NO. 4-00-0571

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

MICHAEL SMITH,

		Plaintiff-Appellee,

		v.

MATT HEISSINGER and REGINA

GAE BUIE-HEISSINGER,

		Defendants-Appellants.

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)	  Appeal from

  Circuit Court of 

  Sangamon County

  No. 99MR405

  Honorable

  Patrick W. Kelley, 

  Judge Presiding.

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		JUSTICE KNECHT delivered the opinion of the court:

		In October 1999, plaintiff, Michael Smith, filed a two-

count complaint against defendants, Matt Heissinger and Regina

Gae Buie-Heissinger, requesting the trial court to declare the

easement rights possessed by plaintiff in a 25-foot-wide right-

of-way over defendants' properties included the right to place

underground utilities for the benefit of plaintiff's property. 

After an April 2000 bench trial, the trial court found plaintiff

had an easement by necessity over defendants' properties for

utilities and issued a permanent injunction enjoining defendants

from interfering with plaintiff's installation of utilities. 

Defendants filed a motion to reconsider.  After a May 2000

hearing, the trial court denied the motion to reconsider.  On

appeal, defendants argue the trial court erred in (1) admitting

extrinsic evidence to determine the intent of the parties with

respect to the existing easement; (2) applying the theory of

implied easement by necessity when plaintiff's complaint did not

raise such a theory; and (3) applying the easement by necessity theory to the facts of this case.	

	I. BACKGROUND

		Both plaintiff's and defendants' properties were

originally one tract of land owned by John Homeier.  The original

tract of land is currently divided into three pieces known as

Heissinger No. 1, Heissinger No. 2, and the Smith property.  See

Appendix A (trial exhibit No. 1).

		In September 1988, Homeier and defendants entered into

a contract for the sale (trial exhibit No. 2) of a portion of the

tract of land known as Heissinger No. 1.  The real estate con

tract provided defendants were to grant Homeier a 25-foot ease

ment off the Wwest side of Heissinger No. 1.  In December 1988,

Homeier conveyed Heissinger No. 1 to defendants, but the deed

(trial exhibit No. 3) lacked the easement.  A corrected deed

(trial exhibit No. 4) was later filed, containing a 25-foot-wide

right-of-way (easement No. 1).  The corrected deed contained no

language limiting the purpose of the right-of-way.  

		In January 1996, Homeier and defendants entered into

another contract of sale (trial exhibit No. 5) for an adjacent

piece of property known as Heissinger No. 2.  The real estate

contract contained a provision for "an ingress and egress ease

ment 25 [feet] in width along the west and south sides of the

subject property, for the benefit of the property [known as the

Smith property]."  In March 1996, Homeier conveyed Heissinger No.

2 to defendants (trial exhibit No. 7) and recorded an easement

(trial exhibit No. 6) dated January 22, 1996, creating the right- of-way "for the sole purpose of ingress and egress and for the

benefit of the [Smith property]" (easement No. 2). 

		In March 1996, Homeier and plaintiff entered a contract

for sale of the remaining land now known as the Smith property. 

The next month, Homeier conveyed the Smith property to plaintiff

(trial exhibit No. 8).  In the deed, Homeier assigned his inter

est in both easements.  

		After purchasing the property, plaintiff built a home

on the property.  Utilities already existed within easement No. 1

serving defendants' properties, and plaintiff requested the

Central Illinois Light Company (CILCO) to install electricity to

his home by connecting to the existing utilities.  When CILCO

employees began to install the electric wires on the easement,

defendants questioned the employees and told them no utility

easement existed.  None of the other owners of adjacent property

would allow plaintiff to obtain utilities across their proper

ties.

		In October 1999, plaintiff filed a complaint against

defendants, praying for the trial court to (1) declare the

easement rights possessed by plaintiff in the 25-foot-wide right-

of-way over defendants' land include the right to place under

ground utilities for the benefit of his land, and (2) grant a

preliminary and permanent injunction ordering defendants to cease

and desist from interfering with the installation of underground

utilities within plaintiff's easement.

		In April 2000, the trial court held a bench trial on the complaint.  Defendants argued the matter should have been

resolved in a summary judgment motion and objected to the intro

duction of extrinsic evidence regarding the intent of the parties

because the document granting the right-of-way speaks for itself. 

The trial court allowed the extrinsic evidence, citing the Second

District's opinion in McMahon v. Hines, 298 Ill. App. 3d 231, 236, 697 N.E.2d 1199, 1204 (1998).  Homeier, Matt Heissinger,

plaintiff, and two adjacent land owners, Robert Young and Edward

Turley, testified at the trial.  The trial court declined to rule

from the bench and requested the parties to file simultaneous

briefs within a week of the trial. 

