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Evanik v. Janus

OPINION FILED DECEMBER 22, 1983.

JOHN L. EVANIK ET AL., PLAINTIFFS-APPELLANTS,

v.

DONALD JANUS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.

PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

An easement?

The trial court said, "No."

We affirm.

The Evaniks brought an action seeking a mandatory injunction, declaratory judgment and damages resulting from the alleged obstruction of an easement across the Janus' property.

The trial court entered judgment for defendants across the board — denied injunction, denied existence of an easement, refused damages.

The circuit court was right.

I. THE FACTS

This case concerns two parcels of land in Macoupin County which share a common boundary. (To aid the reader, a map of the land in question in included and made a portion of this opinion.) The north boundary line of the Evanik property is the south boundary line of the Janus land. At issue is access to Evanik property. Prior to April 1980, Evanik's predecessors used a road which crossed Janus' property. The branch of the road leading to Evanik property was plowed under by the Januses at about the same time that the Evaniks purchased their land. This suit was filed shortly afterwards.

A hearing was first held, seeking a temporary injunction. It was denied. There followed a bench trial seeking a permanent injunction and damages.

The evidence is both prolix and tedious, but clearly necessary for a full understanding of the case. The two parcels were at one time owned by Elias Dorsey. Dorsey had received the property by United States patent on August 10, 1835. He divided the property equally between his two sons by a will which was probated in 1872. William Evanik, plaintiff herein, bought the southernmost parcel on August 9, 1980, for the sum of $25,000. On May 10, 1980, John and William Evanik had petitioned the court for a preliminary injunction. Members of the Evanik family had lived on the southern parcel of land since the late 1920's. At least since 1952, the only road leading to the property was one which exited from Illinois Route 138 to the north of the property and across the Janus property. The road was composed of a slag base topped with large rocks. The road bed is flat from where it comes off Route 138 and stays flat to the Evanik property. It sits on high ground with a ravine on either side. John Evanik had visited the land at least 100 times and had never heard of, or knew of, any other road or access to his property. Thiere is a field road which runs south from a garage on their property. That road has a slag base but is grown over with grass and mostly washed away. The southern part of the property has an eight-foot-deep creek running through it. There is no bridge across the creek and a car could not be driven across it. The White City/Mt. Olive Road is south of the southern boundary of the Evanik land but no road connects the property to the road.

Evanik admitted that he was not 100% sure that the road from the north ever crossed anyone's property but the Januses. He acknowledged that prior to purchasing the property, he had gotten an opinion letter concerning the property which indicated that there was nothing in writing about easements. When he purchased the property in August 1980, he was aware of problems with access and had heard from his mother that his aunt had always been afraid that the road would be plowed up.

Florence Lopinski was the daughter of John Evanik's aunt and uncle. She was familiar with the property and lived there with her parents for a period of years beginning in 1928. She recalled a roadway leading from the farm to the northwest but since Illinois 138 was not yet built, the main road at that time was the Mt. Olive Township Road. There was no improved road leading south to the Mt. Olive Road. Her parents were using the private road to the north when the Januses bought the adjacent property. The large creek on the south part of the property had a bridge across it at one time. The bridge had not been in existence since the 1930's. None of the field roads were ever graveled.

Mrs. Lopinski had been named administrator of her mother's estate and had overseen the sale of the farm. The property was appraised at $25,000 and was sold for that sum to John Evanik, the highest bidder. Donald Janus bid $22,500 for the property.

Mrs. Lopinski's parents owned a second road which came from the crossroads at Sawyerville to the west. While most of the access to the farm was from the north, there was southerly access available through the field. During cross-examination, the following colloquy occurred between the witness and the bench:

"THE COURT: * * * When you say that the main access was out of the north you're talking about the road that we're concerned with here?

A. Yes.

THE COURT: Is that right?

A. Yes.

THE COURT: Well, also while we're talking about this field road can you in dry weather, could you go from the farmhouse, well, and get out of the farm over the field road in dry weather?

A. Do you mean the extra piece of property that my father owned, is that what you're talking of?

THE COURT: I have been hearing that the only way that you could leave your father's farm was over the road that we're talking about?

A. Yes.

THE COURT: The road that's been plowed up?

A. Uh-huh.

THE COURT: Was there any other way ever that you knew of where you could leave your father's farm by way other than this road that's been plowed up?

A. Well, just a field road.

THE COURT: Okay now ...


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