2022 IL App (1st) 211057-U FIFTH DIVISION March 25, 2022 No. 1-21-1057
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ CHICAGO TITLE LAND TRUST COMPANY, AS ) Appeal from the Circuit Court SUCCESSOR TRUSTEE TO AMERICAN NATIONAL ) of Cook County. BANK & TRUST COMPANY OF CHICAGO, U/T/A ) DATED FEBRUARY 24, 1989, A/K/A TRUST NO. ) 107716-08, ) ) Plaintiff-Appellee, ) ) v. ) No. 19 CH 12823 ) DAVID LARSEN, ) ) Honorable Sophia H. Hall, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Hoffman and Connors concurred in the judgment.
ORDER
Held: We affirm the circuit court’s grant of plaintiff’s motion for summary judgment and entry of a permanent injunction because the agreed facts demonstrate defendant trespassed upon plaintiff’s easement.
¶1 Defendant David Larsen appeals from the circuit court’s grant of summary judgment in
favor of plaintiff Chicago Title Land Trust Company, as successor trustee to American National 1-21-1057
Bank & Trust Company of Chicago, U/T/A dated February 24, 1989, A/K/A Trust No. 107716-
08’s (“the Trust”). In its summary judgment order, the circuit court found that defendant
trespassed upon the Trust’s easement, and entered a permanent injunction against interference
with that easement. We affirm.
¶2 BACKGROUND
¶3 This case concerns five row houses, hereinafter referred to as Lots 1 through 5, located
on the 2200 block of North Cleveland Avenue in Chicago. The houses run north to south, with
Lot 1 the furthest south, bordering Grant Place to the south, and Lots 2 through 5 ascending
north, with Lot 5 bordering an east-west public alley to the north. The Trust owns Lot 1, which it
purchased in 1989, for its beneficiaries John Douglas Van Arsdale and Steven Eckles. Larsen
owns Lot 2, which he purchased in November 2016.
¶4 Plaintiff attached a site plan to its motion for summary judgment, which we include here
for reference:
S ITE PLAN ( NOT TO SCA L E) EAST i - TREE TRUNK ""' 0 = UTILITY PO LE ' • = CEM ~ EN T POST ~9'- 10 ' PR IVATE A L L, Y M I NI
., 1#4 CAR I 0 o .., #3 GARAGE '--.J ~ #1 36~ DOOR GUPTA$ GARAG E 35" WOOD GATE DOOR
P U B LIC A LLEY- NORTH GRANT STR EET - SO UTH
224 3 2241 2239 2237 2235
LOT S LOT4 LOT2 LOT l LOT3
A B C NORTH C LEV ELAN D - WEST
# 3 CAR TO WALL #1 TOTAL 57 INC H ES W IDE W/ METAL 38 INCHES GATE & DOOR ~33" OPEN ING
¶5 This is not the first time this court has considered a dispute regarding the easement
covering the five properties. A few years ago, this court explained the history and dimensions of
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the subject property and the owners’ easement rights in Gupta v. Erwin, 2011 IL App (1st)
103494-U. The record adduced in this new case builds on the Gupta court’s analysis, so we
begin with a recital of that court’s essential findings, as follows:
“The five houses run in a north-south direction and front west onto Cleveland Avenue.
*** The row houses cover the entire width of their respective lots and are all connected
by party walls.” Id. ¶ 2.
“A public alley runs along the north side of [Lot 5]. A public street, Grant Place, runs
along the south side of [Lot 1]. The east side of the properties, which is also the back of
the properties, is bordered by another property. A private alleyway runs along the east
nine feet of each of the lots.” Id. ¶ 3.
