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October 24, 1996


Appeal from the Circuit Court of Lake County. No. 88--CH--596. Honorable John G. Radosevich, Judge, Presiding.

Released for Publication December 5, 1996.

The Honorable Justice Rathje delivered the opinion of the court. Inglis and Bowman, JJ., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

This cause of action was brought by plaintiffs, Steven and Christin Wehde (the Wehdes) and American National Bank and Trust Company as Trustee under Trust No. 983 (American), to declare their rights to a prescriptive easement in the nature of a crossing over the railroad right-of-way of the defendant, the Regional Transportation Authority, and to enjoin defendant from interfering with same. Plaintiffs additionally sought attorney fees and injunctive relief for violations of both the due process clause of the United States Constitution (U.S. Const., amend. XIV) and section 1983 of the Civil Rights Act (Act) (42 U.S.C. ยง 1983 (1982)). After a remand for further proceedings, the trial court ruled against the Wehdes but in favor of American. The Wehdes and defendant filed timely notices of appeal and cross-appeal, respectively.

The Wehdes raise several issues on appeal, namely, whether (1) they proved an easement by implication or necessity; (2) they established an easement by prescription over the defendant's railroad tracks; (3) they are entitled to attorney fees pursuant to section 1988 of the Act; and (4) they are entitled to damages.

On cross-appeal, defendant maintains the trial court erred in (1) finding that American is a dominant tenant of a prescriptive easement across defendant's right-of-way and (2) finding that American was entitled to damages and (potentially) attorney fees pursuant to section 1983 of the Act.

In Wehde v. Regional Transportation Authority, 237 Ill. App. 3d 664, 178 Ill. Dec. 190, 604 N.E.2d 446 (1992) (Wehde I), this court reversed the trial court's order granting defendant's motion for summary judgment as to the Wehdes' claim and an order granting defendant's motion for judgment at the close of plaintiffs' case. To set the stage for a discussion of the issues in the instant appeal, it is helpful to quote the following pertinent portion of Wehde I:

"To defeat [defendant's] summary judgment motion, the Wehdes were required to show that their claim of a prescriptive easement was supported by some factual basis that would arguably entitle them to a judgment in their favor. [Citation.] In support of their claim, plaintiffs presented both affidavits and testimony of the present owners and their predecessors stating their recollection and use of the crossing. [Defendant] contends that the crossing was used with permission, thereby negating the essential element of adversity. However, [defendant] failed to present any evidence to this effect. Although [defendant] did present evidence that the crossing was torn down in approximately 1977 in support of its contention that this action stopped the running of the statutory period, the record is devoid of evidence indicating what party tore down the crossing and any reason for such action. Without more, we cannot conclude that [defendant] claimed the property in such a way that subsequent use of the crossing was permissive. Accordingly, viewing the pleadings, depositions, and admissions on file, together with the affidavits and evidence admitted as an offer of proof in the light most favorable to the nonmoving Wehdes, we find that a genuine issue of material fact exists concerning the adverse, open, notorious, and continuous use of the crossing by the owners of the Wehde Parcel for the statutory period.

We further find, after considering all of the evidence, passing on the credibility of the witnesses, and drawing reasonable inferences from the testimony presented, that [American] has sustained its burden of proving that use of the crossing by the beneficiaries of the Trust Parcel and their predecessors was hostile or adverse, open and notorious, and uninterrupted for the statutory period. Thus, [American] has sustained its burden of completing its prima facie case. Since the record is completely devoid of evidence concerning the origin of the crossing, a rebuttable presumption of adversity has arisen. At this point, [defendant] should have been required to present evidence rebutting each and every element of plaintiffs' prima facie case. Accordingly, we find the judgment of the circuit court was against the manifest weight of the evidence." Wehde I, 237 Ill. App. 3d at 681-82.

It is not necessary to recite the evidence set out in plaintiffs' case, which was ably articulated in Wehde I. Accordingly, we will summarize only the evidence presented by defendant.

