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June 7, 1994


Appeal from the Circuit Court of Cook County. The Honorable David Shields and Monica Reynolds, Judges, Presiding.

Rehearing Denied July 21, 1994. Released for Publication August 2, 1994. Petition for Leave to Appeal Denied December 6, 1994.

DiVito, Scariano, Hartman

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

Plaintiffs Frederick P. and Janet S. Seymour filed this action for declaratory judgment and injunctive relief alleging that defendants Robert W. and Katherine B. Stotler, their neighbors, were impermissibly interfering with their right to use two easements on defendants' property. In an agreed order, the circuit court granted plaintiffs' motion for summary judgment on defendants' affirmative defenses of laches, non-use, abandonment, and estoppel. It later granted plaintiffs summary judgment on the defense of merger as well, but it denied summary judgment on the defense of impossibility of use. The court also denied plaintiffs' subsequent motion to clarify that the only remaining issue for trial was impossibility of use. At the close of defendants' case in chief on their affirmative defenses, the circuit court ruled in plaintiffs' favor, ordering defendants to remove a wrought iron fence and gate from the easements, to remove plantings placed by them in the easements that obstructed plaintiffs' access, and to allow plaintiffs to use the easements. Defendants ask for vacatur of the order granting summary judgment for plaintiffs on the issue of merger, and for a trial on that issue. Defendants also ask that the final judgment be reversed, or, alternatively, vacated and remanded for a new trial. At the very least, they claim, we must remand for clarification of the relief ordered. *fn1 We affirm.

Plaintiffs have owned and resided at 303 Sheridan Road (Lot 3) inWinnetka since 1963; defendants have resided since 1982 at 301 Sheridan Road (Lots 1 and 2). *fn2 Defendants' property is bordered by plaintiffs' property on the west and Lake Michigan on the east; there is a bluff at the eastern end of the property, overlooking the lake. Running along the south lot lines of the parties' properties is Elder Lane Park (the Park), which is owned by the Winnetka Park District (the Park District).

The lots at issue were created in 1924 by a subdivision of a piece of property. This subdivision created two easements running east-west between the lake and Sheridan Road: a 20-foot easement across Lots 2, 3, and 4 for roadway, sidewalk, and utility uses, and a three-foot easement across Lot 1 for lake access (collectively, the easements). *fn3 In 1970 or 1971, the owners of 303 and 301 Sheridan Road, then plaintiffs and the family of Mr. Seymour's brother, *fn4 respectively, erected a chain link fence to separate the Park from their properties; this fence is located mostly south of the southern property line of Lot 1. Defendants have planted shrubs and made other improvements within the two easements; across the 20-foot easement, they also have erected a wrought iron fence with a locked gate. Defendants denied plaintiffs any access through the locked gate but permitted them access through a separate, unlocked gate to the south of the wrought iron fence. According to the survey, this gate is partly on the easement across Lot 1 and partly on the adjacent Park District property.

In 1988 plaintiffs filed this action for declaratory judgment and injunctive relief, alleging that defendants had physically obstructed and interfered with their use of the easements and had told them they could not use them. In particular, they claimed that defendants encroached upon the 20-foot easement by planting shrubs and trees throughout it, by maintaining an addition that encroaches on it, and by erecting the wrought iron fence across it. They also claimed that defendants had planted shrubs, trees, and hedges throughout the three-foot easement. Defendants admitted planting and making other improvements within the easements, but they denied that they had interfered with any proper use thereof. They also raised affirmative defenses: with regard to the three-foot easement, they claimed estoppel for failure to maintain, laches, estoppel due to the existing path running along the south side of the easement, and lack of ripeness. For the 20-foot easement, they raised defenses of lack of ripeness, laches, and estoppel. In addition, they counterclaimed for a declaration of extinguishment of the three-foot easement for failure to maintain, which they deemed abandonment, or alternatively, termination of the easement because its use was too dangerous, it had been abandoned, and natural growth obstructed the 20-foot easement. They too asked for injunctive relief.

Plaintiffs then moved for summary judgment on the affirmative defenses. At oral argument, the court observed that it was granting summary judgment for "all issues now before the Court" except the issue of merger and the factual question of impossibility of use, commenting "that doesn't mean that [defense] counsel can't think up some other issue that's not present now." The court also found that defendants had not offered enough evidence on the need for the fence. Plaintiffs acknowledged that they were not at that time seeking relief from the alleged encroachment by defendants' house into the 20-foot easement.