“In 1874, Lots 1 through 5 were owned as a single parcel of land by Miner Porter and
Mary A. Porter. In August of 1874, the Porters subdivided the parcel into separate lots
through a recording filed with the Cook County Recorder of Deeds. On June 4, 1877, a
deed was recorded with the Cook County Recorder of Deeds whereby the Porters
transferred Lot 5 to Charles Carpenter. The deed included language reserving the rights
of an easement, which established the private alleyway. Specifically, the deed states in
pertinent part: “[I]t is hereby agreed that the east nine (9) feet of the above described
property shall be reserved as a private alley to be kept open as long as the owners of the
four adjoining houses south may require.” Id. ¶ 4.
“On June 26, 1878, through a deed recorded with the Cook County Recorder of Deeds,
the Porters transferred Lots 2 through 4 to James Blair. The June 26, 1878, deed
specifically excepted the “Nine (9) feet off the rear of said Lots, which is expressly
reserved and set apart for an alley.” Id. ¶ 5.
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“On June 9, 1882, James and Elysa Blair transferred Lots 2 through 4 back to Miner
Porter through a deed recorded with the Cook County Recorder of Deeds. The deed again
excepted “the nine (9) feet off the rear of said Lots, which is expressly reserved and set
apart for an alley.” Id. ¶ 6.
¶6 In Gupta, plaintiff Sandeep Gupta, owner of Lot 4, sued the owners of Lot 5 seeking a
declaratory judgment that he had an easement for vehicular ingress and egress over the private
alley, including the portion of the private alley behind Lot 5, and a permanent injunction barring
the Lot 5 owners from interfering with the easement. Id. ¶¶ 1, 7. The defendants denied that an
easement existed. Id. ¶¶ 13-14. In support, they noted that the Trust, as owner of Lot 1, had built
a garage on a portion of the private alley behind Lot 1, which prevented vehicular entry onto Lot
1 through the private alley. Id. ¶ 14. Additionally, the defendants noted that Michael Barry, then
the owner of Lot 2, did not use the private alley for ingress and egress because he installed
landscaping on the portion of the private alley behind Lot 2. Id. ¶ 15.
¶7 Van Arsdale filed interrogatory responses in Gupta, which this court characterized as
mirroring the defendants’ argument “that the condition and use of Lots 1 through 5 by their
owners belied any suggestion of an easement across the east nine feet of the properties” Id. ¶ 21.
¶8 In Gupta, the circuit court granted summary judgment for the plaintiff, and this court
affirmed. Id. In so finding, this court agreed with the circuit court that the private alley easement
existed, and permitted both vehicular passage as well as pedestrian use. Id. ¶ 43. The court
explained that the “private alley easement provided each of the owners of Lots 1 through 4 with
vehicular access from the public alley along the northside of Lot 5 to the rear of their properties.”
Id. ¶ 37. The court further stated:
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“[W]e believe that the private alley easement was intended to benefit each of the
four owners of Lots 1 through 4 and, as such, the easement creating the private alley
should remain in existence as long as any of the owners of Lots 1 through 4 requires that
the private alley be kept open. Since plaintiff requires that the private alley be kept open,
the easement has not terminated.” Id.
¶9 Gupta was not the only prior litigation involving the easement that is relevant to the
present case. In 1996, Ellen Lustig, the owner of Lot 2 at the time, filed a complaint in the circuit
court of Cook County, alleging in relevant part that Lots 1 through 5 were “benefitted and
burdened by a reciprocal easement for egress and ingress” through the private alley, and seeking
a permanent injunction against each lot owner from “interfering, obstructing or otherwise
impeding the use and enjoyment” of the easement. The circuit court entered a default judgment
in favor of Lustig, finding that Lots 2, 3 and 4 were “burdened by an express easement for egress
and ingress through, upon and across the nine foot private alley.” The defendants filed a notice of
appeal, but the appeal was ultimately dismissed. Lustig v. American Nat’l Bank of Chicago, No.
1-97-1507.
¶ 10 On November 4, 2019, the Trust filed the complaint at issue in this appeal. The Trust
alleged that Lot 1 was “benefitted by an express easement for egress and ingress through, upon
and across a nine foot private alley,” and that Larsen was interfering with this easement by
“repeatedly and consistently” parking his vehicle on the portion of the private alley behind Lot 2.
