[Copyrighted Material Omitted]
Judgments reversed. Cause remanded.
Defendants who counterclaimed for a prescriptive easement after being sued for wrongful trespass were improperly denied summary judgment where, for more than 20 years, they had avoided obstructions caused by utility installations and mature trees by driving over a corner of plaintiff titleholder's property to reach a road providing access from both of the otherwise landlocked properties to the main highway--adversity and exclusivity elements established and titleholder's complete deprivation of use held not required to prove the latter.
Michael T. Pobuda, Laura J. Pobuda, Pro se, of Barrington, for Appellants.
Gino L. DiVito, Mark H. Horwitch, John M. Fitzgerald, Brent M. Ryan, Tabet DiVito & Rothstein LLC; Robert S. Schwartz, Robinson Shapiro & Schwartz LLC; Anthony M. Sciara, Harvey Kruse, P.C., all of Chicago, for Appellee.
JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
[¶2] Plaintiff, Nationwide Financial, LP (Nationwide), filed suit against defendants, Michael Pobuda and Laura Pobuda, seeking a declaratory judgment that the Pobudas' use of a certain strip of land owned by Nationwide amounted to a trespass. The Pobudas counterclaimed, alleging, among other things, that they enjoyed a prescriptive easement to travel over the disputed land. The parties filed cross-motions for summary judgment and the circuit court of Cook County ruled in favor of Nationwide. The court concluded that the Pobudas' claim of a prescriptive easement failed as a matter of law because they did not establish that their use of the portion of property in question was " exclusive" to the point of dispossessing the owner of its use. The Pobudas appealed, and the Appellate Court, First District, affirmed. 2013 IL App. (1st) 122540-U. The appellate court held that the outcome was governed by a line of first district cases (see, e.g., Catholic Bishop of Chicago v. Chicago Title & Trust Co., 2011 IL App. (1st) 102389, 954 N.E.2d 797, 352 Ill.Dec. 714) that require the claimant of an easement to show that the true owner of the property was altogether deprived of its use. 2013 IL App. (1st) 122540-U, ¶ ¶ 34-35. We allowed the Pobudas' petition for leave to appeal, and for the reasons that follow, we reverse the judgments of the circuit and appellate courts.
[¶4] In June 2008, Nationwide became the owner of a parcel of land commonly known as 275 Donlea Road, Barrington Hills, Illinois (the 275 property). The Pobudas have owned and been in possession of the adjacent lot to the west, located at 281 Donlea Road (the 281 property), since December 1986. The portion of the Nationwide 275 property in dispute here is described as follows: " the north 48 feet of the west line and the west 33 feet of the north line, in the northwest corner of [the 275 property]." Herein, we will refer to this disputed 33 x 48 foot strip of property as " the northwest corner of the 275 property" or the " northwest strip."
[¶5] Both the northwest corner of the 275 property and the adjoining northeast corner of the 281 property are located approximately 609 feet south of Donlea Road. Both properties would have been landlocked but for a long gravel road easement that runs south from Donlea Road over other property to reach them. In that regard, the owners of both the 275 property and the 281 property were each granted a shared 66-foot wide by 609-foot long easement--recorded in November 1956--for the purpose of utility service and access from Donlea Road to their respective properties. Additionally, in April 1957, the then owners of the 281 property granted Commonwealth Edison a utility easement upon, under and along the north 10 feet of the west 10 feet of the east 33 feet of the 281 property. Neither of these recorded
easements is directly challenged in this case.
[¶6] The Pobudas' verified amended counterclaim alleges that access to their 281 property is impossible without crossing the northwest corner of the 275 property because utility equipment and mature trees and shrubs block access on the north line of their property. The utility equipment was installed and has been in operation since 1957. It supplied utility service for the mutual benefit of both the 275 and 281 properties. The Pobudas claim that access to their property from the public road is only possible by car or other vehicle by traveling the length of the 609-foot gravel access road to where it meets and continues over unto the northwest corner of the 275 property en route to the 281 Donlea property driveway, which opens onto the west side of the northwest corner of the 275 property.
[¶7] The Pobudas allege that they have traveled over the northwest corner strip of the 275 property " during various hours of the day and night, 6 to 7 days each week, for 52 weeks each year, in an open, visible, notorious, peaceful, uninterrupted adverse manner, during the 22 year plus period from December 12, 1986, through approximately March 2009." They also claim that the prior owner of the 275 property, Mary Jane Burton, whose ownership spanned nearly 39 years running from November 1969, through June 2008, observed them using the strip when their automobiles passed while heading in opposite directions over the northwest corner of the 275 property. The Pobudas assert that their use of the 275 property's northwest corner for access to and exit from the 281 property was never raised as an issue or even discussed with anyone at any time prior to May 2009. No lease was ever executed or discussed with respect to the strip in question. Nor was oral permission to use it ever requested, given or discussed. The Pobudas allege that their relationship with Burton was " civil." The Podudas further assert that from December 1986 to the present, they have " continuously acted under a claim of right, adversely and in disregard of the rights of others to use the 275 Donlea Property's northwest corner." They claim that from December 1986 to the present, they have " regularly plowed snow, mowed grass, filled in low spots with road gravel, raked leaves, swept debris, picked-up sticks, patched and seal coated the driveway surface, on, upon and across the 275 Donlea Property's northwest corner."
[¶8] The Pobudas also allege the following:
" During the period of December 12, 1986 through the present date, [the Pobudas], under a claim of right, openly, visibly, notoriously and adversely, used the [northwest corner of the 275 property]:
A. to travel to and from [their] home and [their] garage located on [their 281 property];
B. to receive deliveries from the U.S. Postal Service, from UPS, from FedEx and from other delivery services;
C. to receive services provided by home repair contractors, appliance repairmen and other repair service personnel;
D. for utility company personnel to read utility meters and service utility equipment in [their] home; and
E. for the garbageman to pick-up [their] garbage."
[¶9] In addition, the Pobudas allege that during the period of December 1986 to the present, their family, friends, invited guests, and visitors traveled over the northwest corner of the 275 property. The Pobudas themselves used the strip
openly and under a claim of right by traveling over it by car, truck, on foot and on bicycle.
[¶10] The Pobudas claim that Nationwide's predecessor in title, Burton, acknowledged the Pobudas' claim of right and adverse interest in the northwest corner of the 275 property in the following ways:
" A. by not resurfacing the northwest corner [of the 275 property] claimed by [the Pobudas] at the time that [Burton] had her entire driveway resurfaced;
B. by planting new trees adjacent to, but east of, and outside of, the area of the northwest corner easement claimed by [the Pobudas], when said prior owner re-landscaped the northwest corner area of her 275 Donlea Property;
C. by never blocking, obstructing, restricting or closing off any portion of the northwest corner easement claimed by [the Pobudas]."
[¶11] Finally, the Pobudas claim that their predecessor in title, Mary Ann Mayworm (and her family), used the northwest corner of the 275 property continuously for a 15-year period from June 1971 through December 1986 under a claim of right. The record contains an affidavit by Mayworm in which she attests that she lived at 281 Donlea Road from 1971 through 1986, when she sold the property to the Pobudas. She attested that during the time that she lived at the 281 property, she, her family, and their visitors traveled over the northwest corner of the 275 property en route to and from Donlea Road and to and from her home. Moreover, her husband maintained the northwest corner strip by plowing snow off the surface of the driveway and performing other maintenance work. She further attested that:
" 8. During the entire 15 years that [she] resided at the 281 Donlea Property, [she] never asked the owners of the 275 Donlea Property, or anyone else to buy, lease or for permission to use or travel over ...