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Rexroat v. Thorell

OPINION FILED OCTOBER 15, 1980.

WILLIAM G. REXROAT ET AL., PLAINTIFFS-APPELLANTS,

v.

RUSSSELL THORELL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of McDonough County; the Hon. WILLIAM J. RANDOLPH, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The plaintiffs, William G. and Mary Ruth Rexroat, sought a declaratory judgment setting forth their right of access across an old roadway crossing a wooded pasture owned by the defendant, Russell Thorell, and servicing a small field on the plaintiffs' farm. Accessibility to the field from other than the old roadway is limited, because a stream running through the plaintiffs' farm cuts off ready access to the seven-acre tract.

The plaintiffs sought relief on three theories. Two of those theories, namely, that an easement should be implied in law by necessity and that the plaintiffs and their predecessors in title acquired a prescriptive easement through adverse use, were rejected by the trial court.

The third theory upon which the plaintiffs based their claims was that a public road had been created by 15 years' continuous adverse use by the general public, pursuant to section 2-202 of the Illinois Highway Code (Ill. Rev. Stat. 1977, ch. 121, par. 2-202). The plaintiffs contended that, as owners of land abutting on a public road, they retained a private right of way following the abandonment of the road by the general public.

Following a bench trial, the court found that a public road had been created by 15 years' adverse use. However, the court ruled against the plaintiffs on their theory of a retained private right of way. Judgment was entered accordingly and, following the denial of the plaintiffs' post-trial motion, this appeal was taken.

We are asked to decide whether a successor in interest to the user of an abandoned public road retains a private easement therein.

All of the real estate involved in this case is situated in Emmet Township, McDonough County, Illinois. The defendant owns a farm which includes in its boundaries an 80-acre tract described as the west half of the southwest quarter of section 33. The plaintiffs' farm is situated in a part of the southeast quarter of section 32 immediately west of and adjacent to the defendant's 80 acres, so that the west boundary line of the defendant's 80 acres and the east boundary line of the plaintiffs' farm constitute a common boundary line between the two properties.

Three public highways form a "U" shape around both farms, running along the east side of the defendant's farm, the common south boundary line of both farms, and the west side of the plaintiffs' farm.

At the northeast corner of the plaintiffs' farm, Spring Creek enters the farm from the north, runs a short distance southwesterly and then meanders in a generally southerly direction across the plaintiffs' farm more or less parallel to and a short distance west of the common property line between the parties.

The plaintiffs maintained that in 1913, and prior thereto, there was a public highway, hereinafter referred to as the "old road," which began approximately an eighth of a mile south of the northeast corner of the defendant's 80 acres and on the west line of the highway running along the east side of the defendant's farm, and that this old road continued in a generally southwesterly direction to the common boundary line between the farms owned by the plaintiffs and the defendant. The old road, according to the plat offered in evidence by the plaintiffs, then proceeded westerly across the plaintiffs' land to Spring Creek and thence on westerly entirely across what is now the plaintiffs' land to the highway running along the western side of the plaintiffs' farm.

The trial court found that a public road had been created by over 15 years' adverse use of the old road by the general public, from approximately 1913 to 1942, pursuant to section 2-202 of the Illinois Highway Code (Ill. Rev. Stat. 1977, ch. 121, par. 2-202). The trial court also found that the road had been abandoned as a public highway around 1942 or 1943.

The plaintiffs have in the northeast corner of their farm a tillable, triangular shaped piece of ground, referred to as "the seven acres" which is generally bounded on the northwesterly side by Spring Creek, on the east by the common property line between the parties, and on the south by what would be the old road if the old road were in existence.

To bring farm machinery from the main part of the plaintiffs' farm directly to the seven-acre tract requires going east across Spring Creek. There is no bridge or ford for this purpose. One of the plaintiffs' witnesses testified that, in 1937, where the old road crosses the creek, there was a ford, but conceded that since that time the creek has changed substantially in that the banks are much steeper and the creek has deepened.

The plaintiffs maintain that the only economically feasible access to the seven-acre tract of their farm which is isolated by Spring Creek is via the old road since ...


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