specially concurring:
I agree with the majority’s analysis except with respect to its extension of the rule set forth in Joiner v. Janssen, 85 Ill. 2d 74, 421 N.E.2d 170 (1981), regarding mistake, as it applied to the facts of this case. As the majority points out, Joiner was concerned with adverse possession while this case concerns a prescriptive easement. Still, the majority applies the Joiner court’s analysis of mistake to this case because, it surmises, there is no basis for differentiating between the mistaken possession of a fee title to land and the mistaken possession of an easement. I disagree.
In Joiner, the supreme court held that mistake as to a boundary line does not negate an adverse or hostile claim of title because, if it did, there would exist no protection to the landowner who “innocently and mistakenly occupies and improves land” beyond his boundaries. Joiner, 85 Ill. 2d at 83, 421 N.E.2d at 175. Thus, the person who, for instance, mistakenly builds a portion of his home over the boundary line separating his land and another’s land will be protected if the other elements for an adverse possession are met. This is logical. A court would be reticent to force the homeowner to tear down his dwelling after inhabiting it for the statutory period simply because his possession was not sufficiently adverse due to a mistaken belief that the whole of his home was rightfully built on his land.
It is not similarly logical to apply this rule of mistake to a prescriptive easement. Extensive improvements are not likely to be made to an easement. Additionally, as the majority points out, acquiescence or knowledge of the fee owner is necessary to establish an easement by prescription in Illinois. Ruck v. Midwest Hunting & Fishing Club, 104 Ill. App. 2d 185, 243 N.E.2d 834 (1968). No similar acquiescence of the fee owner is necessary for an adverse possession to occur. See Joiner, 85 Ill. 2d at 81, 421 N.E.2d at 174. Accordingly, assuming extensive improvements to an easement are made, such as the paving of a road, the doctrine of equitable estoppel would sufficiently protect the owner of the easement. See Klobucar v. Stancik, 138 Ill. App. 3d 342, 485 N.E.2d 1334 (1985) (a court of equity may impose an easement by estoppel as a remedy on behalf of a party who, in reliance upon the conduct of the adjoining landowner concerning the purported easement, has taken an action concerning his land which would not have been taken absent that conduct).
I would apply the position espoused in People ex rel. Carson v. Mateyka, 57 Ill. App. 3d 991, 373 N.E.2d 471 (1978), that use by mistake is not sufficiently adverse or under claim of right to establish a public way by prescription. I suggest that Larry Borton’s mistaken belief that he was positioning the pipe within the easement is the basis upon which Peggy Sparling should prevail. Therefore, I specially concur.