The Trust sought a permanent injunction against Larsen’s alleged trespass on plaintiff’s
easement.
¶ 11 In his answer, Larson generally denied the Trust’s claims and stated two affirmative
defenses. In his first affirmative defense, he claimed that the Trust had abandoned the easement.
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Specifically, he claimed that the Trust’s beneficiaries built a garage on Lot 1 that extended into
the portion of the private alley behind Lot 1 and prevented vehicular entry onto the lot via the
private alley. Larson contended that this showed the Trust’s intent “to permanently abandon and
surrender that portion of the easement, since [the Trust] cannot possibly move any item larger
than 30 inches through the easement of Lot 1.” Larsen continued that his vehicle, when parked,
still provided for “access to or use of at least 36 inches of the easement on Lot 2.”
¶ 12 Larsen’s second affirmative defense was also based on the Trust’s alleged abandonment
of the easement. Larsen alleged that the Trust’s failure to object to Barry’s conduct while he
owned Lot 2 left the Trust’s beneficiaries with “no ability to move any items through the
easement on Lot 2,” which evidenced the Trust’s intent to abandon its easement rights.
¶ 13 The Trust moved for summary judgment, stating in support that the deeds recorded in
1877, 1878, and 1882 combined to create an express easement for the benefit of Lots 1 through 5
and the burden of Lots 2 through 5. The Trust further contended the Gupta court held that the
easement is only for traversing the private alley. It alleged that Larsen “repeatedly and
consistently” parked his vehicle, which was “5 feet, 11 inches wide not including the two side
mirrors” in the portion of the private alley behind Lot 2, which interfered with the Trust’s
¶ 14 The Trust attached Van Arsdale’s affidavit to the motion, in which he stated that since the
Trust purchased Lot 1 in 1989, he and Eckles had “consistently and repeatedly used the Private
Alley over Lots 2 through 5 to access the Public Alley for garbage removal, transport of other
items, walking with or without our bicycles and other general use.” Larsen’s vehicle, when
parked, blocked approximately two-thirds of the portion of the private alley behind Lot 2, which
caused the Trust’s beneficiaries difficulty moving their garbage bins around the vehicle.
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Regarding Barry’s landscaping and other installations, including a wire mesh fence and
doghouse, Van Arsdale stated that he and Eckles told Barry they expected him to comply if they
requested he remove the items. Barry’s installations did not limit the Trust beneficiaries’ access
through the private alley to the public alley. The Trust’s counsel sent defendant a cease-and-
desist letter regarding the parking on February 20, 2019.
¶ 15 The Trust also attached Barry’s affidavit to its motion, in which Barry stated that, “At all
times during the presence of the landscaping, wire mesh screen and doghouse in the Private
Alley behind our Lot 2, [plaintiff’s beneficiaries] were able to and did use the Private Alley
behind our Lot 2.” He further represented that he received plaintiff’s beneficiaries’ consent when
he installed the items, and he “recognized and agreed that they had an easement over the full nine
feet of the Private Alley behind my Lot 2.”
¶ 16 The Trust argued there was no issue of material fact that Larsen’s parking infringed on its
easement. Specifically, it argued that the easement was for ingress and egress only, and did not
include parking. Larsen’s parked vehicle caused unreasonable interference with the Trust’s
easement because it “made a substantial portion” of the private alley area behind Lot 2
“impassable.” The Trust further argued that Larsen’s affirmative defenses failed because an
easement cannot be extinguished by mere nonuse, the garage did not prevent the beneficiaries’
access to the portion of the private alley behind Lot 2, and their continued pedestrian use of the
easement and conduct with Barry indicated they did not intend to abandon the easement.
¶ 17 In a response to the Trust’s request for admission of facts, Larsen admitted that he
regularly parked his vehicle on the “eastern most 9 feet of Lot 2.”
