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Illinois District of American Turners, Inc. v. Rieger

May 08, 2002

ILLINOIS DISTRICT OF AMERICAN TURNERS, INC., PLAINTIFF AND COUNTERDEFENDANT,
v.
WILLIAM J. RIEGER, SHIRLEY MAC FARLANE, JOSEPH S. STEIB, MARGARETTE L. STEIB, GEORGE W. KOESTER, TERRY L. KOESTER, HELEN KOESTER, VIRGINIA N. PELLETIER, CAMILLE L. WARGA TRUST DATED 9/19/92, FRANK S. WARGA, FRANCES IRMISHER, EDWARD SCHAEFGEN, FRIEDA SCHAEFGEN, GAIL ADKINS, AND KERNS SUBDIVISION ROADS ASSOCIATION, LTD., DEFENDANTS-APPELLEES AND COUNTERPLAINTIFFS (CLARA ZWEIFEL, ANN TRANKLE, WARREN DALBKE, ROY HUGI, BARBARA HUGI, RICHARD SCHNELL, DELORES SCHNELL, KEN HIRSCH, JEAN HIRSCH, DENNY MALONE, JERRY MALONE, RUDI DIAN, CAROL DIAN, KEN CAMPBELL, AUDREY CAMPBELL, THOMAS CAZEL, MADELAINE CAZEL, CHERIE DALBKE, GERALD SPRINGER, AND JOANNE SPRINGER, INTERVENING PLAINTIFFS-APPELLANTS AND COUNTERDEFENDANTS).



Appeal from the Circuit Court of McHenry County. No. 96-CH-442 Honorable Haskell M. Pitluck, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

Released for publication May 13, 2002. As amended June 25, 2002.

ILLINOIS DISTRICT OF AMERICAN TURNERS, INC., PLAINTIFF AND COUNTERDEFENDANT,
v.
WILLIAM J. RIEGER, SHIRLEY MAC FARLANE, JOSEPH S. STEIB, MARGARETTE L. STEIB, GEORGE W. KOESTER, TERRY L. KOESTER, HELEN KOESTER, VIRGINIA N. PELLETIER, CAMILLE L. WARGA TRUST DATED 9/19/92, FRANK S. WARGA, FRANCES IRMISHER, EDWARD SCHAEFGEN, FRIEDA SCHAEFGEN, GAIL ADKINS, AND KERNS SUBDIVISION ROADS ASSOCIATION, LTD., DEFENDANTS-APPELLEES AND COUNTERPLAINTIFFS (CLARA ZWEIFEL, ANN TRANKLE, WARREN DALBKE, ROY HUGI, BARBARA HUGI, RICHARD SCHNELL, DELORES SCHNELL, KEN HIRSCH, JEAN HIRSCH, DENNY MALONE, JERRY MALONE, RUDI DIAN, CAROL DIAN, KEN CAMPBELL, AUDREY CAMPBELL, THOMAS CAZEL, MADELAINE CAZEL, CHERIE DALBKE, GERALD SPRINGER, AND JOANNE SPRINGER, INTERVENING PLAINTIFFS-APPELLANTS AND COUNTERDEFENDANTS).

Appeal from the Circuit Court of McHenry County. No. 96-CH-442 Honorable Haskell M. Pitluck, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

PUBLISH

Intervening plaintiffs, Clara Zweifel, Ann Trankle, Warren Dalbke, Roy Hugi, Barbara Hugi, Richard and Delores Schnell, Ken and Jean Hirsch, Denny and Jerry Malone, Rudi and Carol Dian, Ken and Audrey Campbell, Thomas and Madelaine Cazel, Cherie Dalbke, and Gerald and Joanne Springer, appeal the circuit court's judgment in favor of defendants, William J. Rieger, Shirley MacFarlane, Joseph S. Steib, Margarette L. Steib, George W. Koester, Terry L. Koester, Helen Koester, Virginia N. Pelletier, Camille L. Warga Trust dated 9/19/92, Frank J. Warga, Frances Irmisher, Edward Schaefgen, Frieda Schaefgen, Gail Adkins, and Kerns Subdivision Roads Association, Ltd., on all counts of the complaint of plaintiff, the Illinois District of American Turners, Inc., and in favor of defendants on their counterclaim. We affirm.

BACKGROUND

This case concerns certain improvements defendants made to an easement they claim to hold in common with plaintiff, the Illinois District of American Turners, Inc. The two main issues are whether plaintiff took the easement by adverse possession before the improvements began and, if not, whether the improvements were permissible under the law of common easements.

The following facts are not in dispute. Additional undisputed or disputed facts will be provided below as each issue is addressed. In or around June 1915, N.B. Kerns purchased a parcel of property located within the Township of Algonquin. In July 1915, he prepared a plat of subdivision for the property and filed it on August 3, 1915, in McHenry County. The plat is entitled "N.B. Kerns Subdivision Number 1" (Kerns subdivision). The plat has never been vacated from the plat books.

