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Keessen v. Zarattini

DECEMBER 17, 1969.

DELLA KEESSEN AND MARY KEESSEN, PLAINTIFFS-APPELLEES,

v.

ALBINA ZARATTINI, UNION NATIONAL BANK OF CHICAGO, AS TRUSTEE UNDER ITS TRUST NO. 115, AND FIRST NATIONAL BANK OF BLUE ISLAND, AS TRUSTEE UNDER DOCUMENT NO. 2161184, DEFENDANTS, ALBINA ZARATTINI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Affirmed in part, remanded in part with directions.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

ENGLISH, J.

Rehearing denied and supplemental opinion February 4, 1970.

Defendant Zarattini appeals from a decree enjoining encroachment upon an easement. Plaintiffs brought this action on November 18, 1965, to compel defendants to remove an enclosed brick stairway and other obstructions which allegedly encroached on plaintiffs' easement over certain real estate adjoining their own premises.

A summary of plaintiffs' amended complaint follows. Plaintiffs own and occupy the property commonly known as 11512 S. Eggleston Avenue, Chicago. Defendant Union National Bank as Trustee owns the property at the southeast corner of South Normal Avenue and West 115th Street, Chicago, and defendant First National Bank of Blue Island as Trustee is the mortgagee of the property. Defendant Zarattini is in possession of these premises. In 1923 a former owner of defendants' premises created an easement for ingress and egress, in favor of plaintiffs' property, over a nine-foot alleyway immediately adjoining the north and west sides of plaintiffs' property. Plaintiffs have been the owners of their property since 1926, and "the aforesaid easement is necessary for plaintiffs' full use and enjoyment of their property." Defendants commenced building the offending stairway in April, 1965, and completed it the following month. The stairway structure encroaches upon approximately five feet of the easement. Defendants have further encroached by placing boulders, rocks, blocks and bricks, and a garbage disposal box upon the easement. Defendants have failed to remove the encroachments after notice by plaintiffs at the time the stairway was built. They thereby deprive plaintiffs of the full use and enjoyment of their easement, and render their property less valuable.

Three remedies were sought by plaintiffs: (1) that defendants be required to remove the boulders, rocks, blocks, bricks, and garbage box brought upon the easement; (2) that defendants be required to remove so much of the brick stairway as encroaches upon the easement; and (3) that defendants be enjoined from maintaining or using the easement, or encroaching upon same, or depriving the plaintiffs of the full use and enjoyment thereof.

The trustee banks, who are not parties to this appeal, asserted by motion that they had no interest in the real estate except as trustee under a land trust and trustee to secure indebtedness, respectively, and were not proper parties to the suit. They also argued, in the alternative, that plaintiffs' complaint was insufficient to set forth any cause of action, and asked to be dismissed from the suit.

Defendant Zarattini (hereinafter "defendant"), filed an answer in which she admitted that the easement existed, but alleged that it was created to give plaintiffs, as owners of their property, access to the rear of their lot, and to give other owners whose property also abutted the easement on the west, access to the rear of their lots. Defendant further alleged "that the doors to the garage located at the rear of plaintiff's premises face north and plaintiffs have an unobstructed ingress and egress to said garage" by way of the easement on the north side; that the easement on the west side (where the stairway is located) "is not necessary for plaintiffs to have access to the rear of their premises; that as a matter of fact, they could not possibly get in and out of their garage by the use of said easement."

Defendant admitted that she had built the stairway upon a portion of the easement as alleged, and that its construction, which was commenced in April, 1965, was completed in May, 1965. She alleged further, however, that the stairway does not interfere in any manner whatever with the ingress and egress by the plaintiffs, nor does it render the property of the plaintiffs less valuable.

Defendant also denied that oral notice of the encroachments was given to her by plaintiffs, and alleged, alternatively, that even if notice had been given, plaintiffs are estopped from complaining now because they remained passive during the period of construction.

Plaintiffs, without filing a reply to defendant's answer, made a motion for entry of summary judgment asking that the encroachments be removed and that defendants, their agents and employees, be permanently restrained from maintaining or using the easement, or encroaching upon same, or depriving plaintiffs of their full use and enjoyment. Defendant filed an answer to this motion asserting in part that the pleadings created factual issues which required a trial.

The trial court entered an injunction decree on the motion for summary judgment finding that defendant had encroached upon plaintiffs' easement by "building, or causing to be built," the brick stairway, and had also, in the past, encroached upon the easement by placing boulders, rocks, blocks and bricks and a garbage disposal box in and upon said easement. The decree required that: (1) defendant "remove so much of the brick stairway and building encroachment upon the easement"; (2) defendant "remove and . . . keep said easement free from any garbage containers, boulders or other debris whatsoever"; and (3) defendant and her "agents, and employees be restrained and enjoined from maintaining or using the aforementioned easement, or from encroaching upon same, or depriving the plaintiffs the full use and enjoyment thereof."

Defendant submitted a motion to vacate the decree on three grounds: (1) the court's order restraining defendant from maintaining or using the said easement deprives her of lawful use of the property, which deprivation is beyond the scope of the easement; (2) the court's findings have no basis in fact, and fail to take into consideration defendant's affirmative defenses which maintain that it is not necessary for plaintiffs to "get in and out of their garage by the use of said easement"; ...


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