APPEAL from the Circuit Court of Cook County; the Hon. IRWIN
COHEN, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 28, 1982.
Plaintiffs, Joseph Swieton and Donna Swieton, filed a complaint for ejectment on an encroachment upon their property. Defendants, Henry Landoch and Emma Landoch, filed a counterclaim for declaratory relief seeking the imposition of an easement by prescription or implication. After a bench trial the court entered judgment granting defendants an easement by implication. Plaintiffs appeal.
The issue on appeal is whether defendants have established an easement by implication by clear and convincing evidence. The accompanying diagram is provided to facilitate comprehension of the following facts.
In 1971 the plaintiffs purchased a single-family residence located on Lot 11 except the South 30 feet (plaintiffs' parcel), which lot fronts on Narragansett Avenue and is bounded on the north and east by an alley. To the immediate south, and adjacent to the plaintiffs' property, is another house located on the South 30 feet of Lot 11 (defendants' parcel), also fronting on Narragansett Avenue. This latter parcel had been owned and occupied from 1971 by Michael LaBrose (LaBrose) until he sold it to defendants, Henry and Emma Landoch, in February of 1976. At the time of the defendants' purchase a white wooden picket fence stood between the respective back yards. The fence extended in an east-west direction from the eastern alley line to a point adjacent to the rear of the plaintiffs' home; however, no fencing existed between the dwellings themselves.
The defendants' home has a front entrance on Narragansett Avenue and a side door on its north side, the threshold of which is several feet higher than ground level. The side door exits onto a concrete stoop from which several steps on the westerly side allow descent to the front walk and steps on the easterly side allow descent to the rear service walk of defendants' house. A concrete walk installed by defendants' predecessor LaBrose extends west from the stoop steps and from one building to the other. Located within the walk at the west base of the steps is a sewer catch basin for the defendants' home. Another concrete service walk extends from the alley on the east across the entire length of the rear yard and continues along the north wall of defendants' home to the east steps of the stoop.
Soon after taking title to their real estate, the defendants decided to replace the white picket fence, which they assumed to be located on their own land, and entered into a contract with Tru-Link Fence Company to erect a metal chain link fence between the respective properties. Henry Landoch and his brother removed the existing white wooden picket fence and a few days later workers for Tru-Link placed metal upright posts in position. However, it became apparent that the chain link fence would be of a greater length than the picket fence and would divide the area between the houses of the parties — an area which had previously been open and undivided.
At a point in time prior to the attachment, erection and completion of the chain link fencing itself, Donna Swieton made several protests concerning the positioning of these posts to Emma Landoch, complaining that the posts were on her property. The defendants then consulted their original survey, dated January 21, 1976, and prepared in connection with the acquisition of their real estate. They discovered for the first time that it failed to portray the front walkway, the catch basin, the stoop and its steps, the rear service walk, and the white picket fence. However, the erection of the fencing went ahead and was completed in February 1976. The defendants obtained a second survey on March 12, 1976, which showed that the entire length of newly installed fence, as well as several inches of the defendants' stoop and stairs and sidewalk, protruded onto plaintiffs' side of the property line.
In June 1976 plaintiffs filed an action in ejectment against defendants, asserting that encroachments existed, and that defendants refused to remove the chain link fence and the protruding portions of the walks and stoop after repeated demands to do so. Plaintiffs prayed for a judgment for possession and damages. Defendants' amended answer raised as affirmative defenses the existence of a constructive easement over plaintiffs' property and that plaintiffs' complaint was barred by laches. Defendants prayed dismissal of plaintiffs' complaint, a constructive easement in perpetuity to run on plaintiffs' land, and reformation of the original plat to show defendants' residence, structures and improvements located entirely upon the real property of the defendants, and all other relief deemed just. Defendants also filed a counterclaim for declaratory relief imposing an easement by prescription or implication. Plaintiffs' reply to defendants' answer denied the existence of any easement on plaintiffs' property.
The evidence introduced at trial showed that both parcels of real estate originally were contained in and owned as one lot, and at all times herein were registered under the Torrens system. Neither the Torrens certificates of title nor any deeds contained any reference to the easements claimed herein.
In 1948, title to all of Lot 11 was acquired by Bessie Rosenthal who on March 12, 1952, conveyed by quitclaim deed to Herbert Rosenthal and Roy Schoenbrod the South 30 feet of Lot 11 (defendants' parcel), which deed was filed for record on May 16, 1952. Rosenthal and Schoenbrod conveyed defendants' parcel to Frank and Anna Miller on May 31, 1955, as evidenced by document filed with the registrar of titles.
The plaintiffs' claim of title also goes back to Rosenthal and Schoenbrod, who conveyed plaintiffs' parcel in a deed dated February 8, 1954. The trial record is devoid of any deed showing a conveyance of plaintiffs' parcel from Bessie Rosenthal to Herbert Rosenthal and Roy Schoenbrod. However, prior to trial defendants filed an "Amended Request to Admit Facts and Genuineness of Documents" which plaintiffs failed to answer. The facts requested to be admitted included that as of August 4, 1948, Bessie Rosenthal owned all of Lot 11 in fee simple; that on or about March 12, 1952, she executed a quitclaim deed for Lot 11 in its entirety to Herbert and Kaye Rosenthal and Barbara and Roy Schoenbrod; that on or about March 10, 1952, two building permits were issued to construct single-family residences on Lot 11; that subsequent to the erection of the two residences the Rosenthals and Schoenbrods divided Lot 11 into two parcels; that they first conveyed the plaintiffs' parcel on or about February 8, 1954, and then conveyed defendants' parcel on or about May 31, 1955. Finally, the request to admit asserted that at the time of the improvements to the realty all of Lot 11 was owned by common owners, the Rosenthals and Schoenbrods. At the beginning of the bench trial the court stated that as plaintiffs failed to respond to defendants' request to admit facts, it took the facts stated therein to be admitted. Plaintiffs' counsel made no objection. The evidence included testimony that the two homes were constructed on the property in 1953.
Following trial the court entered an order finding that there was an admitted encroachment as to the sidewalk, the catch basin, the concrete stoop and steps and the chain link fence; that a permanent easement by implication existed as to the concrete stoop and steps, the sidewalk between the residences and the catch basin, but not as to the chain link fence. The court ordered that the Cook County registrar of titles memorialize the easement by implication upon the Torrens certificates of title of both the plaintiffs and defendants. ...