Appeal from the Circuit Court of Lee County; the Hon. Martin
D. Hill, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 12, 1986.
Plaintiffs, John and Irene Schultz, filed a complaint asking the court to declare an easement by prescription over and across property owned by defendant, William Kant. Defendant denied plaintiffs had established a prescriptive easement. Subsequent to a bench trial of the matter, the trial court entered a lengthy judgment declaring the plaintiffs owners of a right-of-way easement by prescription appurtenant to plaintiffs' land and over and across defendant's property. Additionally, the court ordered the defendant to restore the easement to its prior condition, to remove any obstructions or encroachments on the easement, and to refrain from interfering with the plaintiffs' use of the easement. Defendant filed a post-trial motion, which was denied. This appeal followed.
In this court defendant contends: (1) that the evidence did not support a claim of a prescriptive easement, and (2) that, if a prescriptive easement was established, the use of the easement must be restricted to that use which occurred during the entire prescriptive period.
Plaintiffs are owners of approximately 160 acres of land in Amboy Township, Lee County (the Schultz property). Defendant owns a tract of land of approximately 160 acres, adjacent to and immediately west of plaintiffs' land (the Kant property). The two properties are separated by a fence. To the west of defendant's property is Morgan Road. The Green River bisects both the plaintiffs' and defendant's property with plaintiffs owning approximately 27 acres of land south of the river. The river, where it crosses plaintiffs' and defendant's property, is located within the Maple Grove Drainage District and is approximately 50 feet in width with steep banks and between 2 and 10 feet in depth, depending upon the area of the river, the season, and the rainfall.
In 1952 plaintiffs began renting the property, which they subsequently purchased in 1973 from the heirs of Ned and Howard Green. From 1952 to 1954 the plaintiffs rented their property south of the Green River to Weldon Conderman to pasture cattle. From 1954 to 1976 the plaintiffs used that same area of land as pasture. From 1976 to 1983 the plaintiffs rented that same property to Howard Hageman, a brother-in-law of plaintiff John Schultz, who used the property for recreation and a camp and trailer site.
From 1954 to 1984 plaintiffs traveled from Morgan Road east across defendant's property immediately south of and adjacent to the Green River to their own 27-acre parcel of land south of the Green River by means of a single-lane gravel and dirt roadway. Plaintiffs used the roadway as often as the need arose for purposes of checking the field tile south of the river, maintaining and repairing fences on the southerly 27 acres, and checking cattle pastured on that acreage. Additionally, plaintiffs' children used this parcel of land for fishing, hunting, riding recreational vehicles, and general recreation. Testimony at trial by John Schultz and his son indicated that the roadway constituted the only means of access to their property south of the Green River. The testimony also showed that plaintiffs never sought permission from defendant or his predecessor in title, Beulah True, to use the roadway.
The Kant property was farmed by Weldon Conderman, as a tenant of Beulah True, from 1952 to 1964. From 1964 to 1982 defendant rented the property from Beulah True, and from 1982 to 1983 J.R. Lyons rented it. In 1984 defendant purchased the property. Defendant's property south of the Green River consisted of a nine-acre till-able field along Morgan Road and another parcel of land to the east, which could be cultivated but seldom produced a decent crop because of the swampy condition of the land.
In 1964 the Maple Grove Drainage District hired a contractor to dredge and straighten the banks of the Green River where it passed through plaintiffs' and defendant's property. The contractor deposited sand and gravel from the river bottom onto the roadway. In 1977 Howard Hageman had gravel hauled onto the roadway and placed in the low spots. Hageman never sought defendant's permission to take this action.
In April 1984 defendant destroyed the roadway by plowing it under to utilize more land for growing crops. As a result, plaintiffs brought an action for easement by prescription over the destroyed roadway. After a bench trial the trial court found that the plaintiffs' use of the roadway was adverse, exclusive, continuous and uninterrupted, and under a claim of right for a period of more than 20 years. Additionally, the court found that plaintiffs' use of the roadway was with the knowledge and acquiescence of defendant and his predecessors in interest but without their permission. Accordingly, the court found that the plaintiffs owned a right-of-way easement by prescription 12 feet in width, immediately south of and adjacent to Green River and extending from Morgan Road easterly across the defendant's property to the plaintiffs' property.
• 1, 2 It is well established that to acquire an easement by prescription a claimant must show that the use of the land was adverse, exclusive, continuous and uninterrupted, and under claim of right for a period of at least 20 years. (Healy v. Roberts (1982), 109 Ill. App.3d 577, 579, 440 N.E.2d 647.) The party claiming the prescriptive right bears the burden of proving its existence (Light v. Steward (1984), 128 Ill. App.3d 587, 596, 470 N.E.2d 1180), and the establishment of a prescriptive easement is almost always a question of fact, especially with regard to whether a use is adverse or permissive (Keck v. Scharf (1980), 80 Ill. App.3d 832, 835, 400 N.E.2d 503). In the instant case, the only element concerning proof of a prescriptive easement which defendant puts at issue in his brief is whether plaintiffs' use of the roadway over defendant's land was adverse or permissive.
• 3 Where it is shown that a way has been used openly, uninterruptedly, continuously, and exclusively for more than 20 years and the origin of the way is not shown, a rebuttable presumption of an adverse right or grant is created from the long acquiescence of the party upon whose land the way is located. (Leesch v. Krause (1946), 393 Ill. 124, 129, 65 N.E.2d 370.) However, the facts to admit of such presumption are not presumed but must be established by the greater weight of the evidence. (Rush v. Collins (1937), 366 Ill. 307, 315, 8 N.E.2d 659.) Here, defendant claims that the plaintiffs failed to prove an open use of the roadway and also failed to establish that no origin of the way was shown. These are the only elements for a presumption of a grant or adverse right which defendant challenges in this appeal. Accordingly, we assume that defendant does not disagree with the trial court's findings that plaintiffs' use of the roadway was uninterrupted, continuous, and exclusive.
• 4, 5 Defendant asserts that to prove open use of the roadway in question plaintiffs had to show that the manner, character, and frequency of the use and the situation of the parties were such that knowledge of an adverse claim by the defendant may be inferred. Defendant maintains that plaintiffs' use never rose to a level where it could be considered open so that defendant's knowledge of the use could be inferred. We believe the evidence does not support this claim.
Defendant's testimony evidenced that he was extremely familiar with the areas surrounding his property and plaintiffs,' having lived, worked, and farmed in the area since 1937. Additionally, defendant testified that, as a commissioner of the Maple Grove Drainage District, he had walked the Green River, had traveled down it by boat on several occasions, and even had flown over it. On these occasions, which occurred at least annually, defendant would tour the entire length of the Green River. As plaintiffs point out to this court, such familiarity with the area surrounding the Green River raises an inference that defendant knew of the existence of the roadway from Morgan Road along the south bank of the ...