Appeal from the Circuit Court of Carroll County; the Hon. John
W. Rapp, Jr., Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The plaintiffs, George E. Deem and Helen E. Deem, brought an action against the defendants, Lyle Cheeseman and Shirley Cheeseman, seeking recognition of an easement by implication and an injunction restraining the defendants from interfering with use of the easement.
The easement sought crossed land owned by the defendants. Following a bench trial, the circuit court of Carroll County denied the plaintiffs relief, and they appealed. The issue presented is whether the trial court erred in failing to recognize an easement across the defendants' land to be used by the plaintiffs for ingress to and egress from the plaintiffs' property.
The Deems owned a five-acre tract of land located in Elkhorn Grove Township in Carroll County. The land is partially covered with timber and is the site of a cabin used for recreational purposes. The land to the south and west of the plaintiffs' property belongs to the Cheesemans. The land bordering the plaintiffs' property to the north and east is owned by Bowles (formerly owned by Sword), and the land directly west of the Bowles/Sword property belongs to Deets. The Deets property is bounded on the west by a public township road (hereinafter "township road") running north-south. That road also abuts the defendants' property south of the Deets property. An unimproved roadway (hereinafter "quarry road") runs easterly from the township road cross the Deets and Bowles/Sword property to a point north of the plaintiffs' land and turns south onto the plaintiffs' land, where it intersects an east-west creek. The creek runs through the far northern portion of the plaintiffs' land and continues westerly, running south of the quarry road and roughly parallel to it, intersecting the township road at a point about 1,000 feet west of the plaintiffs' property. The following rough diagram shows the relative positions of the creek, roads, and lands involved.
The plaintiffs' five-acre tract and the defendants' land were part of a common parcel acquired from the United States Government by Daniel Stormer by a patent deed dated March 1, 1846. Besides the government, Stormer was the only common owner of the lands. He conveyed 10 acres of his 80-acre parcel, including what is now the plaintiffs' property, to Fletcher Hutton by deed dated May 19, 1854. The plaintiffs purchased their property from John and Isabella Persona, through an installment contract dated August 9, 1968, took possession of the land, and received the deed in 1976. Persona's immediate predecessor in title was Hutchinson.
With few exceptions access to the plaintiffs' property has been by way of the quarry road across the Deets and Bowles/Sword property. Mrs. Sword and Mrs. Deets gave the plaintiffs oral permission to traverse their land, and the plaintiffs have a key to the gate between the Deets and Bowles/Sword property. Mrs. Deets is willing to provide the plaintiffs with a written easement. The plaintiffs have not communicated with Bowles about this access. When the plaintiffs bought their property, a rock quarry serviced by the quarry road was open and the road was regularly used and maintained by quarry employees, but the quarry is no longer operating, having closed 10-12 years ago. The quarry road has a one-foot-thick gravel base but has deteriorated and is now grassed over. The plaintiffs describe it as being located across low-lying ground in a flood plain subject to overflow. The plaintiffs have used the quarry road for access to their property during the full extent of their possession, with one exception. In 1973, they crossed a mowed path on the defendants' property when the creek washed out, but that path is no longer there. Prior owners Persona and Hutchinson also used the quarry road for access to the five acres. The only exceptions in evidence were Persona's uses of the defendants' property, with their permission, in particular circumstances (e.g., when other access blocked by fallen tree, when creek rose too fast, and for passage of heavy trucks to dig a well and build a garage).
At the point where the quarry road meets the creek, the creek is 12 feet wide and about six inches deep, but the depth of the water varies. When flooded, the creek is impassable. About four years ago the plaintiffs had about 100 tons of rock dumped in the creek to fill it in, but that rock has since been washed away. Persona built a wooden ford across the creek when he owned the land, but the ford rotted. There was evidence that a floating plank bridge could be built at a cost of about $3,000. The bridge on the township road across the same creek, of similar terrain at that point, cost approximately $68,000 to construct.