Prior to defendant's case, Steven Wehde was permitted to testify regarding alleged damages the Wehdes had incurred, based upon the loss of use of their property. Wehde claimed that much of the equipment left on the land was damaged or had become worthless, due to the lack of access to the acreage. He further estimated that the house he planned to build in 1987 or 1988 would have cost approximately $150,000. According to Wehde, the same house would have cost $200,000 to $210,000 to build at the time of the trial's completion.

Robert Schuster testified that he had been the assistant department head of engineering for Metra since October 1987. Schuster stated that he began his railroad career with the Milwaukee Railroad in 1970. From the beginning of his career up to the date of trial, he had been involved with the section of railroad track pertinent to this case. As defendant's assistant department head of engineering, his duties included the planning and supervision of all maintenance work and helping to plan capital projects for defendant's entire railroad system. According to Schuster, he examined the crossing installed by the Wehdes in 1988. Schuster described the specifications for such a crossing, including the type and height of the timber, proper drainage, and the proper type of approach to the crossing. He stated that the Wehdes' crossing did not meet the railroad's specifications. He opined that the crossing's drainage was a "problem." Accordingly, defendant removed the structure in October 1988.

Schuster testified that an order was entered on December 2, 1989, wherein the Wehdes were directed to notify defendant if they wished to remove some or all of the equipment on their acreage across the railroad track. Schuster stated that defendant was never notified by the Wehdes concerning the removal of equipment.

Schuster also testified that, at some time in 1977 or 1978, the entire section of track which included this crossing was "sledded." He explained that sledding was a renewal procedure where all of the ties and tracks were pulled up, plowed, and reset on a level surface. Ties were replaced as necessary. Schuster stated that small private crossings should have been removed in the sledding process and then replaced with all new ties. According to Schuster, it was defendant's policy to replace all of the crossings that had been removed.

John Pawlowski, the Wehdes' neighbor to the east, testified via evidence deposition. He stated that he had moved onto his property the same year the Muehlfelders acquired the Wehdes' parcel. Pawlowski testified that he did not see anyone use the Wehdes' parcel between 1958 and 1985. According to Pawlowski, before the Wehdes built a roadway from the crossing to the 20-acre parcel, there was not even a pathway along the 20-foot strip.

A substantial portion of defendant's case was comprised of documentary evidence primarily regarding the creation of the farm crossing in 1899 and its existence during the early decades of this century.

On rebuttal, Steven Wehde testified that he had met his neighbor, John Pawlowski, only once, and, at that meeting, Pawlowski had threatened to shoot him if he ever set foot on Pawlowski's land again. Wehde further testified that he rebuilt the crossing in 1987, using the private crossing on Pawlowski's property as a model. The primary differences in these crossings were that the Wehdes secured the ties with a different type of bolt and that the Wehdes put gravel, rather than asphalt, between the ties. Wehde further testified that, when the property was purchased in 1985, a roadway ran along the entirety of the 20-foot strip. The roadway was wide enough for a pickup truck.

Tom Lyon testified that he was one of the beneficiaries of the American trust, along with Richard Sachse and Roy Western. He first acquired his interest in the property in 1976. Lyon stated that in spring 1976, Sachse drove him to the cabin on the property. They crossed over the tracks at the subject crossing, which Lyon described as being built of timber and gravel. He stated that it was "passable by an automobile."

Thomas Muehlfelder testified that he was familiar with the Wehdes' parcel because his father and uncle owned it prior to the Wehdes. He stated that in the early 1970s he had a paper route which took him by the subject crossing on a regular basis. Muehlfelder described the crossing as being made of gravel and wood. A gravel road led to the gate to the trust's property. In the mid-1970s, he used the crossing to go dirt biking and firewood gathering on the Muehlfelder property. Muehlfelder stated that along the 20-foot strip was a dirt path large enough for a truck to drive along.

At the trial's conclusion, the trial court made the following rulings in regard to American's claims:

1. It granted American's claim for declaratory judgment of a prescriptive easement across the railroad's right-of-way;

2. It granted American's motion for injunctive relief and ordered defendant to reinstall the crossing at its preexisting location;

3. It granted American's section 1983 action, awarding American $1 in nominal damages plus costs and permitted American to petition for recovery of attorney ...

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