APPEAL from the Circuit Court of Madison County; the Hon.
THOMAS R. GIBBONS, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 11, 1976.
Plaintiffs appeal from a judgment for defendants rendered in a bench trial in plaintiffs' action for a mandatory injunction requiring defendants to remove a causeway access to an island and replace it with a bridge. Defendants' counterclaim for a judgment for the cost of construction of the causeway resulted in a judgment for plaintiffs, from which no appeal was taken.
On March 10, 1971, Susan Triplett, as executrix of the estate of Francis L. Wortman, and defendants entered into a written contract for the sale of certain real property from the Wortman estate to defendants. The property conveyed consisted of an island, with residential improvements, except for a riparian 10-foot circumferential strip, which was retained by the grantor. Defendants were granted the right to use and cross that 10-foot strip of land but not to improve it. The lake in which the island was located and all of the land surrounding the lake were also part of the estate of Francis L. Wortman. Defendants were granted "the right to recreational use" of the lake "jointly with the owners of said lake." They were also granted an easement "for roadway purposes" across a described portion of the land surrounding the lake to a bridge, "thence North across said bridge a distance of 60 feet more or less to the island."
The bridge referred to provided the only above-water access to the island. It was wooden; and at the time of the conveyance was in need of repair. According to his uncontradicted testimony, defendant Fred Beuckman attempted to obtain the assistance of plaintiffs in repairing the bridge not long after defendants began to occupy the island residence. However, in response to this request Susan Triplett had stated "that's not my baby, it's all yours." Thereafter defendants repaired the bridge by resurfacing it with concrete and iron reinforcing rods. These repairs proved unsuccessful when a portion of the bridge "gave way." Consequently, defendants removed the bridge, filled the same area with soil, rock, and concrete, paved the surface with asphalt, and covered the sides of the fill with stone.
According to the testimony of Susan Triplett and William Wortman, the removal of the bridge and construction of the causeway deprived the plaintiffs of the fastest or most convenient water access from some points along the lake to other points and cut off plaintiffs' ability to take advantage of the circular nature of the lake for boating and water-skiing activities. Plaintiffs introduced evidence that prior to the construction of the causeway they were able to boat and waterski completely around the island by passing under the bridge. Accordingly the causeway constituted a severe restriction on the recreational use of their lake. In the opinion of Susan Triplett the property surrounding the lake would decrease in value as a consequence of the construction of the causeway.
Fred Beuckman, on the other hand, testified that at the time the bridge was removed "there was hardly any water underneath the bridge to start with. It was all dried up." In Beuckman's opinion it would not have been possible to water-ski under the bridge "unless you put wheels on the bottoms of the skis, cause there was no water there at all hardly."
Joan Beuckman testified that the causeway was "[m]uch more attractive" than the bridge. Additionally an engineer and two iron workers testified that they had advised defendants prior to the removal of the bridge that the bridge could not be sufficiently repaired and would have to be replaced.
Based upon the testimony and the trial court's personal viewing (by stipulation of the parties) of the causeway, the court found "[t]he entire result is a practical result to an unusual problem and presents a reasonably attractive access to the `island' [now `peninsula']." The court also found that any injury to plaintiffs because of the construction of the causeway "was occasioned by plaintiffs' joint and several acts of disinterest or refusal to cooperate," and refused to issue the requested injunction.
We are of the opinion that the trial court erred in refusing to issue a mandatory injunction requiring the removal of the causeway and reconstruction of the bridge. The easement in this case was determined by express grant. The grant fixed the passage over the water or lakebed as being "across" a bridge then in existence at a described location. This situation is significantly different from one in which the easement is described without reference to a particular structure, such as a bridge, or one in which the easement arises by implication, such as a way of necessity. The parties could have agreed upon some different means of access to the island, as, for example, by ford or ferry or causeway, which could have imposed a lesser or greater burden upon the servient tenement. However, they did not. In light of the fact that the lake was and is used primarily for recreation, the limitation to access by bridge cannot be ignored. As is stated in the Restatement of Property (1944):
"The use made of the servient tenement prior to the creation of an easement by conveyance may be a factor in ascertaining the extent of the easement." 5 Restatement of Property, § 483, Comment i, at 3018 (1944).
• 1, 2 It is well settled that, in the absence of an agreement to the contrary, the owner of the easement has not only the right but the duty to keep the easement in repair, while the owner of the servient tenement has no duty to either put or keep the easement in repair. (Murtha v. O'Heron, 178 Ill. App. 347; Savoie v. Town of Bourbonnais, 339 Ill. App. 551, 90 N.E.2d 645; Zacny v. Sasyk, 30 Ill. App.3d 93, 332 N.E.2d 568; 5 Restatement of Property § 485; 3 Tiffany, Real Property § 810, at 349 (1939); 25 Am.Jur.2d Easements and Licenses § 85 (1966).) The only duty the owner of the servient tenement has is to not interfere with the use of the easement for purposes of access by the owner of the dominant tenement, that is, the owner of the easement. Zacny v. Sasyk; 3 Tiffany, Real Property § 810, at 349 (1939); 25 Am.Jur.2d Easements and Licenses § 89 (1966); 28 C.J.S. Easements § 91a (1941).
It has also been stated that once the point or place at which, or line along which, an easement is to be exercised is fixed, whether by express grant or otherwise by agreement or acquiescence, neither of the parties can change such location without the consent of the other. (Sullivan v. Bagby, 335 Ill. 192, 166 N.E. 449; 3 Tiffany, Real Property § 806, at 334 (1939); 25 Am.Jur.2d Easements and Licenses § 87 (1966).) Moreover, although the owner of the dominant estate has the duty to maintain and repair the easement, he cannot make a material alteration in the character of the easement, even though it be more to his convenience to do so, if the alteration places a greater burden upon the servient estate or interferes with the use and enjoyment of the servient estate by its owner. Sell v. Finke, 295 Ill. 470, 129 N.E. 90; Doan v. Allgood, 310 Ill. 381, 141 N.E. 779; 3 Tiffany, Real Property (1966) § 810, at 347-48 (1939); 25 Am.Jur.2d Easements and Licenses § 87 (1966); 28 C.J.S. Easements § 95b(1941).
In light of the above authorities, it is apparent that the duty to maintain and repair the bridge in the instant case was that of defendants, the Beuckmans. In destroying the bridge and constructing a causeway, defendants materially altered the character of the easement and increased the burden on the servient tenement. Plaintiffs are unable to use and enjoy that portion of the lake or lakebed which was previously accessible under the bridge, but which now is covered by the causeway. Plaintiffs had the ...