.

_____________________________________________________________________________ 

 

JUSTICE CUNNINGHAM delivered the judgment of the court. 

Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

¶ 1 Held: The trial court’s judgment granting Ms. Divarco’s motion for summary judgment 

is affirmed. 

¶ 2 On July 1, 2019, the plaintiff-appellee, Emily Divarco, filed a two-count civil complaint in 

the circuit court of Cook County against the defendant-appellant, 5935 N. Odell Condominium 

Association (the Association). The complaint sought a declaratory judgment as to the use of an 

easement on the Association’s property. On June 1, 2020, the circuit court granted partial summary 

judgment in favor of Ms. Divarco, declaring that she was entitled to exclusive use of the easement 
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and setting the remaining count of the complaint for a status hearing on another date. 

¶ 3 On February 18, 2021, the circuit court denied the Association’s motion to reconsider its 

order of June 1, 2020, and entered judgment in favor of Ms. Divarco. On March 19, 2021, the 

circuit court denied the Association’s motion to vacate the February 18, 2021, order and on that 

same date, the court granted Ms. Divarco’s motion to voluntarily dismiss the remaining claim of 

her complaint. The Association now appeals. On appeal, the Association argues that the circuit 

court erred by granting summary judgment in favor of Ms. Divarco and finding that Ms. Divarco 

and successive owners of her property are entitled to exclusive use of the easement. For the reasons 

that follow, we affirm the judgment of the circuit court of Cook County. 

¶ 4 BACKGROUND

¶ 5 A dispute arose amongst the parties over the use of a 25-foot by 31-foot easement on the 

Association’s land. The easement was established in a “Declaration of Easements” stating, “[a]n 

easement for parking and driveway purposes for the use of Parcel 1 as hereinbefore described is 

hereby created over and across the North 25 feet of the East 31 feet as measured along the North 

line and the East line of Parcel 2 aforesaid.” According to the “Declaration of Easements,” the

“easements shall be used in common by the present and future owners, occupants and mortgagees 

of, and all persons now or hereinafter acquiring any interest in the respective parcels hereinbefore 

described.” The current owner of Parcel 1 is Ms. Divarco, and the current owner of Parcel 2 is the 

Association. Starting on approximately June 18, 1999, the Association began occasionally parking 

vehicles in the easement. However, in approximately September 2018, the Association painted 

diagonal hash marks along one of the parking spaces and painted markings in the other two parking 

spaces, labeling them “1E” and “2E.” At some point between 2014 and September 2018, the 

Association began parking cars on the easement on a regular, continuous, and “first-come first-
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serve basis.” At a meeting between the parties after September 2018, the Association stated it 

intended to rent out the parking spaces to its residents, to which Ms. Divarco objected, stating that 

she needed the three parking spaces for her residents. Over the following months, the parties 

feuded over the parking spaces by repainting the parking spaces in accordance with their intended 

use of the easement. 

¶ 6 On July 1, 2019, Ms. Divarco, filed a two-count civil complaint against the Association, 

seeking a declaratory judgment as to the use of the easement. Count I sought a declaration that Ms. 

Divarco is to have exclusive use of the easement, that the Association’s signage near the parking 

spaces is to be removed, and that the parking spaces are to be repainted in accordance with the 

declaration. Count II of the complaint sought damages due to trespass and obstruction by the 

Association, which prevented Ms. Divarco from making use of the parking spaces. On October 

22, 2019, after the Association filed its answer, Ms. Divarco filed a motion for partial summary 

judgment as to count I of the complaint, arguing that the language in the “Declaration of 

Easements” is unambiguous and entitled her to exclusive use of the easement. On that same date, 

the Association filed a motion for judgment on the pleadings, asserting that the language of the 

“Declaration of Easements” is unambiguous but the easement was nonetheless meant for common 

use between the parties. 

¶ 7 On June 1, 2020, the trial court entered a judgment in favor of the Ms. Divarco, granting 

Ms. Divarco’s motion for partial summary judgment as to count I of her complaint. The order also 

denied the Association’s motion for judgment on the pleadings. The trial court, in its written ruling, 

stated that the concurrent use of the parking spaces, which the Association sought, was not viable 

since “[p]arking spaces in the cities are commodities which cannot be used simultaneously.” 

