McMahon v. Hines

• Decision Date: 09 July 1998
• Docket Number: No. 3-97-0770,3-97-0770
• Citation: McMahon v. Hines, 697 N.E.2d 1199, 298 Ill.App.3d 231, 232 Ill. Dec. 269 (Ill. App. 1998)
• Parties: , 232 Ill.Dec. 269 James P. McMAHON, Plaintiff-Appellant and Cross-Appellee, v. Charles L. HINES III et al., Defendants-Appellees and Cross-Appellants (The Village of Hinsdale, Defendant).
• Court: United States Appellate Court of Illinois

Page 1199

697 N.E.2d 1199

298 Ill.App.3d 231, 232 Ill.Dec. 269

James P. McMAHON, Plaintiff-Appellant and Cross-Appellee, v.Charles L. HINES III et al., Defendants-Appellees and Cross-Appellants (The Village of Hinsdale, Defendant).

No. 3-97-0770.

Appellate Court of Illinois Second District.

July 9, 1998.

Robert A. Heap, Kuhn & Heap, Naperville, Robert G. Black, Naperville, for Bernadine T. Hines, Charles L. Hines, III.

Mark M. Lyman, Henderson & Lyman, Chicago, for James P. McMahon.

Justice COLWELLdelivered the opinion of the court:

Defendants, Charles Hines and Bernadine Hines, appeal the trial court's order granting summary judgment in favor of the plaintiff, James McMahon.The trial court's order permitted McMahon to install an asphalt driveway over property granted as an easement to the defendants.On appeal, the defendants argue that the trial court erroneously concluded that a curb was not part of the easement.Further, the defendants maintain that the trial court's order should be reversed because it improperly allows for a substantial alteration of the easement property.We affirm.

The record shows that the plaintiff and the defendants are next-door neighbors.In 1926, an easement was recorded for the benefit of the owners of the defendants' property.In pertinent part, the easement provided:

"WHEREAS the grantee now maintains and uses a driveway of crushed stone, with concrete curb, a portion of which encroaches upon the said land of the grantor, a distance of about eight feet measured at the street line, and diminished in width to the north until it comes entirely within the land of the grantee; and

WHEREAS the grantor is willing to grant unto the said grantee, his heirs and assigns, the perpetual right and easement of maintaining and using the said driveway and curb in its present location upon the land of the grantor;

NOW THEREFORE, this instrument WITNESSETH:

That, in consideration of one dollar ($1.00) and other good and valuable consideration, receipt whereof is hereby acknowledged, the said grantor for himself, his heirs and assigns, hereby grants, bargains and sells unto the said grantee, his heirs and assigns, the perpetual right and easement of maintaining and using the said driveway as it is now located on the grantor's land, to be used solely for purpose of a driveway and to be maintained at the expense of the grantee, his heirs and assigns."

Overall, the easement measures eight feet in width where it borders the street.From there, it runs up onto McMahon's property, diminishing in width until it reaches the defendants' property.A "curb" serves as a boundary between the defendants' and McMahon's property for the length of the easement.According to the defendants, this curb serves as a gully, providing a means for water runoff for both properties.

After purchasing his property in 1995, McMahon razed the existing single-family residence located there and submitted a site plan to the Village of Hinsdale for the construction of a new home.This plan, shown below, proposed a circular paved driveway in front of the house.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The defendants objected to the proposed driveway on the basis that the paved driveway altered their easement of the driveway and curb.We note that the previous owner's driveway did not encroach upon the defendants' easement, as it was located on the opposite side of the lot.McMahon filed an action for declaratory judgment, seeking court approval of the proposed driveway.McMahon then filed an amended complaint, stating that, instead of a paved driveway, he intended to install the driveway using asphalt.

Thereafter, McMahon and the defendants filed motions for summary judgment.The defendants argued that the proposed driveway would interfere with their use and enjoyment of the easement by obliterating the curb between their and McMahon's driveways, creating an inherently dangerous condition, and impeding their ability to maintain the easement.On the other hand, McMahon contended that the proposed driveway did not interfere with the defendants' use of the easement because the defendants would still be able to use the area as a driveway to and from their property.

On October 28, 1996, the trial court granted McMahon's motion for summary judgment.First, the trial court determined that the defendants' property was not granted an easement to the curb.Then, the court permitted McMahon to install asphalt over the easement property at substantially the same level as the existing asphalt on the defendants' driveway.

McMahon filed an appeal, and the defendants filed a cross-appeal from the trial court's order.McMahon later moved to dismiss his appeal, and the defendants' appeal then became the only appeal.