The defendants' land is used for a general farming operation. The field to the west of the plaintiffs' tract, across which the plaintiffs claim an easement, is rotated for crops and used to pasture a dairy herd. It has two deep ravines and a 6% to 9% northerly slope. There was testimony that construction of a rock road across it would cost $75 to $100 per foot for about 1,000 to 1,200 feet and would require four to seven drainage tubes (28 to 30 feet wide) at a cost of $22 to $30 per foot.
The plaintiffs' complaint seeking recognition and enforcement of an implied easement was filed on November 14, 1979. The defendants moved to dismiss the complaint, contending that the complaint was not specific enough and that, since there was no allegation that there was any physical evidence on the property to demonstrate the existence of such an easement, the action was barred by Illinois' 40-year statute of limitation. The court granted the motion to strike and allowed the plaintiffs to amend their complaint to describe the alleged easement with more specificity. The plaintiffs filed an amended complaint, alleging that the easement lay to the west of the plaintiffs' property.
Following the hearing, the trial court denied the plaintiffs' prayer for relief. In its memorandum opinion, it based its decision on findings that the plaintiffs had a reasonable access from their property to the public road and that there was no evidence of any easement that was obvious or meant to be permanent. The plaintiffs appealed.
• 1 The plaintiffs contend that they are entitled to an easement by implication across the defendants' land for the purpose of ingress and egress. The defendants deny the existence of the alleged easement, arguing that there is no proof as to where on the property it was located or that it even existed at the time of separation of title.
The defendants raised the statute of limitation in their motion to dismiss. Section 1 of "An Act relating to claims to real estate" (Ill. Rev. Stat. 1979, ch. 83, par. 12.1), recodified as section 13-118 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-118) places a 40-year limitation on claims to establish an interest in real estate (except adverse possession), unless a statement describing the interest claimed has been filed with the recorder of deeds within 40 years after the claim arises. Section 3(c) (Ill. Rev. Stat. 1979, ch. 83, par. 12.3(c)) excepts "any easement or interest in the nature of an easement, or any rights granted, reserved or excepted by any instrument creating such easement or interest, the existence of which such easement or interest is apparent from or can be proved by physical evidence of its use, whether or not such physical evidences of its use are visible from the surface * * *." On appeal, the defendants suggest that the claimed easement, if it arose at all, arose too long ago (125 years before the action was filed) to be allowed. However, the defendants apparently abandoned their statute of limitations defense, as no further mention is made of it. The statute of limitations bar is an affirmative defense and may not be considered on appeal if not presented to the trial court or if waived. See Lawson v. Hill (1979), 77 Ill. App.3d 835, 848.
The defendants also state that the defendants and their predecessors in title have held their property adversely to any right that the plaintiffs might have and in excess of 20 years, arguing that if an easement ever did exist it was destroyed by adverse possession. Although an easement by implication may be extinguished by adverse possession, the doctrine of adverse possession operates as a statute of limitation and therefore is an affirmative defense. It must be specifically pleaded, alleging the necessary and constituent elements of possession, or it is waived. Luthy v. Keehner (1980), 90 Ill. App.3d 127, 132-33.
• 2-5 The essential elements for an easement by implication are well established. (1) There must be common ownership of the land followed by a separation of title. (2) Before the separation occurs, the use giving rise to the easement must have been long continued, obvious, or manifest, to a degree that shows permanency. (3) The use of the claimed easement must be necessary to the beneficial enjoyment of the land granted or retained. (Sheehan v. Sagona (1958), 13 Ill.2d 341, 345.) However, the law does not require a showing of absolute necessity, and it is sufficient that the easement be reasonable, highly convenient, and beneficial. (People ex rel. Helgeson v. Hackler (1961), 21 Ill.2d 267, 271.) Thus when one portion of an estate derives a benefit and advantage from another, of a permanent, open, and visible character, when that portion is severed, the grantee takes that portion with all the benefits and burdens that appear to belong to it (Gilbert v. Chicago Title & Trust Co. (1955), 7 Ill.2d 496, 499), and there arises by implication of law a grant of the right to continue such ...