The court then entered an agreed order, finding that there were no disputed material facts with respect to the issues of laches, non-use, abandonment, and estoppel, and it entered summary judgment in plaintiffs' favor on these points. It also found that the wrought iron fence was not required for defendants' security and noted that plaintiffs were not seeking to have the encroaching addition altered or removed. The court did find, however, that there was a disputed issue of law regarding the effect of the merger doctrine on the 20-foot easement as well as disputed issues of material fact regarding impossibility of use, so it denied the motion for summary judgment as to these two questions.

Plaintiffs filed a second motion for summary judgment "on allremaining issues," which they defined as merger and impossibility of use. Defendants responded with a list of what they regarded as questions of material fact, mostly with regard to the latter issue. Plaintiffs replied that these purported material factual disputes were not material or were not supported by any evidence and so were fodder for summary judgment. In particular, they argued that defendants had the burden of proof as to the extent to which the relocated plantings in the three-foot easement did not obstruct plaintiffs' use thereof as well as to the cost for relocating them back to the Park District's property. After argument, which is not in the record, the circuit court granted plaintiffs' motion as to merger but denied it as to impossibility of use, "based on the existence of a question of fact as to whether or not the three foot easement is possible to use."

Subsequently, plaintiffs moved for clarification or modification of the order to specify the issues to be tried. The motion was denied. The court stated,

"I recognize the ambiguity that might exist [in the first order], but I think all that I made rulings upon were the so-called affirmative defenses being asserted.

And I continued, and I suppose by these remarks I'm going to be somewhat in direction to whoever succeeds me on this case, but it was my specific intent to limit the issues to be tried to those issues that I specifically referred to in those remarks; you know, the impossibility and the failure of purpose issues."

Plaintiffs filed yet another motion for summary judgment on impossibility/failure of purpose. Apparently they abandoned it.

At trial, Frederick Seymour himself took the stand. He explained that he had installed the chain link fence between the Park and the properties at issue, from west of lot 3 to the top of the bluff in 1980, with the Park District's permission to do so on its property. The fence had been extended eastward by defendants. When defendants bought the property in 1982, there had been plantings on the north side of this fence, which had infringed on but did not block the easement. He stated that the privet hedges blocked the three-foot easement, but he agreed that they had been there as long as he could remember. The sheet piling across the foot of the bluff had been in place in 1963, but the concrete block wall at the foot of the bluff had been installed by defendants after this lawsuit began. Prior to that, the bluff at the easement had sloped down to the beach at the same slope as the rest of the bluff to the north.

Defendants had put in a flower bed following the driveway curve, he stated, as well as evergreens "that totally crossed the 20 footeasement"; he just walked around them. He had not objected because these represented "a remarkable improvement" and did not restrict his access to the lake, which had been across defendants' lawn, not in the three-foot easement itself, without objection by defendants. Similarly, he had felt no need to object when defendants relocated existing plantings from along the fence [i.e., from Park District property] four to six feet north [i.e., to within the three-foot easement]. It was not until April 1988, when Seymour first saw the wrought iron fence between the chain link fence and defendants' house, that he began to think his rights were endangered. When he spoke with Stotler about the new fence, the latter pointed to an unlocked gate extending south from the new fence and told him, "There is your easement." When Seymour had objected that this gate was on Park District property, Stotler had replied, "That was that" and Seymour "should do what [he] had to do." Seymour had never tried to use the pathway defendants created, but he knew he could not after observing it from the park side; he had not walked down the bluff in the park.

Raymond Hansen, who prepared the survey of the south lot line of the properties at issue, testified. He explained how he located the plants and the fences for the survey, and he testified that the existing path is "primarily" on the Park District's property.

As their first witness, defendants called Robert Stotler. He had been aware of the two easements, and he had learned that the chain link fence was on Park District property in 1983. He stated that the barberry bushes from the top to the bottom of the bluff were in place when he purchased the property and that they were effective in slowing down erosion. He had never invited plaintiffs or their guests onto his beach and had never told them they could use the yard, beach, or slope at will, but he conceded that he had permitted them to do so and had not told them to stop. In early 1984, however, Stotler and his wife had told plaintiffs they were unhappy with plaintiffs' use of the yard and that they might move bushes to create a path to ensure their privacy. When plaintiffs continued to walk through the yard, defendants paid $1000 to move various plantings four to six feet north to create an unobstructed path for plaintiffs. The estimated cost for moving them again was $7000, and there was no guarantee of survival. Nevertheless, plaintiffs and their friends continued to walk across defendants' yard at all hours until 1988, when he had installed a wrought iron fence north and south from his house to the respective property lines. He gave four reasons for having done so: an intruder had frightened them; they had received a kidnapping threat against their daughter in 1986; they were worried about thepossibility of her wandering down the driveway toward Sheridan Road; and they wanted to encourage plaintiffs to use the path rather than their yard. The gate on the north side of the house is left unlocked for garbage men and the like; the south gate is locked.

