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Flower v. Valentine

OPINION FILED AUGUST 26, 1985.

RUTH K. FLOWER, PLAINTIFF-APPELLANT,

v.

ANDREW VALENTINE ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Plaintiff, Ruth K. Flower, brought an action to temporarily and permanently enjoin defendants, Andrew and Marjorie Valentine, from entering upon her property, from moving or removing any vegetation from her real estate, and for damages against defendants. The defendants counterclaimed for injunctive relief to prevent plaintiff from interfering with the use of their easement and requiring plaintiff to remove all obstructions from the easement. The trial court enjoined plaintiff from interfering with defendants' use of the easement and required plaintiff to remove certain obstructions from the easement.

On appeal, plaintiff contends that (1) the court erred by ordering plaintiff to remove a barbecue grill and shrubs which were on the easement; (2) that the court erred in granting a directed verdict in favor of defendants; and (3) that the court erred in refusing to hear testimony of an expert witness regarding the possible erosion of plaintiff's property as a result of defendants' actions.

FACTS

The easement was granted in December 1950, in favor of Mr. and Mrs. Frederick Nichols, by Mr. and Mrs. Albert Belshe, defendants' predecessor in title. The Belshes then owned the property subsequently acquired by plaintiff. The grant provides for a perpetual easement and right of way across a strip of land 15 feet in width on the servient estate (plaintiff's property). The grant provides in relevant part:

"The easement hereby created includes the right of foot travel through and upon said fifteen foot strip and a right to construct and maintain stone, wood, cement or other types of steps on the bluff leading to the beach within the limits of said fifteen foot area.

The cost of building and maintaining and repairing the said steps shall be borne solely by the second parties (the Nichols).

This agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs and assigns and the covenants and agreements hereby created shall constitute covenants and agreements running with the lands owned by the parties hereto and involved therein."

In 1952, plaintiff acquired the servient estate, known as 1085 Sheridan Road in Winnetka. Defendants purchased the dominant estate from the Nichols in 1979. When plaintiff moved to 1085 Sheridan Road, there were certain plantings and improvements located on the easement area, which included hedge bushes and a barbecue grill. In addition, there were some shrubs on the property and some cinder blocks had been placed on the easement to serve as steps. However, from 1953 through 1955, these steps began to break up.

At the time plaintiff moved into her house, Mr. and Mrs. Nichols crossed over a portion of plaintiff's premises as they came and went to the beach from their house situated to the west of the plaintiff's property. Apparently, guests of the Nichols also used the easement. There is a suggestion that plaintiff and her husband did not get along well with the Nichols. Because of this, plaintiff commenced to take steps to enclose the easement area. In 1953, plaintiff placed yard furniture on the easement and the next year she put in a herb garden over a portion of the easement. In 1956, plaintiff planted buckthorn bushes and installed a gate at the point where the easement begins between the Nichols' property and the plaintiff's premises. The gate was then planted with Clematis on either side. Whether the Clematis vine grew in such a fashion as to seal the gate was in dispute. Plaintiff testified that such vine did enclose the gate and made passage through it impossible. However, Mr. Nichols testified the gate was always open.

Plaintiff owned a large Boxer dog and the Nichols owned a Dalmation dog. One day in 1956, the Boxer attacked the Dalmation as Mrs. Nichols came up the bluff from the beach. Shortly after the altercation between the dogs, Mrs. Nichols and plaintiff had a conversation. According to plaintiff, Mrs. Nichols was very irate about her dog being attacked and about plaintiff's act of planting an herb garden and installing the gate. She allegedly stated, "I will never come again where we are not wanted." Plaintiff stated she never again saw the Nichols enter her property or use the easement area. Plaintiff believed the Nichols used the easement but she never observed them using it. She further testified that guests of the Nichols did not use the easement area thereafter.

Mr. Nichols testified that, until he sold his property to defendants in 1979, he used the easement only when the plaintiffs were not around so as to avoid unpleasant confrontations. Mr. Nichols stated that after 1968, when the plaintiffs dumped debris over the steps which led down to the beach, he never again used the easement all the way down to the beach. Mr. Nichols maintained that he used the remainder of the easement and that his use was not inhibited by the gate which could always be opened.

However, after the altercations between the dogs in 1956, plaintiff observed Mrs. Nichols on the beach and also observed her use a neighbor's old wooden stairway to the beach. Plaintiff also testified that she observed Mrs. Nichols use a set of stairs to the south of plaintiff's premises as well as a public lane to get to the beach.

Plaintiff's husband testified that the dumping of debris and rock occurred in May or June of 1961 as a result of construction of a patio at the home. The debris was dumped on the incline portion of the easement where the remains of the concrete steps were located. Plaintiff's husband testified that this debris was used to help stabilize the incline ...


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