Weaver v. Cummins

751 N.E.2d 628, 323 Ill. App. 3d 359, 256 Ill. Dec. 238, 2001 Ill. App. LEXIS 509
CourtAppellate Court of Illinois
DecidedJune 28, 2001
Docket4-00-0982 Rel
StatusPublished
Cited by1 cases

This text of 751 N.E.2d 628 (Weaver v. Cummins) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weaver v. Cummins, 751 N.E.2d 628, 323 Ill. App. 3d 359, 256 Ill. Dec. 238, 2001 Ill. App. LEXIS 509 (Ill. Ct. App. 2001).

Opinion

JUSTICE TURNER

delivered the opinion of the court:

In April 1999, plaintiffs, David and Marie Weaver, filed a single-count complaint against defendants, Robert and Nancy Cummins, seeking the enforcement of easement rights arising from a November 1995 grant of easement. After the trial court granted defendants’ motion to dismiss the original count, plaintiffs filed an amended complaint seeking an easement by necessity over defendants’ property. After holding an August 2000 evidentiary hearing, the trial court found plaintiffs were entitled to an easement by necessity over defendants’ property. In October 2000, the trial court denied defendants’ motion to reconsider. On appeal, defendants argue (1) plaintiffs failed to prove the necessity required for an easement by necessity and (2) the easement granted by the trial court is too broad. We affirm in part and vacate in part.

I. BACKGROUND

In June 1993, Merle and Cheryl Buerkett (Buerketts) owned about 146 acres of property called “Preacher’s Knob.” At that time, the Buerketts had divided a portion of their property into three lots, with lots numbered two and three being commonly known as “flag lots.” See Appendix A. A “flag lot” is a standard lot with a narrow strip of land (“flagpole”) that connects the lot to a roadway. The Buerketts signed a declaration of easements, restrictions, and covenants, granting lots two and three a reciprocal easement over the road created by the two flagpoles for access to Irwin Bridge Road. As for the other lots, the grantors reserved for themselves and their assigns an easement to use the entire width of the roadway created by the two flagpoles for ingress and egress to and from Preacher’s Knob.

In May 1993, the Buerketts conveyed plaintiffs’ property to James and Vickie Cornwell (Cornwells). According to Merle Buerkett, the roadway across defendants’ property existed when the Buerketts conveyed plaintiffs’ property to the Cornwells. Plaintiffs’ property is a triangle-shaped lot with 60 feet of frontage on Irwin Bridge Road. See Appendix A. Currently, a house is on the back portion of the property, and the roadway is the only means of access to the house. The Corn-wells later conveyed the property to Harry and Marsha Long.

In August 1993, the Buerketts transferred the remaining land into the Cheryl L. Buerkett Irrevocable Living Trust (Trust). In April 1994, the trustee of the Trust conveyed defendants’ property to defendants subject only to the declaration of easements. Defendants’ property has a 20-foot-wide flagpole adjacent to lot three’s flagpole. See Appendix A.

In November 1995, the Buerketts granted the Cornwells an easement for the roadway over the flagpoles of lots two and three, defendants’ property, and the larger tract (024). See Appendix A. The grant also included a 20-foot-wide easement connecting plaintiffs’ property to the easement over the flagpoles. The roadway runs from Irwin Bridge Road over the various flagpoles, then curves to the left on defendants’ flagpole, and continues straight across defendants’ flagpole, eventually reaching plaintiffs’ property.

In fall 1998, plaintiffs purchased their property. Plaintiffs own an antique-truck collection, which they display at antique shows. Plaintiffs use semitrailer trucks to transport their collection to the various shows. Although both plaintiffs and defendants have contributed to the maintenance of the roadway, plaintiffs themselves hired a contractor to widen the curved portion of the roadway in order for their semitrailer trucks to make the turn. The contractor began working on widening the curve when defendants stopped him.

In April 1999, plaintiffs filed suit against defendants, seeking to enforce the 1995 easement. Defendants filed a motion to dismiss, asserting the Buerketts had no right to grant an easement over their property. In July 1999, the trial court granted defendants’ motion but allowed the plaintiffs to amend their complaint. That same month, plaintiffs filed an amended complaint, asserting they had an easement by necessity over defendants’ property. In September 1999, defendants filed another motion to dismiss, which the trial court denied.

In April 2000, plaintiffs filed a motion for summary judgment. After a May 2000 hearing, the trial court granted plaintiffs’ motion. Defendants filed a motion to reconsider, which the trial court granted.

In August 2000, the trial court held an evidentiary hearing. At the hearing, Gary Goodwin, a contractor, testified it would cost about $24,341.63 plus the cost of fill, a culvert, permits, and wetland reclamation for plaintiffs to build a roadway on their property from Irwin Bridge Road to their house. Michael E Irwin, an engineer, testified such a road would cost about $68,850. Testimony was also presented indicating propane trucks, delivery trucks, and farm machinery now use the roadway.

After the evidentiary hearing, the trial court found plaintiffs had an easement by necessity over defendants’ 20-foot flagpole along the current and existing roadway. The court further ordered plaintiffs could make only 12 round trips per year with their semitrailer trucks to transport their collection. Moreover, plaintiffs were responsible for any damages caused to the roadway by the semitrailer trucks. In October 2000, the trial court denied defendants’ motion to reconsider. This appeal followed.

II. ANALYSIS

A. Easement by Necessity

•1 To have an easement by necessity for access to a public road, plaintiffs had to prove (1) unity of title between their property and defendants’ property followed by a separation of title and (2) no access to the public road, i.e., necessity. See Martin v. See, 232 Ill. App. 3d 968, 978, 598 N.E.2d 321, 328 (1992). Defendants contend plaintiffs failed to prove the necessity element. This court will not disturb the trial court’s finding of an easement by necessity unless it is contrary to the manifest weight of the evidence. Smith v. Heissinger, 319 Ill. App. 3d 150, 153, 745 N.E.2d 666, 671 (2001).

Plaintiffs presented testimony their property lacks reasonable access to Irwin Bridge Road. The lands of strangers border their property on all sides, except 60 feet of frontage on the road.

According to Irwin, a great deal of water runs down the ditch on plaintiffs’ property along the road. Culverts would have to be installed to provide for the water. The area bordering the public road is a floodplain, and plaintiffs would need a permit from the Army Corps of Engineers to construct a road. Such a permit would require the construction of a pond to offset the amount of fill added to the floodplain. Moreover, safety concerns exist involving the frontage’s proximity to a bridge.

In Martin, this court found the plaintiffs had an easement by necessity over the defendant’s property where an irrigation ditch ran between the plaintiffs’ property and the public road. Martin, 232 Ill. App. 3d at 980, 598 N.E.2d at 329.

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Bluebook (online)
751 N.E.2d 628, 323 Ill. App. 3d 359, 256 Ill. Dec. 238, 2001 Ill. App. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-cummins-illappct-2001.