On August 19, 1915, Kerns filed an action to quiet title to the land he platted as the Kerns subdivision just days before, and the trial court issued an order in September 1915 granting Kerns clear title. The details of the quiet title action are set forth below. Following the quiet title action, Kerns sold lots 5, 6, 7, 11, 12, 13, 14, 15, 16, and 19 in block one to the predecessors in interest of defendants Rieger, MacFarlane, the Steibs, the Koesters, Pelletier, Warga, Irmisher, the Schaefgens, and Adkins. (Unless otherwise indicated, "defendants" hereinafter refers only to these defendants; Kerns Subdivision Roads Association, Ltd. (KSRA), and the Camille Warga Trust (Trust) presently own none of the property at issue in this proceeding.) Subsequently, in December 1919, Kerns conveyed 40 acres, which included the remainder of the lots as well as surrounding property, to the Ausschuss of the Illinois Turnbezirk, plaintiff's predecessor in interest. The warranty deed specifically excepted the 10 lots previously conveyed, referring to them as lots within "N.B. Kerns Subdivision No. 1." Since the conveyance, plaintiff has used the property as a licensed campground (Turner Camp) for its members (Turner members). Plaintiff has issued detailed rules regarding membership in the camp and use of camp property. At the entrance to the Turner Camp sits a guardhouse or ticket booth; the camp rules limit the use of camp property to members and their guests. The rules governing property use do not apply to the private lots owned by defendants. Defendants have been Turner members for many years, owning cottages on their private lots. The Kerns subdivision consists of 36 relatively uniform lots divided into two blocks. (See appendix for a diagram of the plat.) The plat depicts four roadways: Park Way, Ridge Avenue, Oak Lane, and Hill Crest Avenue. The platted roads have never been dedicated to the public nor have any of them been developed in their entirety. The roads meandering throughout the subdivision in the diagram are not depicted in the plat; they are the result of sporadic and unsystematic development throughout the existence of the Turner Camp. The shaded portions of the roads indicate a gravel surface; the unshaded portions indicate a paved surface.

Since purchasing the property from Kerns, plaintiff has erected (in addition to the roads) several cottages, common buildings, culverts, outdoor restrooms, water wells, and athletic fields and courts on the lots and their surrounding property. Defendants and their predecessors in interest were among the Turner Camp members who provided the impetus for these improvements. Also, as noted below, defendants made additional improvements to the roads without plaintiff's approval.

The Turner Camp cottages (that is, those cottages not located on defendants' private lots) are either leased or rented by Turner members. Owners of cottages have a "ground lease" giving them a possessory interest only in the land over which their cottages are situated. Renters and owners alike are responsible for maintaining the areas surrounding their cottages, although those areas are owned by plaintiff.

Initially, some of the Turner Camp cottages fell entirely within platted Ridge Avenue. These were removed by the mid-1930s, although one of the cottages was removed more recently, its concrete foundation still standing just inside the western boundary of Ridge Avenue. Currently, portions of several cottages encroach on Ridge Avenue. Other objects falling inside the Ridge Avenue right-of-way include two water wells, several power poles and accompanying wires, a footbridge across a stream (a tributary of the Fox River) that crosses Ridge Avenue in front of lot 18 in block one, and a footbridge and culvert across a gully that runs roughly north-south through Ridge Avenue between lots 11 and 13 in block one. Oak Lane and Hill Crest Avenue each have one cottage presently standing entirely within their boundaries.

The graveled area occupying platted Ridge Avenue between lots 14 and 16 in block one is designated by plaintiff as the "Swiss parking lot." Not pictured in the diagram is the construction that is at issue here--a roadway extending westward in the Ridge Avenue right-of-way from the western boundary of the Swiss parking lot. Before this construction, there was no development of a road or parking lot in platted Ridge Avenue west of the Swiss parking lot. Individuals using cottages in lots 17, 18, and 19 of block one had to park in the Swiss parking lot and walk a distance along a footpath to reach their cottages. A hill runs through lots 10, 11, and 12 in block two. Ridge Avenue between the Swiss parking lot and the narrow driveway running into lot 11 of block one was passable by automobile before drainage from the hill created a gully that rendered the stretch impassible early in the 1970s. The western boundary of the Swiss parking lot was lined with concrete posts in the 1940s. Several years later, the posts were replaced with logs. It is unclear from the record whether the logs permit a vehicle to enter the impassable area to the east of the Swiss parking lot.

Although currently maintained as a means of accessing the Fox River, the northern portion of Park Way has not been graveled or paved. Neither Oak Lane nor Hill Crest Avenue currently is maintained as a road or pathway, although there is evidence that Oak Lane has been used occasionally as an alternative means of driving from the Swiss parking lot to the main road.

All Turner members, whether private lot owners or not, have equal access to camp facilities and activities under the Turner Camp rules. They have equal access to the property that is platted as the Kerns subdivision rights-of-way. The passable roads in the Turner Camp are used by all Turner members as well as by guests and service providers such as utility companies and delivery persons. For the past several years, defendants have resisted the Turner Camp's attempt to regulate activities within the platted roads. Generally, defendants insisted that the platted roads were public rights-of-way designed to provide them access to their lots while plaintiff insisted the platted roads no longer exist and that it owns the property. Disregarding plaintiff's rule that vehicles be parked only in designated parking areas, defendants have parked their vehicles along the roads in front of their lots. Early in the 1990s, against plaintiff's wishes, defendant Joseph S. Steib, owner of lot six in block one, widened and paved the road in Ridge Avenue in front of lots five and six in block one to provide better parking. Steib also erected a "private parking" sign in front of his lot. Additionally, defendants who own lots adjacent to the Swiss lot have objected to people parking immediately in front of their cottages. As noted above, these defendants installed concrete posts along the Swiss lot in the 1940s to protect their fences from vehicles parked in the Swiss lot. A few years later these posts were replaced with logs.

Defendant Rieger owns a Turner Camp cottage on lot 18. (As noted above, lot 18 is owned by plaintiff.) Rieger also owns lot 19. For decades, Rieger drove to and from his cottage and his property using a path that ran to the west of the Kerns subdivision through a portion of plaintiff's property that formerly was a golf course. In 1988, Rieger proposed building a road in platted Ridge Avenue from the ...


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