Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, No. 99--CH--79 Honorable Robert A. Barnes, Judge, Presiding.
The opinion of the court was delivered by: Justice Slater
Plaintiff, Peggy L. Sparling, brought an action for ejectment against defendants, Fon du Lac Township and Fon du Lac Road and Bridge Commission, seeking the removal of a drainage pipe maintained by defendants. After a bench trial, the trial court granted plaintiff the relief she requested. This appeal followed.
Since November 1995, plaintiff has been the fee owner of a parcel of land commonly known as Lot 226. At some unknown time prior to 1983, defendants acquired an express easement to maintain a drainage pipe within a 10-foot wide strip along the southwest line of Lot 226. Five feet of the easement burden Lot 226. The remaining five feet burden the adjoining Lot 227.
In 1983, defendants moved the drainage pipe two to three feet outside of the easement onto Lot 226. In 1993, Gerald Gray became the fee owner of Lot 226. In June 1995, Gray sent a letter to defendants advising them of the encroachment and requesting that defendants remove the pipe. In 1996, plaintiff, now the fee owner of Lot 226, through her attorney, sent defendants a letter expressing her objection to the encroachment. Defendants admitted receipt of these letters in their response to a pretrial request to admit.
In May 1999, plaintiff filed her ejectment action against defendants. Defendants raised the affirmative defense that public use of plaintiff's land had established a prescriptive easement pursuant to section 2--202 of the Illinois Highway Code (605 ILCS 5/2--202 (West 1998)).
The matter proceeded to a bench trial. Larry Borton, the elected road commissioner for Fon du Lac Township between 1980 and 1993, testified that a resident of the home located on Lot 226 observed him move the drainage pipe in 1983. Although the resident chatted with Borton on a number of occasions while Borton was moving the pipe, the resident never voiced any objection to Borton's work or gave him any permission to continue. Borton also testified that he was unaware until shortly before trial that the drainage pipe was outside the bounds of the express easement. Borton's successor as road commissioner, Terry Tucker, testified that he only became aware that the pipe lay outside the easement in October 1999 when he reviewed the results of a survey conducted at the request of the township.
The trial court found for plaintiff and ordered defendants to remove the drainage pipe from the area lying outside of the express easement. The trial court rejected defendants' claim that a prescriptive easement had been established. In particular, the trial court ruled that defendants did not occupy plaintiff's land under a claim of right because the encroachment was the result of a mistake. The trial court also found that defendants failed to show that plaintiff's predecessors in title knew about the encroachment for the statutory period required to establish a prescriptive easement. In particular, the trial court reasoned that plaintiff could not be charged with knowledge of defendants' encroachment until the date Gerald Gray complained to defendants and requested removal of the drainage pipe.
On appeal, defendants contend that the trial court erred by ruling: (1) that a prescriptive easement could not be established through the mistake of the encroaching party; and (2) that defendant failed to show plaintiff's knowledge of the encroachment for the statutory period required for establishment of a prescriptive easement. In response, plaintiff contends that, in addition to the reasons given by the trial court, she is entitled to judgment because defendants failed to prove acquiescence to the encroachment in light of her objection and that of her predecessor in title.
At common law, 20 years of continuous public use was necessary to establish a highway by prescription. Doss v. Bunyan, 262 Ill. 101, 104 N.E. 153 (1914). Under section 2--202 of the Illinois Highway Code (605 ILCS 5/1--101 et seq. (West 1998)), the term "highway" includes "drainage structures" and is, among other things, "any public way *** used by the public as a highway for 15 years." 605 ILCS 5/2--202 (West 1998).
A statute in derogation of the common law is to be strictly construed and cannot be interpreted to change the common law beyond what is expressed by the words of the statute or what is necessarily implied from them. Bush v. Squellati, 122 Ill. 2d 153, 522 N.E.2d 1225 (1988). Accordingly, Illinois courts have interpreted section 2--202 and its predecessors as changing the time within which a highway might be established by prescription but not doing away with any of the other common law requirements for establishing a prescriptive easement. See Feldker v. Crook, 208 Ill. App. 3d 1012, 567 N.E.2d 1115 (1991) (requirements necessary to establish public highway by prescription under statute same as those necessary to establish private easement by prescription); Town of Deer Creek Road District V. Hancock, 198 Ill. App. 3d 567, 555 N.E.2d 1147 (1990) (same); Doss, 262 Ill. 101, 104 N.E. 153 (enactment of statutory period for establishment of public highway by prescription and subsequent amendments did not abolish other common law requirements for establishing easement by prescription).
To establish an easement by prescription, the claimant must prove that the use of the land was adverse, exclusive, continuous, and under a claim or title inconsistent with that of the true owner. Wehde v. Regional Transportation Authority, 237 Ill. App. 3d 664, 604 N.E.2d 446 (1992). These elements must be simultaneously present for the statutorily-mandated period. See Wehde, 237 Ill. App. 3d 664, 604 N.E.2d 446. With respect to the element of adversity, the claimant must show that the use of the property was with the knowledge and acquiescence of the owner but without his permission. Wehde, 237 Ill. App. 3d 664, 604 N.E.2d 446. However, where the property has been used in an open, uninterrupted, continuous and exclusive manner for the required period, adversity will be presumed and the burden of proof shifts to the party denying the prescriptive easement to rebut the presumption. Wehde, 237 Ill. App. 3d 664, 604 N.E.2d 446.
We agree with defendants that they are not precluded from establishing a prescriptive easement because the public use of plaintiff's land resulted from a mistake. In the context of a claim of title by adverse possession, our supreme court held that the fact that the party claiming title by adverse possession took possession through mistake or ignorance as to boundary lines is immaterial to the adverse character of the claim. Joiner v. Janssen, 85 Ill. 2d 74, 421 N.E.2d 170 (1981). Plaintiff claims that Joiner is distinguishable from the case at bar as it is an adverse possession case while the instant case involves a prescriptive easement. We acknowledge that there are significant differences between a claim of title by adverse possession and a claim of an easement by prescription. However, we discern no reasoned basis to declare that mistaken possession is immaterial to an effort to obtain fee title to land, but the same mistake is fatal to a claim seeking limited possession, use, or enjoyment of land. Accordingly, defendants' mistake as to the boundary of the express easement does not defeat their claim to a prescriptive easement.
In addition, the trial court was wrong to conclude that plaintiff could not be charged with knowledge of defendants' encroachment until the date of Gerald Gray's letter to defendants. As noted previously, once continuous public use for the statutory period is demonstrated, the burden of proof shifts to the party denying a prescriptive easement to rebut the presumption that the other elements are present. See Wehde, 237 Ill. App. 3d 664, 604 N.E.2d 446. One such element is the fee owner's knowledge of the public use. Verh v. Morris, 410 Ill. 206, 101 N.E.2d 566 (1951). The fee owner's knowledge may be inferred from the manner, character, and frequency of the public's use. Verh v. Morris, 410 Ill. 206, 101 N.E.2d 566.
Here, continuous public use of plaintiff's land for the statutory period was not disputed by the parties. Plaintiff, therefore, had the burden of rebutting the presumption that she and her predecessors in title knew of defendants' encroachment. Plaintiff presented no evidence tending to rebut the presumption. Consequently, the trial court's finding that plaintiff could not be charged with knowledge of ...