Our firm recently represented the defendant in a case between two neighboring property owners. The plaintiffs originally alleged adverse possession and easement by implication claims; however, the adverse possession count was voluntarily dismissed the day of trial due to a lack of proof, and easement by implication was the sole issue presented to the trial court.
The plaintiffs were a family that owns property in Lake County, Illinois, which apparently abuts the lake. However, a review of their deed revealed that, at the time that the plaintiffs’ property was conveyed, the previous owner of the property had retained for himself a strip of land adjoining the water, as well as underwater property. This strip of land and underwater property was eventually conveyed to our client, the defendant.
The plaintiffs alleged that they had an implied easement over the strip of land and underwater property. In addition, a corner of the plaintiffs’ garage/ boathouse extended onto and over the strip of land and underwater property owned by defendant. The garage/boathouse had been built before the property had been severed and conveyed, separately, to the plaintiffs and the defendant. Plaintiffs were also seeking an easement over the overhanging corner of the garage/boathouse so that they could rebuild the structure, which had been badly damaged by fire, in its original footprint.
Our client objected to any rebuilding or renovation of the garage/ boathouse, and litigation ensued when the defendant refused to grant an easement for use of the channel property or the encroaching corner of the garage/boathouse. The defendant also filed counterclaims for ejectment and trespass to force the plaintiffs to remove their boatlift and their boats which had been anchored in the underwater portion of our client’s property.
Illinois courts will find an implied easement to exist in favor of one parcel and against another where there is evidence that the parties to the original conveyance of land had intended to grant the easement and had failed to put the intent into words.1 An implied easement can only exist where the two parcels at issue had, at one time, been part of the same parcel.2 The courts focus on the circumstances and the intent of the parties at the time of the original conveyance where one or both of the parcels were conveyed from the original owner to another party.3 Therefore, "whether an easement exists depends wholly on the circumstances at the time of severance of title." 4
There are two types of implied easements: (i) easement by necessity, and (ii) easement implied by a preexisting use.5 An easement by necessity is established where, by clear and convincing evidence, the party seeking the easement demonstrates that (1) the plaintiff’s property and defendant’s property were once owned by a common grantor and were severed; (2) at the time of the severance of the property, the plaintiff’s property was landlocked and an easement was necessary at that time; and (3) today, the plaintiffs’ property is still landlocked and an easement is still necessary.6
An easement by necessity usually arises when the owner of land conveys to another the inner portion which is completely surrounded by land owned by others.7 Easements by necessity have traditionally been created over existing roadways or driveways.8 Recently, however, easements by necessity have been recognized for other forms of access, such as foot access, vehicular access, and access for utilities and services.9
An easement implied by preexisting use is established where, by clear and convincing evidence, the plaintiff demonstrates that (1) the plaintiff’s property and the defendant’s property were once owned by a common grantor and that the properties were severed; (2) the proposed easement was used before separation in an apparent, obvious, continuous and manifestly permanent manner; and (3) the easement is necessary and beneficial to the enjoyment of the dominant estate.10
Although both types of easement require some kind of necessity, the level of necessity that must be shown varies. Where no prior use can be established, and therefore an easement by necessity is sought, a greater level of necessity is required in order to demonstrate an implied easement.11 An implied easement by necessity – that is, where no prior use is demonstrated – requires that, without the easement sought, "no effective use could be made of the land to be benefitted by it."12
Where there is evidence of prior use, however, the plaintiff must produce evidence that the sought easement is "reasonably necessary" – not absolutely necessary; the use must be "reasonably convenient" to the use of the benefited land.13 The courts have not indicated the limits of what is considered to be "reasonably necessary" or "reasonably convenient" to the benefitted land. For example, is a use that is purely recreational sufficiently convenient to qualify for an implied easement? If a property owner would like to cross over the property of another to access a lake or a park, would a court find that this use would qualify for an implied easement? The courts have not yet weighed in on these questions, so the boundaries of an implied easement for the areas of use of an implied easement by preexisting use are still uncertain.
