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07/28/87 James A. Seiber Et Al., v. Alice Lee

July 28, 1987

JAMES A. SEIBER ET AL., PLAINTIFFS-APPELLANTS

v.

ALICE LEE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT 1987.IL.1074

511 N.E.2d 1296, 158 Ill. App. 3d 361, 111 Ill. Dec. 1

Appeal from the Circuit Court of St. Clair County; the Hon. Milton Wharton, Judge, presiding

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Plaintiffs, James A. Seiber and Erma I. Seiber, brought suit requesting a declaratory judgment and a permanent injunction against defendant, Alice Lee, who they alleged was obstructing their use of an implied easement over her property. Defendant denied the existence of the implied easement. The trial court concluded, after hearing all the evidence, that plaintiffs failed to prove their right to an easement and denied plaintiffs the relief they requested. From that order, plaintiffs appeal.

The evidence established that the defendant, Alice Lee, and her husband, Charles Lee, purchased the northwest quarter of the northwest quarter of section 9, township 2 north, range 8 west, of the third principal meridian, St. Clair County, Illinois, in the mid-1940s. The following diagram, adapted from defendant's exhibit No. 1, is included and made a portion of this opinion. (The northwest quarter of the northwest quarter is denoted in the diagram as parcel "A.")

At the outset we note that in reviewing the trial court record, much of the testimony in the transcript concerning the alleged easement is not helpful to the court on review because the witnesses often responded merely by indicating on an exhibit a location described only as "here" or "there" or "this," and the parties' attorneys made no effort to cause the record specifically to indicate what was being described. We have nevertheless attempted to ascertain the routes taken by the various easements referred to in the testimony and have indicated them as best as possible on the diagram.

The evidence established that Charles Lee and Alice Lee, as their means of ingress and egress, had access to their land (parcel A) by means of a 16.5-foot-wide road which had been established as far back as 1882. That road continues to exist and was enlarged to a 50-foot-wide easement by deed from the defendant, Alice Lee, and her husband to a Billy Chessor in 1979. The language in the deed provided that the 50-foot-wide easement was to include the 16.5-foot area of the previously existing easement. (This easement extends in a generally north and south direction and is illustrated on the diagram and labeled "50-foot easement.")

The evidence also established that in September of 1954 the defendant, Alice Lee, and her husband, Charles Lee, acquired from Illinois State Trust Company an 8-foot-wide easement to access their land (parcel A) from the east. The evidence at trial revealed that no road was ever built to follow this easement and the parties simply referred to this easement as a "paper easement." This 8-foot-wide easement was recited to be:

". . . over a strip of land Eight (8) feet wide, being the extension Westwardly of the South eight (8) feet of Southern Drive, as shown on the plat of 'First Addition to Brooksfield Subdivision, part of Lot 2 N.E. 1/4 of Section 9, T. 2 N.R. 8 W. 3 P.M., St. Clair County, Illinois', reference being had to the plat thereof recorded in the Recorder's Office of St. Clair County, Illinois, in Book of Plats 52 on page 13, and following the crest of a ridge over said Lot numbered Two (2) in the Northeast Quarter (1/4), and over the East one-half (1/2) of the Northwest Quarter (1/4); all in Section numbered Nine (9), Township Two (2) North, Range Eight (8) West of the Third Principal Meridian, to its terminus where it will intersect the East line of the Northwest Quarter (1/4) of the Northwest Quarter (1/4) of said Section Numbered Nine (9).", Defendant argued at trial and in her brief that this easement follows the course as illustrated on the diagram and labeled "Illinois State Trust Co. easement."

Charles Lee and Alice Lee purchased an additional triangular-shaped 11.03 acres in the northeast corner of the southwest quarter of the northwest quarter in 1957 immediately to the south of the eastern portion of the 40-acre parcel (parcel A). In 1975, they purchased an additional rectangular tract containing five acres lying immediately to the east and contiguous to the 11.03-acre triangular-shaped tract. (The 11.03-acre parcel is labeled "B" and the five-acre parcel is labeled "C" on the diagram.)

The evidence indicated that since 1946 the defendant, Alice Lee, and her husband owned the 40-acre tract and had occupied a residence located on the tract. Sometime in the mid-1950s, Charles Lee and Bill Lee, his son, built a driveway to reach their home located on the 40-acre tract. This driveway was an extension of Southern Drive, a roadway which led to other roads which in turn connected to Hollywood Heights Road, the main thoroughfare between Illinois Routes 159 and 157. (This driveway is illustrated in the diagram with a heavy line and is labeled "disputed easement.") The driveway entered the five-acre tract (parcel C) from its east line and crossed its north line onto property owned by Jo Ann Lee and Bill Lee (labeled as parcel "D"). Bill Lee is the son of the defendant, and Jo Ann Lee is the daughter-in-law of the defendant. The driveway then continued to the east line of the southwest quarter of the northwest quarter, where it crossed the corner of the quarter section and entered the northwest quarter of the northwest quarter at the south line.

In 1979 Charles Lee and Alice Lee began residing in a mobile home next to the driveway on the five-acre tract (parcel C). Charles Lee built a workshop next to the driveway and a garage was also constructed. The driveway was closed off with a gate (location labeled on diagram) where it joined Southern Drive. Although the exact date the gate was constructed and installed is unclear from the evidence, the testimony did indicate that it was built and installed by Charles Lee and therefore would have been in place before October of 1980 inasmuch as Charles Lee died on October 27, 1980.

The evidence also indicated that in 1979 when Charles Lee and Alice Lee began residing in the mobile home on the five-acre tract, the residence on the northwest quarter of the northwest quarter (parcel A) became occupied by an Art Smith. The 16.5-foot wide road was in use at that time since the evidence indicated that Charles Lee and Art Smith fixed up the road so that Smith could use it to go in and out of the property.

On July 12, 1979, Charles Lee and Alice Lee conveyed the northwest quarter of the northwest quarter (parcel A) to a Billy Chessor with "all easements of any kind, including easements of egress and ingress, that are owned by the grantors." The same deed increased the 16.5-foot-wide easement to a 50-foot-wide easement over that portion of the southwest quarter of the northwest quarter that was owned by Charles Lee and Alice Lee. An all-weather road was built by Billy Chessor over the easement and road, and it was traveled by him for three successive years with all kinds of heavy equipment. He referred to this road as the "lower road" and the driveway as the "upper ...


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