Mid-City Nat. Bank v. C.A. Hemphill & Associates

• Decision Date: 21 October 1987
• Docket Number: P,MID-CITY,No. 1378,No. 87-0710,1378,87-0710
• Citation: 516 N.E.2d 460,114 Ill.Dec. 305,163 Ill.App.3d 15
• Parties: , 114 Ill.Dec. 305 NATIONAL BANK, as Trustee under Trustand as Successor Trustee, United of America Bank, Trustlaintiff-Appellant, v. C.A. HEMPHILL & ASSOCIATES, Kenneth Pell, and Patricia Pell, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 460

516 N.E.2d 460

163 Ill.App.3d 15, 114 Ill.Dec. 305

MID-CITY NATIONAL BANK, as Trustee under Trust No. 1378 and as Successor Trustee, United of America Bank Trust No. 1378, Plaintiff-Appellant, v. C.A. HEMPHILL & ASSOCIATES, Kenneth Pell, and Patricia Pell Defendants-Appellees.

No. 87-0710.

Appellate Court of Illinois First District, Third Division.

Oct. 21, 1987.

Thomas W. Flannigan, Chicago, for plaintiff-appellant.

Samuel H. Levine, Chicago, for defendants-appellees.

Justice FREEMAN delivered the opinion of the court:

This appeal arises out of the trial court's denial of plaintiff's motion for a preliminary injunction. Plaintiff sought, pursuant to an alleged implied easement, to restrain defendants from interfering with plaintiff's use of a driveway which runs in part over land owned by defendant, Patricia Pell. After hearings on plaintiff's motion, the court denied the motion and, upon defendant's oral motion for summary judgment and by agreement of the parties, entered a final judgment on the record established at the hearings.

On appeal plaintiff raises the following contentions: (1) an easement by implication and operation of law was established upon the 1977 severance of the ownership of the property; (2) plaintiff's access to Hazel Avenue, via a northern route from plaintiff's property, is immaterial to its rights in the alleged easement to Linden Avenue, accessible via a southern route from plaintiff's property over the land of defendant; (3) the rights of the owners of Lot 1 (plaintiff's land) and Lot 3 (defendant's land) vis-a-vis the implied easement over the subject driveway were fixed at the time of severance of the lots.

For the reasons stated below, we affirm the judgment of the circuit court of Cook County.

The evidence at trial indicated the following. Plaintiff Mid-City National Bank, as land trustee, is the legal owner of the property located at 390 Hazel Avenue, Highland Park, Illinois, which for convenience the parties have referred to as "Lot 1." Ralph Mantynband is the owner of the beneficial interest in the land trust, and has resided on Lot 1 since 1984. From 1924 until 1977, Benedict and Irene Goodman owned the property which included Lots 1 and 3. In 1977, title to the Goodman's property was separated and the land was subdivided into Lots 1, 2, and 3. Lot 1 was conveyed to Mr. and Mrs. Berger. Plaintiff is the purchaser from the Bergers. Defendant Patricia Pell purchased Lot 3 in 1986 from a grantee who intervened in the ownership of the property after the initial severance of Lots 1 and 3.

Defendants Patricia Pell and Kenneth Pell are married. Patricia Pell is the owner of Lot 3, which has the address of 1653 Linden Avenue, Highland Park, Illinois. Lot 3 is immediately adjacent to and south of Lot 1, plaintiff's property. The Pells retained defendant C.A. Hemphill & Associates as a building contractor to build a house on Lot 3. The house would be the first improvement on Lot 3. Coincidentally, defendant Patricia Pell is the granddaughter of the original grantors of the land, Benedict and Irene Goodman.

The Pells have notified plaintiff that, upon completion of the construction of the house, they plan to remove the paved asphalt driveway on their property to reforest that area. It is over the driveway on Lot 3 that plaintiff has claimed an easement. Currently, the driveway runs through both Lots 1 and 3. Around December 1, 1986, the defendant contractor blocked the part of the driveway located on Lot 3 by placing a portable outhouse and bales of hay in the driveway and placing a snow fence across the driveway. Defendant's actions prohibited access over the driveway from Linden Avenue to Lot 1, which is plaintiff's property.

The driveway on Lot 1 has access in a northerly direction to Hazel Avenue, an east-west street that lies north of Lot 1. The access to Hazel Avenue lies just east of the intersection with Linden Avenue, a north-south street that lies west of Lots 1 and 3. The driveway runs from Hazel Avenue roughly parallel to Linden Avenue and enters Lot 3 (the Pell property) south of Lot 1's south lot line. The driveway runs through Lot 3 in a southerly direction and then turns west to the western border of Lot 3, where it accesses Linden Avenue. The driveway is about two car widths wide.

