Appeal from the circuit court of Madison County; the Hon.
Charles Romani, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The instant case involves two easements by implication claimed by the plaintiff for two separate and distinct parcels of land containing a shopping center and an apartment complex, respectively. The shopping center and the apartment complex, both owned by the plaintiff, lie on opposite sides of a third, undeveloped, parcel of land owned by the defendants. The plaintiff claims easements, first, in a driveway running alongside the shopping center on the defendants' property to the rear of the shopping center and, second, in a driveway over the defendants' property to the apartment complex from a public street. Following a non-jury trial in the plaintiff's suit to enjoin interference by the defendants with these claimed easements, the trial court entered judgment against the plaintiff as to both claimed easements. Upon a post-trial motion by the plaintiff, the trial court vacated that portion of its judgment denying injunctive relief as to the easement for the apartment complex and ordered a permanent injunction thereon, while affirming its judgment as to the easement for the shopping center. The plaintiff has appealed from that portion of the judgment denying injunctive relief as to the shopping center easement, and the defendants have filed a cross-appeal from that portion of the judgment granting injunctive relief as to the apartment complex easement. We find that an easement exists by implication as to both properties and accordingly affirm in part and reverse in part.
The relation of the subject properties lying south of Bethalto Drive in Bethalto, Illinois, may be seen by reference to the following diagram adapted from plaintiff's exhibit No. 1:
All of the subject properties were owned by the plaintiff, Granite Properties Limited Partnership, and its predecessors in title from 1963 or 1964 until 1982, when parcel B was conveyed to the defendants, Larry and Ann Manns. In 1967, a shopping center was constructed on parcel A extending from lot line to lot line across the east-west dimension of that property. Since that time the rear of the shopping center has been used for deliveries, trash storage and removal, and utilities repair for the various stores and offices located in the shopping center. To gain access to the rear of the shopping center for these purposes, trucks have used a gravel driveway on parcel B running along the lot line between parcel A and parcel B. A second driveway located on parcel D to the east of the shopping center enables the trucks to circle the shopping center without having to turn around in the space behind the stores.
Immediately to the south of parcel A are five four-family apartment buildings located on parcel C, where families with children reside. The plaintiff has no common ownership as to parcel C and has no control of the apartment complex on that property. The distance between the back of the shopping center and the property line of parcel C is 50 feet, and the shopping center's underground utility units for electricity and telephone are located in this area.
To the east of the shopping center on parcel D is a separately owned health club. Although the plaintiff has no control of this property, the owner of parcel D has allowed trucks coming into the plaintiff's shopping center to continue use of the driveway running on parcel D to the rear of the shopping center.
On the north side of the shopping center is an asphalt parking lot with approximately 191 feet of frontage on Bethalto Drive. Despite this access to the front of the property, there is no possible access to the rear of the shopping center without crossing the property line of an adjacent landowner.
At trial, Robert Meehan, owner of a Sav-a-lot grocery store located in the shopping center, testified that he receives deliveries of groceries to his store at the back of the building, where they are unloaded with a fork lift on a concrete pad poured for that purpose. Semitrailer trucks make deliveries to the rear of the store four days a week, with as many as two or three such trucks arriving daily. In all, an average of 10 to 12 trucks a day, including semis, make deliveries to the rear of the grocery store. There are big double steel doors in the back of the store to accommodate items that would not fit through the front door. Items are priced in the back of the store upon unloading, and refrigerator and freezer storage space is in the back of the store off the selling floor.
The grocery store's trash dumpster is kept behind the store, where the trash is picked up four times a week.
Mr. Meehan testified that the drive behind the store is about 1 1/2 trailer-widths wide and that it would be "impossible" for a semitrailer truck to turn around in the back and exit the same way it came in. Meehan stated further that front door deliveries would be "very disruptive." Pallets that wouldn't fit through the front door would have to be broken down into parts, requiring extra work, and there would not be adequate space to the front of the store to do that work during business hours.
On cross-examination Meehan stated that he had not investigated the cost of installing a front door that would be big enough for the pallets of groceries brought in by fork lift. There would not be enough space to manipulate the fork lift around in the front of the store, although it could be run between the shelves of food to the back of the store.
Darrell Layman, a limited partner with the plaintiff, testified that the shopping center had been in continuous operation since 1967 and that the pattern for deliveries had always been "around the store [sic] to the rear." When asked whether he had "ever seen a semi back up [in the rear of the shopping center] and go out the way it came," Layman responded, "That would be impossible." Later, on cross-examination, the following exchange took place:
"[Defendants' counsel]: Is there any reason the trucks can't use [the driveway on parcel D]?
[Layman]: Yes, they are using it now. The problem is with a tractor-trailer, they can't make the turn and go back out that way. They circle.
[Defendants' counsel]: They do anyway. You indicated there was 50 feet, and they would have to jockey quite a big to get turned around. They could do it, couldn't they?
[Defendants' counsel]: but [sic] they would have to jockey a few times, but they could get back out, is that right?
Layman stated that he had not investigated the cost of expanding the size of the front doors of the building and that it "would seem impossible" to him to put in any kind of hallway or passageway to allow equipment to bring things into the store from the front.
On redirect examination Layman testified that the delivery trucks follow no set schedule and, as a result, may "overlap" at times. He stated that he had seen as many as four or five delivery trucks backed up and that there was "no way" the trucks ...