Moreover, the trial court noted that the Association had removed one of the three parking spaces 
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by repainting it. The court went on to find that the language in the “Declaration of Easements,” 

stating that the easement “shall be used in common by the present and future owners, occupants 

and mortgagees of, and all persons now or hereinafter acquiring any interest in the respective 

parcels,” referred to the easement running with the land and how the interest of the easement will 

pass over time. 1 The trial court ruled that the most reasonable interpretation of the easement was: 

“Parcel 1 has exclusive use of the three parking spaces on Parcel 2.” Since Ms. Divarco is the 

owner of Parcel 1, the trial court held that she is entitled to exclusive use of the entire easement. 

The court scheduled count II of Ms. Divarco’s complaint for a status hearing at a later date. 

¶ 8 On September 8, 2020, Ms. Divarco filed a motion for entry of a final judgment order. The 

motion requested that the trial court enter a detailed order, which would be filed with the Cook 

County Recorder of Deeds, to provide constructive notice and prevent future disputes regarding 

the easement. In the motion, Ms. Divarco also sought to voluntarily dismiss count II of her 

complaint without prejudice. On October 2, 2020, the Association filed a motion requesting that 

the court reconsider its June 1, 2020, order, in which it found that Ms. Divarco had the right to the 

exclusive use of the easement. On February 18, 2021, the trial court denied the Association’s 

motion to reconsider its June 1, 2020, order and entered judgment in favor of Ms. Divarco. The 

court’s order granted Parcel 1 exclusive use of the easement on Parcel 2 and scheduled a status 

hearing on count II of the complaint. On March 9, 2021, the Association filed a motion to vacate 

the court’s February 18, 2021, order. On March 19, 2021, the court denied the Association’s 

motion to vacate the February 18, 2021, order and, on that same date, the court granted Ms. 

1

An easement runs with the land when “every successive assignee of the land is entitled to enforce 

the covenant, and entitled to the benefits or obligations passing with the covenant, if the act to be 

done or permitted concerns the land or the estate conveyed.” C-B Realty & Trading Corp. v. 

Chicago and North Western Railroad Co., 198 Ill. App. 3d 926, 930 (1990). 
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Divarco’s motion to voluntarily dismiss count II of her complaint. On April 15, 2021, the 

Association filed a notice of appeal. 

¶ 9 ANALYSIS

¶ 10 We sua sponte raise the question of whether this court has jurisdiction to consider the 

Association’s appeal. “[C]ourts of review have an independent duty to consider jurisdiction.” 

People v. Lewis, 234 Ill. 2d 32, 36 (2009). Jurisdiction grants the court the power to interpret and 

apply the law. In re M.W., 232 Ill. 2d 408, 414 (2009). 

¶ 11 Pursuant to Supreme Court Rule 301 (eff. Feb. 1, 1994), final orders are appealable as a 

matter of right. An order or judgment is final only if “it disposes of the rights of the parties, either 

on the entire case or on some definite or separate part of the controversy.” Fabian v. BGC Holding, 

LP, 2014 IL App (1st) 141576, ¶ 12. Therefore, an order granting a voluntary dismissal, which 

disposes of the rights of the parties or the entire case, is a final and appealable order pursuant to 

Supreme Court Rule 301 (eff. Feb. 1, 1994). BGC Holding, LP, 2014 IL App (1st) 141576, ¶ 14. 

In this case, on March 19, 2021, after the trial court had ruled on count I, it granted Ms. Divarco’s 

request to voluntarily dismiss count II, resolving the complaint in its entirety. That voluntary 

dismissal made the March 19, 2021, order final and appealable, as no more claims remained 

pending before the trial court. See BGC Holding, LP, 2014 IL App (1st) 141576, ¶ 14. On April 

15, 2021, the Association then filed a timely notice of appeal following the trial court’s judgment.

Ill. S. Ct. R. 303 (eff. July 1, 2017). Thus, we have jurisdiction to consider this matter. Ill. S. Ct.

R. 301 (eff. Feb. 1, 1994); Ill. S. Ct. R. 303 (eff. July 1, 2017). 

¶ 12 The Association presents the following issue on appeal: whether the trial court erred by 

granting summary judgment in favor of Ms. Divarco and finding that she is entitled to exclusive 

use of the easement in question. The Association argues the trial court erred by granting summary 
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judgment and finding that the easement was for the exclusive use of Ms. Divarco. It claims that

the court used extrinsic evidence to come to its conclusion, in violation of Illinois law on 

easements. Specifically, the Association asserts that the trial court improperly considered the

parties’ use of the easement as well as the logistical issues presented by sharing the easement.

