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Jon Deraedt, Walter Fuchs, and Bonnie Fuchs v. Reginice M. Rabiola

November 8, 2011

JON DERAEDT, WALTER FUCHS, AND BONNIE FUCHS,
PLAINTIFFS AND COUNTERDEFENDANTS-APPELLANTS,
v.
REGINICE M. RABIOLA, DEFENDANT AND COUNTERPLAINTIFF- APPELLEE.



Appeal from the Circuit Court of Kane County. No. 07-CH-485 Honorable Michael J. Colwell, Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff Jon DeRaedt sued the defendant, his neighbor Reginice Rabiola, alleging that she repeatedly trespassed on a grassy strip located on the land he leased from the plaintiffs Bonnie and Walter Fuchs. He sought: (1) an injunction to prevent the trespass; (2) to quiet title via a declaratory judgment that Rabiola did not have an easement over the grassy strip; and (3) compensatory damages for four rows of corn that Rabiola allegedly destroyed through her use of the strip as well as punitive damages. The trial court entered an injunction against Rabiola's use of the strip, ultimately found that there was no easement and quieted title in the Fuchses, and awarded damages in the amount of $237 for the destroyed corn. Thereafter, the plaintiffs moved for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). The trial court denied the motion, and the plaintiffs appeal the denial of sanctions. We reverse and remand.

¶ 2 Factual and Procedural Background

¶ 3 In 2004, Rabiola bought a farm immediately east of the Fuchs farm. She built stables and an indoor riding ring on a portion of her land, and grew hay on the back portion. The Fuchs farm, which had been leased to and farmed by DeRaedt since 1997, had a grassy strip running along the eastern side of the property, along the border with Rabiola's farm. Rabiola used the strip to get trucks and equipment to her stables area and the hay field beyond, despite the presence of "No Trespassing" signs and DeRaedt's verbal objections. According to DeRaedt, in 2005 Rabiola also dumped waste material from the horses' stalls, used bedding that contained wood shavings and other matter, on a portion of the grassy strip and on the Fuchses' field next to the strip.

¶ 4 In the spring of 2006, DeRaedt plowed the grassy strip and planted corn there. After the corn had begun to grow, heavy machinery traveled over the area and cut or destroyed the corn. DeRaedt called the Kane County sheriff's office and reported that Rabiola had trespassed on his cornfield and destroyed part of his crop. Rabiola told the deputy sheriff that the grassy strip was an access road and that she was entitled to use it to get to her hay fields. On June 26, 2006, an attorney for DeRaedt wrote to Rabiola, asking her to stop trespassing and dumping on DeRaedt's leased farm. The attorney advised her that the relevant county and title company records showed no easement over any portion of the Fuchs farm. On July 31, 2006, after being notified that Rabiola was represented by counsel, DeRaedt's attorney wrote Rabiola's attorney, advising that the Fuchses had not granted Rabiola permission to traverse their land, and outlining facts that he believed could be established showing that no easement (whether express, implied by necessity, or acquired by prescription) existed. However, the dispute remained unresolved.

¶ 5 On March 7, 2007, DeRaedt filed suit against Rabiola in the circuit court of Kane County. In his verified complaint, he recited the history of Rabiola's alleged trespassing and dumping, and sought an injunction barring Rabiola from entering upon DeRaedt's leased land or dumping there. In addition, DeRaedt sought compensatory damages for the destroyed crops and the cost of remediating the soil where the waste materials were dumped, and punitive damages for Rabiola's willful and continuing trespass. DeRaedt attached to his complaint a plat of the two farms and the surrounding area, which did not show any easement; copies of the sheriff's report and DeRaedt's attorney's letters to Rabiola; and photographs showing (a) the grassy strip and DeRaedt's field posted with "No Trespassing" signs, (b) an aerial view of the farms, showing the strip and, on the Fuchs farm directly across the strip from the location of Rabiola's barn, a light-colored semicircular area that DeRaedt stated was caused by the dumped waste materials, and (c) the corn planted along the grassy strip in 2006, both when it was growing and when it had been cut down. Rabiola filed a motion to dismiss the complaint, arguing that it contained too many extraneous facts and that it did not state a claim for punitive damages.

