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March 23, 1994


Appeal from the Circuit Court of Lake County. No. 91-CH-242. Honorable John G. Radosevich, Judge, Presiding.

Doyle, Colwell, PECCARELLI

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, Rosemary Johnson, appeals the circuit court's order denying her petition for a rule to show cause against defendants, Mark and Erin Godonis. The order effectively permits defendants to maintain a fence across a strip of land upon which plaintiff has an easement for ingress and egress. On appeal, plaintiff contends that the court erred in applying to this residential setting case law designed to protect farm animals. Alternatively, plaintiff contends that if a fence is to be permitted, it must have at least two gates to permit plaintiff adequate access to the channel and that only a chain-link fence should be permitted.

This case involves property located on a channel leading to Grass Lake in the Chain 0' Lakes region. Plaintiff owns a house located on lots 3 and 4 in Jackson's Park subdivision. She and her husband purchased the lots in 1961. Since then, the Johnson family has kept a rowboat and maintained a pier in the channel. Defendants own lots 5 and 6 in the same subdivision.

Plaintiff's and defendants' lots are separated by a private road running east to west and leading from the public street to the channel. Apparently, the channel is T-shaped, running generally north to south directly east of the parties' lots. A branch of the channel runs east to west, connecting the north-south branch with Grass Lake. The east-west portion of the channel nearly runs into the private road.

All four lots in question are separated from the channel by a narrow strip of land. At some point defendants acquired title to this narrow strip. They then put up "No trespassing" signs, prevented plaintiff from launching her boat, and threatened her with arrest if she or her family entered the property. Plaintiff's son was arrested for trespass to land.

Plaintiff filed a complaint seeking to quiet title to the strip in her name. Following trial, the court rejected plaintiff's contention that she had acquired fee simple title to the disputed property. However, the court declared that she had an easement by virtue of covenants in the deeds given by the subdivision's developer to the original purchasers. The relevant covenant language provides:

"And for the consideration aforesaid, the grantors hereby convey and warrant to the party of the second part a right of way easement and privilege and authority to second party to use along with others such right of ways as may from time to time be granted them by the parties of the first part to a certain channel and channels to be hereinafter constructed into Grass Lake together with the right to use with others a frontage on the ditch for landing of boats, Grantors expressly reserving the right to change the said right of ways and place for landing boats above mentioned providing some other reasonable landing place for boats is made."

The court declared that plaintiff has an implied easement for access and egress across the property leading to the channel to Grass Lake for the landing of boats and to maintain a pier. The judgment required plaintiff to remove the pier she maintained in front of lot 4, but permitted her to erect a pier in front of lot 3. The court also ordered plaintiff to remove a grape arbor from the disputed strip and prohibited the parties from interfering with each others' rights as declared in the judgment. Finally, the judgment provides that defendants are the holders of fee title to the property and "shall have the right to maintain all of said property and they shall not take any action that would impair or impede the right of access across the easement."

The court entered the judgment October 2, 1992, and no appeal has been taken therefrom. On October 21, 1992, plaintiff filed a petition for a rule to show cause why defendants should not be held in contempt of court. The petition alleged that defendants intended to build a fence along the front of plaintiff's property.

Defendants filed a response in which they admitted intending to put up a fence. They denied any intent to deny plaintiff access to the channel, stating that they intended to put in a gate.

After hearing the parties' arguments and considering evidence consisting of photographs and diagrams demonstrating plaintiff's lines of sight from her house toward the channel, the court denied the rule to show cause. The court held that defendants could erect a five-foot solid wood stockade fence, provided that they installed a gate at least six feet wide somewhere in front of lot 3.

Plaintiff perfected this appeal. Plaintiff primarily contends that the court erred in finding that the fence was a reasonable restriction on her right of access to the channel. She maintains that the court erred by relying on "ancient caselaw" developed in an agricultural setting and intended for the protection of crops and livestock. Plaintiff relies on more recent cases holding that the placement of a ...

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