Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Reversed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified September 7, 1965.
This is an appeal from a decree in chancery, based upon the recommendation of the Master in Chancery, finding that plaintiffs had acquired a permanent easement by prescription over a portion of defendant's driveway and ordering defendant to remove a fence constructed by her which prevented plaintiffs' enjoyment of the easement.
Plaintiffs' property is adjacent to, and east of, that of defendant on the north side of 104th Street in Chicago, Illinois. It was stipulated that the conveyances on plaintiffs' property were: Wells to Kilpatricks in 1921; Kilpatricks to Wabels in 1945; Wabels to Stepenos in 1948; Stepenos to plaintiffs in 1952. It was further stipulated that the chain of title on defendant's property is: Wells to Groeniers in 1921; Groeniers to Staupes in 1943; Staupes to defendant in 1959. The evidence disclosed that homes were built on the respective vacant properties in 1923 with garages added shortly thereafter, one on the northeast corner of defendant's property and another on the northwest corner of the plaintiffs' lot; two separate driveways, with a common boundary, ran between the houses to the respective garages. Plaintiffs claim that for over thirty years plaintiffs and their predecessors had continuously used a portion of defendant's driveway for ingress and egress to and from the former's garage; that no permission was asked, but neither was there ever any objection. Plaintiffs testified that since April 1961 when the fence was built along the easterly edge of defendant's drive, they could still drive their smaller car into the garage but that there is insufficient space between their chimney, which protrudes into their driveway, and defendant's fence to allow access to plaintiffs' garage by the wider of their two automobiles. There is no evidence that the predecessors in title to plaintiffs' property lacked access to their garage without using defendant's property, but on the contrary it appears defendant's driveway was used interchangeably *fn1 and for convenience. *fn2 The testimony of plaintiffs' own witnesses disclosed that the Wabels (who owned the property now occupied by plaintiffs from 1945 to 1948) did not have an automobile and that only a visiting fireman and visitors used their driveway.
[1-4] The law is settled in Illinois that to establish an easement in the land of another the use must be adverse, uninterrupted, exclusive, continuous and under a claim of right for a period of twenty years. Rush v. Collins, 366 Ill. 307, 8 N.E.2d 659. Plaintiffs properly urge that under Rush v. Collins, supra, a rebuttable presumption of a grant or adverse right arises when the origin of the way is not shown. However, in the instant case the undisputed evidence establishes the origin of the way. Mr. Bennett, a neighbor who testified for plaintiffs, said:
I have lived at 1632 West 104th Street since 1922. When I moved in both properties were vacant lots and houses were built in 1923. Mr. Groenier [defendant's predecessor in title] built one home and Mr. Kilpatrick [plaintiffs' predecessor in title] built the other house and garages were built shortly after the houses at the rear of the lots.
The origin of the two driveways was also substantiated by the testimony of the Groeniers. John Groenier testified that:
I purchased a vacant lot in 1921, 50 feet in width and built a home in 1923 and built a garage two or three years later. I built a driveway to my garage of two ribbons. My driveway was completely on my lot.
Mrs. Groenier testified that:
[We] purchased vacant property and built a garage. [There was] . . . a double drive, ours was contained within our lot and theirs was contained within theirs because we wanted the space between the houses.
I think the Kilpatrick gravel was a little higher than ours, but in time wore down.
Occasionally Kilpatricks used our driveway and we used theirs and there was nothing in writing.
In driving in and out, the Kilpatricks were careful to go on their side and we were careful to go on ours.
Since the origin of way was shown by testimony concerning the building of the driveways and the uses thereof, there is no presumption of grant or adverse right and the burden of establishing prescriptive rights rests on the party pleading it. Rush v. Collins, supra at 315. According to defendant, plaintiffs have failed to show any basis for a prescriptive easement. Moreover, defendant contends that the evidence clearly demonstrates that the use of the driveways was by implied consent and license of the parties. If this was so, the enjoyment under such a license is regarded as ...