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07/29/87 Paul W. Drew Et Al., v. Noel Whittington Et Al.

July 29, 1987





511 N.E.2d 928, 158 Ill. App. 3d 387, 110 Ill. Dec. 751 1987.IL.1082

Appeal from the Circuit Court of Franklin County; the Hon. Terrence J. Hopkins, Judge, presiding.


JUSTICE LEWIS* delivered the opinion of the court. KARNS, P.J., and KASSERMAN, J., concur.


Plaintiffs Paul and Glenda Drew brought this action alleging that they had acquired a prescriptive easement in an oil lease road that ran across the property of the defendants, Noel and Irene Whittington. The plaintiffs claimed the right to use this road in order to gain access to their property that lay adjacent to the defendants' property. Following a grant of summary judgment in favor of the defendants, this court, in an unpublished order (Drew v. Whittington, No. 5-84-0711), reversed the grant of summary judgment and remanded the cause to the circuit court for trial. At trial the defendants moved for judgment at the close of the plaintiffs' case. (See Ill. Rev. Stat. 1985, ch. 110, par. 2-1110.) The trial court granted the defendants' motion and specifically found that the plaintiffs had failed to prove that the plaintiffs' use of the road was exclusive as required to establish prescriptive easement. On appeal from the trial court's judgment, the plaintiffs contend that the court erroneously found that the plaintiffs' use of the road was dependent upon the oil company's use and thus was not exclusive under the law of prescriptive easement. We affirm.

The plaintiffs and the defendants own adjacent tracts of farmland located in Franklin County, Illinois. Plaintiff Paul Drew testified that he had acquired title to the property in 1974 from his father, who had owned the land since 1922. Defendant Noel Whittington had first purchased his property, which adjoins Drew's property on the east, in 1964, and had then sold the property and reacquired it in 1972. In the mid-1950s an oil lease road was built across the defendants' property to service oil wells on both tracts of land, and the plaintiff and his father had used the road since that time to gain access to their property for farming purposes. The defendant destroyed the lease road in 1981, and the plaintiffs subsequently filed suit to establish a prescriptive easement in the road.

At trial defendant Whittington testified that he had known when he purchased his property in 1964 that the plaintiff had been using the road to gain access to his property. Whittington had never given the plaintiff permission to use the road or tried to stop him. On several occasions he had seen the plaintiff use the road in order to tend the crops planted on the plaintiff's property.

There were two other roads leading to the plaintiff's property. One, the Baptist Camp Road, was used in the 1940s but went into disrepair after 1955. The other was a private road belonging to a neighboring farmer, who had given the plaintiff oral permission to use his road after the defendant had destroyed the oil lease road in 1981. From 1964 until he had destroyed the road in 1981, the defendant had never seen the plaintiff gain access to the plaintiff's property by any other means than the oil lease road across the defendant's property.

Whittington testified that the oil people had ceased to operate the wells on his and the plaintiff's property and had stopped using the lease road some two to three years before Whittington had destroyed the road. The plaintiff had continued to use the road during the two-to three-year period. Some of the oil wells had been shut down prior to that time except for one well on the defendant's property, which had been reactivated.

Whittington testified further that in a conversation with the plaintiff in the early 1970s, he had told the plaintiff that he would be glad when the oil wells quit because he wanted to "tear up" the lease road. According to Whittington, the plaintiff had responded, "I was afraid of that," and had made no objection. At that time Whittington had neither told the plaintiff that he wanted the plaintiff to stop using the road nor that he could go on using the road. Whittington had not contacted the plaintiff before destroying the road in 1981 because he had not thought it was necessary to do so.

Plaintiff Paul Drew testified that he had used the oil lease road approximately 40 to 50 times a year from 1955 until it was destroyed by the defendant in 1981. He had felt like he had a right to use this road because he "knew you couldn't be landlocked" and there was no other way to get to his property.

The defendant objected to a question by plaintiff's counsel as to whether anyone else had used the road besides the plaintiff, and the trial court sustained the objection after the defendant stipulated that the road had been used by the oil people to service oil wells.

On cross-examination the plaintiff testified that he had never told the defendant prior to 1981 that he claimed the right to use the road, stating, "I never had to. I just used it." The plaintiff admitted that he had not built the road or performed any maintenance on it and stated that he was aware that the oil lease road had been built by "the oil companies" to service oil wells on the property. He testified upon repeated questioning that he did not recall the conversation ...

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