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Light v. Steward

OPINION FILED OCTOBER 30, 1984.

REX H. LIGHT ET AL., TRUSTEES, PLAINTIFFS AND COUNTERDEFENDANTS-APPELLANTS,

v.

CARL E. STEWARD ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLEES.



Appeal from the Circuit Court of Winnebago County; the Hon. David F. Smith, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Plaintiffs brought this action in the circuit court of Winnebago County to enjoin defendants' use of plaintiffs' property. Defendants counterclaimed for an easement to use plaintiffs' property. The trial court found for defendants and declared an easement. We affirm.

Defendants, Carl and June Steward, own a tract of land in Winnebago County which is surrounded on three sides by the Pecatonica River. The only land access to their property is through the tract of land owned by plaintiffs, Rex and Sarah Light, which lies to the north of the Stewards' tract. On September 24, 1981, the Lights filed their complaint in the present action seeking to enjoin the Stewards from entering the Lights' land. The Stewards answered the complaint and filed a counterclaim seeking a declaration of an easement across the Lights' land and injunction against the Lights' interference with the Stewards' right of access, and money damages.

The bench trial was held on March 1, 1982. The evidence showed that the Lights acquired the northern tract in 1952. The Stewards acquired the southern tract in 1978 from the widow of Don Adams, who died in 1977. Adams acquired the southern tract in 1948. A public road, Cleveland Road, ends at the northern boundary of the Lights' land. Don Adams and his guests frequently crossed the Lights' land in order to enter and exit the southern tract. The "way" or "lane" they used crossed over the Lights' driveway, through a gate, and over an unpaved path to the northern boundary of the southern tract. Adams and his guests used his land for recreational purposes, and a cottage was built on the property in 1961. The Lights have a residence on their land about 550 feet south of the terminus of Cleveland Road. The Lights raised livestock on their property.

The Stewards also used the lane to reach the southern tract, both as guests of Don Adams and later as owners of that tract. After the Stewards acquired their property, however, a dispute erupted between the parties over the Stewards' use of the lane, which resulted in the Lights' attempt to block access to the lane and their filing of this action. Further evidence regarding the use of the lane will be discussed in relation to the legal issues raised.

The trial court rendered an oral decision on March 5, 1982, declaring an easement in favor of the Stewards. A written order was filed on March 19, 1982, which left open the question of reasonable restrictions. An appeal to this court was dismissed for want of jurisdiction because the order was not final as to all issues. Eventually, on September 9, 1983, a final and appealable order was filed which incorporated by reference the court's order of March 19, 1982, and set forth certain restrictions for the easement declared.

EXCLUDED TESTIMONY

The Lights contend that the trial court erred in excluding the testimony of Chester Lynn and Warren Duclon relating to an oral agreement between Don Adams and Rex Light. Upon objection by the Stewards, the trial court permitted Lynn's testimony subject to a reserved ruling on its admissibility. The court sustained the Stewards' objection to Duclon's testimony but permitted examination as an offer of proof. Following that offer of proof, the court also excluded Lynn's testimony regarding the agreement.

The substance of the challenged evidence tended to show that Rex Light had agreed to permit Don Adams' use of the lane through Light's property in exchange for Adams' permitting Light to graze cattle on his land. Chester Lynn testified that he heard the conversation in the spring of 1952 between Light and Adams in which the agreement was created. Warren Duclon testified that in 1953 or 1954, on an occasion when Duclon went with Adams to Adams' property by way of the lane on the Lights' property, Adams told Duclon that he had a verbal agreement permitting his use of the lane in exchange for permitting Light to graze his cattle on Adams' property.

The Stewards' objected to the testimony of both Lynn and Duclon on the bases of hearsay and the Dead Man's Act (Ill. Rev. Stat. 1981, ch. 51, par. 2). The Lights' response at trial was that the conversations constituted admissions against interest, an exception to the hearsay rule, and that the Dead Man's Act was applicable only to cases involving the executor or other representative of a deceased person. In striking Lynn's testimony, the trial court gave the following reasons:

" — on the grounds that it's hearsay and not — not that it's just hearsay. It's not — it really makes no difference what agreement those two parties had. It's what was expressed, I think, and what was the agreement between — what was made known to the present defendants in this case — what was their understanding."

With regard to Duclon's testimony, the trial court simply sustained the Stewards' objection and denied the contention of the counsel for the Lights that the proffered evidence constituted an admission against interest.

On appeal, the Lights argue that the evidence is relevant to show that use of the lane had not been adverse. Further, the Lights argue that the testimony is not excludable because the Dead Man's Act does not apply, because the testimony is not hearsay as the out-of-court statements were not offered for their truth, and because three specific hearsay objections would be applicable in any event. The Stewards maintain that those of the arguments for admissibility not presented to the trial court cannot be urged for the first time on appeal.

• 1 The general rule for preserving for review a contention that testimony has been wrongfully excluded is that an offer of proof must be made. (Moore v. Farmers Insurance Exchange (1982), 111 Ill. App.3d 401, 444 N.E.2d 220.) Here, an offer of proof was made for both witnesses. However, the Stewards contend that more is necessary: the party offering the excluded testimony must urge on appeal the same bases of admissibility that were presented to the trial court. At least two of the cases cited by the Stewards appear to support this rule of law (Crimp v. First Union Trust & Savings Bank (1933), 352 Ill. 93, 98; Dirksmeyer v. Barnes (1954), 2 Ill. App.2d 496, 508-09, 119 N.E.2d 813, 818), although in the latter case an offer of proof was also missing. Dirksmeyer relies upon the general proposition that a point not raised in the trial court cannot be urged on appeal. (Dirksmeyer v. Barnes (1954), 2 Ill. App.2d 496, 509, 119 N.E.2d 813, 818; see Board of Education v. ...


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