Flower v. Valentine

• Decision Date: 26 August 1985
• Docket Number: No. 83-1476,83-1476
• Citation: 90 Ill.Dec. 703,135 Ill.App.3d 1034,482 N.E.2d 682
• Parties: , 90 Ill.Dec. 703 Ruth K. FLOWER, Plaintiff-Appellant, v. Andrew VALENTINE and Marjorie Valentine, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 682

482 N.E.2d 682

135 Ill.App.3d 1034, 90 Ill.Dec. 703

Ruth K. FLOWER, Plaintiff-Appellant, v. Andrew VALENTINE and Marjorie Valentine, Defendants-Appellees.

No. 83-1476.

Appellate Court of Illinois First District, First Division.

Aug. 26, 1985.

[90 Ill.Dec. 705] Wilson & McIlvaine, Chicago (Leonard S. Shifflett, Chicago, of counsel), for plaintiff-appellant

Arnstein, Gluck, Lehr, Barron & Milligan, Chicago (John F. McClure and Arthur L. Klein, Chicago, of counsel), for defendants-appellees.

CAMPBELL, Justice:

Plaintiff, Ruth K. Flower, brought an action to temporarily and permanently enjoin defendants, Andrew and Marjorie Valentine, from entering upon her property, from moving or removing any vegetation from her real estate, and for damages against defendants. The defendants counterclaimed for injunctive relief to prevent plaintiff from interfering with the use of their easement and requiring plaintiff to remove all obstructions from the easement. The trial court enjoined plaintiff from interfering with defendants' use of the easement and required plaintiff to remove certain obstructions from the easement.

On appeal, plaintiff contends that (1) the court erred by ordering plaintiff to remove a barbecue grill and shrubs which were on the easement; (2) that the court erred in granting a directed verdict in favor of defendants; and (3) that the court erred in refusing to hear testimony of an expert witness regarding the possible erosion of plaintiff's property as a result of defendants' actions.

FACTS

The easement was granted in December 1950, in favor of Mr. and Mrs. Frederick Nichols, by Mr. and Mrs. Albert Belshe, defendants' predecessor in title. The Belshes' then owned the property subsequently acquired by plaintiff. The grant, provides for a perpetual easement and right of way across a strip of land 15 feet in width on the servient estate (plaintiff's property). The grant provides in relevant part:

"The easement hereby created includes the right of foot travel through and upon said fifteen foot strip and a right to construct and maintain stone, wood, cement or other types of steps on the bluff leading to the beach within the limits of said fifteen foot area.

The cost of building and maintaining and repairing the said steps shall be borne solely by the second parties (the Nichols).

This agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs and assigns and the covenants and agreements hereby created shall constitute covenants and agreements running with the lands owned by the parties hereto and involved therein."

In 1952, plaintiff acquired the servient estate, known as 1085 Sheridan Road in Winnetka, Illinois. Defendants purchased the dominant estate from the Nichols in 1979. When plaintiff moved to 1085 Sheridan Road, there were certain plantings and improvements located on the easement area, which included hedge bushes and a barbecue grill. In addition, there were some shrubs on the property and some cinder blocks had been placed on the easement to serve as steps. However, from 1953 through 1955, these steps began to break up.

At the time plaintiff moved into her house, Mr. and Mrs. Nichols crossed over a portion of plaintiff's premises as they came and went to the beach from their house situated to the west of the plaintiffs' property. Apparently, guests of the Nichols also used the easement. There is a suggestion that plaintiff and her husband did not get along well with the Nichols. Because of this, plaintiff commenced to take steps to enclose the easement area. In 1953, plaintiff placed yard furniture on the easement and the next year she put in a herb garden over a portion of the easement. In 1956, plaintiff planted buckthorn bushes and installed a gate at the point where the easement begins between the Nichols' property and the plaintiff's premises. The gate was then planted with Clematis on either side. Whether the Clematis vine grew in such a fashion as to seal the gate was in dispute. Plaintiff testified that such vine did enclose the gate and made passage through it impossible. However, Mr. Nichols testified the gate was always open.

Plaintiff owned a large Boxer dog and the Nichols owned a Dalmation dog. One day in 1956, the Boxer attacked the Dalmation as Mrs. Nichols came up the bluff from the beach. Shortly after the altercation between the dogs, Mrs. Nichols and plaintiff had a conversation. According to plaintiff, Mrs. Nichols was very irate about her dog being attacked and about plaintiff's act of planting an herb garden and installing the gate. She allegedly stated, "I will never come again where we are not wanted." Plaintiff stated, she never again saw the Nichols enter her property or use the easement area. Plaintiff believed the Nichols used the easement but she never observed them using it. She further testified that guests of the Nichols did not use the easement area thereafter.