¶ 18 Larsen filed a response to the Trust’s motion for summary judgment, and a cross-motion
for summary judgment. Larsen’s motions alleged that Lot 1 currently had a garage that extended
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into the portion of the private alley behind Lot 1, and only opened onto Grant Place to the south.
He also contended it had been “impossible” for Van Arsdale and Eckles to “transport garbage
bins, bicycles or other items” through the portion of the private alley behind Lot 2 while Barry’s
installations existed. When Larsen bought Lot 2 in November 2016, he removed Barry’s
installations. On November 24, 2016, Larsen informed Eckles that he intended to park on the
portion of the private alley behind Lot 2. Eckles responded that Van Arsdale would be “mad” if
Larsen did so. Larsen then parked his vehicle on the portion of the private alley behind Lot 2 for
next 2 to 3 years.
¶ 19 Larsen attached his own affidavit to his response and cross-motion, in which he stated
that after he received the cease-and-desist letter, he began parking “as close as possible to the
fence.” Before the letter, the Trust’s beneficiaries did not complain to Larsen about his parking
following the November 24, 2016 conversation. When Larsen’s vehicle is parked close to the
fence, a 37-inch opening remains, which provides the Trust’s beneficiaries sufficient space
through which to move their garbage bins. Larsen further noted that in Barry’s sales listing, he
indicated there was a parking spot behind the lot. 1
¶ 20 Larsen also attached the Trust’s response to Larsen’s first set of interrogatories, in which
the Trust stated that its beneficiaries could not receive deliveries via the private alley because
Larsen’s parked vehicle blocked over six feet of the private alley on Lot 2.
¶ 21 In Van Arsdale’s affidavit in the Gupta litigation, also attached to defendant’s filing, Van
Arsdale stated, in relevant part, “During the period of 1989 through the present, there has been
no use of Lots 1 or 5, for automobile or truck ingress and egress for the occupants of Lots 2
through 4, or for deliveries to Lots 2 through 4,” with the exception of Gupta’s conduct.
1 Defendant attached a video recording to his filing allegedly depicting garbage bin movement, but this video is not included in the record on appeal.
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¶ 22 Larsen argued that “the undisputed facts establish that plaintiff knowingly and voluntarily
ceded its rights to the Easement” or, alternatively, “knowingly gave up its right to all but 33
inches of the Easement given the garage and other impediments plaintiff has installed on Lot 1.”
He also argued that his conduct did not constitute trespass, even if the Trust did not abandon the
easement, because he did not “interfere with plaintiff’s actual use of the Easement.”
¶ 23 In reply, the Trust denied that it abandoned the easement, and maintained that Larsen’s
conduct constituted trespass. The Trust contended that, pursuant to Gupta, it had the right to use
the easement to transport smaller items via vehicle north from the public alley through the
private alley area on Lot 2 for delivery onto Lot 1.
¶ 24 On July 16, 2021, the circuit court granted the Trust’s motion for summary judgment,
awarded it nominal damages of $10.00, and entered a permanent injunction barring Larsen from
parking his vehicle in the portion of the private alley behind Lot 2 or otherwise interfering,
obstructing, or impeding the Trust’s easement use. In so finding, the court stated that the parties
agreed by stipulation that the easement over the private alley was “expressly granted since or
before 1874 for the use of the five homes,” and cited Gupta for the proposition that the easement
permitted ingress and egress “by foot or by vehicle.” The court found that the Trust’s
beneficiaries “communicated to Barry that they were permitting him to place [the installations]
on the Easement without relinquishing their easement rights,” and further that during Barry’s
ownership, the Trust’s beneficiaries continued to use the easement to access the public alley for
“ingress and egress, garbage removal, transportation of items, walking with or without their
bicycles, and other general uses.” The court found Larsen parked his vehicle on the portion of the
private alley behind Lot 2 despite Eckles’s warning on November 24, 2016.