Stotler described the erosion that had occurred since he had purchased his house and the current conditions. Regarding the Park District's property to the south, he said, "the whole thing one day just caved in" and caused a cave-in on his land. He also recounted his own repair efforts, including rebuilding the bluff and constructing the steel-reinforced concrete wall, which cost $17,000. The slope down from the bluff, which now has grass and is 25 feet high, has subsequently shifted. To avoid destroying it, his family never walks on it to get to the beach, using a new $16,000 stair instead; replacing this stair would cost $30,000. Stotler also described the current path along the chain link fence, which he had walked the night before he testified; to go down the bluff to the lake is too dangerous, so the path ends at the top of the bluff. According to his research, the primary cause of erosion on the bluff is rain water, not high lake levels or waves.

Expert testimony on the condition of the easement was heard from Dr. Charles Collinson, principal geologist for the Illinois State Geological Survey. Among his responsibilities is monitoring the conditions at the shoreline, calculating current and past rates of erosion, and providing free consulting services to landowners. He had personal knowledge of the general and specific conditions since 1974 at defendants' property and the properties north and south of it. In September 1986, the bottom of the bluff was "well protected" by the sheet piling, but the 30 degree slope was "seriously oversteepened," making it "highly vulnerable to failure" when compared with the lower portion, which was more stable. He described the Park's bluff where it abutted defendants' property as "essentially unstable [and] exposed to [direct] wave action" and spray; he explained that it had "failed" in 1986 (the high water year), by which he meant that materials were falling onto the beach and into the lake, exposing raw vertical faces of earth. A year later, in 1987, new sheet piling had been erected along the park, but slumping had occurred at the south end of the lower bluff on defendants' property, which was attributable to saturation with rain. A May 1989 photo showed defendants' new concrete retaining wall, the purposes of which include support for the lower slope and protection against wave impact as well as facilitation of dewatering of the sand upslope. Had it not been built, Collinson continued, "there undoubtedly would have been increased gullying right" at the easement's lower slopedue to the fence and the adjacent park land, which was susceptible to gullying. From soil boring information from 1989, a very dry year, he concluded that the site was "essentially a sand-filled slope" with indications that the southern portion was wet and steeper and thus "highly vulnerable." The Geological Survey's boring in the park showed similar conditions. In pictures, Collinson saw slippage at midslope from 1986 through the time of trial, which led him to conclude that the area was inherently unstable; he assumed that this slippage occurred at the easement, which was obscured by trees in the photographs. The day prior to his testimony, he had seen that sod was slipping away despite the new retaining wall.

With regard to conditions at the easement in particular, Collinson characterized the easement's slope as "highly vulnerable, and as [he] stated in private, [he] thinks that [defendants are] living on the edge," that is, "[defendants] could experience major failures, even today with [the] improvements, at almost any time." He conceded that in 1989 his primary concern had been the north portion of defendants' property, and that when he had written to plaintiffs' counsel that "the property appears to be well kept and stable," he had not mentioned any vulnerability or instability on the south portion. He cautioned, however, that he had received additional information since then. The privet hedge in the easement, Collinson observed, was beneficial to slope stabilization and he had recommended to defendants several times to undertake additional such plantings. Removing the privet hedge would have a negative effect on slope stability because the roots help retain the slope and removing the plantings on the bluff would leave an area with raw soil exposed. He further commented that removal of plantings from the top of the bluff west to the house along the fence would be detrimental to stabilization because those plantings "undoubtedly remove a lot of water from those underlying sand layers." He later acknowledged, however, that the trees at the top of the slope would serve essentially the same purpose if they were moved three feet. He added that because part of the Park is lower than defendants' property, increased rain runoff would occur in the easement area, which would make the slope there less stable.

