APPEAL from the Circuit Court of Stephenson County; the Hon.
EVERETT E. LAUGHLIN, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Defendants, William and Dianne Hill, appeal from a judgment entered in favor of plaintiff, David Lawson, following a bench trial, establishing an easement of necessity by implication across the defendants' land in favor of the plaintiff and establishing an easement by prescription across defendants' land in favor of plaintiff. Plaintiff cross-appeals from those portions of the judgment which denied him a bill to quiet title, refused to allow reformation of the deed between defendants and third parties, denied him money damages, and allowed the defendants the option of relocating the easement at plaintiff's expense.
For a complete understanding of the issues raised in this appeal a rather detailed history of the land involved and the testimony of the various witnesses at trial is required. A sketch depicting the location of the various parcels and the means of access is set forth at this point.
Plaintiff is the owner of two tracts of land lying to the west-northwest of land owned by the defendants. During this litigation plaintiff's two tracts came to be known as plaintiff's parcel I (the northerly tract), purchased from Lewis Robieson and plaintiff's parcel II, purchased from George Lobdell. Plaintiff's land is surrounded on three sides by the Pecatonica River, except south of parcel II which borders on land owned by Viola Hall and the defendants' parcel I.
Plaintiff's parcel I had been owned by the Robieson family continually from the time of their entry and patent from the United States government until their sale to plaintiff in 1974. Plaintiff's parcel II, the southerly tract, had been entered in 1846 by one Wilson, together with the land now owned by defendants. After obtaining a patent from the government, Wilson conveyed the entire acreage to Justice B. Gates on May 27, 1847. The Gates' tract then included plaintiff's parcel II, the property owned by Viola Hall and defendants' parcels I and II. Gates conveyed the west one-half of the above property to Reuben Curtis on December 2, 1848. The conveyance from Gates to Curtis was the first severance between the parcels now owned by plaintiff and defendants. Curtis then conveyed this property (the west one-half) to O.W. Brewster, reserving the northerly 10 acres for himself.
Eventually the property now owned by defendants was owned by Jacob Kraft who placed a mortgage on the land; the mortgage was foreclosed and the property conveyed by warranty deed to Lionel J. Johnson in 1939. This deed was made "subject to all existing public and private roads and easements." The property was then deeded to Luella Johnson on November 21, 1939, and then to Charles Wichmann on February 28, 1950. Both of these conveyances were made "subject to all public and private roads now located." In 1959 Viola Hall acquired acreage south of plaintiff's parcel II, east of the river from Jesse Robieson.
Subsequently the estate of Charles Wichmann sold all the property now owned by defendants to Rachel M. Wise by executor's deed of January 23, 1973, which deed was made excepting "that part taken for public road purposes." L. Keith Wise and Rachel Wise (husband and wife) then conveyed this property (now designated defendants' parcels I, II and III) to defendants by warranty deed of April 5, 1973.
We digress from this historical synopsis to note that a discrepancy existed between the articles of agreement between the defendants and the Wises and the deed that was ultimately delivered from the Wises to defendants. The articles of agreement were made "subject to all public and private roadways or easements now located" which language had appeared in all the conveyances since 1939, whereas the warranty deed failed to include this language. However, the articles of agreement were signed by the defendants and, in a letter to L. Keith Wise dated December 22, 1972, the defendants' attorney stated that both defendants realized that there may be an easement of ingress and egress owned by some of the adjoining property owners.
Plaintiff acquired what is now known as plaintiff's parcel I from Lewis Robieson by a warranty deed of May 31, 1974. At the time of the transaction it was agreed that Robieson represented to plaintiff that the right to ingress and egress over a private road leading to the premises was in dispute; that Robieson would seek to obtain a written agreement establishing the right to use the roadway or, in the event that such agreement could not be obtained, that a determination of the right-of-way would be sought by legal action; and that one-half the legal costs would be paid by plaintiff. However, the failure to reach such an agreement or obtain a favorable legal determination would not affect the contract. Plaintiff then acquired plaintiff's parcel II from George Lobdell by warranty deed on August 20, 1974. An addendum to the agreement between the Lobdells and plaintiff, dated June 1974, provided that the Lobdells would convey any and all easements for ingress and egress that they had.
During the time span of the above conveyances a trail led across the lands now owned by defendants to the lands now owned by plaintiff and provided the sole access by land to the latter property. Upon plaintiff's purchase of the land from Robieson and Lobdell, defendants refused plaintiff access by means of this trail. Plaintiff's rights to the use of this trail is the subject of this litigation.
