2021 IL App (2d) 200536-U No. 2-20-0536 Order filed July 8, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
CHICAGO TITLE AND TRUST COMPANY, ) Appeal from the Circuit Court as Successor Trustee to Itasca Bank and Trust ) of Du Page County. Co.., as Trustee under Trust Agreement dated ) Sept. 20, 1989, and known as Trust No. 10749, ) ) Plaintiff-Appellant, ) ) v. ) No. 16-MR-801 ) THE VILLAGE OF BENSENVILLE, ) Honorable ) Paul M. Fullerton, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court. Presiding Justice Bridges and Justice Hudson concurred in the judgment.
ORDER
¶1 Held: The trial court erred in granting summary judgment for a municipality on a property owner’s claim for damages from the municipality’s blocking of access to a railroad right-of-way in which the property owner claimed a prescriptive easement.
¶2 Plaintiff, Chicago Title & Trust Company, appeals the trial court’s order granting summary
judgment to defendant, the Village of Bensenville (the Village). In its complaint, plaintiff, which
owned property in the Village, sought damages from the Village for blocking an alleged
prescriptive easement across an adjacent parcel of land. We reverse and remand. 2021 IL App (2d) 200536-U
¶3 I. BACKGROUND
¶4 Plaintiff, as trustee of a trust, sued the Village, seeking (1) a declaration that the beneficial
owners of property within the Village established an easement by prescription across a strip of
land in the Village and (2) monetary damages for the Village’s blocking access to that strip. The
trial court granted the Village summary judgment. Plaintiff appeals.
¶5 Plaintiff is the legal titleholder of property at 2-4 South Addison Street in Bensenville (the
property). The beneficial owners of the trust are Ian and Eva James. The property is immediately
south of railroad tracks owned by the Canadian Pacific Railroad Company, doing business as the
Soo Line.
¶6 The property is improved with a building erected in 1955. A partnership leases the building
to Carefree East Day Care Center, Inc. (Carefree), which operates a daycare center there. Ian is
the general partner of the partnership and secretary of Carefree. Eva is president of Carefree. The
Jameses purchased the daycare business in 1989 and purchased the property in 1992.
¶7 The complaint alleged that the only way for vehicles to reach the rear of the building on
the property was along a 35-foot-wide, 150-foot-long strip (the strip) contiguous to the north end
of the property. At all relevant times, the strip was part of land owned by the Soo Line. Since
1992, the property owners and their customers and vendors had used the strip “continuously,
visibly openly, noticeably, notoriously and adversely.” The strip was used by the daycare
employees for parking, by garbage trucks for access to the dumpster in the building’s rear, and by
vendors for deliveries. Previous owners had used the strip for deliveries and garbage pickup since
at least 1968. At least while plaintiff was using the strip, there was a driveway or apron from the
street to the strip. A public sidewalk passed over the driveway.
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¶8 Plaintiff’s building was built to the lot line on the north and south sides. The north wall
contains a door that opens directly onto the strip and is used several times daily. Photos in the
record show that the area adjacent to the building is covered in gravel. The strip contains some
permanent posts and railroad signs.
¶9 Sometime before June 2015, the Village obtained approval to establish a “ ‘Quiet Zone’ ”
along the Soo Line tracks so that trains would not be required to sound their horns while
approaching grade crossings within the Village. As part of the approval process, the Village had
to restrict crossings of the tracks by vehicles and pedestrians. In June 2015, per the Quiet Zone
plan, the Village barricaded the strip to prevent vehicle access.
¶ 10 Plaintiff then sued the Village in a two-count complaint. In its general allegations, plaintiff
alleged that it held a prescriptive easement across the strip. Count I sought a declaratory judgment
as to the parties’ rights and an injunction directing the Village to restore plaintiff’s access to the
strip. Count II sought damages from the Village for the loss of that access.
¶ 11 The Village filed motions (1) to dismiss the amended complaint per section 2-619 of the
Code of Civil Procedure (735 ILCS 5/2-619(a) (West 2018)) and (2) for summary judgment. The
Village argued, inter alia, that the Soo Line was a necessary party and that the federal agency in
charge of railways, the Surface Transportation Board, had exclusive jurisdiction. The Village
argued that the Soo Line used the strip for staging and maintenance and that the declaration of an
easement could impair those operations. The Village further argued that plaintiff had failed to
overcome the presumption that its use of the strip was permissive.
