Appeal from the Circuit Court of Johnson County; the Hon.
George Oros, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Larry Ragsdale appeals from subparagraphs (e) and (f) of the judgment of the Johnson County circuit court which permit holders of an easement bisecting Ragsdale's land to construct fences the length of the easement and to limit movement across the easement to a single pair of gates. He seeks reversal of these subparagraphs or modification as permitted by Supreme Court Rule 366(a) (87 Ill.2d R. 366(a)).
The seeds of this dispute were sown in 1904 when the heirs of M.J. Ragsdale made two concurrent conveyances of agricultural land. One group of heirs conveyed by quit claim deed in fee simple to E.L. Ragsdale:
"The West (1/2) half of the North West fourth of the North West Quarter of Section No. (33) Thirty-three; 20 acres, more or less, and a part of the North East Quarter of Section No. (32) Thirty-two; bounded as follows: Beginning at the North East corner of said tract; running thence South 85° West 15.62 chains, thence South 3° 40' East 36.21 chains to road; thence Easterly along road 15.62 chains to section line; thence North with section line 34.85 chains to place of beginning, except 16 feet on west side for road. Containing 55.49 acres, more or less: and being 75.49 acres, more or less in all in Township No. 12 Twelve South in Range No. (2) two East.
It is hereby agreed that the road above excepted is to remain open for the use of the public for a road." (Emphasis added.)
This is the property now owned by Larry Ragsdale. Although the "16 feet on west side for road" was not conveyed in 1904, Larry Ragsdale gained title to it by inheritance in 1981. This strip of land runs northward from a public highway through Ragsdale's land for approximately 2,400 feet to the Beggs property which lies along the Cache River. It divides Ragsdale's 215 acres into two sizeable parcels, only one of which contains water for his cattle.
In a concurrent conveyance by quitclaim deed, another group of Ragsdale heirs transferred to Samuel C. Ragsdale in fee simple an adjoining property:
"The South East fourth of the South East quarter and the east (1/2) Half of the North East fourth of the South east quarter of Section No. (29) twenty-nine, in Township No. (12) twelve South in Range No. (2) two, east of the 3rd P.M., containing 60 acres, more or less."
This is the property now held by Joe and Sheryl Beggs (hereinafter Beggs). The only access to this river bottom property is across Ragsdale's land, but it has not always been by means of the 16-foot strip. Other field roads have been used over the years.
Both properties have long been used for agricultural purposes. A fence around the Ragsdale farm has marked off the two properties since the time of the original conveyances. There are no improvements on the river bottom land which Beggs uses only for row crops. There are buildings and farm-related improvements on Ragsdale's land which he uses for both cattle and crops.
Joe Beggs farmed the river land for more than 20 years, while it was still owned by members of the Ragsdale family. In April 1982, Beggs purchased the land. Shortly thereafter this conflict over the use of the 16-foot strip grew up between Ragsdale and Beggs. Beggs successfully sought a temporary restraining order which compelled Ragsdale to remove a vehicle blocking the strip. In considering Beggs' subsequent petition to show cause why Ragsdale should not be held in contempt for blocking the roadway with wire and a "No Trespassing" sign, the court accepted the parties' stipulation to the appointment of a surveyor to determine the location of the strip. The court ordered Ragsdale to put plastic handles on electric wires across the strip so Beggs could easily move them as he used the path. Beggs was ordered to refrain from using another path around Ragsdale's barn.
The survey marking off the 16-foot roadway was filed on October 6, 1982. On January 3, 1983, Beggs filed a "Motion for Order Establishing Roadway and For Injunctive Relief." He asked the court to declare the strip, as surveyed, to be a permanent public roadway which the Beggses and their successors in interest were entitled to use as an access road to the bottom land. Beggs prayed that neither he nor Ragsdale be permitted to obstruct the roadway, to install gates or fences at either end, or to use electrical wires to enclose it, but that either party be allowed to fence along the sides of the roadway with barbed wire.
After receiving extensive evidence both by exhibit and testimony regarding the continuous agricultural use of both parcels of land, the various routes taken across the Ragsdale land to the river bottom property, and the condition of the 16-foot strip at various points in its history, the trial court ruled that Beggs had "a permanent easement appurtenant from the dominant estate across and over the defendant's servient estate for the use and purpose of ingress and egress to plaintiffs [sic] dominant estate" which "had not been abandoned or lost by adverse possession." The court ruled orally that Beggs did not have the right to fence along the right of way. Ragsdale was given leave to submit a brief on his use of the servient estate. His memorandum, submitted on March 21, 1983, ...