The opinion of the court was delivered by: Justice Colwell
Appeal from the Circuit Court of Du Page County.
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Honorable Robert E. Byrne, Judge, Presiding.
Defendants, Charles Hines and Bernadine Hines, appeal the trial court's order granting summary judgment in favor of the plaintiff, James McMahon. The trial court's order permitted McMahon to install an asphalt driveway over property granted as an easement to the defendants. On appeal, the defendants argue that the trial court erroneously concluded that a curb was not part of the easement. Further, the defendants maintain that the trial court's order should be reversed because it improperly allows for a substantial alteration of the easement property. We affirm.
The record shows that the plaintiff and the defendants are next-door neighbors. In 1926, an easement was recorded for the benefit of the owners of the defendants' property. In pertinent part, the easement provided:
"WHEREAS the grantee now maintains and uses a driveway of crushed stone, with concrete curb, a portion of which encroaches upon the said land of the grantor, a distance of about eight feet measured at the street line, and diminished in width to the north until it comes entirely within the land of the grantee; and WHEREAS the grantor is willing to grant unto the said grantee, his heirs and assigns, the perpetual right and easement of maintaining and using the said driveway and curb in its present location upon the land of the grantor; NOW THEREFORE, this instrument WITNESSETH: That, in consideration of one dollar ($1.00) and other good and valuable consideration, receipt whereof is hereby acknowledged, the said grantor for himself, his heirs and assigns, hereby grants, bargains and sells unto the said grantee, his heirs and assigns, the perpetual right and easement of maintaining and using the said driveway as it is now located on the grantor's land, to be used solely for purpose of a driveway and to be maintained at the expense of the grantee, his heirs and assigns." Overall, the easement measures eight feet in width where it borders the street. From there, it runs up onto McMahon's property, diminishing in width until it reaches the defendants' property. A "curb" serves as a boundary between the defendants' and McMahon's property for the length of the easement. According to the defendants, this curb serves as a gully, providing a means for water runoff for both properties.
After purchasing his property in 1995, McMahon razed the existing single-family residence located there and submitted a site plan to the Village of Hinsdale for the construction of a new home. This plan, shown below, proposed a circular paved driveway in front of the house.
The defendants objected to the proposed driveway on the basis that the paved driveway altered their easement of the driveway and curb. We note that the previous owner's driveway did not encroach upon the defendants' easement, as it was located on the opposite side of the lot. McMahon filed an action for declaratory judgment, seeking court approval of the proposed driveway. McMahon then filed an amended complaint, stating that, instead of a paved driveway, he intended to install the driveway using asphalt.
Thereafter, McMahon and the defendants filed motions for summary judgment. The defendants argued that the proposed driveway would interfere with their use and enjoyment of the easement by obliterating the curb between their and McMahon's driveways, creating an inherently dangerous condition, and impeding their ability to maintain the easement. On the other hand, McMahon contended that the proposed driveway did not interfere with the defendants' use of the easement because the defendants would still be able to use the area as a driveway to and from their property.
On October 28, 1996, the trial court granted McMahon's motion for summary judgment. First, the trial court determined that the defendants' property was not granted an easement to the curb. Then, the court permitted McMahon to install asphalt over the easement property at substantially the same level as the existing asphalt on the defendants' driveway.
McMahon filed an appeal, and the defendants filed a cross-appeal from the trial court's order. McMahon later moved to dismiss his appeal, and the defendants' appeal then became the only appeal.
On appeal, the defendants argue that the trial court should have ruled in their favor because the proposed driveway materially alters the easement by allowing for the removal of the curb. Alternatively, the defendants maintain that the reasonableness of the alteration of the easement presented a question of fact that cannot be resolved by summary judgment.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Summary judgment is a drastic measure and should be granted only if the movant's right to judgment is clear and free from doubt. Outboard, 154 Ill. 2d at 102. Therefore, where a reasonable person can draw divergent inferences from undisputed facts, summary judgment should be denied. Outboard, 154 Ill. 2d at 102. Finally, our review of ...