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Duresa v. Commonwealth Edison Company

March 30, 2004

[5] ROBERT J. DURESA AND BONNIE S. DURESA, PLAINTIFFS-APPELLANTS,
v.
COMMONWEALTH EDISON COMPANY, A/K/A COM ED, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Cook County. Honorable Aaron Jaffe, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Burke

[8]  Plaintiffs Robert and Bonnie Duresa appeal from an order of the circuit court granting the motion of defendant Commonwealth Edison, also known as Com Ed, to reconsider its order denying both plaintiffs' motion for partial summary judgment and defendant's cross-motion for summary judgment, and granting summary judgment in favor of defendant. On appeal, plaintiffs contend that the trial court erred in granting summary judgment in favor of defendant because genuine issues of material fact existed as to the validity of the document under which defendant claimed it possessed an easement over plaintiffs' property, the amount of damage defendant caused to plaintiffs' property, and the reasonableness of defendant's conduct on plaintiffs' property. For the reasons set forth below, we reverse and remand.

[9]  STATEMENT OF FACTS

[10]   In 1990, plaintiffs purchased 3.77 acres of land at 1001 Plum Tree Road in Barrington Hills, Illinois. Situated on the property was a 1875 Victorian home, as well as many varieties of mature lilac bushes, honeysuckle, forsythia, and flowering privets. Cherry and Mulberry trees lined the 750-foot roadside. Over the next several years, plaintiffs restored the home and cleared overgrown brush and shrubbery from the property.

[11]   On October 14, 1997, plaintiffs filed a complaint for a temporary restraining order and other relief against defendant and the Village of Barrington Hills (Village), *fn1 alleging that on September 17 and 26 defendant erected two utility poles on plaintiffs' property that resulted in extensive damage to the property. Specifically, defendant erected a new 50-foot pole 16, although a 35-foot pole 16 already existed on the property and apparently still remained at the time of the proceedings below and, in doing so, defendant destroyed four 5-foot flowering privets. Defendant also replaced a 35-foot pole 13 with a 50-foot pole 13 and, in doing this, defendant gouged a 21-foot native cherry tree (which later died), destroyed two 4 to 5-foot flowering privets, and removed five 15 to 18-foot Ludwig Spaeth lilac trees.

[12]   Plaintiffs sought to enjoin defendant from replacing any additional poles without their consent and to prohibit defendant from entering their property. On the same day, plaintiffs received a letter from defendant's project design supervisor, enclosing an alleged easement granted to it by a predecessor in interest to plaintiffs' property, which, according to defendant, authorized its activities on plaintiffs' property. The easement was dated September 1, 1934, and was signed "A. Cowles by John L. Weaver." The easement granted to defendant's predecessor in interest "the right, permission and authority to construct, maintain, and renew 'pole line equipment' *** and also to trim, from time to time, such trees, bushes and _____ [sic] as may be reasonably required for the construction and efficient operation of said 'pole line equipment' ***."

[13]   On October 16, the trial court entered an order, in which the parties agreed that poles 14 and 15 would be relocated three feet closer to the street, that the relocation would not require extensive tree trimming, and that defendant was to restore plaintiffs' landscaping upon completion of the work. The next day, defendant replaced poles 14 and 15 with 50-foot poles. In constructing pole 14, defendant destroyed five 15 to 18-foot lilac bushes. In erecting pole 15, defendant destroyed four 15 to 18-foot lilac bushes and a native cherry tree. Also, a mulberry tree subsequently died due to damage caused by defendant's activities.

[14]   On February 6, 1998, plaintiffs filed an amended complaint, alleging that defendant, contrary to the provisions of the October 16 order, removed numerous trees and caused other extensive damage during the replacement of the poles, and that a controversy existed as to whether defendant possessed a valid easement. According to plaintiffs, the easement was invalid since it was not signed by the property owner and was not recorded. After defendant's subsequent motion to dismiss plaintiffs' amended complaint was granted, plaintiffs filed a second amended complaint, alleging that defendant only possessed a prescriptive easement, which it exceeded. Plaintiffs asked the court to order defendant to remove the four 50-foot poles and to restore the trees and shrubbery it had destroyed.