At trial both sides called a number of witnesses whose testimony was both lengthy and detailed as to the history and the use of the trail in question. As it would unnecessarily lengthen this opinion to recite the testimony in detail, this opinion will relate only that testimony particularly pertinent to the issues at hand.
Lewis Robieson, age 76, who had sold the land now designated plaintiff's parcel I to plaintiff, testified that his recollection of the use of the land by his father went back to the time he was 14, at which time piling was hauled from the tract. His family had run a saw mill; cut and sold timber; and at one time some of the land was cleared and farmed. He also testified that for 10 years (1961 to 1971) the land was in the soil bank. He and his family always came onto the land from Beaver Road, then over a trail (the subject of this dispute) running over the land now owned by defendants. Robieson further testified that the disputed trail which proceeds southwesterly from defendants' buildings along the river, was a winding trail and not in very good condition. He made improvements on it; checks were admitted showing his expenditures for maintenance and improvement of the road. On cross-examination he testified he never asked permission to use the trail but on some occasions went to see for himself if the road was washed out, or called a Mr. Wichmann, who then owned the premises, to ascertain the condition of the road. He revealed that the Krafts, who at one time owned the property now owned by defendants, were relatives of his family and that he had done some plowing for them. Once he would get to the Lobdell property, he simply went across it.
William Lobdell, age 61, testified that he farmed with his father on shares land which is now designated plaintiff's parcel II; that his father had purchased the northerly portion of that tract 39 years ago from his grandfather's estate. According to Lobdell, whenever he and his family went into the property they used the lane from Beaver Road north to the buildings located on parcel III of the defendants' land and then followed the trail along the river to their land. He further testified he often saw Lewis Robieson and others go across the Lobdell land and he knew that there was farmable area on the Robieson land. He knew of his own knowledge that the dirt tract running from defendants' buildings to his father's property had been there for 39 years and that at one time there was a clearly definable two-lane track through his father's property to the Robieson property. He never asked anyone's permission to use the route just described, and there was no other way to get onto the Lobdell property.
Dalon Wichmann testified that he owns the farm adjoining defendants' property on the east; however, beginning in 1949 he and his family had lived and farmed on the land now owned by defendants. He knew one Johnson, a previous owner of defendants' property, Lewis Robieson and George Lobdell (William's father); he had helped Robieson farm a portion of plaintiff's parcel I, and that Johnson did not stop Robieson from using the route from Beaver Road to the Robieson property. He testified that he had seen Robieson drive a tractor and a hayrack with his machinery on it along the route in question; when he farmed it, he went in about four or five times a year. He saw loggers follow the same route, and that he had seen George Lobdell go onto his land by the same route; he also saw people employed by Robieson bulldoze the trail that went from the buildings southwesterly along the river bank. He further stated that neither Lobdell nor Robieson ever called or asked permission to use the route and neither he nor his father had ever stopped either Robieson or Lobdell from using the route. According to Wichmann, one Dude Hall had also used the route, including the trail along the river, and helped improve it with gravel purchased from Wichmann's father. As far as he knew, there was no other way of access to the lands in question.
The evidence deposition of George Lobdell disclosed that he was 86 years of age and that he had previously owned plaintiff's parcel II; he had purchased it 36 years ago from his father's estate; that his father had owned it for at least 50 years and his grandfather had owned the upper portion of the tract. According to Lobdell, his family grew timber on the land and took trees off; that to get to the property they went to Beaver Road, down the lane, and then followed the river to the land and that they did not think it necessary to get permission and no one ever objected. He and his father did cross the river when it was frozen. He did not know who put the road in but Jake Kraft (a former owner of defendants' land) always left a little spot along the river so that they could get to their property. He was 10 years old when he first remembered using the road, and when the Robiesons came in they went over the Lobdell land; later Dude Hall also crossed his property to get to the Hall property. On cross-examination he testified that he saw Robieson take farm equipment in and out of his land over the Lobdell property, the trail south of the river and the lane north to Beaver Road. Further, that occasionally he crossed the river in the winter to cut timber because it was six times as far to go around using the Kraft property (now defendants' property). He supposed his father may have originally gotten permission but he did not know and he took it for granted that he had permission. When he was working the property 20 years ago, he went in that way. There was a dirt road when he went in four or five years ago; no one ever prevented him from using the road and no one ever had put a chain across it.
In an evidence deposition attorney Michael Mahoney testified that he represented the defendants in connection with the purchase of their land. In a letter he wrote to L. Keith Wise he indicated that defendants were both aware that there might be an easement of ...