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Weaver v. Cummins

June 28, 2001

DAVID WEAVER AND MARIE WEAVER, PLAINTIFFS-APPELLEES,
v.
ROBERT CUMMINS AND NANCY CUMMINS, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Sangamon County No. 99MR122 Honorable Thomas R. Appleton, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

Not Released For Publication

DAVID WEAVER AND MARIE WEAVER, PLAINTIFFS-APPELLEES,
v.
ROBERT CUMMINS AND NANCY CUMMINS, DEFENDANTS-APPELLANTS.

Appeal from Circuit Court of Sangamon County No. 99MR122 Honorable Thomas R. Appleton, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

In April 1999, plaintiffs, David and Marie Weaver, filed a single-count complaint against defendants, Robert and Nancy Cummins, seeking the enforcement of easement rights arising from a November 1995 grant of easement. After the trial court granted defendants' motion to dismiss the original count, plaintiffs filed an amended complaint seeking an easement by necessity over defendants' property. After holding an August 2000 evidentiary hearing, the trial court found plaintiffs were entitled to an easement by necessity over defendants' property. In October 2000, the trial court denied defendants' motion to reconsider. On appeal, defendants argue (1) plaintiffs failed to prove the necessity required for an easement by necessity and (2) the easement granted by the trial court is too broad. We affirm in part and vacate in part.

 I. BACKGROUND

In June 1993, Merle and Cheryl Buerkett (Buerketts) owned about 146 acres of property called "Preacher's Knob." At that time, the Buerketts had divided a portion of their property into three lots, with lots numbered two and three being commonly known as "flag lots." See Appendix A. A "flag lot" is a standard lot with a narrow strip of land ("flagpole") that connects the lot to a roadway. The Buerketts signed a declaration of easements, restrictions, and covenants, granting lots two and three a reciprocal easement over the road created by the two flagpoles for access to Irwin Bridge Road. As for the other lots, the grantors reserved for themselves and their assigns an easement to use the entire width of the roadway created by the two flagpoles for ingress and egress to and from Preacher's Knob.

In May 1993, the Buerketts conveyed plaintiffs' property to James and Vickie Cornwell (Cornwells). According to Merle Buerkett, the roadway across defendants' property existed when the Buerketts conveyed plaintiffs' property to the Cornwells. Plaintiffs' property is a triangle-shaped lot with 60 feet of frontage on Irwin Bridge Road. See Appendix A. Currently, a house is on the back portion of the property, and the roadway is the only means of access to the house. The Cornwells later conveyed the property to Harry and Marsha Long.

In August 1993, the Buerketts transferred the remaining land into the Cheryl L. Buerkett Irrevocable Living Trust (Trust). In April 1994, the trustee of the Trust conveyed defendants' property to defendants subject only to the declaration of easements. Defendants' property has a 20-foot-wide flagpole adjacent to lot three's flagpole. See Appendix A.

In November 1995, the Buerketts granted the Cornwells an easement for the roadway over the flagpoles of lots two and three, defendants' property, and the larger tract (024). See Appendix A. The grant also included a 20-foot-wide easement connecting plaintiffs' property to the easement over the flagpoles. The roadway runs from Irwin Bridge Road over the various flagpoles, then curves to the left on defendants' flagpole, and continues straight across defendants' flagpole, eventually reaching plaintiffs' property.

In fall 1998, plaintiffs purchased their property. Plaintiffs own an antique-truck collection, which they display at antique shows. Plaintiffs use semitrailer trucks to transport their collection to the various shows. Although both plaintiffs and defendants have contributed to the maintenance of the roadway, plaintiffs themselves hired a contractor to widen the curved portion of the roadway in order for their semitrailer trucks to make the turn. The contractor began working on widening the curve when defendants stopped him.

In April 1999, plaintiffs filed suit against defendants, seeking to enforce the 1995 easement. Defendants filed a motion to dismiss, asserting the Buerketts had no right to grant an easement over their property. In July 1999, the trial court granted defendants' motion but allowed the plaintiffs to amend their complaint. That same month, plaintiffs filed an amended complaint, asserting they had an easement by necessity over defendants' property. In September 1999, defendants filed another motion to dismiss, which the trial court denied.

In April 2000, plaintiffs filed a motion for summary judgment. After a May 2000 hearing, the trial court granted plaintiffs' motion. Defendants filed a motion to ...


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