[15]   On April 6, 2000, plaintiffs filed their answers to defendant's notice to produce and interrogatories in which they included numerous photographs and stated that defendant chopped down many rare and irreplaceable lilac bushes, other trees, and privets with respect to work surrounding five pole areas: 13, 14, 15, 16, and 16A. According to plaintiffs, defendant also scorched the earth in these areas. Plaintiffs attached various consultation reports with respect to the damage done and replacement or damage estimates.

[16]   On August 15, plaintiffs filed a motion for a restraining order, asking the court to prohibit defendant from again entering their property for the purpose of tree trimming after they received a postcard from defendant indicating its intent to undertake trimming on the property. On August 17, the trial court granted the motion, prohibiting defendant from entering plaintiffs' property between that date and August 30, unless an emergency situation existed. On October 4, the trial court entered an order, after the parties had met on the property for an inspection, authorizing defendant to trim one tree.

[17]   On April 25, 2002, plaintiffs filed a motion for partial summary judgment, arguing that there was no genuine issue of material fact as to the easement's validity because it was not signed by the property owner, nor recorded. On June 11, defendant filed a cross-motion for summary judgment, arguing that it possessed an express grant of an easement and that the document was admissible and genuine under the ancient document rule. Attached to this motion was the easement, as well as a copy of Cowles' will in which he gave Weaver $500, and a bill sent by Weaver (an attorney) to Cowles' estate for services rendered in an unrelated matter. Defendant argued that the tree trimming and replacement of the poles were authorized under the easement. In response to defendant's cross-motion, plaintiffs argued that genuine issues of material fact existed regarding the extent of the alleged easement, what damages were caused by defendant's conduct, and the amount of damages caused by defendant. On July 25, defendant replied, arguing that the amount of damages was only an issue if defendant did not have the authority to do the work, which it did. On September 5, the trial court entered an order, stating that the there was "significant disagreement" between the parties as to whether defendant possessed a valid easement, which precluded summary judgment in either parties' favor. The court therefore denied both motions.

[18]   On September 30, plaintiffs filed a motion to reconsider the September 5 order, stating that the easement was invalid because defendant failed to present evidence that Weaver was Cowles' agent. On October 9, defendant filed a motion to reconsider the September 5 order, arguing that the easement was valid because it was an ancient document.

[19]   On December 23, the trial court entered an order, stating that the issue was whether defendant possessed a valid easement. According to the court, defendant had presented sufficient evidence that it possessed a valid easement and, moreover, that equitable principles rested with defendant. Accordingly, it denied plaintiffs' motion to reconsider, granted defendant's motion to reconsider, and granted defendant's motion for summary judgment. This appeal followed.

[20]   ANALYSIS

[21]   Initially, we note that defendant moved to strike portions of plaintiffs' appellate brief as violative of Supreme Court Rule 341 (188 Ill. 2d R. 341). We took this motion with the case. We now deny defendant's motion to strike plaintiffs' brief, but we note that we will disregard any inappropriate materials contained therein.

[22]   Plaintiffs first contend that the trial court erred in granting summary judgment in defendant's favor because the document defendant relied upon as granting an easement over plaintiffs' property was signed by someone (John Weaver) other than the property owner (A. Cowles) at the time of the alleged easement and defendant failed to present evidence of any agency relationship between Weaver and Cowles. According to plaintiffs, the trial court erred in deciding fact questions with respect to agency issues in finding the easement valid. Plaintiffs also contend that the trial court erred in granting summary judgment because genuine issues of material fact existed regarding the amount of damage caused by defendant to plaintiffs' property and the reasonableness of defendant's conduct on their property, i.e., did defendant's conduct constitute misuse or exceed the boundaries of the easement.

[23]   Defendant contends that, under the ancient document rule, the admissibility and genuineness of the easement is presumed, and it need not demonstrate direct proof of execution or authority to do so by an agent. Defendant further contends that the easement must be sustained under principles of equity, particularly given the fact that plaintiffs had notice of the easement since poles were in existence on their property. Defendant also contends that we must disregard those arguments with respect to remaining fact questions because plaintiffs failed to comply with Supreme Court Rule 191 in that they attached no affidavits to their motion for partial summary judgment and failed to cite authority, thus waiving these issues for review. Additionally, according to defendant, plaintiffs did not raise the issue of damages until their response to defendant's cross-motion for summary judgment, which was an improper time. Alternatively, defendant contends that even if plaintiffs did not waive review of these issues, no fact questions existed. According to defendant, it demonstrated, ...


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