APPEAL from the Circuit Court of Massac County; the Hon.
ROBERT H. CHASE, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The defendant, the Chicago and Eastern Illinois Railroad Company, brings this appeal from an order entered by the circuit court of Massac County. The judgment of the trial court declared the existence of certain easement rights of the plaintiff, the Village of Joppa, over land owned by the defendant railroad.
The plaintiff originally filed a complaint to quiet title against the defendant. The village asserted ownership in fee simple over certain property leading to or adjacent to the Ohio River, which property was in the possession of the defendant. The plaintiff based its claim on a purported dedication of the property for street purposes by one of the defendant's predecessors in title.
The plaintiff later amended its complaint to one seeking declaratory judgment, in order to establish what rights, if any, the village possessed in the disputed property. Those portions of the plaintiff's complaint which based its claim of right on a valid statutory dedication by the defendant's predecessor in title were stricken. The trial court ruled that the requirements for statutory dedication had not been met. The defendant filed a general denial to the remaining matter alleged in the village's complaint, and refrained from raising any affirmative matter on its own behalf.
At the close of all the evidence, the trial court entered declaratory judgment, the relevant portions of which, for purposes of the appeal, follow:
"I. The Village has an easement acquired by Common Law Dedication to use Front Street as a street from North Avenue at the Ohio River to the upper incline of the Railroad and extending from the Ohio River to the South Line of Tier I but compatible with physical structures of the Railroad in that area.
III. The Village has an easement by prescription to use North Avenue as a street from Main Street in the Village South to the Ohio River as used from 1901 to 1952."
It is from this judgment that the defendant railroad appeals. The issues presented are whether the trial court was correct in its assessment that the Village of Joppa has acquired a prescriptive easement over North Avenue, as well as an easement over Front Street by virtue of a common-law dedication.
North Avenue is a street running in a north-south direction through the Village of Joppa. A map of the original town of Joppa, filed along with a purported dedication of streets by one of the defendant's predecessors in title, indicates that the street runs south through Joppa to a point where it intersects with Front Street, at or near the northern bank of the Ohio River. The railroad acquired title to the land in question between 1900 and 1901. Railroad tracks cross North Avenue at a point north of the road's intersection with Front Street. The record discloses that after the railroad acquired ownership, the public's use of North Avenue as a means of access to the Ohio River was open, adverse, under claim of right, continuous and uninterrupted from at least the date of the railroad's acquisition until the years 1952 through 1958. It was within this period that the defendant constructed an incline and coal shaker across North Avenue, effectively blocking the public's passage to the river.
• 1 The plaintiff alleged that a prescriptive easement had arisen in its favor over North Avenue, extending southward past the defendant's railroad tracks to the point of intersection with Front Street. The Supreme Court of Illinois stated in Thorworth v. Scheets (1915), 269 Ill. 573, 581, 110 N.E. 42, the requirements for a prescriptive easement:
"* * * An easement by prescription can be created only by an adverse use of the privilege with the knowledge of the person against whom it is claimed, or by acts so open and exclusive that knowledge will be presumed, exercised under a claim of right, adverse to the owner and acquiesced in by him. Such adverse user must have existed for a period equal at least to the period prescribed by the statute, now fifteen years."
The village based its claim of prescriptive easement in part on the continuous public use of North Avenue as a means of access to the river, in excess of the statutory period. It relied on section 2-202 of the Illinois Highway Code, which provides as follows:
"Highway any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years * * *." Ill. Rev. Stat. 1975, ch. 121, par. 2-202.
The defendant contended throughout that, while it did not deny the public's continuous use of North Avenue for a period far in excess of the statutory period, the public's use was permissive and not adverse to the interests of the railroad. The defendant maintained that ...