O'Leary v. Clarke

• Decision Date: 18 September 2014
• Docket Number: No. 2-14-0306,2-14-0306
• Citation: O'Leary v. Clarke, 2014 IL App (2d) 140306-U, No. 2-14-0306 (Ill. App. Sep 18, 2014)
• Parties: DANIEL E. O'LEARY and JULIA A. O'LEARY, Plaintiffs/Counterdefendants-Appellants, v. PATRICK B. CLARKE and ALLISON A. CLARKE, Defendants/Counterplaintiffs-Appellees.
• Court: Appellate Court of Illinois

2014 IL App (2d) 140306-U

DANIEL E. O'LEARY and JULIA A. O'LEARY, Plaintiffs/Counterdefendants-Appellants, v. PATRICK B. CLARKE and ALLISON A. CLARKE, Defendants/Counterplaintiffs-Appellees.

No. 2-14-0306

APPELLATE COURT OF ILLINOIS SECOND DISTRICT

September 18, 2014

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Kane County.

No. 09-CH-248

Honorable David R. Akemann, Judge, Presiding.

JUSTICE SCHOSTOKdelivered the judgment of the court.

Presiding Justice Burke and Justice Birkett concurred in the judgment.

ORDER

¶ 1Held: Counterplaintiffs had standing to pursue injunction regarding encroachments in the public roadway abutting their property, but trial court erred in granting them a preliminary mandatory injunction that changed the status quo and granted the ultimate relief requested in the underlying counts.

¶ 2 This lawsuit concerns a dispute between two sets of East Dundee neighbors, the defendants/counterplaintiffs, Patrick and Allison Clarke, and the plaintiffs/counterdefendants, Daniel and Julia O'Leary.The garages belonging to the Clarkes and the O'Learys are accessible only by an unpaved portion of a platted road (Lake Shore Drive) and an easement that terminates at their garages.The circuit court of Kane County granted the Clarkes' motion for a preliminaryinjunction and entered orders requiring the O'Learys to engage in substantial landscaping in order to remove certain obstacles and encroachments lying within the boundaries of Lake Shore Drive and the easement.The O'Learys appealed.Because the trial court's injunction orders improperly served to change rather than preserve the status quo pending the final resolution on the merits, we reverse and remand for further proceedings.

¶ 3 BACKGROUND

¶ 4 Although the O'Learys live at 422 Lake Shore Drive and the address of the Clarkes is 455 Roslyn Road, they are next-door neighbors.Both properties are located on a slope.Roslyn Road runs along the top of the slope, and the Clarkes' front door faces it.The paved portion of Lake Shore Drive runs along the foot of the slope.Where the paved portion of Lake Shore Drive ends, an unpaved portion continues.This unpaved portion empties into a 30-foot-wide easement that terminates at private areas near the parties' garages.The Clarkes' garage is located behind their home and (like the O'Learys' garage) is accessible only via the unpaved portion of Lake Shore Drive and the driveway easement.

¶ 5 The unpaved portion of Lake Shore Drive was platted as a 30-foot-wide, two-lane road when the area was first subdivided in 1928, and has existed in the same state—as a platted, unimproved road—since then.The easement was memorialized in a 1976 plat of reciprocal easement, and consists of an arc 108 feet long and 30 feet wide.Half of the easement (a 15-foot width all along the easement) is on the Clarkes' property and the other half is on the O'Learys' property.The purpose of the express easement was "for ingress, egress and public utilities."

¶ 6 The Clarkes and O'Learys both bought their respective properties in 2001.The parties dispute the condition of Lake Shore Drive and the easement at that point in time and thereafter.The Clarkes assert that the entire driveway was relatively flat and wide enough for two cars to pass each other easily while moving, and that the parties and their guests were able to make a180-degree turn at the end of the easement abutting their garages.Now, however, they contend that the driveway is sloped and its integrity has been compromised by runoff from a portion of the easement that was raised by the O'Learys, and it is too narrow and uneven to allow a turnaround or for two cars to safely pass each other while moving.The Clarkes also assert that the driveway has been narrowed to the point that a hook-and-ladder firetruck could not reach their home in the event of a fire.The O'Learys assert that the driveway is in essentially the same condition now as in 2001 and that it is wide enough to permit passage of firetrucks and other emergency vehicles.They concede that they have altered "their" side of Lake Shore Drive and the easement over the course of several years by: continuing their front steps into the area dedicated to the platted roadway; placing a lamppost, retaining wall, dirt fill, plantings, and boulders within that area; elevating the portion of the easement in front of their new garage and placing pavers in that portion of the easement; and planting a tree and extending a retaining wall into the easement.However, they argue that the area of the platted roadway occupied by their alterations was unnavigable hillside even prior to their alterations, and they deny that their alterations narrowed or restricted the reasonable use of the driveway for ingress and egress.It is undisputed that the O'Learys did not obtain permits from the Village for any of the alterations.