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¶ 25 The court rejected Larsen’s argument that plaintiff abandoned its easement, noting that
the Trust contended that (1) its beneficiaries testified that they continued to use the easement for
pedestrian purposes from the time of its purchase, (2) the beneficiaries approved Barry’s
structures with the understanding that they could withdraw that permission in the future, (3) the
Trust participated in the Gupta matter to protect its easement, (4) Eckles objected to Larsen’s
parking on November 24, 2016, and (5) the Trust issued a cease-and-desist letter to Larsen on
February 20, 2019. The circuit court also rejected Larsen’s partial abandonment theory because
he did not present any authority that Illinois recognized such a theory.
¶ 26 The circuit court explained that Larsen’s conduct constituted a trespass on the easement
because he “intentionally parked” his vehicle on the private alley, quoting Chicago Title Land
Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420, ¶ 82, for the proposition that, “rendering an
easement, used as a driveway, unpassable is an unreasonable interference and therefore a
trespass.”
¶ 27 On July 31, 2021, the circuit court entered a final judgment of permanent injunction,
reiterating the findings in its July 16, 2021 decision, awarding the Trust $10.00 in nominal
damages and $459.21 in costs, and enjoining Larsen from parking a vehicle on the portion of the
private alley behind Lot 2 and from interfering, obstructing, or impeding the Trust’s use and
enjoyment of the easement. Larsen timely appealed.
¶ 28 ANALYSIS
¶ 29 On appeal, Larsen first argues that the circuit court erred in granting summary judgment
in favor of the Trust because the undisputed material facts show that the Trust abandoned the
easement. The Trust contends that the undisputed facts demonstrate it did not abandon its
easement rights.
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¶ 30 Summary judgment is appropriate when “the pleadings, depositions, and admissions on
file, together with the affidavits” demonstrate “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 2020). The parties here filed cross-motions for summary judgment, which typically
indicates there are no disputed material facts, though we note that the mere filing of cross-
motions for summary judgment does not conclusively establish that there is no issue of material
fact. Pielet v. Pielet, 2012 IL 112064, ¶ 28. We review de novo the circuit court’s decision on
cross-motions for summary judgment. Id.
¶ 31 “An easement is a right or privilege in the real estate of another.” Nationwide Financial,
LP v. Probuda, 2014 IL 116717, ¶ 29. The land benefitting from the easement is the dominant
estate, and the land burdened by the easement is the servient estate. JS II, LLC, 2012 IL App
(1st) 063420, ¶ 32. Here, the Trust possesses the dominant estate and Larsen, the servient estate.
¶ 32 The easement at issue is an express easement, which is “created by agreement between
the owners of the dominant and servient estates.” Id. The dominant estate “is entitled to the
necessary use of the easement,” defined as “such use as is reasonably necessary for the full
enjoyment of the premises.” Flower v. Valentine, 135 Ill. App. 3d 1034, 1039 (1985). The
dominant estate may abandon its easement, but an express easement cannot be abandoned by
nonuse. Id. Instead, “there must be, in addition to [nonuse], circumstances showing that it was
the intention of the dominant owner to abandon the use of the easement.” Id. “[N]onuse cannot
be used to vitiate the clear intent and permanence that is necessarily inherent in easements for
ingress and egress.” Erday’s Clothiers, Inc. v. Spentzos, 228 Ill. App. 3d 540, 549 (1992).
¶ 33 The agreed facts here show that an express easement exists, and existed at all relevant
times, for the benefit of the owners of Lot 1, here the Trust and its beneficiaries, Van Arsdale
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and Eckles. The easement is for ingress and egress, whether pedestrian or vehicular, through the
private alley located behind Lots 2 through 5. The Trust purchased Lot 1 in 1989, and from that
time on, its beneficiaries did not use the private alley for vehicular ingress and egress, but did use
it for pedestrian purposes, and installed a garage that prevents vehicular entry onto Lot 1 via the
private alley. The Trust’s beneficiaries did not prevent Barry’s installations under the
understanding that the Trust retained its easement rights. In 2016, Larsen informed Eckles he
intended to park his vehicle on the portion of the private alley behind Lot 2. Eckles objected, but
defendant began parking in the area anyways, prompting the February 20, 2019 cease-and-desist
letter, and subsequently this suit.