		In May 2000, the trial court found in favor of plain

tiff on both counts.  The trial court based its decision on the

doctrine of necessity as set forth in Martin v. See, 232 Ill. App. 3d 968, 977-78, 598 N.E.2d 321, 327-28 (1992).  After a

hearing, the trial court denied defendants' motion to reconsider. 

This appeal followed.  After filing their notice of appeal,

defendants filed a motion to stay the trial court's judgment

pending appeal.  The trial court denied defendants' motion but

provided, if the judgment is reversed on appeal, plaintiff is to

remove any utilities installed within the easement at his own

expense.

	II. ANALYSIS

	A. Extrinsic Evidence

		Defendants first contend the easement's language is unambiguous, and thus the trial court erred in admitting extrin sic evidence.  Plaintiff argues the easement's language is

ambiguous.  Whether language of an agreement is ambiguous and

requires extrinsic evidence for interpretation is a matter of

law.  Schnuck Markets, Inc. v. Soffer, 213 Ill. App. 3d 957, 976, 572 N.E.2d 1169, 1183 (1991).  This court reviews de novo a trial court's decision made as a matter of law.  People v. Stevens, 315 Ill. App. 3d 781, 783, 733 N.E.2d 1283, 1285 (2000).

		The easement in question consists of two parts, created

by two separate documents.  The first document, creating easement

No. 1, contains no language limiting the purpose of the first

easement, while the second document, creating easement No. 2,

states the easement is for the sole purpose of ingress and

egress.  In their brief, defendants themselves point to extrinsic

evidence (sales contracts labeled trial exhibits Nos. 2 and 5) in

arguing the documents are unambiguous.  We find the documents

creating the easements are ambiguous, and thus the trial court

did not err in admitting extrinsic evidence.  Because we find the

documents are ambiguous, we need not address whether extrinsic

evidence is admissible when the documents creating an easement

are unambiguous.

	B. Easement by Necessity

		Two types of implied easements exist:  the easement by

necessity and the easement implied from a preexisting use. 

Martin, 232 Ill. App. 3d at 977, 598 N.E.2d at 327.  To establish an easement by necessity, three conditions must exist:  (1)

ownership of the dominant and servient estates by a common grantor followed by separation of title; (2) use of the easement

before separation in an apparent, obvious, continuous, and

manifestly permanent manner; and (3) necessity of the easement to

the beneficial enjoyment of the dominant estate.  Miller v. Schmitz, 80 Ill. App. 3d 911, 913, 400 N.E.2d 488, 490 (1980).  Proof of prior use is not required when the land presently could

not be used absent the easement.  Miller, 80 Ill. App. 3d at 914, 400 N.E.2d at 490.

	1. Sufficiency of the Complaint 

		Defendants argues the trial court could not have applied

the doctrine of easement of necessity by implication because

plaintiff failed to include it in his complaint.  Plaintiff

asserts all the elements of an easement by necessity were con

tained in the pleadings.  Because the determination of whether

plaintiff's complaint states a cause of action for an easement by

necessity does not require the court to weigh facts or determine

credibility, we review the matter de novo.  See Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51 (1993) (reviewing motion to dismiss on the pleadings de novo).

		While section 2-603 of the Code of Civil Procedure (735

ILCS 5/2-603 (West 1998)) requires a plain and concise statement

of the plaintiff's cause of action with separate claims stated in

separate counts of the complaint, the purpose of the section is

to give notice to the court and to the parties of the claims

being presented.  Wong v. Stevens, 216 Ill. App. 3d 299, 301, 576 N.E.2d 1069, 1070 (1991).  Complaints are to be liberally con strued with an eye toward doing justice between the parties. 

Wong, 216 Ill. App. 3d at 301, 576 N.E.2d at 1070.  

		Here, plaintiff alleged in his complaint a single-

family residence had partially been completed on the Smith

property and "electric power service and telephone service are

necessary for use of [the Smith property] as a single-family

[residence]."  Attached to the complaint as exhibits are the deed

from Homeier to plaintiff for the Smith property, the deed from

Homeier to defendants for Heissinger No. 1, and the document

creating the easement over Heissinger No. 2 with Homeier as the

grantor.  Thus, taken as a whole, these documents show Heissinger

was the common grantor of the Smith property and Heissinger Nos.