On appeal, the defendants argue that the trial court should have ruled in their favor because the proposed driveway materially alters the easement by allowing for the removal of the curb.Alternatively, the defendants maintain that the reasonableness of the alteration of the easement presented a question of fact that cannot be resolved by summary judgment.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204(1992).Summary judgment is a drastic measure and should be granted only if the movant's right to judgment is clear and free from doubt.Outboard, 154 Ill.2d at 102, 180 Ill.Dec. 691, 607 N.E.2d 1204.Therefore, where a reasonable person can draw divergent inferences from undisputed facts, summary judgment should be denied.Outboard, 154 Ill.2d at 102, 180 Ill.Dec. 691, 607 N.E.2d 1204.Finally, our review of the trial court's entry of summary judgment is de novo.Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill.App.3d 697, 701, 214 Ill.Dec. 597, 661 N.E.2d 451(1996).

We turn first to the trial court's ruling that the defendants' property was not granted an easement to the curb.Initially, we review the basic tenets of easement law.An easement is a right or privilege in the real estate of another.McCann v. R.W. Dunteman Co., 242 Ill.App.3d 246, 254, 182 Ill.Dec. 542, 609 N.E.2d 1076(1993).An easement is considered appurtenant when the easement requires a dominant estate and a servient estate.Maywood-Proviso State Bank v. Village of Lisle, 234 Ill.App.3d 206, 218, 174 Ill.Dec. 697, 599 N.E.2d 481(1992).The user of the right of the easement enjoys what is referred to as a dominant estate over the used land, which is the servient estate.Coomer v. Chicago & North Western Transportation Co., 91 Ill.App.3d 17, 22-23, 46 Ill.Dec. 812, 414 N.E.2d 865(1980).In this case, the defendants have a dominant estate and McMahon has a servient estate, as the defendants have the right to the portion of the driveway that is located on McMahon's property.

As the owners of the dominant estate, the defendants are entitled to necessary use of the easement.McCann, 242 Ill.App.3d at 254, 182 Ill.Dec. 542, 609 N.E.2d 1076.Necessary use is the use that is reasonably necessary for full enjoyment of the premises.Flower v. Valentine, 135 Ill.App.3d 1034, 1039, 90 Ill.Dec. 703, 482 N.E.2d 682(1985).For example, the owner of an easement of right-of-way for ingress and egress has the right to use the full width of the easement area, unhampered by any obstructions.Schaefer v. Burnstine, 13 Ill.2d 464, 469-70, 150 N.E.2d 113(1958).

There is no dispute that the defendants have an easement to the driveway on McMahon's property.The defendants, however, contend that the instrument creating the easement was clear that the easement also includes the curb.On the other hand, McMahon maintains that the recorded easement is clear that the defendants have an easement only in the driveway.Thus, this issue hinges on the interpretation of the language in the instrument conveying the easement.

To acquire an easement by grant, no particular words are necessary, but the words that are used must clearly show an intention by the grantor to confer an easement, and such terms must be definite, certain, and unequivocal.Friedman v. Gingiss, 182 Ill.App.3d 293, 295-96, 130 Ill.Dec. 738, 537 N.E.2d 1067(1989).Indeed, an instrument creating an easement is construed in accordance with the intention of the parties.Koplin v. Hinsdale Hospital, 207 Ill.App.3d 219, 230, 151 Ill.Dec. 685, 564 N.E.2d 1347(1990).Such intent is ascertained from the words of the instrument and the circumstances contemporaneous to the transaction, including the state of the thing conveyed and the objective to be obtained.Maywood-Proviso, 234 Ill.App.3d at 218, 174 Ill.Dec. 697, 599 N.E.2d 481.

In addition, agreements imposing burdens on one estate for the benefit of another must be strictly construed.Maywood-Proviso, 234 Ill.App.3d at 218, 174 Ill.Dec. 697, 599 N.E.2d 481.Indeed, because an easement is an interest in land, a grant of an easement by contract must contain all the formal requirements of a deed.Coomer, 91 Ill.App.3d at 23, 46 Ill.Dec. 812, 414 N.E.2d 865.Accordingly, the conveyance of an easement by contractual agreement should be supported by consideration, and the terms of contract must be unequivocal.Coomer, 91 Ill.App.3d at 23, 46 Ill.Dec. 812, 414 N.E.2d 865.The practical construction given to the instrument granting the easement by the parties' conduct is to be considered only if there is an ambiguity.Koplin, 207 Ill.App.3d at 230, 151 Ill.Dec. 685, 564 N.E.2d 1347.Courts have tended to construe strictly the easement agreement so as to permit the greatest possible use of the servient tenement.Coomer, 91 Ill.App.3d at 25, 46 Ill.Dec. 812, 414 N.E.2d 865.Finally, the interpretation of a party's agreement or contract is a question of law to be determined by the appellate court de...