¶ 7 This suit was filed in June 2009, when the O'Learys were building a new, additional garage on their property and making changes to the easement area in front of the new garage.Although the O'Learys initially filed the suit (alleging various acts of harassment by the Clarkes), their claims were ultimately dismissed, and the sole claims remaining in the lawsuit are those brought by the Clarkes.As alleged in the current (second amended) complaint, those claims include: a request for injunctive relief regarding the encroachments on the easement (count I); a request for injunctive relief regarding the elevation change and obstructions of the area in front of the new garage (count II); and claims that the O'Learys have violated EastDundee ordinances through their encroachments along Lake Shore Drive and their construction of their new garage (counts III and IV, both of which also seek injunctive relief requiring the removal of the offending items).¹

¶ 8 In June 2012, three years after this suit was filed, the Clarkes filed a motion for a preliminary injunction.The initial motion alleged that Daniel O'Leary(who was the president of the Village of East Dundee from 2007 to 2009, and was later reelected to that post in 2013) had petitioned to vacate a portion of Lake Shore Drive so that the O'Learys' encroachments onto the platted roadway could remain, and had in other ways conspired with members of the Village board of trustees and the police chief to misuse the Village's public powers for the private benefit of the O'Learys and to the detriment of the Clarkes.The Clarkes requested that the trial court prevent the O'Learys from proceeding on the petition for vacation until the lawsuit was resolved, and that it restrain the Village trustees and police chief from harassing them.

¶ 9 In January 2013, the Clarkes filed an amended motion for preliminary injunction.Although many of the allegations were the same, the relief requested no longer related to the threatened petition for vacation or any conduct by Village trustees or employees.Instead, the amended motion sought a "preliminary injunction" compelling the O'Learys to remove all "obstructions, plantings, shrubs, trees, grass, boulders and other obstacles" from the easement and the platted roadway of Lake Shore Drive, and to "restore the street's grade and pitch to its original condition and lower the street's elevation" by up to two feet.After briefing, extensivetestimony on the motion was heard over the course of four days, beginning on August 20, 2013.The parties then submitted detailed written closing arguments.

¶ 10 On October 21, 2013, the trial court issued a 10-page order granting a preliminary injunction.It began by noting that the Clarkes sought a preliminary injunction "restoring the complete width of the roadway area and the easement area," including the removal of encroachments and the regrading of the entire driveway.The trial court then described the evidence it had heard, including the facts set forth above.The trial court also found that, although Lake Shore Drive was platted as a two-lane, 28- or 30-foot wide road, it had been reduced to one lane in actual width.It found that no boulders had existed within the platted roadway before the O'Learys arrived.It recited various Village ordinances relating to encroachments and obstructions of streets.It then found that all four of the elements required for a preliminary injunction were met.The injunction entered by the trial court required the O'Learys to: remove all "obstructions, structures or things that they have placed or caused to be placed" within the platted width of Lake Shore Drive; regrade Lake Shore Drive "to accepted engineering standards for roadway pitch, grade and drainage, texture and content"; remove obstructions from the easement, including the block boundary wall (near the new garage), the spruce tree and boulders;² regrade the easement area compatibly with the platted roadway; refrain from placing any new items into the platted roadway unless they first received permits from the Village; and refrain from placing any new items into the platted roadway easement "that would prohibit the free movement of vehicular traffic *** across the entire width andlength of the easement."The trial court ordered that the Clarkes were not required to post a bond against the possibility that lesser relief would ultimately be ordered when the case was finally resolved.

¶ 11 The O'Learys filed a motion seeking reconsideration of the grant of the preliminary injunction as well as clarification of the precise requirements with which they were to comply.Thereafter, the trial court entered an amended order with additional details regarding the work the O'Learys were to perform.The O'Learys then filed this appeal from the trial court's orders of October 21, 2013(granting the preliminary injunction), February 6, 2014(denying the motion for...