At trial in our particular case, the plaintiffs argued that because any casual observer would believe that their property was a waterfront lot, and because the separation of the strip of land owned by the defendant was not noticeable, the original parties to the conveyance must have intended to convey an easement over this strip of land and the underwater lake bottom so that the plaintiffs’ predecessors could store their boat on the lake behind their backyard and cross over their backyard to access the lake.
Further, the plaintiffs argued that the original owners must have intended to convey an easement over the encroaching section of the garage/ boathouse. During the trial, the parties stipulated that the garage/boathouse existed at the time of severance. However, our client argued that the court should not consider the entire garage/boathouse when it performed its analysis. Instead, we argued that it should consider only the portion that encroached onto the defendant’s property, and when only that portion was considered, the requirements for an implied easement were not met.
The plaintiffs did not seek an easement over the entire garage/boathouse. Rather, they sought an easement only over one corner of the garage/boathouse which cantilevered over the defendant’s property. This corner of the garage/boathouse was not and could not be used. The Plaintiffs did not intend to store a car in that corner and they admitted that they could not fit their boat into the boathouse at all. The use of the unused corner of the garage/boathouse was not "necessary," even in the sense of being "reasonably convenient" for the use of the land benefit and, therefore, the plaintiffs could not establish easement over it.
The plaintiffs also requested that the boatlift they had anchored in the channel be covered by the easement by implication. We argued that the plaintiffs could not establish any prior use of the boatlift, and there was uncontroverted testimony that the boatlift did not exist at the time of severance in 1982. We suggested that the plaintiffs were attempting to expand on any easement and this expansion was impermissible under Illinois law.14
The Illinois Supreme Court in Bihss v. Sabolis held that if an implied easement did not exist at the time of the original conveyance, it cannot be created later. An easement implied by preexisting use is frozen at the time of severance; the property cannot be altered at the time of severance and then claimed as an easement: "The parties are presumed to contract in reference to the condition of the property at the time of sale, and neither has a right, by altering arrangement then openly existing, to change materially the relative value of the respective parties."15
After trial testimony, but before the court ruled, the parties reached a settlement agreement. However, this case demonstrates that an easement by implication is very difficult to prove and becomes increasingly difficult as time passes. Under the clear and convincing evidence standard of proof, by subdividing the property over which the easement is sought, it can become increasingly difficult to establish all the requirements for an easement. In our case, while the plaintiffs’ were able to argue generally about the intent of the original conveyor and conveyee concerning the strip of land, garage/boathouse and underwater property, the more that the property was considered in sections, the more difficult it was to prove permanence and necessity for each piece. Further, an easement cannot be expanded to include more than what existed at the time of severance. As the use of the property changes over time based upon technology and the owner’s use of that property, an easement becomes more and more difficult to prove.
1 Gacki v. Bartels, 369 Ill.App.3d 284, 290, 859 N.E.2d 1178, 1184 (2nd Dist., 2006).
6 Id. at 291, 1185-86.
8 Id. at 293, 1187.
10 Id. at 290, 1185.
11 Granite Properties Ltd. Partnership v. Manns, 117 Ill.2d 425, 440, 512 N.E.2d 1230, 1238 (Ill. 1987).
12 Id. (quoting 2 American Law of Property sec 8.43 (A.J. Casner ed. 1952)).
13 Granite Properties Ltd. Partnership, 117 Ill.2d at 440, 1238.
14 Bihss v. Sabolis, 322 Ill. 350,352, 153 N.E. 684 (Ill., 1926).
James F. McCluskey is a partner in the firm and concentrates his practice in the trial of professional and commercial liability cases. Mr. McCluskey practices before all state and federal courts in Illinois. He is also admitted to the Eastern District of Wisconsin.
Lauryn E. Parks, B.A. in Economics, 2003, the University of Chicago and J.D., 2007, the University of Michigan Law School, admitted to the Illinois Bar in 2007. Lauryn is an associate with the firm who practices in the area of commercial litigation. Lauryn is a member of the Illinois State Bar Association and the DuPage County Bar Association.