dissenting:
I am unable to conclude, as does the majority, that plaintiff is entitled to an easement by implication over the parcels of real estate that it conveyed to the defendants; therefore, I respectfully dissent.
The record indicates that the plaintiff is the owner of the real estate upon which the shopping center (designated as parcel A on plaintiff’s exhibit No. 1) and the apartment complex (designated as parcel E on plaintiff’s exhibit No. 1) are located. It is further established that the shopping center was constructed in 1967 and that the apartment complex was constructed “in the 1960’s.” Thus, plaintiff and its predecessors in title were the owners of parcel A for at least 18 years and were the owners of parcel E for at least 14 years prior to the sale of parcel B to the defendants. Therefore, I conclude that it would be incongruous to permit plaintiff to derogate from its grant to defendants. Defendants had every reason to believe that plaintiff would make adequate provision for its own mode of ingress and egress to parcels A and E when it specifically conveyed parcel B to the defendants. Had plaintiff desired to have retained easements over a portion of parcel B to provide ingress and egress to parcels A and E, it could have done so.
Moreover, defendant Larry Manns testified that when he notified the plaintiff in November 1982 of the encroachment upon his property by the driveway claimed by plaintiff, plaintiff then was still the owner of parcel C, lying immediately to the south of the shopping center. Since the relative rights of the parties must be determined as they existed as of the date of the conveyance to defendant in the summer of 1982, it is my conclusion that plaintiff should be required to establish, and has failed to do so, that it did not have access to parcel A, the shopping center, across parcel C to Rou Des Chateaux.
Furthermore, since parcel E is bounded on its entire western boundary by Prairie Street, plaintiff should be required to have either provided its own ingress and egress to parcel E from Prairie Street or, should that have been impossible, to have reserved an easement across parcel B to connect the parking lot on parcel E with Rou Des Chateaux.
With the exception of the decision of the court in Bihss v. Sabolis (1926), 322 Ill. 350, 153 N.E. 684, the cases relied upon by the majority are ones in which a purchaser is attempting to enforce the creation of an easement by implication, vastly different from the instant case where the seller is attempting to derogate from its grant. If the rationale of Bihss v. Sabolis still exists in Illinois, the case at bar is distinguishable because it could not be said that the buyer in the case at bar is attempting to alter arrangements openly existing at the time of the conveyance so as to change materially the relative value of the respective parts, which was the basis for the court’s decision in Bihss.
In the case at bar, plaintiff was the owner of parcels A, B, C, and E at the time of the conveyance of parcel B to the defendants. It, and its predecessors in interest, had owned parcels A and E for 18 and 14 years respectively. It is only proper that plaintiff should be required to have provided for its own mode of ingress and egress to parcels A and E when it conveyed parcel B to defendants. Moreover, it is my conclusion that it has not been satisfactorily established that plaintiff did not have a reasonably convenient alternate avenue of ingress and egress to parcel A across parcel C at the time of the conveyance to defendants.
For the foregoing reasons, I would decide all issues of the instant appeal in favor of defendants.