APPEAL from the Circuit Court of Stephenson County; the Hon.
ROBERT D. LAW, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 24, 1975.
This is an appeal from an order declaring that certain property is a public way and enjoining defendant from interfering with the public's use thereof.
The property affected by the order of the trial court is a strip of land 20 feet in width and approximately 522 feet in length which runs from Cleveland Street on the north to Young's Lane on the south in the city of Freeport. The westerly 12 feet of the property in question is described in a plat of the area as a private alley. A 30-foot strip of land, also described in the plat as a private alley, runs in an easterly and westerly direction, beginning at the approximate midpoint of the length of the 12-foot private alley on the west and continues to a point on the east not disclosed in the record. The plaintiff owns a portion of the premises to the west of the private 12-foot alley. The defendant owns the property on the east side of the private 12-foot alley, with the exception of the 30-foot private alley described above. The present dispute concerns the use of the 12-foot private alley, the westerly 8 feet of defendant's property adjoining the 12-foot alley on both the north and south sides of the 30-foot private alley, and the westerly 8 feet of the 30-foot private alley.
On or about September 24, 1971, defendant erected a fence on the west line of his property, extending north and south from Cleveland Street to the southerly end of the 30-foot east-west alley. The five-count complaint herein was filed on February 4, 1972.
In his complaint, plaintiff alleged ownership of a portion of the property abutting the west side of the 12-foot alley which was improved by plaintiff as Sandy's of Freeport, Inc., a drive-in restaurant. Count I of the complaint alleged that for more than 20 years the plaintiff and its predecessors in title have had a right-of-way for the use of their employees, customers, suppliers and the public generally across a strip of land 15 feet in width, extending from Cleveland Street on the north to Young's Lane on the south. The westerly 5 feet of this 15-foot strip consisted of the private alley and the easterly 10 feet consisted of defendant's property. Plaintiff then prayed for an order declaring that the public has an easement and right-of-way over said strip, and an order enjoining defendant from interference therewith and damages. Count II of the complaint alleged and prayed for an order finding that the 15-foot strip of land had become a public highway in accordance with the provisions of section 2-202 of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 2-202). Counts III, IV and V and the prayers for damages were dismissed by the trial court. Count V sought removal of the fence from the westerly entrance to the 30-foot private alley and damages.
The trial court ordered that the defendant is to be enjoined from interfering with the public alley and right-of-way for vehicular and pedestrian traffic over a 20-foot strip, including the 12-foot private alley, the westerly 8 feet of defendant's property, and the westerly 8 feet of the 30-foot private alley from Cleveland Street to Young's Lane, and found the 20-foot strip was a "public way." The trial court also directed the issuance of a mandatory injunction for the removal of the fence. On September 20, 1973, the trial court stayed the injunction writ and the mandatory injunction pending this appeal.
It may be noted at this point that we are presented with a far from clear factual record in the present case. Merely by way of example, we note that the complaint prayed for an order with reference to a 15-foot strip of land, 10 feet of which consisted of the property of the defendant; plaintiff's counsel in his opening statement spoke of a 12-foot "used alley," the easterly 6 feet of which consisted of defendant's property; the memorandum opinion of the trial court posed the issue presented as whether or not the private alley had become a public way by prescriptive use; and the order of the trial court found that a 20-foot strip of land, 8 feet of which consisted of the property of the defendant, had become a public way. How the trial court determined that 8 feet, instead of 6 feet, 10 feet or some other number of feet of defendant's property became a public way is not disclosed by this record.
It appears that in 1964 some of the abutting property owners adjacent to the platted alley in question met with the mayor of Freeport and attempted to have the city blacktop the private alley. The city, it would appear, refused to do so but did, in fact, grade the same for the benefit of the owners who then had the platted alley blacktopped. The exact placement of the blacktop is not clear from this record. It may well be inferred from the instant record that the entire area between the buildings of the property owners abutting the alley was, in fact, blacktopped.
It is of interest to note that the testimony indicates that from about 1960 to 1969 a portion of the defendant's northern lot adjoining the 12-foot private alley (Lot 14) was leased for storage purposes. Kenneth Law, an owner of property on the west side of the 12-foot alley from 1954 to 1969, testified that he stored manhole covers on the property immediately east of the 12-foot alley. While Law testified that the manhole covers were not stored on the blacktop, the defendant testified that Law did store manhole covers on the blacktop and that Murphy and Gustafson's implement business, operating on Lot 14, also stored boxes on the blacktop.
The testimony as to the use of the alley was also conflicting. It would appear that there is a 24-foot space between the buildings of the defendant and the property of the owners to the west of the platted alley. It also appears that the fence in question was so situated as to bisect the used alley, which was approximately 12 feet in width. The defendant, James Gustafson, testified that there wasn't "much of any" travel from Cleveland Street to Young's Lane through the alley prior to the black-topping; that thereafter, use of the alley increased, but the use was not of a significant amount. He further indicated that other than the trucks of various businesses adjoining the alley, there was little customer travel to the businesses. Robert Batchelder, an employee of the corporation which runs Sandy's Restaurant on the west side of the alley, testified that the drive-in was opened in 1969. He further indicated that the parking for the restaurant was specifically designed in relation to the alley and that the alley behind the restaurant was primarily used as an exit for customers and for use by delivery and disposal vehicles of the restaurant. He also indicated that the alley was used by customers and suppliers of the other businesses along the alley.
Other owners of property adjoining the alley, one of whom testified as to the use of the alley from 1936, testified that the alley was used by "everybody" to gain access to the various businesses adjoining the alley and to pass through from Cleveland Street to Young's Lane. One of these witnesses defined "everybody" as all the businesses that are along the alley. Another owner testified that a retail business was conducted from both the street and alley side of a building on the west side of the alley and that from about 1958 to 1968 from six to a couple dozen customers per day frequented the store, some of them using the alley. From 1950 to 1968 from seven to ten employees of this business used the alley to get to and from parking places behind the building.
• 1-3 By its order, the trial court found that plaintiff had proved the existence of a public easement and a right-of-way for vehicular traffic over a 20-foot strip of property and/or a public highway in accordance with section 2-202 of the Illinois Highway Code. We are unclear as to the precise ruling of the trial court that is, whether it found the existence of an easement by prescription and/or a public highway in accordance with the statute. While the trial court found that the plaintiff had proved Counts I and II of its complaint, it ordered that the 20-foot strip described above was a "public way." In any event, establishment of an easement for a right-of-way in the land of another requires proof of the existence of the same elements which are necessary to establish a public highway over private property by prescription. (Stevenson v. Meyer (1957), 10 Ill.2d 335, 139 N.E.2d 740.)
"[T]o establish a way by prescription the use must be adverse, uninterrupted, exclusive, continuous and under a claim of right for a period of twenty years." (Poulos v. F.H. Hill Co. ...