Mr. Nichols testified that, until he sold his property to defendants in 1979, he used the easement only when the plaintiffs were not around so as to avoid unpleasant confrontations. Mr. Nichols stated that after 1968, when the plaintiffs dumped debris over the steps which led down to the beach, he never again used the easement all the way down to the beach. Mr. Nichols maintained that he used the remainder of the easement and that his use was not inhibited by the gate which could always be opened.

However, after the altercations between the dogs in 1956, plaintiff observed Mrs. Nichols on the beach and also observed her use a neighbor's old wooden stairway to the beach. Plaintiff also testified that she observed Mrs. Nichols use a set of stairs to the south of plaintiff's premises as well as a public lane to get to the beach.

Plaintiff's husband testified that the dumping of debris and rock occurred in May or June of 1961 as a result of construction of a patio at the home. The debris was dumped on the incline portion of the easement where the remains of the concrete steps were located. Plaintiff's husband testified that this debris was used to help stabilize the incline area since the When the Nichols put their property up for sale, the real estate listing prominently referred to the easement in question. The deed which the defendants received from the Nichols specifically conveyed that easement to them. Defendant testified that in 1979, when he and his wife purchased the dominant estate from the Nichols, there had been a history of growth of bushes and thickets which encumbered one from walking down the incline of the easement area and that there were remnants of steps which could not be used. In 1981, defendant and plaintiff's husband had a conversation about the easement in which defendant stated that he and his wife were contemplating building steps down to the beach. In response, plaintiff's husband said that he objected to such action because he felt that any building would cause erosion. In a subsequent conversation initiated by defendant, plaintiff's husband said that he further objected to defendants' construction of steps because of the possibility that the easement had been lost through abandonment and adverse possession. Shortly thereafter, defendant entered upon the easement and proceeded to remove the vegetation on the easement. Plaintiff subsequently filed the present lawsuit seeking to enjoin the defendants from using the easement.

[90 Ill.Dec. 707] area had erosion problems which required continuous planting of ground cover.

OPINION

I

Plaintiff first contends the court erred in enjoining plaintiff from interfering with defendants' use of the easement and specifically the court erred in ordering plaintiff to remove a barbecue grill and shrubs which were on the easement at the time it was granted. (Ogilby v. Donaldson's Floors, Inc. (1958), 13 Ill.2d 305, 148 N.E.2d 758; Schaefer v. Burnstine (1958), 13 Ill.2d 464, 150 N.E.2d 113.) Plaintiff claims that removal of the obstructions would result in little benefit to defendants but would greatly affect her property and therefore equity demands that the obstructions remain in place. (Beloit Foundry Co. v. Ryan (1963), 28 Ill.2d 379, 192 N.E.2d 384.) Moreover, plaintiff claims that because Nichols had the opportunity to clear the area and chose not to do so, the Nichols and their successors are barred by laches from now complaining about the obstructions.

Defendants do not dispute that the barbecue grill was in existence at the time the easement was granted. The evidence as to which bushes were in existence at that time was disputed. According to defendants, which obstructions were in existence is irrelevant since there is no rule which permits obstructions to remain in place. Defendants also note that the grant of the easement was specifically made "subject to the conditions and limitations hereinafter set forth." Since no conditions or limitations were specified, defendants assert that it was not the parties' intention to exempt the barbeque grill and the bushes from the easement. Defendants also maintain that plaintiff has waived the defense of laches since it was not raised. (Ill.Rev.Stat.1981, ch. 110, par. 2-613(d); Bowman v. Petterson (1952), 410 Ill. 519, 102 N.E.2d 787.) Defendants rely on the rule that a party cannot avail himself of a defense not stated in the answer even though it appears in the evidence. Defendants, however, did not object at trial to the presentation of plaintiff's evidence regarding the defense and in fact defendants rebutted the testimony at trial. Consequently, defendants have not been surprised or prejudiced by this variance and plaintiff will not be deemed to have waived consideration of the defense. See Hurst v. Papierz (1970), 129 Ill.App.2d 117, 262 N.E.2d 773; Bittner v. Wheel Horse Products, Inc. (1955), 28 Ill.App.3d 44, 328 N.E.2d 160, 166.

An easement is a right or a privilege in the real estate of another and when exercised in...