Illinois State Bank of Quincy v. Neece
| Decision Date | 18 November 1976 |
| Docket Number | No. 13616,13616 |
| Citation | 43 Ill.App.3d 470,2 Ill.Dec. 251,357 N.E.2d 228 |
| Parties | , 2 Ill.Dec. 251 ILLINOIS STATE BANK OF QUINCY, an Illinois Banking Corporation, Plaintiff-Appellant, v. Dustin C. NEECE and Erma B. Neece, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Wooleyhan, Nielson & Adams, Quincy (Alfred M. Wooleyhan, Quincy, of counsel), for plaintiff-appellant.
Lewis, Blickhan, Garrison, Tucker & Longlett, Quincy (Lawrence W. Blickhan, Quincy, of counsel), for defendants-appellees.
Plaintiff, Illinois State Bank of Quincy, commenced this declaratory judgment proceeding in the circuit court of Adams County seeking a declaration that it had the right to demolish a wall standing on its property. The defendants, Dustin Neece and Erma Neece, answered the complaint and denied the plaintiff was entitled to the relief requested. After a bench trial the court ruled in favor of the defendants and the plaintiff has appealed.
The basic facts are uncomplicated and substantially undisputed. However, the inferences to be drawn from such facts are not undisputed. Defendants are the owners of lot 2 upon which has been constructed a three story store-type building. Adjoining this lot on the west is lot 3 owned by the plaintiff which lot was also improved with a three story store-type building prior to the commencement of this litigation. The lots are located in Quincy, Illinois but so far as this opinion is concerned a detailed legal description thereof is not required.
In 1974 the plaintiff decided to demolish its building but in the course of its demolition it was discovered the roof joists and supporting timber of the building on lot 2 intruded into and were supported by the plaintiff's east wal located on lot 3. It was agreed the plaintiff's east wall is located entirely on its property immediately adjacent to the defendants' west wall which likewise is located entirely on the property of the defendants.
Defendants in their answer alleged as an affirmative defense that they had acquired a prescriptive easement of lateral support, or in other words, they had the right to require the continued suppot of their roof joists and timbers by plaintiff. The trial court held the defendants had acquired such a prescriptive easement and it is the propriety of this determination which is the issue on this appeal.
The burden of proving a prescriptive right is on the party alleging such right. Waller v. Hildebrecht, 295 Ill. 116, 128 N.E. 807; Mueller v. Keller, 18 Ill.2d 334, 164 N.E.2d 28. Plaintiff does not dispute the theory that a prescriptive easement for support may be acquired. However, it argues in this case the evidence is insufficient to establish the acquisition and existence of such a prescriptive easement. It should be noted there were no party wall agreements affecting the rights of the parties and there are no statutes affecting the rights and obligations of the parties under the circumstances of this case.
The necessary elements of a prescriptive easement are essentially the same as those necessary to acquire title to real property by adverse possession. Schwartz v. Piper, 4 Ill.2d 488, 122 N.E.2d 535. To establish an easement by prescription in the property of another the use or easement which is sought to be established must be hostile, adverse, actual, visible, notorious, exclusive, continuous and under claim of right. Schwartz v. Piper, 4 Ill.2d 488, 122 N.E.2d 535 and Totel v. Bonnefoy, 123 Ill. 653, 14 N.E. 687. The claim asserted in the instant case is substantially similar to a claim that the wall located on the plaintiff's property is in essence a party wall. An easement by prescription in the use of the wall will arise only if there has been an open, adverse user for a period of at least twenty years under claim of right. Wert v. John R. Thompson Company, 234...
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