¶ 12 The trial court initially denied the motion. The court believed that the Soo Line was a
necessary party but declined to dismiss the case at that point. Both parties sought reconsideration.
Plaintiff abandoned its count seeking an injunction and proceeded only on the count seeking
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damages from the Village. The court granted the Village summary judgment, ruling that a
presumption was raised that the use of the strip was permissive and that plaintiff had not rebutted
that presumption. The court cited “the well-settled rule that use of vacant and unoccupied land is
presumed to be permissive and not adverse” (Nationwide Financial, LP v. Pobuda, 2014 IL
116717, ¶ 55). The court recognized that “the Illinois view concerning the presumption of adverse
use is limited in that it only arises where all the other elements necessary for an easement by
prescription are established and where the origin of the use is not in vacant and unenclosed land.”
(Emphasis added.) Roller v. Logan Landfill, Inc., 16 Ill. App. 3d 1046, 1052 (1974). The court
found that the presumption of permissive use applied because “[t]he record indicates that [the strip]
was vacant, unenclosed, and unoccupied land used for many years by [p]laintiff for parking.”
Plaintiff “failed to put forth any evidence rebutting the presumption of permissive use.” The court
concluded that plaintiff’s use of the “vacant and unoccupied” strip was “merely permissive,” and
therefore the Village was entitled to judgment as a matter of law.
¶ 13 Plaintiff timely appeals.
¶ 14 II. ANALYSIS
¶ 15 Plaintiff contends that the trial court applied the wrong presumption. It argues that the use
of another’s property is generally presumed to be adverse. Only if the property is “vacant and
unused” do courts presume that the use was permissive. Plaintiff further contends that the
property, located in the Village’s business district and actively used by the Soo Line, was neither
“vacant” nor “unused.”
¶ 16 The Village responds that the strip was indeed vacant because it contained no structures
and the railroad was not actively using it. The Village also raises several alternative reasons for
affirming the judgment: (1) plaintiff’s use of the property was not exclusive in that it derived solely
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from its lessee’s (Carefree’s) use of the strip, (2) plaintiff continues to have access to the property
from Addison Street, and (3) the Soo Line is a necessary party.
¶ 17 Plaintiff appeals the grant of summary judgment to defendant. Summary judgment is
proper where “the pleadings, depositions, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). In deciding this, the court
must construe the pleadings, depositions, admissions, and affidavits strictly against the movant
and liberally in favor of the opponent. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). The
movant bears the burden of proof and the initial burden of production. Colburn v. Mario Tricoci
Hair Salon & Day Spas, Inc., 2012 IL App (2d) 110624, ¶ 33. We review de novo an order
granting summary judgment. Id. ¶ 32.
¶ 18 An easement is a right or privilege in the real estate of another, but it is by definition a
nonpossessory interest. Pobuda, 2014 IL 116717, ¶ 28. Where there has been privity between
users, periods of use may be tacked together. Id. To establish an easement by prescription, the
use of the parcel in question must have been adverse, uninterrupted, exclusive, continuous, and
under a claim of right for at least 20 years. Id.
¶ 19 To satisfy the element of adversity, “ ‘[t]he use must have been enjoyed under such
circumstances as will indicate that it has been claimed as a right, and has not been regarded by the
parties merely as a privilege or license, revocable at the pleasure of the owners of the soil.’ ” Id.
¶ 43 (quoting Rose v. City of Farmington, 196 Ill. 226, 229 (1902)). “Mere permission to use land
cannot ripen into a prescriptive right, no matter how long the permissive use is enjoyed.” Id.
¶ 20 The supreme court has set out the criteria for establishing a presumption of a right or grant
based on the long acquiescence of the party upon whose land the way is located:
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“[W]here the way has been used openly, uninterruptedly, continuously and exclusively for
more than a period of twenty years, the origin of the way not being shown, and,
parenthetically, where the land in origin is not vacant, open and unenclosed, there is a
presumption of a right from the long acquiescence of the holder of record title.” Poulos v.
F.H. Hill Co., 401 Ill. 204, 214-15 (1948) (citing Rush v. Collins, 366 Ill. 307, 315 (1937)).
¶ 21 Thus, where the origin of the use is not shown—and “the land in origin is not vacant, open
and unenclosed”—we presume that the use grew out of a grant or adverse right. Here, as we
explain, the origin of the use was not shown and a presumption was raised that plaintiff’s use of
the strip was by right based on the Soo Line’s long acquiescence.
