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06/10/87 Granite Properties Limited v. Larry R. Manns Et Al.

June 10, 1987





512 N.E.2d 1230, 117 Ill. 2d 425, 111 Ill. Dec. 593 1987.IL.776

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Charles Romani, Judge, presiding.

Rehearing Denied October 5, 1987.


JUSTICE RYAN delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.


The plaintiff, Granite Properties Limited Partnership, brought this suit in the circuit court of Madison County, seeking to permanently enjoin the defendants, Larry and Ann Manns, from interfering with the plaintiff's use and enjoyment of two claimed easements over driveways which exist on the defendants' property. One driveway provides ingress to and egress from an apartment complex and the other to a shopping center. Both the apartment complex and the shopping center are situated on the plaintiff's property. Following a bench trial, the circuit court entered judgment against the plaintiff and in favor of the defendants as to both claimed easements. Following argument of the plaintiff's post-trial motion, the circuit court granted permanent injunctive relief as to the claimed apartment complex easement, but reaffirmed its decision denying the claimed shopping center easement. Both parties appealed from that portion of the judgment adverse to them. The appellate court, with one Justice Dissenting, held that the plaintiff was entitled to easements by implication over the driveways in question. (140 Ill. App. 3d 561.) We granted the defendants' petition for leave to appeal (94 Ill. 2d R. 315).

The relative location of the subject properties and the claimed easements may be seen by reference to the following rough diagram adapted from the defendants' petition for leave to appeal.

As indicated, the parcels which are the subject of this appeal are adjoining tracts located to the south of Bethalto Drive and to the north of Rou des Chateaux Street in Bethalto, Illinois. The plaintiff and its predecessors in title owned all of the subject properties from 1963 or 1964 until 1982, at which time the parcel labeled "B" was conveyed by warranty deed to the defendants. The plaintiff currently owns the parcels labeled "A" and "E," which are on the opposite sides of parcel B. The shopping center situated on the parcel designated "A" extends from lot line to lot line across the east-west dimension of that property. To the north of the shopping center is an asphalt parking lot with approximately 191 feet of frontage on Bethalto Drive. To the east of the shopping center on the parcel labeled "D" is a separately owned health club. To the south of parcel A on the parcel denominated "C" are five four-family apartment buildings. The distance between the back of the shopping center and the property line of parcel C is 50 feet. The shopping center's underground utility facilities are located in this area. An apartment complex, known as the Chateau des Fleurs Apartments, is located on the parcel labeled "E." Both of the plaintiff's properties were developed prior to the time parcel B was sold to the defendants. Parcel B remains undeveloped.

The first claimed easement provides access to the rear of the shopping center which is located on parcel A. The center, which was built in 1967, contains several businesses, including a grocery store, a pharmacy, and doctors' offices. The rear of the center is used for deliveries, trash storage and removal, and utilities repair. To gain access to the rear of the shopping center for these purposes, trucks use a gravel driveway which runs along the lot line between parcel A and parcel B. A second driveway, located to the east of the shopping center on parcel D, enables the trucks to circle the shopping center without having to turn around in the limited space behind the stores.

Robert Mehann, the owner of the Save-A-Lot grocery store located in the shopping center, testified on direct examination that groceries, which are delivered to the rear of the store, are loaded by forklift on a concrete pad poured for that purpose. Mehann indicated that there are large, double steel doors in the back of the store to accommodate items which will not fit through the front door. Mehann testified that semitrailer trucks make deliveries to the rear of the grocery store four days a week, with as many as two or three such trucks arriving daily. An average of 10 to 12 trucks a day, including semitrailer trucks, make deliveries to the grocery store. Mehann further explained on direct examination that because the area behind the Save-A-Lot building extends only 50 feet to the rear property line, it would be difficult, if not impossible, for a semitrailer truck to turn around in the back and exit the same way it came in. In response to a question as to whether it would be feasible to have trucks make front-door deliveries, Mehann suggested that such deliveries would be very disruptive; pallets that would not fit through the front door would have to be broken down into parts, requiring extra work, and there would not be adequate space in the front of the store to do such work during business hours. Mehann admitted on cross-examination that he had not investigated the cost of installing a front door which would be big enough for pallets of groceries to be brought in by forklift. Further cross-examination revealed that there would not be enough space to manipulate the forklift around the front of the store, although it could be run between the shelves of food to the back of the store.

Also called as a witness for Granite Properties Limited Partnership was Darrell Layman, a limited partner. Layman noted that the shopping center had been in continuous operation since 1967 and that the pattern for deliveries had always been to the rear of the individual stores. 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 in," Layman responded, "That would be impossible." On cross-examination, however, Layman admitted that, although it was very difficult, he had seen semitrailer trucks exit the same way they came in. Layman also acknowledged on cross-examination that he had not investigated the cost of expanding the size of the front doors of the building. He also claimed that it "would seem impossible" to him to put in any kind of a hallway or passageway which would allow equipment to bring supplies into the stores from the front. On redirect examination, Layman explained that the delivery trucks follow no set schedule and, therefore, their presence may overlap at times. He stated that he had seen as many as four or five delivery trucks backed up. Layman opined that there was "no way" the trucks could back up and turn around when there were multiple trucks present.

The other claimed easement concerns ingress and egress over a driveway which leads into the parking area of the apartment complex situated on parcel E. The complex, which was erected in the 1960's prior to the conveyance of parcel B to the defendants, consists of three buildings containing 36 units. The parking lot, which is situated to the rear of the buildings, provides 72 parking spaces. The only access to the parking lot is by a driveway from Rou des Chateaux, a public street located to the south of the properties. The driveway, which cuts across a small panhandle on the southwestern corner of parcel B, has been in existence since the apartment complex was constructed. The terrain around the apartment complex is flat, including the area in front of the buildings along Prairie Street to the west.

Limited partner Darrell Layman testified at trial that if the area in front of the apartment complex, measuring 300 feet along Prairie Street and 30 feet deep, were to be converted into a parking lot, then there would be room for only 30 parking spaces. He admitted on direct examination that he had not investigated the cost of rocking or asphalting this area for that purpose. Although there was a distance of 20 feet between the apartment buildings, Layman opined that it would not be enough "usable space" to accommodate a driveway from Prairie Street to the existing parking lot because such driveway would interfere with stairways which lead to the basement apartments. Although he admitted that he did not investigate the cost of installing a driveway either between the buildings or adjacent to the end building on the north, Layman concluded that, based on his experience in the layout and design of apartment buildings, "it would be a dangerous situation" for the tenants of the apartments if a driveway were to be run between the ...

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