¶ 34 On this record, we find that the agreed facts show the Trust has not abandoned its
easement as a matter of law, and thus the circuit court did not err in granting summary judgment
on this issue. For a dominant estate to abandon an easement, it must demonstrate its clear intent
to do so. The agreed facts show that the Trust never expressed this intent, and that it cannot it be
inferred from the Trust beneficiaries’ conduct. On the contrary, the beneficiaries continued to use
the private alley for pedestrian ingress and egress, 2 explicitly told Barry it intended to retain its
easement rights throughout the time Barry maintained his landscaping, fence, and doghouse, and
informed Larsen they did not assent to his parking on the portion of the private alley behind Lot
2.
¶ 35 Larsen nonetheless contends that certain facts show the Trust intended to abandon the
easement, primarily emphasizing the beneficiaries’ admission that they had not used the private
alley for vehicular ingress and egress from the time it purchased Lot 1, and the garage, which
2 We note that Larsen disputes that the Trust actually moved its garbage bins north to the public alley, citing indications from the Trust’s representations in Gupta that it moved them south to Grant Place. This argument is irrelevant, however, because Larsen does not dispute the Trust’s representation of some pedestrian use.
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prevents vehicular entry via the private alley onto Lot 1. He also cites the Trust’s conduct in the
Lustig and Gupta lawsuits, its permission of Barry’s installations, and the beneficiaries’ failure to
further object to Larsen’s parking in the time frame between the November 24, 2016,
conversation and the February 20, 2019 cease-and-desist letter, as all indicating the Trust’s intent
to abandon its easement rights.
¶ 36 We do not agree that any of this conduct supports the conclusion that the Trust intended
to abandon the easement. First, the fact that Van Arsdale and Eckles do not currently use the
easement for vehicular ingress and egress merely constitutes nonuse, and it is well-established
that evidence of nonuse does not establish intent to abandon. See Flower, 135 Ill. App. 3d at
1039. Although the beneficiaries do not currently use the private alley for vehicular ingress and
egress to Lot 1, and did not do so in the past, the easement protects the right of current or future
Lot 1 owners to traverse the easement via vehicle. See, e.g., Keessen v. Zarattini, 119 Ill. App.
2d 284, 288, 290-91 (1969) (court affirmed injunction requiring servient estate to remove a five-
foot impediment from a nine-foot alley where dominant estate had easement for ingress and
egress, rejecting argument that the structure did not affect dominant estate’s current ingress and
egress usage). Although the garage which the Trust constructed in 1998 is a permanent structure,
it could be demolished should the Trust so choose, at which time the Trust could then exercise its
right to use the private alley for vehicular ingress and egress to Lot 1. Additionally, should the
Trust sell the property in the future, the easement could be relevant and valuable if the future
buyer decided to remove the garage to facilitate vehicular entry onto Lot 1 via the easement.
¶ 37 Additionally, we find that neither the Trust’s positions in prior litigation nor the condition
of the property during Barry’s ownership demonstrate an intent to abandon its easement rights
into the future. The Trust’s positions during the Lustig and Gupta lawsuits do not demonstrate
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any intent to abandon. In Lustig, the circuit court dismissed the Trust’s predecessor as a party
while ruling for Lustig that the easement existed over Lots 2, 3, and 4; there was no positive
indication in the case that the Lot 1 owner to relinquish any easement rights. As to Gupta, Larsen
argues that the Trust’s beneficiaries took the position that no easement existed, but this is
inaccurate. Instead, the Trust’s stated position in Gupta, as shown through Van Arsdale’s
affidavit, related only to vehicular use of the private alley. Thus, at most, the record here shows
that the Trust’s position in Gupta reflected the Trust’s possible misunderstanding of the full
scope of its rights under the easement, not any intent to relinquish a right it believed it possessed.
