Appeal from the Circuit Court for the Eighteenth Judicial
Circuit of DuPage County; the Hon. JOHN A. KRAUSE, Judge,
presiding. Reversed and remanded.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 26, 1966.
This is an appeal from a judgment entered by the trial court in which the issues on both the complaint and counterclaim were found in favor of the plaintiff, Horace O. Wetmore, and against the defendant, The Ladies of Loretto, Wheaton, an Illinois not-for-profit corporation. The nature and extent of the right of the defendant to use a certain roadway is the critical issue involved in this litigation.
Since 1928, the plaintiff, and his family before him, owned a tract of land near Wheaton, consisting of approximately 80 acres. The principal access to this tract was by means of Hawthorne Lane, a roadway extending north from the easterly edge of the tract.
The plaintiff sold 10 acres of this tract to the defendant in 1946. These acres, located along the north edge of the larger tract, were carved out of its middle and were improved with a large mansion house, swimming pool, sunken gardens, and various outbuildings. The 10-acre parcel was landlocked, and the plaintiff granted to the defendant an express easement across the remainder of his tract to the east. This easement was over an existing driveway which ran in front of plaintiff's residence to the east of the property sold to defendant out to Hawthorne Lane, and then north, along Hawthorne Lane.
In 1957, representatives of the defendant approached the plaintiff, stating that it would like to open its own roadway west from its 10-acre tract, to Orchard Road. A portion of the land retained by the plaintiff, after his conveyance to the defendant, consisted of 40 acres west and south of the 10-acre tract which the defendant had purchased. The west line of this 40-acre tract was approximately 1,400 feet east of Orchard Road a public road. The plaintiff, however, also owned a strip of land 33 feet wide, extending westerly from the west line of this 40-acre tract to Orchard Road.
Presumably, plaintiff could have sold that 33-foot strip to defendant, together with a strip of land 33 feet wide extending easterly therefrom over the 40-acre tract to the 10-acre tract. This would have given defendant its own road. However, the plaintiff told the defendant that he was not interested in selling just a roadway to the west out of the 10-acre tract but said that he might sell the entire 40-acre tract, including the 33-foot strip extending to Orchard Road. The defendant advised the plaintiff that if it could purchase the 33-foot strip of land, it would build a new road out to the west which was in the opposite direction from plaintiff's residence and Hawthorne Lane.
At the time of the negotiations for the sale of the 40-acre tract, plaintiff attempted to get the defendant to give up its express easement appurtenant to the 10-acre tract over the driveway in front of his house and over Hawthorne Lane. The defendant declined but said that as soon as its roadway to the west was built it would direct the bulk of its traffic over that road; and that, consequently, the driveway in front of the plaintiff's residence would receive less use. Apparently, this was satisfactory to the plaintiff, who prepared a memorandum dated October 28, 1957, in which he acknowledged that defendant wished to continue its easement on Hawthorne Lane and the driveway in front of his house. The 40-acre tract was then sold to defendant in 1957. No reference was made to any easement in the conveyance of the 40-acre tract.
The defendant built a road westerly to Orchard Road, which was called Loretto Lane. It ran through the 40-acre tract and across the 33-foot strip of land which the defendant purchased from the plaintiff. It was completed in June of 1960. Prior to that time, the relations between the plaintiff and the defendant had deteriorated. Throughout the 1950's, the defendant conducted a kindergarten and music classes on the 10-acre tract and the plaintiff became quite upset by the extent of the attendant use of the driveway and Hawthorne Lane, which totaled 40 to 50 vehicles daily, as well as limited use by pedestrians. On rare occasions the defendant also had picnics, garden parties and other parties which would result in additional traffic over Hawthorne Lane and in front of plaintiff's residence. All of these activities, however, were conducted on the 10 acres.
After the conveyance of the 40-acre parcel of land to the defendant, the plaintiff continued in his efforts to obtain defendant's release of the easement in front of his house. As early as 1958, he threatened suit if the defendant would not give up its easement. After Loretto Lane was opened in June of 1960, the defendant made verbal requests and sent out maps and directions to those going to and from the convent, asking them to use Loretto Lane rather than Hawthorne Lane. Apparently, these efforts were quite successful in that the traffic over Hawthorne Lane, within a reasonable time after the construction of Loretto Lane, was reduced generally to about 5 cars per day.
The plaintiff, however, was not satisfied with the efforts of the defendant in this respect. He hired a deputy sheriff to turn back traffic going to the convent on Hawthorne Lane. This officer admonished such persons that they were trespassing on a private road. He also personally stopped vehicles on the Lane, told the drivers that they were trespassers, and directed them to turn around. Plaintiff also ejected pedestrians from the driveway in front of his house. At times his conduct was such that it obviously frightened the young people at the convent, as well as the Sisters. On one occasion, when the plaintiff came on defendant's property to object to the use of the Lane, one of the Sisters was compelled to call the sheriff to remove him. The plaintiff also installed a gate on the roadway which set off an alarm bell both by the gate and in his house when the gate was opened. There were numerous incidents and confrontations resulting from plaintiff's assertions that the defendant was without right to use or enjoy the easement previously expressly granted to it.
In 1962, the defendant began the construction of a House of Studies, part of which was on the original 10-acre tract purchased by the defendant and part on the 40-acre tract. The building was completed in August of 1963. It is one inseparable structure with the portion on the 10-acre tract being indivisible from the portion on the 40-acre tract. While this building is joined by a passageway to the chapel, it is, however, separate, distinct and apart from the other structures on the 10-acre tract.
The completion of the House of Studies building was the catalyst which gave rise to this suit. Plaintiff's complaint alleges that upon the completion of this building located partly on the 10-acre tract and partly on the 40-acre tract, the easement granted for the benefit of the 10-acre tract was extended by the defendant to the 40-acre tract; that the entire installation (all of the buildings) of defendant on the two tracts are operated as a composite unit and cannot be segregated as to that use pertaining to the 40 and that use pertaining to the 10-acre tracts; and that defendant's use of the easement previously granted therefore, should be enjoined by reason of its extension to the 40-acre tract.
The defendant's answer stated that upon the conveyance of the 40-acre tract to it in 1957, there was created an implied easement benefiting this tract over the route previously granted by the express easement. It also denied that the use to which the 40-acre tract was put justified enjoining the use of the express easement ...