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07/21/97 DANIEL S. ELLIS v. MICHAEL L. MCCLUNG

July 21, 1997

DANIEL S. ELLIS, JR., MABEL D. ELLIS, STEPHEN GRANT AND GRETCHEN GRANT, PLAINTIFFS-APPELLANTS,
v.
MICHAEL L. MCCLUNG, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS DURKIN, JUDGE PRESIDING.

Released for Publication September 11, 1997.

Presiding Justice Campbell delivered the opinion of the court. Buckley, J., and Gallagher, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

This appeal arises out of a dispute over the status of certain easements on private property in Barrington Hills, Illinois. Daniel S. Ellis, Jr. and Mabel D. Ellis (Ellis plaintiffs), Stephen Grant and Gretchen Grant (Grant plaintiffs) (cumulatively, plaintiffs), brought an action against defendant, Michael L. McClung, to prevent him from constructing a driveway on certain easements situated between plaintiffs' property and defendant's property. Following a bench trial, the circuit court of Cook County entered judgment in favor of defendant, finding that certain easements, validly created in 1938, were never extinguished.

On appeal, plaintiffs contend that: (1) a 1938 deed did not create an express easement over the property owned by the plaintiffs for the benefit of the Fuller Tract; (2) no implied easement arose over the plaintiffs' property for the benefit of the Fuller Tract; (3) any easements over the Cummins and Ellis Tracts for the benefit of the Fuller Tract were extinguished through the doctrine of merger; and (4) the trial court erred in failing to rule on the reasonableness of McClung's use of the easement arrangement. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The property at issue is located in what is now Barrington Hills, Cook County, Illinois, and is referred to in the record as follows: the Cummins Tract (Grant Property); the Ellis Tract; the Behrend Tract; the Fuller Tract; and the McClung Tract. All of the Tracts lie east of Brinker Road, and West of Caesar Drive, *fn1 between Lake Cook Road on the north and Otis Road on the south. (See attached plat, depicting the tracts and easements).

In 1935, Walter Primley, et al., conveyed to Kenneth Smith the entire Property as described above. In 1938, Kenneth and Cora Smith (the Smiths) were the common owners of all of the Property described above. By a deed dated August 18, 1938, and recorded on August 26, 1938 (1938 Deed), the Smiths conveyed a portion of the Property to William Hixon (Hixon). That portion conveyed to Hixon now constitutes approximately the upper two-thirds of the Ellis Tract and the upper one-third of the Behrend Tract, which is not at issue in this litigation.

The 1938 Deed created and reserved three contiguous easements for ingress and egress between Brinker Road and those parts of the Property that were not conveyed to Hixon in the 1938 Deed:

A. Paragraph (a) of the 1938 Deed reserves from the grant to Hixon an easement 30 feet wide along the northern border of the land conveyed to Hixon (referred to in the record as the "Yellow Easement");

B. Paragraph (b)(1) of the 1938 Deed creates an easement 30 feet wide immediately to the north of the easement reserved in paragraph (a) (referred to in the record as the "Blue Easement"); and

C. Paragraph (b)(2) of the 1938 Deed creates an adjoining 60 foot easement to the west of the Yellow and Blue Easements, running west to Brinker Road (referred to in the record as the "Green Easement").

The 1938 Deed provided that the Easements (1) expressly run with the land (paragraph (d)(1) of the 1938 Deed); and (2) are "for the purpose of passage, ingress and egress by foot, horse, wagon and/or automobile" to and from the dominant estate. (Paragraph (d)(2) of the 1938 Deed). Since 1938, the servient and dominant estates under the Easements have been transferred to various owners.

At the time the Easements were created in 1938, the westerly portion of the land that was subject to the three easements was partially improved with a gravel road, the easterly portion of the strip providing a dirt path which was used to travel between Brinker Road and an apple orchard that occupied part of what is called today the Fuller Tract.

The 1938 Deed specifically provides that the Yellow Easement is to be used:

"in common, however, with the Grantee [Hixon] as owner of said real estate hereinabove conveyed and such of his grantees, successors in title, devisees, heirs and assigns as shall hereafter from time to time be or become owners of said real estate hereinabove conveyed, or of any part thereof, * * *." (Emphasis in original).

The Yellow Easement was reserved to the grantors, the Smiths, "as present owners" of the benefitted real estate described in paragraph (a) of the 1938 Deed, which was defined as the property north of Otis Road and east of Brinker Road in section 3 of Barrington Township, title to which was in Kenneth and Cora Smith. The 1938 Deed conveyed a portion of the land that was conveyed to Kenneth Smith in a 1935 deed from Walter S. Primley, et al. No part of the Fuller Tract, including the parts of the apple orchard on it, were conveyed until the Estate of Kenneth Smith quitclaimed it to David Chesrow, et al. (Chesrow) in 1947. Chesrow severed ownership of the Fuller Tract from ownership of their portion of the Cummins Tract in 1948 when they conveyed the Fuller Tract to Oliver Burnett.

The Blue Easement is thirty feet wide and its southern boundary is common with the northern boundary of the Yellow Easement. Together, the Blue and Yellow Easements form a sixty foot way, straddling the north property line of the grant to Hixon from its easterly boundary, where it abuts the Fuller Tract to its westerly boundary, where it abuts the Green Easement.

The Green Easement is sixty feet wide north to south, running east to west between the westerly ends of the Blue and Yellow Easements and the center line of Brinker Road.

The Blue and Green Easements were to be used "in common with" other land owners. The 1938 Deed provides that the Blue and Green Easements granted to Hixon in paragraphs (b)(1) and (b)(2) were to be used:

"in common, however, with the Grantors herein [the Smiths] as owners of said benefited real estate designated in paragraph (a) hereof and such of their grantees, successors in title, devisees, heirs and assigns as shall hereafter from time to time be or become owners of some, or of some part, of said benefited ownerships designated in paragraph (a) hereof, and with the lawful owners, tenants, occupiers and users from time to time of said benefited real estate designated in paragraph (a) hereof, or some part thereof, * * *." (Emphasis in original).

By deed dated September 19, 1940, the Smiths purportedly conveyed certain additional real estate to William Hixon and Frederick Hodgdon (1940 Deed). The property conveyed constitutes the eastern one-half of what is now the Cummins Tract. The southerly boundary of land conveyed in the 1940 Deed is contiguous with a substantial portion, but not all, of the northerly boundary of the land conveyed in the 1938 Deed. The 1940 Deed reserved from the conveyance an easement in favor of the grantors (the Smiths) over the land encumbered by the Blue Easement:

"The Grantors reserve unto themselves, their heirs and assigns, out of the property hereinabove conveyed, an easement over a strip of land 30 feet in width * * *."

The 1940 Deed also purportedly grants to Hixon and Hodgdon an easement over the land, previously conveyed to Hixon, ...


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