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12/17/97 CHARLES F. CANALI v. DANIEL A. SATRE AND

December 17, 1997

CHARLES F. CANALI, PLAINTIFF-APPELLANT,
v.
DANIEL A. SATRE AND GWENDOLYN J. SATRE, DEFENDANTS-APPELLEES (HAMILTON FINANCIAL CORPORATION, P&M WATER AND SEWER, INC., AND UNKNOWN OWNERS, DEFENDANTS).



Appeal from Circuit Court of Du Page County. No. 94--MR--434. Honorable Bonnie M. Wheaton, Judge, Presiding.

Rehearing Denied January 15, 1998. Released for Publication January 15, 1998.

The Honorable Justice Inglis delivered the opinion of the court. McLAREN and Doyle, JJ., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Plaintiff, Charles F. Canali, appeals the decision of the circuit court of Du Page County granting defendants Daniel A. Satre and Gwendolyn J. Satre summary judgment. We reverse.

Plaintiff filed a complaint asserting that he had acquired an "easement of necessity by implication" to a driveway located on defendants' adjacent property. Defendants counterclaimed to quiet title. Thereafter, both parties filed motions for summary judgment. Plaintiff argues, as he argued below, that he acquired an implied easement because his parcel and defendants' parcel were commonly owned and the parcels were then severed, leaving plaintiff's parcel landlocked. Defendants argue that plaintiff fails to satisfy all of the requirements for finding an implied easement and that the statute of limitations barred plaintiff from bringing this action.

A diagram of the relative location of the subject properties and the claimed easement is set forth in the appendix. [EDITOR'S NOTE: SEE APPENDIX IN ORIGINAL]. As indicated, the parcels which are the subject of this appeal are adjoining tracts located to the north of Plank Road in Du Page County. Defendants now own parcel D, the darkened portion of the diagram, including the long narrow strip from their property to Plank Road. Plaintiff now owns parcel E. Previously, William and Ida Schultz owned all of the subject properties shown on the diagram. Between 1931 and 1936, three parcels were conveyed to separate purchasers: parcel A in 1931, parcel B in 1932, and parcel C in July 1936. On December 9, 1936, William Schultz conveyed parcel D, retaining parcel E for himself until it was sold in 1941. The parties agree that parcel E was landlocked at the time Schultz conveyed parcel D.

The trial court granted defendants' motion for summary judgment and counterclaim to quiet title, finding that at the time of the severance of the two properties in 1936 there was no evidence or claim that the driveway was the sole method of ingress and egress. The court believed plaintiff bought the parcel as is from the bankruptcy court and must take it as he found it, with or without access, and held that there had been no proof that this was a property subject to an easement by necessity.

On appeal, plaintiff contends that the trial court erred in granting summary judgment to defendants. Since the parties filed cross-motions for summary judgment, only a question of law is involved and the court decides the issue based on the record. Aryainejad v. Economy Fire & Casualty Co., 278 Ill. App. 3d 1049, 1051, 215 Ill. Dec. 593, 663 N.E.2d 1107 (1996). On appeal from the entry of summary judgment, we review the matter de novo. Aryainejad, 278 Ill. App. 3d at 1051.

There are two types of implied easements, an easement implied from a preexisting use and an easement by necessity. In either case, easements created by implication arise as an inference of the intention of the parties to a conveyance of land. The courts attempt to ascribe an intention to parties who, for some reason, failed to set forth their intention at the time of conveyance. Granite Properties Ltd. Partnership v. Manns, 117 Ill. 2d 425, 437, 111 Ill. Dec. 593, 512 N.E.2d 1230 (1987). To fill the gaps resulting from the parties' failure to set forth their intention, courts look to particular facts suggestive of that intent. Granite, 117 Ill. 2d at 438.

An easement implied from a prior existing use arises by law when one portion of an estate derives a benefit and advantage from another, of a permanent, open, and visible character; when that portion is severed, the grantee takes that portion with all the benefits and burdens that appear to belong to it. Granite, 117 Ill. 2d at 436. Absent an express agreement to the contrary, the conveyance or transfer imparts a grant of the right to continue such use. Deem v. Cheeseman, 113 Ill. App. 3d 876, 882, 68 Ill. Dec. 733, 446 N.E.2d 904 (1983). To establish an easement by prior use (1) there must be common ownership of the land followed by a separation of title; (2) before the separation occurs, the use giving rise to the easement must have been long continued, obvious, or manifest, to a degree that shows permanency; and (3) the use of the claimed easement must be necessary to the beneficial enjoyment of the land granted or retained. Granite, 117 Ill. 2d at 437.

An easement by necessity usually arises when a grantor conveys an inner portion of land which has no access to a public highway except over the remaining lands of either the grantor or the grantor plus strangers. In such a situation, an easement over the remaining lands of the grantor is implied in the grant. Granite, 117 Ill. 2d at 435-36; Martin v. See, 232 Ill. App. 3d 968, 978, 174 Ill. Dec. 124, 598 N.E.2d 321 (1992). Similarly, an easement by necessity is implied when the grantor retains the inner portion, conveying the balance to another. Granite, 117 Ill. 2d at 436.

Defendants contend that there is no implied easement by necessity because plaintiff failed to prove two of the three required elements. Defendants argue that plaintiff failed to show that, before the conveyance or transfer, the common owner's use of the parcel was apparent, obvious, continuous, and permanent and that plaintiff failed to prove that the claimed easement is necessary and beneficial to the enjoyment of the parcel. Granite, 117 Ill. 2d at 437. Defendants, however, confuse the requirements for easements created by necessity with those created by prior use.

Where an easement arises from a preexisting use, proof of the prior use is evidence that the parties probably intended an easement. The theory is that the parties would have intended to continue a known, apparent, continuous, and permanent use of the land. Granite, 117 Ill. 2d at 438. On the other hand, an easement by necessity requires no proof of a known existing use from which to infer the parties' intent, but only requires proof of necessity. In such a case, it is presumed that the parties did not intend to render the land unfit for occupancy. Granite, 117 Ill. 2d at 438. Because questions regarding easements of necessity do not rest on a preexisting use, but on the need for a ...


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