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O'hara v. Chicago Title & Trust Co.

OPINION FILED APRIL 22, 1983.

RICHARD O'HARA ET AL., PLAINTIFFS-APPELLEES,

v.

CHICAGO TITLE AND TRUST COMPANY, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Reginald J. Holzer, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 19, 1983.

Plaintiffs, Richard O'Hara and Exchange National Bank (as trustee), beneficial and legal owners, respectively, of real estate commonly known as 1560 North Wells Street, Chicago, Illinois (Parcel A), filed a complaint against defendants, Daniel O'Brien and Chicago Title and Trust Company (as trustee), beneficial and legal owners, respectively, of real estate commonly known as 1556 North Wells Street, Chicago, Illinois (Parcel B), seeking injunctive and declaratory relief. Specifically, plaintiffs sought to enjoin defendants from maintaining a fence along the northern boundary of Parcel B that abuts Parcel A on the ground that the fence effectively bars plaintiffs from using the right-of-way located along the northern boundary of Parcel B. Furthermore, plaintiffs sought a declaratory judgment stating that the right-of-way located on Parcel B was either: (1) an implied easement appurtenant attaching to and for the use and benefit of Parcel A; or (2) an easement by prescription attaching to and for the use and benefit of Parcel A. Following a bench trial, the court entered judgment granting plaintiffs an easement by implication and permanently enjoining defendants from erecting a fence or any other obstruction along the northern boundary of Parcel B which would interfere with plaintiffs' use of the easement. Defendants' sole issue on appeal is whether plaintiffs have met their burden of proof in establishing the essential prerequisites of an implied easement. For the reasons that follow, we reverse the trial court.

A. History of Ownership of Parcel A

In 1946, Frank Herhold owned the property and improvements on both Parcel A and Parcel B in fee simple. The improvements on Parcel A included a four-story brick building, which occupied the full width of the parcel and allowed approximately 47 feet for a rear yard. At that time, the Parcel A building had four doors, two in the front (east), facing Wells Street, and two in the rear (west), facing the rear yard. The buildings on Parcel A and Parcel B were joined by a party wall.

On May 28, 1946, Herhold conveyed Parcel A to George Adams in fee simple. There is no indication in the record as to how Adams used the property. In 1959/1960, Adams constructed a three-story addition to the rear of the Parcel A building which extended across the full width of the parcel, and allowed some footage for a rear yard. When the addition was completed, the building had three doors, one in the front (east), facing Wells Street, one in the rear (west), facing the rear yard, and one on the side of the new addition (south), opening directly onto Parcel B.

In 1963, William Mallick executed a contract to purchase Parcel A from Adams. Mallick, however, never actually purchased Parcel A. Instead, he immediately assigned the contract to Al Kaiser in trust. The Kaiser trust, in which Mallick had no ownership interest, then purchased Parcel A and executed a 20-year lease for the building thereon to Mallick.

When Mallick leased the building on Parcel A, there was no business operating on the premises. In late 1963/early 1964, Mallick began remodeling the Parcel A building in conformance to code for a restaurant and lounge. In so doing, he added a one-story kitchen directly behind the three-story addition. With the completed kitchen addition, the Parcel A building occupied the full width and depth of the property, and had three doors, one in the front (east), facing Wells Street, and two on the south side (three-story addition and kitchen), opening directly onto Parcel B. In 1971, Mallick ceased his restaurant operation. The record is void as to how either parcel was used from 1971 until 1973 when Cafe-Continental, Inc., leased Parcel A from the Kaiser trust and operated a restaurant thereon called "Sesame" until August 1980.

B. History of Ownership of Parcel B

In 1946, when Herhold owned the property and improvements on both Parcel A and Parcel B in fee simple, Parcel B contained a three-story brick building with a rear yard and 6 1/2-foot walkway which ran along the south side of the building.

In 1948, Herhold conveyed Parcel B to Walter Shellock. Although the record does not fully trace the ownership of Parcel B from 1948 to 1959, it does indicate that it was purchase by John Krenger in 1959/1960. At the time Krenger purchased Parcel B, Adams was constructing the three-story addition on the Parcel A building. At trial, Krenger testified that after Adams added the south door onto his addition, Adams began to exit from that door, walk across the rear yard of Parcel B and down the walkway which led to Wells Street. Krenger objected to Adams' use of his property as a right-of-way and subsequently erected a gate across the walkway which he kept padlocked. Krenger retained the only key to the lock.

In 1964/1965, shortly after Mallick (lessee of Parcel A) had completed the kitchen addition on the Parcel A building, Krenger executed a 10-year lease with Mallick for Parcel B, the terms of which gave Mallick the option to demolish the building on Parcel B. In his evidence deposition, Mallick indicated that prior to leasing Parcel B from Krenger, there was a gate across the walkway located along the south side of the Parcel B building. During the day, Krenger permitted Mallick to use the walkway gratis to bring in building supplies for use on Parcel A. At night, however, Krenger locked the gate for security reasons. After Mallick demolished the Parcel B building in 1966, he used the parcel as a parking lot for his restaurant, as well as for deliveries and garbage removal. In 1973, two years after Mallick prematurely terminated his leases in both parcels, owners of the Sesame restaurant (subsequent sublessees of Parcel A) arranged with Krenger to pay a monthly fee for the use of Parcel B as a parking lot for their restaurant and for deliveries and garbage removal.

C. Current Ownership of Parcel A and Parcel B

In October/November, 1977, O'Hara purchased Parcel A in fee simple from the Kaiser trust, subject to Cafe-Continental, Inc.'s lease, and deeded the property to a land trust. When Cafe-Continental, Inc.'s lease terminated for nonpayment of rent in August 1980, plaintiffs began remodeling the restaurant and opened an Italian restaurant in December 1980. When O'Hara purchased Parcel A, the building thereon had three doors: one on the front (east), facing Wells Street and two on the south wall of the building, opening directly onto Parcel B. Lum's restaurant was located immediately to the north and Azteca restaurant was ...


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