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Marjorie C. Hahn, Successor Trustee To v. the County of Kane and the City of St. Charles

January 18, 2012


Appeal from the Circuit Court of Kane County. No. 10-MR-277 Honorable Thomas E. Mueller, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Burke and Schostok concurred in the judgment and opinion.


¶ 1 Plaintiff, Marjorie C. Hahn, successor trustee to Robert C. Hahn, trustee under a trust agreement dated November 13, 1998, appeals from the trial court's orders denying the Robert C. Hahn Trust's (Hahn) request for an injunction and denying its motion to dismiss the counterclaim of defendant Internal Combustion, LLC (IC). In its cross-appeal, IC appeals from the trial court's order entering judgment in favor of Hahn on IC's counterclaim. We affirm in part, reverse in part, and remand.


¶ 3 In 1998, Robert C. Hahn deeded to the Robert C. Hahn Trust property on the west side of Randall Road, north of Route 64, and within the municipal limits of defendant the City of St. Charles (the City). This property was approximately 1,200 feet long and 360 feet wide. The property was also adjacent to part of a planned improvement of the intersection of Randall Road and Route 64 by defendant the County of Kane (the County), which had exclusive jurisdiction over Randall Road. In 2005, Hahn and the County entered into a sales agreement. In exchange for approximately $3.6 million, Hahn conveyed to the County: (1) a strip of land in fee simple for purposes of widening and improving Randall Road; (2) an exclusive and permanent easement on approximately 3.2 acres of property at the north end of the Hahn property for "storm water drainage, retention, detention and conveyance, and all things appurtenant thereto"; and (3) temporary easements for building, demolition, and grading purposes on other parts of the Hahn property. The permanent easement extended to the "respective heirs, successors and assigns" of Hahn and the County. In addition, the agreement provided that, under certain circumstances, Hahn could relocate the permanent easement to other property.

¶ 4 In November 2005, Hahn entered into a sales agreement to sell approximately eight acres of land at the northwest corner of Randall Road and Route 64 to Resnick Acquisition Corp., which planned to open an auto dealership. This parcel was directly south of the Hahn property. The use of the property as a dealership by defendant IC required the issuance of a special use permit by the City; IC applied for such a permit, with Hahn signing as record owner. An ordinance granting the special use was passed in April 2006. However, various other issues, including stormwater detention, prevented the closure of the deal as originally contemplated. Hahn agreed to extend the due diligence period of the sales agreement.

¶ 5 In November 2006, the City and the County entered into an intergovernmental agreement (IGA) regarding improvements to Randall Road north of Route 64. Among other things, the IGA required the County to expand the existing stormwater management facility located on the portion of the Hahn property that was encumbered by the permanent easement, which "currently service[d] the needs of the Randall Road Project." The facility, which had a capacity of 11 acre-feet, was to be expanded to 16.6 acre feet. The County agreed to "permit the CITY or their agents, subject to the conditions of the existing easement therefor, to construct the incremental additional capacity up to 5.6 [acre-feet] in the future." The construction of additional capacity was to take place "if adjacent development desires to manage stormwater with a facility at the location of the afore described stormwater management facility." The County reserved 1.6 acre-feet of the expansion "for the future expansion of Randall Road" as contained in its transportation plan and stormwater ordinance; "adjacent development" was to be allowed to utilize up to 4 acre-feet of the expansion.

¶ 6 The sale of the property to IC closed in December 2006, but the next several years were spent on planning and financing. On May 19, 2010, the County issued permits for expansion and use of the stormwater management facility; two days later, the City issued a building permit for the entire IC project, and work on the project began. On June 1, 2010, Hahn filed a complaint for declaratory judgment and other relief and a petition for a temporary restraining order (TRO) and a preliminary injunction, seeking to enjoin IC from constructing the stormwater management facility.*fn1

The trial court denied the request for a TRO, and IC filed an answer, affirmative defenses, and a counterclaim against Hahn; in the counterclaim, IC alleged breach of the sales agreement. Hahn subsequently filed a three-count amended complaint seeking injunctive relief and the prevention of the use of the property for retention and detention of stormwater from the IC property.

¶ 7 After a December 2010 bench trial, the trial court found in favor of IC, the City, and the County on all three counts of Hahn's amended complaint. The court found that there was no language in the easement "which places any restrictions on the county use of the subject land in regards to the capacity or size of the stormwater detention facility to be constructed." There was also no evidence of any intent that the easement "would only be used by the County for its Randall Road stormwater needs." Therefore, Hahn's argument that "the owner of the dominant easement may not materially alter the easement so as to place a greater burden on the subservient estate is clearly not applicable herein." The trial court found that the easement was "available not only to Kane County, as grantee, but also to the county's heirs, successors and assigns." As there were "no capacity limitations applicable to the county's assigns, *** there was no reason for [IC] to seek [Hahn's] approval of its use of the detention facility."

¶ 8 The court also found that "the natural flow of rainwater on the subject property" ran from south to north (IC property to Hahn property) and that the law provides that the owner of the higher estate "has the right to allow surface water to follow the natural course of drainage onto the lower estate" and may even construct "artificial devices such as ditches or drains" to more efficiently carry off surface water. While noting that Hahn, through its attorney, was aware as early as 2007 of IC's desire to use the easement and did not express any opposition until 2010, the court did "not make any initial finding that [Hahn] had any rights which were waived or forfeited by laches." The court also denied IC's counterclaim, finding "no evidence of damages at this time." Both Hahn and IC now appeal.


¶ 10 An easement provides a privilege or a right in the use of another's property. Board of Managers of Hidden Lake Townhome Owners Ass'n v. Green Trails Improvement Ass'n, 404 Ill. App. 3d 184, 190 (2010). An easement appurtenant is defined as "an incorporeal right, short of actual ownership, over the land of another." McGoey v. Brace, 395 Ill. App. 3d 847, 848 n.1 (2009). The tract of land that is benefitted by the easement is known as the dominant estate (or the easement owner), while the land burdened by the easement is known as the servient estate. McGoey, 395 Ill. App. 3d at 848 n.1. An easement provides use rights; it does not provide ownership rights or an ownership interest in the land. Matanky Realty Group, Inc. v. Katris, 367 Ill. App. 3d 839, 842 (2006). The easement owner is entitled to the necessary use of the easement. Matanky Realty Group, Inc., 367 Ill. App. 3d at 842. "Necessary use" is defined as use that is reasonably necessary for full enjoyment of the premises. McCann v. R.W. Dunteman Co., 242 Ill. App. 3d 246, 254-55 (1993). The owner of an easement cannot make a ...

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