dissenting:
I respectfully dissent.
The doctrine of implied easements is founded on the principle that where the owner of a single tract has arranged it so that one portion of the tract derives a benefit from another portion, and the owner sells one portion without mentioning these incidental uses, the purchaser takes the portion sold with all benefits and burdens which appear at the time of the sale. (O’Hara v. Chicago Title & Trust Co. (1983), 115 Ill. App. 3d 309, 317, 450 N.E.2d 1183.) As noted by the majority, three conditions must ordinarily be present in order for a court to find an easement by implication: (1) ownership of the dominant and servient estates by a common grantor, followed by separation of title; (2) use of the easement prior to separation in an apparent, obvious, continuous and manifestly permanent manner; and (3) necessity of the easement for the beneficial enjoyment of the dominant estate. Miller v. Schmitz (1980), 80 Ill. App. 3d 911, 913, 400 N.E.2d 488.
In the instant , case, there is no question with regard to elements (1) and (3). With regard to element (2), there is evidence to support plaintiff’s contention that a road did in fact exist prior to the separation of title in 1955 (though it does not appear that the road extended all the way to plaintiff’s present retained tract), and that plaintiff utilized the road. Even the absence of this second element, however, would not defeat plaintiff’s claim. Although prior use by the conveyor is a relevant factor in determining whether an easement is necessary to the conveyor’s beneficial enjoyment of his retained property, this court has adopted the position of the Restatement of Property that proof of prior use is not required when the retained property cannot presently be used without an. easement. (Miller v. Schmitz (1980), 80 Ill. App. 3d 911, 914, 400 N.E.2d 488.) Comment g to section 476 of the Restatement of Property states:
“If no use can be made of land conveyed or retained without the benefit of an easement, it is assumed that the parties intended, the easement to be created. This is true not only where it is claimed by the conveyor but also where it is claimed by the conveyee. It is assumed that the parties could not have intended that the land retained by the conveyor should be useless in his hands, though the assumption may not have too firm a foundation in fact. The inference as to intention which is made is influenced largely by considerations of public policy in favor of land utilization. *** If land can be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied *** on the basis of necessity alone without reference to prior use.” Restatement of Property sec. 476, comment g, at 2983 (1944); see also Burby, Real Property sec. 29 (3d ed. 1965).
Application of these principles to the facts of this case compels the conclusion that the court erred in entering summary judgment for defendants, as the plaintiff’s complaint alleges that plaintiff cannot use his property without such an easement, and nothing of record establishes that such is not the case. Accordingly, I would reverse the summary judgment entered in favor of defendants, and would remand this cause for further proceedings.