Appeal from Circuit Court of Sangamon County No. 99MR405 Honorable Patrick W. Kelley, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
In October 1999, plaintiff, Michael Smith, filed a two-count complaint against defendants, Matt Heissinger and Regina Gae Buie- Heissinger, requesting the trial court to declare the easement rights possessed by plaintiff in a 25-foot-wide right-of-way over defendants' properties included the right to place underground utilities for the benefit of plaintiff's property. After an April 2000 bench trial, the trial court found plaintiff had an easement by necessity over defendants' properties for utilities and issued a permanent injunction enjoining defendants from interfering with plaintiff's installation of utilities. Defendants filed a motion to reconsider. After a May 2000 hearing, the trial court denied the motion to reconsider. On appeal, defendants argue the trial court erred in (1) admitting extrinsic evidence to determine the intent of the parties with respect to the existing easement; (2) applying the theory of implied easement by necessity when plaintiff's complaint did not raise such a theory; and (3) applying the easement by necessity theory to the facts of this case.
Both plaintiff's and defendants' properties were originally one tract of land owned by John Homeier. The original tract of land is currently divided into three pieces known as Heissinger No. 1, Heissinger No. 2, and the Smith property. See Appendix A (trial exhibit No. 1).
In September 1988, Homeier and defendants entered into a contract for the sale (trial exhibit No. 2) of a portion of the tract of land known as Heissinger No. 1. The real estate contract provided defendants were to grant Homeier a 25-foot easement off the west side of Heissinger No. 1. In December 1988, Homeier conveyed Heissinger No. 1 to defendants, but the deed (trial exhibit No. 3) lacked the easement. A corrected deed (trial exhibit No. 4) was later filed, containing a 25- foot-wide right-of-way (easement No. 1). The corrected deed contained no language limiting the purpose of the right-of-way.
In January 1996, Homeier and defendants entered into another contract of sale (trial exhibit No. 5) for an adjacent piece of property known as Heissinger No. 2. The real estate contract contained a provision for "an ingress and egress easement 25 [feet] in width along the west and south sides of the subject property, for the benefit of the property [known as the Smith property]." In March 1996, Homeier conveyed Heissinger No. 2 to defendants (trial exhibit No. 7) and recorded an easement (trial exhibit No. 6) dated January 22, 1996, creating the right-of-way "for the sole purpose of ingress and egress and for the benefit of the [Smith property]" (easement No. 2).
In March 1996, Homeier and plaintiff entered a contract for sale of the remaining land now known as the Smith property. The next month, Homeier conveyed the Smith property to plaintiff (trial exhibit No. 8). In the deed, Homeier assigned his interest in both easements.
After purchasing the property, plaintiff built a home on the property. Utilities already existed within easement No. 1 serving defendants' properties, and plaintiff requested the Central Illinois Light Company (CILCO) to install electricity to his home by connecting to the existing utilities. When CILCO employees began to install the electric wires on the easement, defendants questioned the employees and told them no utility easement existed. None of the other owners of adjacent property would allow plaintiff to obtain utilities across their properties.
In October 1999, plaintiff filed a complaint against defendants, praying for the trial court to (1) declare the easement rights possessed by plaintiff in the 25-foot-wide right-of-way over defendants' land include the right to place underground utilities for the benefit of his land, and (2) grant a preliminary and permanent injunction ordering defendants to cease and desist from interfering with the installation of underground utilities within plaintiff's easement.
In April 2000, the trial court held a bench trial on the complaint. Defendants argued the matter should have been resolved in a summary judgment motion and objected to the introduction of extrinsic evidence regarding the intent of the parties because the document granting the right-of-way speaks for itself. The trial court allowed the extrinsic evidence, citing the Second District's opinion in McMahon v. Hines, 298 Ill. App. 3d 231, 236, 697 N.E.2d 1199, 1204 (1998). Homeier, Matt Heissinger, plaintiff, and two adjacent land owners, Robert Young and Edward Turley, testified at the trial. The trial court declined to rule from the bench and requested the parties to file simultaneous briefs within a week of the trial.
In May 2000, the trial court found in favor of plaintiff on both counts. The trial court based its decision on the doctrine of necessity as set forth in Martin v. See, 232 Ill. App. 3d 968, 977-78, 598 N.E.2d 321, 327-28 (1992). After a hearing, the trial court denied defendants' motion to reconsider. This appeal followed. After filing their notice of appeal, defendants filed a motion to stay the trial court's judgment pending appeal. The trial court denied defendants' motion but provided, if the judgment is reversed on appeal, plaintiff is to remove any utilities installed within the easement at his own expense.
Defendants first contend the easement's language is unambiguous, and thus the trial court erred in admitting extrinsic evidence. Plaintiff argues the easement's language is ambiguous. Whether language of an agreement is ambiguous and requires extrinsic evidence for interpretation is a matter of law. Schnuck Markets, Inc. v. Soffer, 213 Ill. App. 3d 957, 976, 572 N.E.2d 1169, 1183 (1991). This court reviews de novo a trial court's ...