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01/13/89 James Delgado Et Al., v. James E. Wilson Et Al.

January 13, 1989

JAMES DELGADO ET AL., PLAINTIFFS-APPELLANTS

v.

JAMES E. WILSON ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 969, 178 Ill. App. 3d 634, 127 Ill. Dec. 887 1989.IL.27

Appeal from the Circuit Court of Kane County; the Hon. Michael Colwell, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH, J., concurs. JUSTICE DUNN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiffs, James and Ofelia Delgado, appeal from an order of the trial court which permanently enjoined them from interfering with or obstructing a driveway easement granted to the defendants, James and Betty Wilson. On appeal, plaintiffs contend that the trial court misconstrued the language in the grant in determining the use limitations of defendants' easement.

On March 26, 1980, plaintiffs signed an installment agreement to purchase the north half of lot 4 in block 1 of South Elgin Addition to Elgin, which was improved with a residence known as 702 Raymond Street. The front portion of this property had a frontage of 31.67 feet on the west side of Raymond Street, and the depth was 132 feet and extended along the south side of Hasting Street. A garage is located on the westerly portion of this parcel which had an entrance from Hasting Street on the north. The plaintiffs have never lived at 702 Raymond Street but have rented their property to various tenants.

The defendants purchased the south one-half of lot 4 in block 1 of South Park Addition to Elgin in 1969, which property was improved with a dwelling known as 704 Raymond Street; this property also had a frontage of 31.67 feet on the west side of Raymond Street and had a depth of 132 feet; it was immediately adjacent to and south of the property of the plaintiffs.

On September 17, 1892, plaintiffs' predecessor in interest expressly granted a driveway easement to defendants' predecessor in interest. According to the deed, the easement was described as:

" A right of way to be used as a driveway over and upon a part of the north one half (1/2) of Lot four (4) of Block one (1) of South Park Addition to Elgin, Kane County, Illinois, being a right of way upon a strip of land five (5) feet in width (north and south) and extending lengthwise from the west line of Raymond Street and along the dividing line between the north one half (1/2) and the south one half (1/2) of said Lot four (4) west sixty six (66) feet." (Emphasis added.)

Over the years, both defendants and plaintiffs' tenants have parked cars on the area comprising defendants' easement and the concrete driveway in such a manner that the easement has been obstructed. On February 6, 1987, plaintiffs filed a two-count complaint seeking injunctive relief against defendants. Count I alleged that defendants' conduct of parking cars on the easement obstructed plaintiffs from freely moving over the easement. Count II alleged that defendants erected a fence which encroached 7 1/2 feet onto plaintiffs' property and that defendants damaged the foundation of the concrete driveway when they attempted to repair their easement. Count II is not at issue on appeal. On March 16, 1987, defendants filed an answer to plaintiffs' complaint and a petition for a preliminary injunction against plaintiffs. Defendants' petition alleged that plaintiffs parked their cars on defendants' easement in such a manner that defendants were prevented from the use and enjoyment of their easement.

The driveway at issue in this case is improved with concrete. The concrete is located on the north portion of the defendants' property for a width of approximately 4.97 feet and runs from the west side of Raymond Street in a westerly direction for a distance of approximately 65 feet to a wire fence. At the west line of Raymond Street, the concrete driveway has a width of 8.15 feet, of which 3.18 feet is on plaintiffs' parcel and 4.97 feet is on defendants' parcel. Approximately 13 feet west of Raymond Street, the concrete on plaintiffs' parcel widens from 3.18 feet to 8 feet. The concrete ends approximately 65 feet west of Raymond Street where defendants' easement terminates, at which point a wire fence (north-south fence) has been erected which extended from the southwest corner of plaintiffs' house southerly across the end of the driveway to the defendants' house; also, the plaintiffs have constructed another wire fence that runs westerly along the south line of their property for a distance of approximately 65 feet to the west line of plaintiffs' parcel. The defendants do not have a garage on their property. Furthermore, the distance between the north-south fence just described along plaintiffs' south line and the defendants' dwelling is not of sufficient width for a vehicle to enter into the west 66 feet of defendants' parcel. The north-south fence also was a barrier to access by motor vehicle to the rear of plaintiffs' lot from the concrete driveway, as there is only six feet from plaintiffs' dwelling to the wire fence extending west; counsel for both parties advised the court that that part of the north-south fence has been torn down.

Exhibit A is a diagram reproduced and enlarged for the purpose of clarity from plaintiffs' exhibit 1, which is a survey dated November 13, 1984. This exhibit A sets forth the location of the dwellings, plaintiffs' garage, the concrete driveway between the two dwellings, and the two wire fences described above. It should be noted that this exhibit portrays the lot line between the properties of the plaintiff and the defendant by a black line. There is no showing on this exhibit exactly where the north line of defendants' easement is located on the concrete driveway; however, defendants' group exhibit No. 6 contains six pictures of the concrete driveway between plaintiffs' and defendants' dwellings. Three of these photos show a red electric cord located about three feet south of the house on plaintiffs' property which would be the approximate location of the north line of defendants' easement; also, three other photos in defendants' group exhibit No. 6 show the same area with the same red electric cord positioned at approximately the location of the line between the plaintiffs' and defendants' properties. Over the years, defendants and plaintiffs' tenants have parked cars on the concrete driveway which includes the area comprising the defendants' easement.

On the basis of the foregoing facts and on the basis of the survey being plaintiffs' exhibit 1, it is obvious that a car stopped or parked on the concrete drive between the two dwellings would block the use of the driveway west of or beyond the point where the car is stopped or parked, and conversely, if two cars were stopped or parked on the driveway, the one further to the west could not exit east from the driveway onto Raymond Street. It is further apparent that plaintiffs or their tenants cannot enter onto and use the concrete portion of the driveway from Raymond Street for a distance of 13 feet without being on defendants' property. If plaintiffs should increase the width of the concrete by five feet on their property at Raymond Street, then they could enter the north eight feet of the driveway without encroaching on defendants' ...


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