APPEAL from the Circuit Court of Madison County; the Hon.
GEORGE J. MORAN, JR., Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Eric and Sandra Rinderer, brought suit for a declaratory judgment and for preliminary and permanent injunctions against defendant, Leonard Keeven, who, they alleged, was obstructing their use of two implied easements over his property. Defendant denied the existence of the implied easements, claiming alternatively that no implied easements had been created and that if any easement had existed, it had been extinguished by an agreement between defendant and plaintiffs' predecessor in title that was known and acceptable to plaintiffs prior to their purchase of the allegedly dominant tract. Having earlier granted plaintiffs a preliminary injunction for the pendency of the lawsuit, the trial court ruled after hearing all the evidence that plaintiffs owned the two easements and permanently enjoined defendant from obstructing them. From that order defendant appeals.
At one time both plaintiffs' and defendant's properties were part of a farm owned by Nelson and Leona Walter, who began to reside on it about 1946 or 1947. After Nelson Walter's death in 1953 Leona Walter continued to reside in the dwelling on the property. Later, in 1958, she moved into a trailer located on the farm and leased the dwelling to a son, Melvin Walter, and his wife, Rita. In 1961 she conveyed to Melvin and Rita Walter a parcel containing the dwelling. Southwest of the dwelling was a building that Nelson and Leona Walter had leased to commercial lessees for use as a warehouse. The northern part of that building was included in the conveyance to Melvin and Rita Walter, apparently for use as a garage, but the southern part of the building was not included in the conveyance. Leona Walter continued to receive the rents from the warehouse, that is, the southern part of the building, until 1965, when she conveyed to Melvin and Rita Walter another parcel containing the southern part of the building. The second parcel adjoined the property earlier conveyed to Melvin and Rita Walter. After the conveyance in 1965 Melvin Walter received and retained the warehouse rents. After Leona Walter's death in 1976, another son serving as executor of her estate sold what appears to be the remainder of the farm to defendant, a land developer. Although defendant agreed to buy the property in the fall of 1976 and staked out the location of a two-story apartment building at about the same time, he did not actually take title until April 6, 1977, and, because of winter weather, did not begin excavation for the apartment building until the spring of 1977. A few months later, on August 3, 1977, Melvin and Rita Walter conveyed to plaintiffs the property they had acquired from Leona Walter in 1961 and in 1965.
Plaintiffs' and defendant's properties abut, plaintiffs' lying to the east of defendant's. The northern boundary of both plaintiffs' and defendant's properties is the Highland-Carlyle Road, also known as St. Rose Road and as Broadway. Plaintiffs' property bears a Broadway address. On plaintiffs' property, however, there is no existing access to Broadway, that is, the Highland-Carlyle Road. When Nelson and Leona Walter owned the property, they used for ingress to and egress from their residence either of two principal routes over their farm, both topped with cinder and wide enough to accommodate a single vehicle. One route ran on flat terrain in an east-west direction. That route led from their dwelling over what is now defendant's property west to Oak Street, which runs north and south and intersects with the Highland-Carlyle Road. The other route ran in a north-south direction. This route led from the Walters' dwelling over the northeast portion of what is now defendant's property north to the Highland-Carlyle Road. Unlike the east-west way, the north-south route was not over flat terrain. The grade of the north-south way was variously described as "a slope" by defendant and as "a steep hill" by Warren Walter, the son who had served as executor of his mother's estate and had sold the property to defendant. Warren Walter indicated that at about the time he had had his own house built to the west of that of his parents in 1951, his parents began to use the east-west way to reach their residence although they had used the north-south way for that purpose prior to that time. After that time they apparently used both ways concurrently, though possibly avoiding the north-south route in times of inclement weather. According to Melvin Walter, the north-south route to the Highland-Carlyle Road had become impassable and had been abandoned by the time of severance in 1961, so that the only means of ingress to and egress from the residence at the time of severance was the east-west roadway. After the severance in 1961 Melvin and Rita Walter used the east-west way in order to reach their residence as they had done while they leased the property between 1958 and 1961. They continued to use the way after defendant's acquisition of the adjoining property and during the construction of the apartment building, to the extent that it was possible to do so. The east-west way is one of the easements the trial court found that the plaintiffs own.
The other easement the trial court found that plaintiffs own is one which runs north-south along the west side of the warehouse. Plaintiffs' property line extends only about one foot west of the warehouse, which measures, according to Eric Rinderer's testimony, 30 feet wide by 100 feet long. At the rear of the warehouse, that is, on the south side of it, is a loading dock. During ownership of the warehouse not only by Nelson and Leona Walter but also by Melvin Walter, both before and after defendant's purchase of the adjoining property, commercial vehicles of lessees of the warehouse used an ungraded, north-south cinder roadway along the west side of the building in order to reach the loading dock. Melvin Walter testified that commercial vehicles had never approached the loading dock along the east side of the building and explained that "a fairly steep hill" makes it possible to get a car through but "[t]hat would be about the extent of it." Along the east side of the warehouse are a shed, a tree and a grape arbor. On that property line to the south of the warehouse another property owner has erected a fence. Melvin Walter indicated that it would be possible to get into the southern part of the building from the northern part for purposes of loading.
