Nopolous v. McCullough

Mr. PRESIDING JUSTICE ALLOY,

concurring in part and dissenting in part:

I concur in the majority opinion that the trial court improperly treated the motion bearing on removal of the injunction as a full-scale hearing on the merits of the injunction and the merits of the counterclaim. I agree that a reversal on this basis, with a remand for further proceeding on the initial complaint and counterclaim, would be justified.

I cannot, however, agree with the remainder of the opinion, apparently outlining a substantive basis for reversal. I do not believe that the trial court erred in failing to dissolve the injunction and in failing to enter an injunction for McCullough. As noted in the majority opinion, obstructions to access to an easement by an owner of a servient estate would be improper, unless circumstances exist which make such obstruction reasonable. It is clear that we have before us, in this case, basically, a factual question of reasonableness to be determined by the trial judge as the trier of fact. In this case, the evidence disclosed that there had been obstructions to access for many years. Initially, there were several wooden gates which were eventually destroyed. Thereafter, prior to the erection of the steel gate now in controversy, there was, for a number of years, a steel cable across the entrance to the easement roadway. The defendant apparently accepted the arrangement and did not dispute this evidence.

The steel gate in dispute now was put up some six or seven years prior to the time of hearing and was padlocked over that period at various times to protect the growing crops of plaintiff and because the gun club wanted the public kept out. McCullough acquiesced in the arrangement. A member of the gun club also testified that the club preferred the locked gate. Defendant was given keys to the padlock which could easily have been supplied to friends, relatives, deliverymen and others defendant desired to have access. Apparently, the parties got along in some manner for the past six or seven years with the gate and the padlock. It appears that the necessity of locking the gate and the past history of some obstruction was not contradicted in the record and would provide sufficient support for the trial court’s conclusion that the gate and padlock were reasonable in the circumstances. It is noted that Judge DeDoncker said specifically that he thought a padlock was in the best interest of all the parties and that it protected the cropland and the people who were not parties, as well as defendant McCullough. Given the support in the record for the findings of the court, the decision on the removal of the temporary injunction and on McCullough’s request for a counterinjunction appears to be appropriate.

On the question of restoration of the easement to its original path, I note that the defendant never made any objection about the position of the roadway until the present problem with the gate. According to most of the testimony presented, the current easement roadway is in much better condition than the prior roadway. It is still as wide as it was previously and it is now more passable than in the previous years, again according to most of the testimony. Since the trial judge is the finder of fact and, also, since he saw and heard the witnesses, it is difficult to disagree with the conclusion implicit in his judgment, that it was McCullough who was being unreasonable, if either party was unreasonable. The court determined that the evidence indicated that nothing illegal or improper was done by plaintiff.

In summary, I concur with a reversal based upon the procedural issue, but cannot support a reversal of the court’s actions with respect to the temporary injunction and McCullough’s request for counterinjunction. As I have noted, those actions find ample support in the evidence before the trial judge.