¶ 6 DeRaedt moved for the entry of a temporary injunction on May 9, 2007. Rabiola filed a response containing bare denials of all of DeRaedt's assertions. On June 5, 2007, Rabiola filed a countercomplaint against both DeRaedt and the Fuchses, alleging that there was an easement in favor of her property upon the grassy strip (which she characterized as being located "between" the Fuchs farm and her own) "by way of prescription and of necessity." She alleged that the easement by prescription was created before she bought her property and was used by the previous owners for more than 20 years. She asserted that the use of the easement had been "adverse, uninterrupted, exclusive, continuous, and under a claim of right" for longer than 20 years. She also stated that she was unable to access the south end of her property with farm machinery across her own land. She sought an injunction barring DeRaedt and the Fuchses from plowing and planting the grassy strip. Rabiola also filed a motion for a temporary restraining order or preliminary injunction, to which she attached her own affidavit. The affidavit stated that, before she bought her property, it was farmed by Bob and Gordon Gehrke, who "continuously used the easement between [her] land and the Fuchs farm to gain access to the land" at the south end of the property, and that this use was "with the knowledge and acquiescence of the owners of the Fuchs property, but without their permission." On June 6, 2007, the trial court entered an order enjoining Rabiola from using the grassy strip until further order of court. The trial court also dismissed the complaint but gave DeRaedt time to file an amended complaint.

¶ 7 On June 20, 2007, DeRaedt filed a verified amended complaint containing the same claims as his original complaint, but stating them in simpler terms. Rabiola filed a verified answer denying essentially all of the allegations. In October 2007, DeRaedt filed a verified second amended complaint including the Fuchses as plaintiffs and asserting the same claims. Rabiola again filed a verified answer denying essentially all of the allegations.

¶ 8 In April 2008, the plaintiffs filed a motion for partial summary judgment, asking the trial court to rule that Rabiola had no easement rights over any portion of the Fuchs farm, enter a permanent injunction preventing Rabiola from coming onto the grassy strip, and either award damages or transfer the case to the law division for the setting of appropriate damages. In the motion, the plaintiffs discussed the various types of easements that Rabiola might be deemed to be asserting over the grassy strip, and attached evidence and cited case law to show why none of them in fact existed.

¶ 9 As to an express easement, the plaintiffs attached and discussed deeds and title documents showing that the grassy strip was part of the Fuchs farm, not "between" the Fuchs farm and Rabiola's farm, and showing no easement running over the Fuchs farm. As to a prescriptive or adverse easement (the requirements for which are similar), Rabiola's allegations of 20 years of use of the grassy strip that was adverse, uninterrupted, continuous, and under a claim of right were negated in several ways. First, her allegations were negated by her own statements that she had asked Walter Fuchs for permission to use the grassy strip, which demonstrated that her use of the strip was not hostile or under a claim of right. Second, her assertions of "continuous" and hostile use were contradicted by the affidavits of several persons, including Kimberly and Kevin Wiedenfeld (who previously owned and sold the farm to Rabiola), Bob Gehrke (who leased and farmed the Rabiola farm before Rabiola bought it), and owners of the Fuchs farm for the previous 20 years, including Walter Fuchs and Leland Strom. The affidavits included Kim Wiedenfeld's statement that, prior to the sale, Rabiola asked Wiedenfeld if she could use the grassy strip to get to the rear of the farm and Wiedenfeld told her no, there was no easement and it was not their property; Gehrke's statement that, when he farmed on the Rabiola farm, he accessed the rear fields across the farm itself, that travel on the grassy strip was not necessary for such access, and that on the two or three occasions he had used the strip he had DeRaedt's permission to do so; and the statements of the prior owners and other persons farming the two farms that any use of the grassy strip by anyone other than the owners and tenant farmers of the Fuchs farm was at most occasional and was by permission. Walter Fuchs's affidavit stated that he had not given Rabiola permission to use the grassy strip.

¶ 10 As to an easement by necessity, the plaintiffs argued that Rabiola could not meet the legal requirements for such an easement because her parcel was not landlocked and she was able to access her hay fields across her own land, although she chose not to do so. Finally, as to an unspecified "implied" easement, deeds and title documents showed that no such easement was created when the two farms were initially severed in 1882, and so again the legal requirements for such an easement could not be met.

¶ 11 Rabiola responded to the motion for summary judgment in several ways. First, she filed motions to strike all of the affidavits attached to the plaintiffs' motion, claiming that one (or in some instances, a few) of the statements in each affidavit were conclusory rather than being based on personal knowledge. These motions did not attack the great majority of the statements in the affidavits but simply sought to strike all of them because of the presence of the conclusory statements. Rabiola also filed a responsive brief, in which she asserted (without citing to any supporting evidence) that there was "a question of fact as to whether an easement by prescription," which requires 20 or more years of continuous and adverse use under a claim of right, existed in her favor. She also cited case law regarding easements implied by necessity or from a pre-existing use, which can be shown where: (1) there was separation of title between the two parcels; (2) before the separation, the use was "so long continued, obvious, or manifest, to that degree which will show it was meant to be permanent"; and (3) the use of the claimed easement was essential to the enjoyment of the land conveyed or retained. Gilbert v. Chicago Title & Trust Co., 7 Ill. 2d 496, 499 (1955). Rabiola pointed to the fact that several of the affidavits supporting the motion ...


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