Appeal from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding. Reversed and remanded.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 3, 1969.
Defendants appeal from a decree which finds and decrees that plaintiffs, together with all other owners of lots in the Grand Bluff subdivision, have a prescriptive right to travel over a certain road for purpose of ingress and egress to the lots in the subdivision.
The plaintiffs are the owners of certain lots in the subdivision. The defendant, James Herman, is the owner of adjacent premises which he devotes to farming. Between the premises of the plaintiff and defendant is a right-of-way known as Grand Avenue and dedicated in the original plat of subdivision in 1892. Grand Avenue is a 14-foot easement apparently intended to provide the only access to the property of the plaintiffs. Over the years gravel has been placed on the access route to plaintiffs' property and it appears that, at the time the case was heard in the trial court, the gravel was not on the dedicated right-of-way of Grand Avenue but rather adjacent to it and mostly on the property of the defendant, Herman. In addition to that, the width of the gravel drive or roadway had increased over the years as a result of the addition of gravel and the spreading of the gravel caused by the use of the roadway. In past years various of the plaintiffs have put up fences and, in one or two cases, have placed garages on the right-of-way of Grand Avenue. Except for the gravel roadway, Herman's property is unenclosed and is devoted to agricultural purposes.
There is a dispute in the evidence as to when the roadway came into existence at its present location, but in view of the conclusions we reach, a finding in that connection is not necessary. Over the years, whenever the opportunity presented itself, the defendant and his predecessors in title objected to the various encroachments by the plaintiffs beyond the dedicated right-of-way of Grand Avenue. The evidence is clear and uncontradicted that on each occasion, when given the opportunity, the defendant objected, instructed the plaintiffs or their predecessors in title to remove the obstructions and, in general, engaged in a consistent course of conduct indicating that he did not acquiesce in the obstructions.
The plaintiffs brought this suit alleging that they had acquired a permanent right to use the roadway as it now exists by adverse possession. In the alternative, plaintiffs allege that they had an easement by implication or, in the further alternative, that they had a license from the defendant, Herman, which the defendants should be enjoined from revoking.
The defendant, Herman, urges that the only possible theory upon which the plaintiffs could prevail is by proof that they had an easement by prescription; and that the plaintiffs could not have an easement by prescription because they had failed to prove that the use of the road was continuous and uninterrupted for a period of twenty years, that it was under a claim of right, and that the defendant acquiesced in the use of the road.
The plaintiffs concede that they do not have an easement by prescription but claim that their rights arise by adverse possession.
Significantly, the plaintiffs have not claimed and do not claim that they ever acquired any title to the premises in question. At the very most they claim a right to use the premises and, indeed, the trial judge found only that the plaintiffs "have a prescriptive right to travel over the said existing traveled road."
Through the years the courts have, on many occasions, distinguished rights acquired by prescription and by adverse possession. The two doctrines have similar elements to some degree, but they do vary in elements of proof required, and their purpose is quite different. Adverse possession is concerned with the acquisition of fee title to certain property, whereas prescription applies to the acquisition of incorporeal hereditaments and not fee title, Plaza v. Flak, 7 NJ 215, 81 A.2d 137. See also 2 CJS, "Adverse Possession," § 1, page 512. Therefore, since the plaintiffs are not claiming that they own or have acquired fee title to the premises in question, but only claim a right-of-way, they must prevail, if at all, under the rules applying to easements by a prescription and not under the rules applying to adverse possession.
To establish an easement by prescription it is necessary for the plaintiffs to show that the use was adverse, uninterrupted for a period of twenty years, exclusive, continuous and under a claim of right, Lang v. Dupuis, 382 Ill. 101, 107, 46 N.E.2d 21 (1943).
The phrase "exclusive" does not mean that no one may use the easement except the claimant but only that the claimant's right does not depend on a like right in others, Rush v. Collins, 366 Ill. 307, 314, 315, 8 N.E.2d 659 (1937).
The doctrine of a prescription arose out of the ancient common-law fiction of a "lost grant." It developed on the theory that where a right-of-way existed with the knowledge and acquiescence of the owner of the premises for a sufficient period of years, it was presumed that he or his predecessors in title had actually granted an easement and that the easement document had been lost. Otherwise, presumably, the owner would not have acquiesced in such enjoyment for so long a period when it was to his interest to have interrupted it, unless he felt conscious that one party enjoying it had a right and title to it which could not be defeated. The fictional loss of the easement was created so that the presumptive intention of the parties and the acquiescence of the owner of the land could be carried out, Rush v. Collins, supra, at page 315.
While the law presumes an easement when facts are shown which admit of such presumption, yet such facts are not presumed but must be established by the greater weight of the evidence. Bontz v. Stear, 285 Ill. 599, 604, ...