¶ 13 Summary judgment is appropriate only when “ ‘the pleadings, depositions and admissions 

on file, together with the affidavits, if any, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.’ ” 1010 Lake Shore 

Ass'n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 20 (quoting 735 ILCS 5/2-1005(c) 

(West 2020)); Illinois State Bar Association Mutual Insurance Co. v. Canulli, 2020 IL App (1st) 

190142, ¶ 20. Our review of a trial court’s summary judgment ruling is de novo. Dumke v. City of 

Chicago, 2013 IL App (1st) 121668, ¶ 11.

¶ 14 In the instant matter, summary judgment was granted by the trial court on the basis that the 

“Declaration of Easements” entitles Ms. Divarco, as the owner of Parcel 1, to the exclusive use of 

the easement in question. Interpretation of an easement involves the principles of contract law. 

River’s Edge Homeowners’ Ass’n v. City of Naperville, 353 Ill. App. 3d 874, 878 (2004). 

Interpretation of an easement is a question of law, and where the language of an easement is 

unambiguous, the trial court interprets the easement without the use of extrinsic evidence. Hahn 

v. City of Kane, 2012 IL App (2d) 110060, ¶ 12. The land benefitting from the easement is the 

dominant estate and the land burdened with the easement is the servient estate. Chicago Title Land 

Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420, ¶ 32. “The law of easements is based on a 

principle of concurrent rather than exclusive use.” Village of Round Lake v. Amann, 311 Ill. App. 

3d 705, 718 (2000). “Absent an agreement to the contrary, the servient owner may use his property 

for any purpose consistent with the dominant owner’s enjoyment of his easement.” McMahon v. 
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Hines, 298 Ill. App. 3d 231, 239 (1998). However, easements are to be construed in a way to carry 

out the intention of the parties. 572 S. Clinton, LLC v. Westloop Equities, LLC, 2014 IL App (1st) 

131401, ¶ 28.

¶ 15 The trial court in its June 1, 2020, order, regarding the use of the easement in question, 

acknowledged that concurrent use of an easement is favored. However, the court found that such 

use was not feasible in this case when considering the use of the easement for parking. It noted

that, while a driveway could be used concurrently, a parking space could not. The owner of a 

dominant estate has a right to use the easement and exclude the servient owner’s use of it when

the servient owner’s “intended or actual use unreasonably interferes with the dominant estate’s 

use. It is in this sense that reasonable use by a dominant estate may be ‘exclusive’ to the use of the 

easement by the owner of the servient estate.” Chicago Title Land Trust Co., 2012 IL App (1st) 

063420, ¶ 76.

¶ 16 Here, the “Declaration of Easements,” which created the easement, clearly established an 

easement on the Association’s property to be used for parking. Without looking at extrinsic 

evidence and just looking at the language in the “Declaration of Easements,” the court’s conclusion 

of the use of the easement is reasonable and consistent with established law. Parking can only be 

used by one vehicle or a set of vehicles at a time and cannot be used concurrently as the Association 

contends. As such, the intention of the parties, when drafting the “Declaration of Easements,” was 

to create exclusive use of the easement for parking by the owner of Parcel 1 or, stated differently,

Ms. Divarco and successive owners of Parcel 1. The use of the “in common” language cited by 

the Association to support its point simply highlights that the easement was to run with the land. 

The Association’s argument that multiple vehicles can share the parking space simultaneously

leads to an illogical result that is not feasible in actuality. To illustrate this point, if the concurrent 
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use of the easement was allowed and used as the Association suggests on a first-come first-serve 

basis, the Association could have vehicles parked there 24 hours a day, 7 days a week. That would 

effectively bar Ms. Divarco’s property, the dominant estate, from using the easement at all. Thus, 

the purpose of the creation of the easement would be frustrated. That result could not have been 

the intention of the parties who created the easement. Consequently, the only reasonable 

conclusion to be drawn from the “Declaration of Easements” was to grant exclusive use of the 

easement for parking by the owner of Parcel 1 or Ms. Divarco. There is no other reasonable 

conclusion to be drawn from the “Declaration of Easements” other than that Ms. Divarco is entitled 

to exclusive use of the easement. Accordingly, the trial court did not err in its judgment granting 

summary judgment in Ms. Divarco’s favor on those grounds. See Duniver v. Clark Material 

Handling Co., 2021 IL App (1st) 200818, ¶ 12 (summary judgment is appropriate if no material 

fact is in dispute and if reasonable persons could not draw differing inferences from the undisputed 

material facts). We, therefore, affirm the trial court’s judgment. 

¶ 17 CONCLUSION

¶ 18 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County 

granting Ms. Divarco’s motion for summary judgment. 

¶ 19 Affirmed.