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10/21/87 Mid-City National Bank, As v. C. A. Hemphill &

October 21, 1987

MID-CITY NATIONAL BANK, AS TRUSTEE, PLAINTIFF-APPELLANT

v.

C. A. HEMPHILL & ASSOCIATES ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

516 N.E.2d 460, 163 Ill. App. 3d 15, 114 Ill. Dec. 305 1987.IL.1570

Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

This appeal arises out of the trial court's denial of plaintiff's motion for a preliminary injunction. Plaintiff sought, pursuant to an alleged implied easement, to restrain defendants from interfering with plaintiff's use of a driveway which runs in part over land owned by defendant Patricia Pell. After hearings on plaintiff's motion, the court denied the motion and, upon defendant's oral motion for summary judgment and by agreement of the parties, entered a final judgment on the record established at the hearings.

On appeal plaintiff raises the following contentions: (1) an easement by implication and operation of law was established upon the 1977 severance of the ownership of the property; (2) plaintiff's access to Hazel Avenue, via a northern route from plaintiff's property, is immaterial to its rights in the alleged easement to Linden Avenue, accessible via a southern route from plaintiff's property over the land of defendant; (3) the rights of the owners of lot 1 (plaintiff's land) and lot 3 (defendant's land) vis-a-vis the implied easement over the subject driveway were fixed at the time of severance of the lots.

For the reasons stated below, we affirm the judgment of the circuit court of Cook County.

The evidence at trial indicated the following. Plaintiff Mid-City National Bank, as land trustee, is the legal owner of the property located at 390 Hazel Avenue, Highland Park, Illinois, which, for convenience, the parties have referred to as "Lot 1." Ralph Mantynband is the owner of the beneficial interest in the land trust, and has resided on lot 1 since 1984. From 1924 until 1977, Benedict and Irene Goodman owned the property which included lots 1 and 3. In 1977, title to the Goodman's property was separated and the land was subdivided into lots 1, 2, and 3. Lot 1 was conveyed to Mr. and Mrs. Berger. Plaintiff is the purchaser from the Bergers. Defendant Patricia Pell purchased lot 3 in 1986 from a grantee who intervened in the ownership of the property after the initial severance of lots 1 and 3.

Defendants Patricia Pell and Kenneth Pell are married. Patricia Pell is the owner of lot 3, which has the address of 1653 Linden Avenue, Highland Park, Illinois. Lot 3 is immediately adjacent to and south of lot 1, plaintiff's property. The Pells retained defendant C. A. Hemphill & Associates as a building contractor to build a house on lot 3. The house would be the first improvement on lot 3. Coincidentally, defendant Patricia Pell is the granddaughter of the original grantors of the land, Benedict and Irene Goodman.

The Pells have notified plaintiff that, upon completion of the construction of the house, they plan to remove the paved asphalt driveway on their property to reforest that area. It is over the driveway on lot 3 that plaintiff has claimed an easement. Currently, the driveway runs through both lots 1 and 3. Around December 1, 1986, the defendant contractor blocked the part of the driveway located on lot 3 by placing a portable outhouse and bales of hay in the driveway and placing a snow fence across the driveway. Defendant's actions prohibited access over the driveway from Linden Avenue to lot 1, which is plaintiff's property.

The driveway on lot 1 has access in a northerly direction to Hazel Avenue, an east-west street that lies north of lot 1. The access to Hazel Avenue lies just east of the intersection with Linden Avenue, a north-south street that lies west of lots 1 and 3. The driveway runs from Hazel Avenue roughly parallel to Linden Avenue and enters lot 3 (the Pell property) south of lot 1's south lot line. The driveway runs through lot 3 in a southerly direction and then turns west to the western border of lot 3, where it accesses Linden Avenue. The driveway is about two car widths wide.

Several witnesses testified at trial regarding the use of lot 1 and the driveway. Witnesses included defendant Patricia Pell; Ralph Mantynband, the resident of lot 1; Penny Hirsch, a neighbor who lives nearby the subject property; and Michael Harper, an operations manager for North Shore Waste Control, a company that controls garbage pickup in Highland Park, including lot 1. Their testimony indicated the following.

The driveway in question has been in use since 1928. The driveway crosses a shallow ravine at the southern border of lot 1, where it is improved with a flagstone bridge, 10 feet wide and about 9 feet long. The southern part of the bridge is on lot 3 and the northern part, nearly the entire bridge, is located on lot 1. In order to reach Linden Avenue from the driveway on lot 1, a person must cross the bridge over the ravine. The entire driveway, including the part on lot 1 and the part on lot 3, was last paved in 1949.

The driveway extends about 200 feet from the front of the house and about 250 feet from the back of the house on lot 1 to the Hazel Avenue entrance. The distance to the rear of the house from the Linden Avenue exit is about 100 feet. Plaintiff points out that access from Linden Avenue to the rear of the house is without an incline up to the second-floor level, while access from the rear of the house (the garage) ...


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