Near the northwest corner of this building, which serves as both warehouse and garage, the north-south way along the west side of the building intersects with the east-west roadway that provides access to the residence. This north-south way along the warehouse appears to be the southern portion of the north-south roadway that at one time provided direct access from the farm to the Highland-Carlyle Road. Warren Walter testified that he "imagine[d]" that after his house was built in 1951 commercial vehicles reached the north-south way along the west side of the warehouse by using both the east-west roadway as well as the north-south one out to the Highland-Carlyle Road. Melvin Walter indicated that all the commercial vehicles that came across what is now defendant's property in order to reach the warehouse between 1961, when Melvin Walter bought the property, and 1977, when he sold it to plaintiffs, came across the east-west roadway. This witness also indicated that the warehouse was leased "continually" by both his mother and himself. Defendant indicated that after he purchased the property, commercial vehicles used, in addition to the east-west roadway, alternative routes over his property in order to reach the warehouse. Commercial traffic to the warehouse apparently ceased a few months after plaintiffs purchased the property.
Defendant testified that just prior to purchasing the property, for the purpose of locating boundaries, he had walked with Warren Walter around what are now Lots 1 and 2 of the property, that is, the northernmost lots of defendant's property where the disputed easements are located. He indicated that he had seen part, if not all, of the east-west cinder surface. He testified to his familiarity, prior to purchasing the property, with the use by commercial vehicles of the north-south road along the west side of the warehouse in order to reach the southern part of that building. He testified as well to his familiarity with the property for about 10 years prior to his purchase of it and to having had occasion to be on the property prior to the purchase. We note that there are no express easements with respect to either of these two roadways in any of the pertinent deeds.
A registered engineer and registered land surveyor, Jim Sherbut, testified that he "believe[d] it was sometime in 1977" Eric Rinderer asked him to furnish a "proposal as to the feasibility of constructing a driveway from the Rinderer property northward to the St. Rose Road" which would provide access to both the residence and the warehouse. He proposed a driveway located in the northwest corner of the property because of the incline of not only St. Rose Road but also the plaintiffs' property. He described the incline of plaintiffs' property as "a moderately steep grade" and described the driveway proposed as "feasible" and "reasonably safe," given the incline of the property and the highway. His estimated cost for a 16-foot crushed stone asphalt driveway was $6,002.73, and for a concrete driveway of the same size, $6,998.42.
During defendant's construction of the apartment building and of a parking lot immediately to the south of the apartment building, both of which lie in a generally east-west direction, Melvin Walter found it difficult at times to gain access to his property. It is undisputed that the east-west cinder roadway was, except for a small portion at either end, obliterated by defendant's construction upon his property. During cross-examination by defendant's attorney, Melvin Walter acknowledged having "[s]ome" objection to the obliteration. Asked, "Did you work out something with Mr. Keeven on that?" he answered, "We worked it out, yes." Asked further whether there was an oral agreement, Melvin Walter responded, "I spoke with him at my brother's house." Following an objection and its disposition, the following colloquy was had:
"Q. [Attorney for defendant]: Mr. Walter, back to you again. Whether in some fashion you and Mr. Keeven reached an understanding about that east-west roadway after he bought the property and he had come onto it and it was excavated and the roadway was destroyed, did you and he work out any sort of arrangement concerning your passage to and from your property across that?
A. [Melvin Walter]: The first time I spoke to him he hadn't begun any construction, and I seen [sic] him at my brother's garage and asked him how am I going to get back and forth because he now owned the property in between; and he said to go ahead and use it. We did, and later on when it was excavated, then I went through the bottom portion of his land and out to — was it Oak or Ash Street that runs out through there — and other than that, I really don't recall if we had any other agreements on that or not, because I had planned to sell it and I wasn't particularly concerned about it really.
Q. You had no objections — You accepted it and used another route when he had closed off the road?
A. Well, I objected a bit but I came down through the other part of his property and onto the other street.
Q. You accepted it and used another route, did you not?
Q. Mr. Walter, did you also having [sic] in mind the fact that you were going to sell the property at that time, make any arrangement with Mr. Keeven concerning your purchaser that you would sell the property to about the use of passing over that piece of property?
Q. Could you tell the Court what that was?
A. Mr. Rinderer and I talked to Mr. Keeven on the property one evening about how he would have access to his property.
A. And it was stated that he could use that for a period of a year to go through there where his parking lot was. At that point he would have to work out some other arrangement, and I wasn't in on that.
Q. But you participated to the point of taking him to Mr. Keeven, and you and Mr. Keeven and he worked out apparently an agreement that he could use that for a year, was that your understanding.
A. That's what I understand, yes."
Later, still during cross-examination, after defendant's attorney inquired again whether the witness had found an alternate route, this exchange followed:
"A. I asked him how long it would be tore [sic] up because it was quite an inconvenience when the rains hit and there was mud through that area, and he assured me it would be fixed up and passable again.
Q. And you found an alternate route to get in and out?
A. For about three weeks or so, yes.
Q. When you did reuse it, you used another area further south?
A. Right. The front end was then moved to the south.
Q. Toward the south part of the parking lot?
Q. And at the time you sold it to Mr. Rinderer is when you took him to Mr. Keeven and said, `Here it is; work it out,' right? Is that the effect of what you did?
A. He had earnest money down on the property. He hadn't taken possession yet but we had talked to him prior to taking possession.
Q. And you took him to Mr. Keeven and you said, `Here it is; work it out,' and to the best of your knowledge they reached an agreement where Mr. Rinderer could use it for a year?
A. That was the last I heard of it, yes — a year or until he had another road access put in.
Q. And that was agreeable with you, ...