On cross-examination, Collinson agreed that the major causes of severe bluff erosion are high lake levels and storm-induced wave action at the foot of such bluffs, as stated in a pamphlet from the Division of Water Resources in the Illinois Department of Transportation, "Harmony with the Lake, Guide to Bluff Stabilization, Lake Michigan." Thus, if the bottom of a bluff is unprotected, wave action will cause collapse, as it had at the Park. Where there is sheet pilerevetment at the bottom of a bluff, however, "the role of the lake [in erosion] is greatly decreased," as further evidenced by the lack of failure at a protected area in another park to the south in comparison with failure where it was not so protected; when such protection is constructed, heavy rainfall becomes key.

Collinson later mentioned that even with the sheet piling at the Park's and defendants' bluffs, a severe storm with the main wave front in the east or southeast quarter would damage the southeast corner of defendants' bluff face, i.e., at the easement, due to significant wave splash. In addition, in the year prior to the trial, he had seen deterioration at the Park bluff's north end, which would affect defendants' adjacent property with increasing destabilization and concentration of rainfall runoff. According to the pamphlet, the first step in preventing erosion is to erect protection at the base of a bluff, followed by reshaping its slope to at least one-and-one-half to one, as defendants' slope is, if possible and when necessary. Controlling excessive surface water run-off is the next step, followed by controlling excessive ground water seepage, which defendants had done. The last step is to revegetate the bluff face as necessary, which defendants also did, though Collinson disagreed with defendants' choice (lawn) there. He explained that vegetation shields soil from rain impact and that herbacious plants, especially grasses, retard rapid rain run-off. For intercepting rainfall, grasses, shrubs, and trees are equally effective, but for retarding run-off and filtering surface soil particles, shrubs and trees are poor compared to grasses. Grass has very low stability on a steep slope, and having mown grass slopes is "just asking for it." He would recommend that any new plantings be "woody type" to preserve the bluff.

Collinson stated that "it's [his] opinion it is highly inappropriate that there be any foot traffic there" and that it would be dangerous to the person walking down, noting that there would be no warning of possible cave-in or collapse. In addition, heavy rainfall would result in further destabilization of the easement's slope. Although he appeared to believe that the lot line was at the chain link fence, his testimony would be no different if the lot line were four or five feet north of that fence except that the gullying now tended to be adjacent to the fence. Places with maturely wooded slopes, relatively low slopes, thick soil, or a relatively stable, well drained clay slope, he explained, can tolerate foot traffic, but at the easement, "there will be an increase in gullying [and] greater susceptibility to damage from foot traffic." Collinson also mentioned foot traffic could havecaused the current gullying if made by defendants' work crews, *fn5 but that such damage could be repaired by seeding over. He also agreed that the bluff was in the same position as it had been since 1937.

After defendants stipulated that "it is not impossible for someone to walk" along the 3-foot easement down the bluff to the lake, Collinson rejected the word "destroy" as "a vague, precipitous term that just doesn't really apply in nature," prefering instead "impact," by which he meant to affect a thing's condition negatively. He then agreed that "walking down the slope may have some effect on it, * * * depending on who, when, under what climatic conditions, under what soil conditions, whether fast or slow, adults, children, all sorts of things."

Asked whether if the easement were used but "maintained by filling in any gullying or anything like that occurred, then there would be no damage to the slope," Collinson replied,

"There are conditions where, for example, during a period of heavy rainfall, and it occurs, the traffic causes some precipitous damage, and the conditions are such that a remediation action of fixing it must be delayed or the condition will become such that more damage will ensue by bringing someone in."

He foresaw "conditions like that causing a very serious condition" if the ground was saturated, even with only a few people walking down the slope. In fact, if the soil was saturated and extremely heavy rain had fallen over a period of time, even a single person walking down the slope at the easement could cause a cave-in at the easement; he himself had caused the collapse of a significant portion of a bluff. If the slope failed at the easement, he believed, that cave-in could trigger a large area of failure north of the three-foot easement. Collinson conceded that damage caused by walking on the slope can be repaired, though perhaps at great expense, just as defendants have repaired their bluff after damage caused mostly by high lake levels. He also agreed that if foot traffic did occur and the easement was not planted with dense woody shrubs, as he had recommended, the easement could be maintained if monitored and other steps taken.

At the end of defendants' case in chief, plaintiffs moved for judgment in their favor under section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1110, now codified as 730 ILCS 5/2-1110 (West 1992)) on the defense of impossibility. In a written memorandum, the circuit court ruled in plaintiffs' favor both on their complaint and on defendants' counterclaim. It not only determined that the fence, gate, and plantings had been installed bydefendants only recently and "wholly interfered with ...

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