¶ 22 As noted, the trial court relied on Roller for the proposition that “the Illinois view
concerning the presumption of adverse use is limited in that it only arises where all the other
elements necessary for an easement by prescription are established and where the origin of the use
is not in vacant and unenclosed land.” Roller, 16 Ill. App. 3d at 1052. The court found that the
presumption of permissive use applied because “[t]he record indicates that [the strip] was vacant,
unenclosed, and unoccupied land used for many years by [p]laintiff for parking.”
¶ 23 The trial court did not explain its finding that the parcel was “vacant, unenclosed, and
unoccupied.” Under Pobuda and Rush, the general presumption where the origin of the way is
unknown is that the use is adverse. The presumption of permissive use where the land is “vacant
and unenclosed” appears to be a rather narrow exception. The cases do not clearly explain the
rationale for the presumption of permissive use for vacant land, but it appears to be based on the
concept of notice to the servient owner.
¶ 24 The rationale for the general presumption of adverse use is that the servient owner has
acquiesced in the third party’s use of the property. Rush, 366 Ill. at 315. Acquiescence, in turn,
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requires knowledge of the ongoing use. Thus, where the servient owner is making use of the
property, it is reasonable to presume that he is aware of the third party’s use of it. Conversely,
where the servient owner is not using the property himself, he may not even be aware that anyone
else is using it. See Schultz v. Kant, 148 Ill. App. 3d 565, 570 (1986) (evidence proved that
defendant must have been aware of plaintiffs’ use of the contested parcel).
¶ 25 The earliest case that we found that recognizes this distinction is O’Connell v. Chicago
Terminal Transfer Railway Co., 184 Ill. 308 (1900), which involved the alleged creation of a public
highway by prescription. The court there stated:
“ ‘In order to establish a public highway by prescription over unenclosed lands, there must
be something more than mere travel over it by the public. It must appear that the user is
under a claim of right in the public, and not by mere acquiescence on the part of the owner.
Express notice is not necessary, but there must be such conduct on the part of the public
authorities as to reasonably inform the owner that the highway is used under a claim of
right.’ ” Id. at 316-17 (quoting Town of Brushy Mound v. McClintock, 150 Ill. 2d 129, 133-
34 (1894)).
¶ 26 Smith v. Mervis, 38 Ill. App. 3d 731 (1976), like here, involved a prescriptive easement
over a railroad right-of-way. The court, observing that “notice is essential to a finding of
adversity,” held that the railroad had presumptive notice of the adverse use. Id. at 733. The court
noted that train crewman and section hands had actual knowledge that the plaintiff was using the
land, but, in any event, “the railroad *** received more than sufficient constructive notice by
reason of the long, obvious, continuous use of the lane and the improvements made thereon, quite
apart from any actual notice it may or may not have received through the crewmen.” Id. In Wehde
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v. Regional Transportation Authority, 237 Ill. App. 3d 664, 678-80 (1992), we applied the general
presumption of adverse use to a claimed easement over a railroad right-of-way.
¶ 27 In Poulos, the court held that the mere fact that land is unfenced does not raise a
presumption of permissive use. Rather, for that presumption to arise, “the property in question
must comply with all three requirements,” which means that “the land not only must be
unenclosed, but also must be vacant and unoccupied.” Poulos, 401 Ill. at 215. In Poulos, there
was no presumption of permissive use, as the properties in question were adjacent to each other in
a metropolitan area, and it would be unreasonable to require “persons to fence property even after
they had improved that property with dwellings or buildings.” Id. at 216. In Schultz, we held that
the land in question was not vacant where the defendant and his predecessors had planted and
harvested crops on the land for many years. Schultz, 148 Ill. App. 3d at 572.
¶ 28 Here, there was no evidence about the origin of the use of the strip. Ian testified at his
deposition that the previous owners of the daycare center used the strip for parking and access to
the rear of the building. He never discussed the issue with anyone.
¶ 29 The parcel is in the Village’s business district. It is apparent from the record that the
railroad right-of-way, of which the strip was part, was in active use. As in Smith, the Soo Line had
“more than sufficient constructive notice by reason of the long, obvious, continuous use of the
lane.” Smith, 38 Ill. App. 3d at 733. There was simply no evidence in the record to support the
conclusion that the strip was vacant.