Several witnesses testified at trial regarding the use of Lot 1 and the driveway. Witnesses included defendant Patricia Pell; Ralph Mantynband, the resident of Lot 1; Penny Hirsch, a neighbor who lives nearby the subject property; and Michael Harper, an operations manager for North Shore Waste Control, a company that controls garbage pickup in Highland Park, including Lot 1. Their testimony indicated the following.

The driveway in question has been in use since 1928. The driveway crosses a shallow ravine at the southern border of Lot 1, where it is improved with a flagstone bridge, 10 feet wide and about 9 feet long. The southern part of the bridge is on Lot 3 and the northern part, nearly the entire bridge, is located on Lot 1. In order to reach Linden Avenue from the driveway on Lot 1, a person must cross the bridge over the ravine. The entire driveway, including the part on Lot 1 and the part on Lot 3, was last paved in 1949.

The driveway extends about 200 feet from the front of the house and about 250 feet from the back of the house on Lot 1 to the Hazel Avenue entrance. The distance to the rear of the house from the Linden Avenue exit is about 100 feet. Plaintiff points out that access from Linden Avenue to the rear of the house is without an incline up to the second-floor level, while access from the rear of the house (the garage) from the Hazel entrance requires movement down one story to the entrance and up one story back to the street.

Prior to December 1986 when defendants blocked it, the part of the driveway on Lot 3 had been used to service the house on Lot 1 for the entrance and exit to a smaller driveway and to a parking area. Additionally, that part of the driveway was used for removal of garbage and other services to the residence, including gas, electricity, fire alarm, and other services. The house on Lot 1 is built on a hill that slopes south toward the ravine. The portion of the driveway and the bridge which are in question served the rear entrance, which is one full story lower than the front entrance. The front entrance is located on the north side of Lot 1. The part of the driveway that leads from Hazel Avenue passes both the front door and back door of the house on Lot 1.

Mantynband testified that both he and his wife are able to use the Hazel driveway for access to their house. Mantynband admitted that the Hazel driveway affords reasonable ingress and egress to the street. Mantynband also stated that he can access the lower level of his house from Hazel Avenue, and that he has on prior occasions backed out of his property onto Hazel Avenue. The Hazel driveway is wide enough for cars to make three-point turns to exit via Hazel Avenue.

Patricia Pell testified that she had visited her grandmother, the former owner, Irene Goodman, at the house on Lot 1 (now owned by plaintiff) prior to her grandmother's death in 1977. Patricia Pell stated that prior to 1977 the driveway generally was used by people entering from the Linden Avenue entrance and exiting on Hazel, or entering from Hazel and exiting on Linden. Patricia Pell also testified, however, that she had occasion during that time to back out of the driveway on Lot 1 onto Hazel Avenue and that she saw other people doing the same. Mantynband also testified that he has seen people turn around in the driveway on Lot 1 and then drive forward out the Hazel access.

Penny Hirsch, who lived across the street, at 1676 Linden Avenue, testified that during the 23 years that she had been living there, the use of the driveway on Lot 3 was continuous and that Lot 1 regularly was served through use of the Linden Avenue entrance for deliveries and for access to the rear door and the main front entrance. Hirsch also testified, however, that she has backed out of the driveway on Lot 1 onto Hazel Avenue and that she has seen others do the same. It was stipulated that, if called, her brother Allan Hirsch would have given substantially the same testimony.

Mantynband also testified that the driveway leading from Linden Avenue serviced the rear entrance to the house on Lot 1. The evidence also indicated that the private scavenger services historically have used the rear, i.e., the Linden Avenue, access. The electric and gas companies also used the Linden Avenue access. Deliveries were made through the rear entrance, and burglar and fire alarms have been serviced from the rear entrance, which is closer to the Linden Avenue access.

On cross-examination, however, Mantynband testified that he is able to have his house serviced from the entrance on Hazel Avenue. Specifically, the people who handle the fire and burglar alarms can come in from Hazel Avenue to service the alarms. Commonwealth Edison also can come in from Hazel Avenue to read the electricity meter. Packages can be delivered from the Hazel driveway, and the Hazel driveway is where Mantynband's mailbox is located.

Michael Harper of North Shore Waste Control testified that, to his knowledge, his company always picked up garbage from the house on Lot 1 through the Linden Avenue access. Harper stated that it is easier for the company to use the Linden driveway than the Hazel Avenue entrance, since the employees have a shorter walk, of around 100 feet, rather than a distance of more than 200 feet from Hazel Avenue. Harper stated, however, that the company is able to collect refuse via the Hazel Avenue entrance, and that the cost of their service would be the same regardless of whether the Linden or Hazel Avenue entrance was used.

After hearings were concluded, the trial court found that the record fell short of establishing an easement by...