APPEAL from the Circuit Court of Cook County; the Hon.
REGINALD HOLZER, Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Heritage Standard Bank and Trust Company, as trustee, appeals from an order of the circuit court of Cook County granting judgment on the pleadings in favor of defendants, the Trustees of Schools of Township No. 37 North and the Board of Education of Consolidated High School District No. 230. By its ruling, the trial court denied plaintiff's request to enjoin defendants from assigning to certain third parties the defendants' easement rights on property owned by plaintiff.
On appeal, plaintiff contends the trial court erred in granting defendants' motion for judgment on the pleadings where the pleadings raised a material issue of fact and a trial on the merits was required.
We agree with plaintiff and reverse and remand.
The allegations of plaintiff's complaint disclose that plaintiff, as trustee under a trust agreement, holds the fee title to certain improved real estate in Palos Park, Illinois. This real estate is commonly known as the Palos County Club. Plaintiff succeeded to its interest in the country club property by conveyance from AJF of Delaware, Inc. (AJF).
On August 29, 1972, AJF executed two instruments: a "Grant of Easement" to the defendants "for the use and benefit of Consolidated High School District No. 230"; and, an "Agreement" delineating the parties respective rights and duties under the provisions of the "Grant of Easement." A copy of each instrument was appended to plaintiff's complaint.
Under the terms of the "Grant of Easement," AJF conveyed to defendants "a perpetual right, privilege, and easement to * * * construct, * * * replace * * * maintain and operate a sanitary sewer pipeline" of a certain diameter underneath and across a certain area of the country club property. AJF reserved to itself certain rights, including the right to connect to and use the sanitary sewer pipeline "upon the terms and conditions of a separate agreement of even date * * *." AJF also retained the right "to use and fully enjoy" the property subjected to the easement, provided that the use did not unreasonably interfere with defendants' rights.
The "Grant of Easement" also provides that these rights would be expressly reserved to the grantor in the event of any transfer, conveyance, or assignment of defendants' rights under the "Grant of Easement" or to the sanitary sewer pipeline to be constructed by defendants. The last paragraph in the "Grant of Easement" states that the rights reserved to the grantor "shall run with the land and shall inure to the benefit of the owner (or owners) from time to time of the land of Grantor that is now within, or adjacent to the easement strip."
The "Agreement," entered into on the same day as the "Grant of Easement," provides that in consideration of the grant by AJF to the defendants, the defendants, at their expense, would construct and install, in addition to the sanitary sewer pipeline, three sewer stubs which would service certain improvements on the country club property. In addition, the "Agreement" states that as long as the sanitary sewer pipeline remains in existence, AJF would not be charged any fee or tax for the removal of wastes from the improvements on the country club land.
The "Agreement" further indicates that as long as the defendants retain any interest under the easement or to the sewer pipeline, AJF would not be subject to charges or taxes for repairs, maintenance, operation, or inspection. In the event of sale, transfer, conveyance or assignment of all or any part of defendants' interest under the easement or to the sanitary sewer pipeline, AJF would be subject to a "reasonable periodic charge" levied by the successors or assigns of defendants for repairs, maintenance, and operation "based on AJF's annual use * * * in proportion to the total annual use thereof, provided, however, that all other users of said sanitary sewer pipeline shall also be subject to such charge * * *."
The last paragraph of the "Agreement" provides that its terms "shall extend to, be obligatory upon and inure to the benefit of the respective successors and assigns of the parties hereto."
Plaintiff's complaint alleges, and defendants' answer admits, that in accordance with the "Agreement" defendants subsequently constructed and installed a sanitary sewer pipeline across AJF's property. Plaintiff's allegations and defendants' answer disclose that the pipeline is presently in use by both parties. It is alleged by plaintiff that defendants now are attempting to convey all or part of their rights under the "Grant of Easement" to the adjoining village of Orland Park, for the benefit of homeowners on a 471.30-acre development on land adjacent to defendants' land and located in the village of Orland Park. Plaintiff's complaint alleges that this attempt by defendants to extend the easement to homeowners in the adjacent village violates the terms of the "Grant of Easement," since the easement is limited to the land owned by the defendants when the easement was granted.
According to plaintiff's complaint, the easement was granted to defendants to enable them to "remove liquid and solid wastes from their properties, and from no other properties." Plaintiff further alleges defendants' assignment of easement rights to owners of property adjoining defendants' land will increase the burden upon plaintiff's land by overloading the sanitary sewer pipeline. Thus, plaintiff's right to use the sanitary sewer pipeline will be impaired by the additional burden of increased use. Through the instant action, plaintiff seeks to enjoin defendants from ...