1 and 2.  See Bond v. Dunmire, 129 Ill. App. 3d 796, 804, 473 N.E.2d 78, 84 (1984) (admitting the exhibits attached to the

complaint as facts for a motion to dismiss).  Thus, all the

elements of an easement by necessity were included in plaintiff's

complaint.

		However, defendants argue the trial court prohibited

them from cross-examining plaintiff as to alternative sources of

utilities.  Defendants thoroughly cross-examined plaintiff as to

alternative sources of the utilities, such as cellular phones,

solar power, and gas generators.  Defense counsel also questioned

plaintiff about his attempts at getting the needed utilities from

other neighbors.  In fact, defendants presented the testimony of

two of the neighboring landowners who denied plaintiff access to

their utilities.

		Defendants also contend the application of an easement

by necessity in this case is an unconstitutional taking because

they have been precluded from negotiations.  Defendants do not

cite any case law in support of this argument (177 Ill. 2d R.

341(e)(7)), nor do they allege how the application of easement by

necessity prohibited negotiations.  Thus, we decline to address

this argument. 

		Accordingly, we find the trial court did not err in

applying the doctrine of implied easement by necessity.

	2. Sufficiency of the Evidence

		Defendants next argue, even if the trial court could

have applied the easement by necessity doctrine, the trial court

erred in finding plaintiff had met his burden of proof.  This

court will not disturb the trial court's finding of an easement

by necessity unless it is contrary to the manifest weight of the

evidence.  Martin, 232 Ill. App. 3d at 978, 598 N.E.2d at 328.

		The evidence presented at trial demonstrates the first

element is present.  Here, Homeier was the common grantor, owning

as a single tract:  Heissinger No. 1, Heissinger No. 2, and the

Smith property.  As to the second element, no evidence of prior

use exists, and thus plaintiff must demonstrate the land cannot

be used without the easement.

		At trial, plaintiff testified he was in the process of

building a home on the Smith property.  The home currently has a

solar power source, but it is insufficient to supply enough power

to make the house habitable.  The home also lacks telephone service.  Plaintiff testified the home is not habitable without

telephone and electrical services.  

		Defendants do not argue the house is habitable without

the necessary utilities, but rather argue an easement by neces

sity is limited to ingress and egress only.  We disagree.  In

Sabatino v. First American Title Insurance Co., 308 Ill. App. 3d 819, 823, 721 N.E.2d 693, 697 (1999), the Second District found a

sewer line across the plaintiff's property was an easement by

necessity.  In the case of an easement implied from a preexisting

use, which has common elements as an with easement by necessity (Ssee

Granite Properties Limitedtd. Partnership v. Manns, 117 Ill. 2d 425, 437, 512 N.E.2d 1230, 1236 (1987)), courts have examined the

application of that doctrine to access to water supply (Hallock v. Wear, 194 Ill. App. 3d 894, 904-07, 551 N.E.2d 712, 718-20 (1990); Frantz v. Collins, 21 Ill. 2d 446, 449-51,   173 N.E.2d 437, 439-40 (1961)) and to a catch basin providing access to the

sewer system (Swieton v. Landoch, 106 Ill. App. 3d 292, 298-300, 435 N.E.2d 1153, 1159-60 (1982)).  Such application of implied

easements does not offend public policy; it furthers the public

policy favoring full utilization of land (Miller, 80 Ill. App. 3d at 914, 400 N.E.2d at 491).

		While a showing of absolute necessity is not required

in Illinois to create an implied easement by necessity upon the

severance of land into two or more tracts, an easement by neces

sity is not sanctioned if available alternatives affording a

reasonable means of obtaining the needed utilities exist.   See  Martin, 232 Ill. App. 3d at 978, 598 N.E.2d at 328.   Defendants contend plaintiff has failed to prove reasonable alternatives do

not exist.

		When questioned by defendants as to why he could not

use a cellular phone on his property, plaintiff testified he ran

a home business and a cellular phone was not adequate to handle

his business needs; for example, a computer cannot access the

Internet over a cellular phone.  Plaintiff also testified solar

power and gas generators were unable to produce enough electric

ity to make his home habitable.  Moreover, the evidence showed

the owners of the other neighboring properties had denied plain

tiff access over their land.  

		Thus, the trial court's judgment plaintiff had an

utility easement by necessity in plaintiff's existing easement

was not against the manifest weight of the evidence.

	III. CONCLUSION

		Accordingly, we affirm the judgment of the circuit

court of Sangamon County.

		Affirmed.

		KNECHT, McCULLOUGH and MYERSCOUGH, JJ., concur.J., with