APPEAL from the Circuit Court of Logan County; the Hon. ROBERT
L. THORNTON, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Plaintiff Edwin Roller brought suit against defendant Logan Landfill, Inc., seeking to enjoin defendant's alleged trespass on his property. Defendant replied by contending that its presence on plaintiff's property was lawful due to the existence of a prescriptive easement over plaintiff's property benefiting defendant's landfill. At the conclusion of the bench trial, judgment was entered in favor of defendant. The plaintiff appeals.
We need only decide that issue which is dispositive, notwithstanding the fact plaintiff raises several issues on appeal. Plaintiff urges that the trial court erred in finding a prescriptive easement existed in favor of defendant's estate. Also in this appeal is the question of whether defendant should be granted reasonable expenses and attorney fees pursuant to Illinois Revised Statutes 1971, chapter 110, paragraph 41, incurred in opposing plaintiff's motion for disqualification of one of the judges of this court.
Plaintiff filed his complaint on June 15, 1970. The complaint alleged that defendant, an Illinois corporation, had been trespassing on plaintiff's property by entering upon said premises, using a portion thereof as a road for vehicular traffic to defendant's property for agricultural purposes; and that plaintiff had given defendant several notices demanding that the latter cease its trespass; that paper and debris were scattered about plaintiff's property from defendant's vehicles; that defendant had a shorter and more direct ingress and egress to his property other than across plaintiff's property; and finally, that the plaintiff had suffered compensable damages as a result of defendant's trespass. The defendant filed an answer admitting only that it was an Illinois corporation, and that plaintiff owned the property as described in the complaint. The answer asserted as an affirmative defense that a prescriptive easement existed for the benefit of defendant's estate for the purpose of access, therefore permitting defendant to travel across plaintiff's property. Included in the answer was a request for affirmative relief praying the court find that an easement by prescription existed for the benefit of defendant's estate. Attached to the answer as exhibits were two "Title Affidavits". These affidavits were recorded and their respective affiants stated that they and other persons had crossed plaintiff's property for many years in order to reach the land presently owned by defendant.
The properties involved in this litigation are commonly known as the Roller estate and the Fusch estate. The Fusch estate, the defendant's property, is located due south of the plaintiff's property, the Roller estate. Defendant's property consists of 67 1/2 acres of approximately a 97-acre portion of the old Fusch estate, which had been initially purchased from the executor of said estate by Dr. Leonard J. Miller in 1959. An easement appurtenant existed that benefited the southern portion of the Fusch estate crossing over a portion of property known as the Ellis estate. When Dr. Miller sold the southernmost 29 acres that were appurtenant to the Ellis estate to a Mr. Mathews, Dr. Miller retained an easement benefiting the remaining 67 1/2 acres of his property. In 1964, Dr. Miller sold the northern 67 1/2 acres to Mr. Edward Spencer, who in turn sold the same to defendant in 1968.
The Roller estate is situated north and east of that portion of defendant's property now used as a landfill. The estate has been in the Roller family since 1911 and had devolved to plaintiff through devise in 1953. The particular portion of land in question is used for agricultural purposes.
The purported easement in question is located on the western edge of the Roller estate. It was originally a rutted country lane that ran north to south for approximately a quarter of a mile beginning at the terminus of an established country road and terminating at defendant's property line. It was adjacent to a hedge row and a dense thicket of brush. The exact location of the lane varied throughout the years it was in existence. In late 1965, after the property had been sold to Mr. Spencer, the brush and timber west of the lane was removed in order to facilitate the erection of power lines that ran to defendant's property. In 1968, the year defendant purchased said property, the country lane was graded, widened and paved with gravel and rock by defendant. The road is used by defendant's three trucks which make several trips per day to its landfill and by any member of the general public who desire to use the landfill. It was uncontroverted that the plaintiff's land had become littered with debris and paper as a consequence of individuals transversing said property in order to gain access to defendant's landfill.
At trial, plaintiff called Mr. Edward Spencer, defendant's vice-president. He testified that in 1964 he purchased the property that defendant now owns from Dr. Miller. In 1965, he improved the land by putting in a basement and running power to the same. He stated that the electrical lines were put up on plaintiff's land just west of the road in dispute. He cleared the brush from alongside the road so that the power company could run its line into his property. He contended that he did not ask for, or secure, plaintiff's permission to run lines over the Roller estate. This contention was directly controverted by plaintiff and plaintiff's wife in their testimony. Spencer testified that in 1968 he sold his land to defendant who then began engaging in landfill activities.
Mr. Edwin Roller testified that the road in question was created in 1957 when Hiram Walker of Peoria requested and received permission to cross the Roller estate in order to exercise timber rights it had on the land that defendant now owns. Plaintiff testified that the construction of the roadway by defendant caused him to lose a strip of land 600 feet by approximately 20 feet wide that he was unable to cultivate. He stated that prior to 1964 persons who desired to enter or exit from the land now occupied by defendant took a different route that required them to come from the south and ford Salt Creek. However, this road across the creek was discontinued in 1964 when plaintiff gave Mr. Spencer permission to use the roadway in question.
Dr. Miller testified that he had purchased the 97 1/2 acres of the Fusch estate for the purpose of using the land for recreation and farming. He testified that he did cross over the roadway in question in order to gain access to his property but that he did so only with the express permission of Mr. Briggs, plaintiff's tenant. Dr. Miller's specific testimony was:
"Q. So you went across Mr. Roller's land?
Q. In doing so, did you acquire permission from Mr. Roller?
A. Yes, when I bought the property, I went to Mr. Briggs, who was Mr. Roller's tenant, and I asked him if there was any objection and did I understand that I could use that road, and he said I ...