¶ 38 Regarding the Trust’s conduct towards Barry, we again note that nonuse, including the
permission of temporary obstructions such as the ones Barry installed, does not qualify as intent
to abandon. See Chicago Title & Trust Co. v. Wabash-Randolph Corp., 384 Ill. 78, 93 (1943).
Moreover, while the parties dispute whether the beneficiaries could access the portion of the
private alley behind Lot 2 during Barry’s ownership, this is also irrelevant because Larsen does
dispute that the beneficiaries permitted Barry’s conduct, as Barry himself confirmed. Larsen
requests that we find Barry’s affidavit incredible because the record shows that easement was in
fact impassible by the beneficiaries. It is undisputed, however, that this information is outside
Larsen’s personal knowledge. Both Barry and the beneficiaries, the individuals with first-hand
knowledge of the issue, represent to the contrary in sworn affidavits, we do not believe it
appropriate to reject Barry’s affidavit as incredible. See Ridenour v. Carl Sandburg Village No. 7
Condominium Association, 402 Ill. App. 3d 532, 535-36 (2010) (“On appeal from the entry of
summary judgment, the reviewing court is not to judge the strength of the evidence or weigh the
credentials, credibility, and testimony of one deponent against another.”).
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¶ 39 Larsen also does not dispute that Eckles warned him about parking on the portion of the
private alley behind Lot 2, and that during the two to three years he parked on the portion of the
private alley behind Lot 2, the Trust used that area for pedestrian purposes. In sum, none of the
conduct Larsen cites provides a clear indication that the Trust intended to abandon its easement.
¶ 40 Larsen argues that even if we find the Trust did not abandon the easement entirely, we
should recognize a new legal theory in Illinois of partial abandonment, and conclude pursuant to
that theory that the Trust abandoned a portion of its easement by constructing the garage. We
need not determine whether such a claim is cognizable here, however, because the act of
building the garage did not demonstrate an intent to relinquish any easement rights, partial or
otherwise. Larsen argues that the Trust cannot use more than 33 inches of the easement due to
the garage’s location, but this is simply inaccurate. The easement is over the private alley
portions behind Lots 2 through 5. Though one cannot currently enter Lot 1 via a vehicle through
the private alley, the full nine-foot-wide portion of the private alley behind the other lots,
including Lot 2, remains accessible, and the beneficiaries retain the right to use those areas for
ingress and egress purposes. Beyond pedestrian use, this includes traversing the private alley via
vehicle to then enter Lot 1 on foot, as might be done when using rideshare or taxi services, and
receiving deliveries from smaller vehicles able to traverse the nine-foot width of the private
alley, neither of which requires the beneficiaries to impermissibly park a vehicle on Lot 2, as
defendant argues. Thus, even if Illinois recognized the doctrine of partial abandonment, it would
not provide Larsen any relief.
¶ 41 Larsen next argues that the circuit court erred in granting summary judgment because his
conduct did not constitute a trespass on the easement.
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¶ 42 Because the dominant estate has the right to use an easement for all reasonably necessary
uses, the servient estate owner can only “use his land in any manner that does not materially
interfere with or obstruct” the dominant estate’s usage. McMahon v. Hines, 298 Ill. App. 3d 231,
239 (1998). The dominant estate “has the right of use of the easement to the exclusion of the
owner of the servient estate when its intended or actual use unreasonably interferes with the
dominant estate’s use.” JS II, LLC, 2012 IL App (1st) 063420, ¶ 82. Whether a servient estate’s
usage of its property constitutes an unreasonable interference with the dominant estate’s
easement is an issue of fact, but “[i]t is beyond contention that rendering an easement, used as a
driveway, unpassable is an unreasonable interference and therefore a trespass.” Id.