¶ 30 The Village, however, insists that the strip was vacant because of plaintiff’s use:
“To the extent that two objects cannot occupy the same space in our universe, plaintiff’s
tenant’s use of the servient property obviates the railroad’s occupancy of the same space
over the same time. As to the Soo Line, its property was vacant.”
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The Village cites no evidence that plaintiff’s use of the strip for employee parking and garbage
collection completely divested the railroad of use of the strip. In any event, it is apparent from the
cases that “vacant” refers to the use of the servient parcel as a whole, not merely the portion subject
to the alleged easement. For instance, Poulos involved an alleged prescriptive easement for a fire
escape. The court noted that the properties in question were adjacent to each other in a
metropolitan area. Further, each parcel was improved with multistory buildings even though the
area directly under the fire escape was empty. Poulos, 401 Ill. 2d at 215-16.
¶ 31 The Village also contends that plaintiff’s use of the claimed easement was not exclusive.
It argues that plaintiff’s right to the easement depended upon the use by the lessee, Carefree.
Exclusivity in this context does not mean that the party claiming the easement uses it to the
exclusion of everyone else; it means only that his or her right to do so does not depend upon a like
right in others. Pobuda, 2014 IL 116717, ¶ 28. “Where there has been privity between users,
periods of use may be tacked together to satisfy the requisite prescription period.” Id. ¶ 27. A
lease creates privity of contract and estate between the lessor and the lessee. Nassau Terrace
Condominium Ass’n v. Silverstein, 182 Ill. App. 3d 221, 225 (1989). While this case does not
involve a horizontal “tacking” of periods of use, it is undisputed that plaintiff and its lessee were
in contractual privity. Plaintiff’s use did not depend upon the rights of third parties or the public
generally.
¶ 32 Drew v. Whittington, 158 Ill. App. 3d 387 (1987), which the Village cites, is
distinguishable. There, the claimant’s right to the easement depended upon the conduct of the
servient owner’s lessees, with whom the claimant lacked contractual privity. Id. at 392-93.
¶ 33 The Village next contends that plaintiff’s use of the public sidewalk that passed over the
driveway was permissive because the sidewalk was available for use by the public generally. The
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Village notes that a prescriptive easement cannot exist over governmental property held for public
use. See People ex rel. Kenney v. City of Goreville, 154 Ill. App. 3d 1091, 1098 (1987) (discussing
adverse possession against government property). We agree with plaintiff that this issue is a red
herring. Plaintiff is not claiming an easement across the public sidewalk, nor, for that matter, is it
asking that the barricades be removed. It now seeks only monetary damages for the loss of access
to its alleged easement across the railroad property.
¶ 34 To that end, the Village renews its contention that the railroad is a necessary party. The
Village maintains that the declaration of an easement across the Soo Line’s property might affect
its ability to access the property for maintenance functions or its ability to sell the property in the
future. A necessary party is one whose presence in a suit is required for any one of three reasons:
(1) to protect an interest that the absent party has in the subject matter of the controversy that would
be materially affected by a judgment entered in its absence; (2) to reach a decision that will protect
the interests of those who are before the court; or (3) to enable the court to decide the controversy
completely. PACE v. Regional Transportation Authority, 346 Ill. App. 3d 125, 145 (2003).
¶ 35 As noted, plaintiff is not seeking the declaration of an easement across the Soo Line’s
property. It currently seeks only damages from the Village for the loss of whatever rights plaintiff
formerly had. Thus, whether the Village must pay plaintiff damages will not affect the Soo Line’s
operations or its right to sell the property in the future.
¶ 36 The Village lastly contends that plaintiff continues to have access to its property through
the front entrance on Addison Street. The Village apparently confuses a prescriptive easement
with an easement by necessity. An easement by necessity is typically implied where an owner of
land conveys an inner portion thereof that is surrounded by lands owned by either the grantor or
others. Gacki v. Bartels, 369 Ill. App. 3d 284, 290 (2006). In such a case, where alternatives exist
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that afford reasonable means of ingress and egress, easements by implication should not be
granted. Id. An easement by prescription, however, has no such requirement because the easement
derives solely from prior use. Plaintiff’s alternative access to the building may affect the damages
to which it is entitled if it ultimately prevails, but it does not prohibit a finding that it had a
prescriptive easement over the strip.
¶ 37 III. CONCLUSION
¶ 38 The judgment of the circuit court of Du Page County is reversed and the cause is remanded.
¶ 39 Reversed and remanded.
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