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Pacemaker Food St. v. Seventh Mont Corp.

OPINION FILED AUGUST 22, 1983.

PACEMAKER FOOD STORES, INC., PLAINTIFF-APPELLEE,

v.

SEVENTH MONT CORPORATION ET AL., DEFENDANTS-APPELLANTS — (BROOKWOOD ENERGY & PROPERTIES, INC., ET AL., DEFENDANTS).



Appeal from the Circuit Court of Winnebago County; the Hon. Robert C. Gill, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 22, 1983.

Defendants Seventh Mont Corporation, Montgomery Ward Development Corporation, Montgomery Ward & Company, McDonald's Corporation, and Mulford Village Development Company appeal an order granting injunctive relief to the plaintiff, Pacemaker Food Stores, Inc. The injunction, entered following a bench trial, prohibited the use of an easement across a shopping center parking lot connecting a four-lane street to a service road. The following issues are presented for review:

1. Whether, pursuant to its unrecorded lease and the plot plan attached thereto, the plaintiff secured an easement for parking that included the northeast corner of the shopping center's boundaries.

2. Whether the trial court's finding that Mulford Village and McDonald's had notice of the plaintiff's purported easement was contrary to the manifest weight of the evidence.

3. Whether there was a proper basis for the equitable relief granted by the trial court.

4. Whether the trial court erred in refusing to require testimony from the president of the plaintiff corporation, who had negotiated the lease upon which the equitable relief was based.

5. Whether the trial court erred in denying a motion to dismiss Montgomery Ward & Company as a party defendant.

At issue are two allegedly conflicting easements located in the corner of a shopping center parking lot. The 20-acre shopping center is located in Rockford, Illinois, on the northwest corner of the intersection of East State Street, which runs east-west, and Mulford Road, which runs north-south. Both are four-lane roads. There are two entrances to the shopping center from State Street, one cut into the shopping center and one adjoining the shopping center on the west, over which the shopping center has an easement. There are also two entrances on Mulford Road, both belonging to the shopping center, and one of which is at the extreme northeast corner of the shopping center and is controlled by a traffic signal. The southern Mulford Road entrance has a curb cut; the other three entrances have a curb and median cut. Directly north of the shopping center and adjoining Mulford Road are three platted lots of Mulford Village Annex. The lot nearest the shopping center is undeveloped, the middle lot is the site of McDonald's restaurant, and the northern lot has a gas station on it. There is an access road to the three lots that runs parallel to Mulford Road. The northern end of the access road opens onto Mulford Road without traffic controls, and the southern end is connected to the shopping center's northeast entrance. The easement in question in this case is a 74 feet by 74 feet square in the northeast corner of the shopping center's parking lot that permits this access. The shopping area is in a rectangular building located near the northern boundary of the 20 acres and running east and west. The plaintiff's store is located in the southwest corner of the building. A diagram showing the layout of the area follows.

This lawsuit was instituted in March 1981, when a retaining wall on the northern boundary of the shopping center within the purported easement area was broken for purposes of building an access road from the north connecting the service road and the northeast entrance to the shopping center. Pacemaker filed an equitable action seeking to enjoin interference with egress and ingress to the shopping center. Following amendments, the plaintiff's complaint was dismissed with prejudice by the trial court on the ground it failed to state a cause of action. We reversed that judgment in a Rule 23 order (102 Ill. App.3d 1203) directing the trial court to permit plaintiff to file its second amended complaint. It did so. A bench trial followed at which this evidence was adduced.

On August 11, 1970, Monwar Property Corporation entered into a lease with Pacemaker Food Stores, Inc., for the rental of a section of the shopping center. The lease was extended the following year by Montgomery Ward Development Corporation, which was formerly known as Monwar Property Corporation. In November 1972, Seventh Mont Corporation, as the then fee owner, entered into a lease with Montgomery Ward & Company for the rental of the remaining portion of the shopping center. In August 1976, Brookville Energy Properties, Inc. (now Brookwood Energy & Properties, Inc.), as the then fee owner, extended the lease with Pacemaker Food Stores, Inc., with the concurrence of Montgomery Ward & Company and Montgomery Ward Development Corporation. The plaintiff's lease with options has over 20 years remaining.

Montgomery Ward & Company opened a retail shopping outlet to the public in November 1970. The plaintiff opened a retail grocery outlet in the shopping center in February 1971, and the store was run under the name of Logli Supermarkets. The plaintiff and Montgomery Ward & Company have remained the only tenants in the shopping center.

The plaintiff's lease agreement provided for entrances and parking as follows:

"Landlord covenants that Tenant and its customers, invitees and licensees at all times shall have adequate means of ingress and egress between each entrance to the leased premises and all public streets, highways, ...


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