¶ 43 We find that the agreed facts show Larsen’s parking of his vehicle on the portion of the
private alley behind Lot 2 constituted unreasonable interference with the easement as a matter of
law, and thus the circuit court did not err by granting summary judgment. As explained above,
the easement is for ingress and egress from Lot 1 via the private alley through Lots 2 through 5
to the public alley. The parties do not dispute that, as the Gupta court found, this includes
vehicular ingress and egress. Larsen’s vehicle blocks a significant portion of the private alley
when parked on the portion of the private alley behind Lot 2, and neither party disputes that this
prevents a vehicle from traversing through Lot 2 via the private alley to the garage on Lot 1.
Thus, Larsen obstructed an easement meant to be used as a driveway, constituting unreasonable
interference. Id.
¶ 44 Larsen also argues that the parked vehicle does not constitute unreasonable interference
because the beneficiaries do not currently use the private alley for vehicular ingress and egress,
and indeed cannot currently use it to enter Lot 1 because of the garage. This argument fails
because just as nonuse does not constitute abandonment, current use of the easement by the
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dominant estate does not dictate what types of conduct by the owners of the servient estate
constitute unreasonable interference. See Erday’s Clothiers, Inc., 228 Ill. App. 3d at 549.
¶ 45 Erday is instructive on this point. There, the servient estate owner placed an immobile
dumpster in an area over which the dominant estate maintained an easement for ingress and
egress. Id. at 550. The dominant estate sued, and the circuit court ruled for the servient estate,
reasoning in relevant part that the dumpster did not materially interfere with the dominant
estate’s easement because the dominant estate did not currently use the easement area for
vehicular traffic, specifically deliveries. Id. at 549. The Erday court rejected this argument,
finding that the circuit court erred in reasoning “that since the only current use of the easement
area by the plaintiff was as an emergency exit,” the dumpster’s presence was “not inconsistent
with the plaintiff’s use.” Id. This was incorrect because by that reasoning, “a dominant easement
owner could [lose] substantial rights of ingress and egress by mere nonuse,” which was
“inconsistent with the long-standing rule that an easement cannot be lost by mere nonuse.” Id.
The same principle applies here; although the Trust is not currently using the private alley for
vehicular ingress and egress, it maintains the right to do so pursuant to the easement, and
Larsen’s parked vehicle unreasonably interferes with that right. See, e.g., Keessen, 119 Ill. App.
2d at 288, 290-91; see also Seymour v. Harris Trust, 264 Ill. App. 3d 583, 602-03 (1994)
(holding that a dominant estate owner has right to use the full width of an easement “except for
natural obstructions that existed at the time of the easement and were not placed there by the
owner of the servient estate”) (citing Flower, 135 Ill. App. 3d at 1040)).
¶ 46 The parties have extensively briefed the degree to which the presence of Larsen’s parked
vehicle interfered with pedestrian access from Lot 1 through the portion of the private alley
17 1-21-1057
behind Lot 2, but, in light of our findings above, we do not find this information relevant to our
disposition.
¶ 47 Finally, we reject Larsen’s argument that the doctrine of laches bars plaintiff’s claim
here. This argument fails for two reasons. First, Larsen raised this argument for the first time in
his reply brief, and an argument cannot be raised for the first time in a reply brief. See Ill. S. Ct.
R. 341(h)(7) (eff. Oct. 1, 2020). Second, to demonstrate laches, a party must show both delay
and that the defendant suffered prejudice or hardship due to it. Erday, 228 Ill. App. 3d at 547.
Here, Larsen makes no argument as to how he suffered prejudice due to the Trust’s alleged
delay, nor could he, because Eckles told Larsen not to start parking on the portion of the private
alley behind Lot 2 before defendant began doing so.
¶ 48 CONCLUSION
¶ 49 The agreed material facts demonstrate as a matter of law that plaintiff did not abandon its
easement and that defendant’s conduct constituted a trespass upon that easement. Accordingly,
the circuit court did not err in granting summary judgment and a permanent injunction in favor of
plaintiff.
¶ 50 Affirmed.