FILED
2014 IL App (4th) 130923 June 11, 2014
Carla Bender
No. 4-13-0923 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
LAWERANCE R. BRANDHORST, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
GEORGE R. JOHNSON, CYNTHIA J. JOHNSON,
) No. 10CH23
and UNKNOWN OWNERS AND NONRECORD
CLAIMANTS, )
Defendants-Appellants. ) Honorable
) Robert K. Adrian,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Pope and Holder White concurred in the judgment and opinion.
OPINION
¶1 In November 2011, plaintiff, Lawerance Brandhorst, filed a third amended com-
plaint against defendants, George and Cynthia Johnson, alleging that he (1) acquired ownership
of a strip of defendants' land pursuant to the doctrine of adverse possession, (2) acquired a pre-
scriptive easement over portions of a private roadway owned by defendants, and (3) was entitled
to an injunction enjoining defendants from wrongfully diverting surface water onto his property.
¶2 In September 2013, following a bench trial that took place over six days between
January and May 2013, the trial court entered a written order that (1) granted plaintiff ownership
over the disputed strip of land, (2) granted plaintiff a prescriptive easement over portions of the
roadway owned by defendants, and (3) denied plaintiff's request for injunctive relief relating to
defendants' diversion of surface water. As part of the relief granted, the court ordered defendants
to restore a portion of the roadway to the condition it was in prior to April 2009, when the de-
fendants made significant modifications to the roadway that affected plaintiff and his property.
ffected
¶3 Defendants appeal, arguing that (1) plaintiff failed to prove his ownership of the
disputed strip of land by adverse possession, (2) plaintiff failed to prove that he acquired a pre-
pr
scriptive easement over portions of the roadway, and (3) even if plaintiff did prove his rights to
ownership by adverse possession and a prescriptive easement, the trial court's remedies went be-
court
yond the scope of the proof. We disagree and affirm.
¶4 I. BACKGROUND
¶5 The following background was gleaned from evidence presented at trial. Because
the legal issues presented in this appeal require several distinct inquiries into historical facts, we
review much of the evidence presented at trial in our analysis section.
¶6 A. The Ridgewood Properties
¶7 The rough diagram appearing below, which was prepared by this court and is not
to scale, is intended only to assist in an understanding of the facts It depicts the properties at
facts.
issue as they existed prior to April 2009.
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¶8 In the 1950s, Arthur Stipp, the father of defendant Cynthia Johnson, developed a
small residential subdivision along the east side of Ridgewood Drive in Quincy, Illinois. At is-
sue in this case are two lots in that subdivision: 821 Ridgewood Drive and 815 Ridgewood
Drive.
¶9 Defendants own 821 Ridgewood Drive, a narrow, rectangular strip running 237
feet east to west and 50 feet north to south, which the original plat mat designated "Future
Roadway—Not Dedicated." The western boundary of 821 Ridgewood Drive lies along Ridge-
wood Drive, a city street that runs north and south. The entire eastern boundary of 821 Ridge-
wood Drive borders 825 Ridgewood Drive, a residential lot where defendants live. The dimen-
sions of 825 Ridgewood Drive are not relevant to this appeal. A private roadway runs the length
of 821 Ridgewood Drive, connecting Ridgewood Drive to a circle driveway in front of defend-
ants' residence on 825 Ridgewood Drive. Plaintiff and defendants—as well as their predecessors
in title—have always used the private roadway on 821 Ridgewood Drive for ingress and egress
to their properties. No other structures or improvements exist on 821 Ridgewood Drive.
¶ 10 Plaintiff owns 815 Ridgewood Drive, a rectangular lot that lies immediately north
of 821 Ridgewood Drive and immediately east of Ridgewood Drive. The western boundary of
815 Ridgewood Drive runs 116 feet along Ridgewood Drive. The southern boundary of 815
Ridgewood Drive runs 101 feet along the northern boundary of 821 Ridgewood Drive. The re-
maining northern boundary of 821 Ridgewood Drive—the portion east of plaintiff's property—
borders the backyards of properties in another subdivision, which are not at issue in this appeal.
At issue in this appeal is the portion of 821 Ridgewood Drive directly south of 815 Ridgewood
Drive.
¶ 11 B. The Private Roadway Over 821 Ridgewood Drive
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¶ 12 When Stipp first developed the subdivision, he built the beginnings of a 35-foot-
wide, east-west running, asphalt road on 821 Ridgewood Drive. The asphalt road was apparently
never fully completed, however, and it extended eastward only about 101 feet, to a point roughly
as far east as the eastern boundary of 815 Ridgewood Drive. From that point eastward, a much
narrower gravel road provided access from Ridgewood Drive to the residence at 825 Ridgewood
Drive.
¶ 13 The asphalt roadway's 35 feet of width included concrete gutters on both sides,
each measuring approximately 2.5 feet in width. Traveling from east to west, the gutters ran
parallel toward Ridgewood Drive, eventually fanning out, with the southern gutter curving south
toward Ridgewood Drive and the northern gutter curving north toward Ridgewood Drive. Be-
cause 821 Ridgewood Drive was 50-feet wide, and the asphalt road was only 35 feet wide, no
conspicuous monument marked where the northern boundary of 821 Ridgewood Drive met the
southern boundary of 815 Ridgewood Drive. Instead, grass extended from the lawn of 815
Ridgewood Drive—plaintiff's property—all the way south to the gutters of the asphalt road on
821 Ridgewood Drive. This created the appearance that the southern boundary of 815 Ridge-
wood Drive was at the gutter of the asphalt road.
¶ 14 Although the gutter was actually 7.5 feet south of the boundary line of 815
Ridgewood Drive, plaintiff and his predecessors in title used and maintained the land all the way
south to the gutter as their own. Each of them thought that the roadway was city property.
Plaintiff's adverse possession claim concerns the 7.5 feet of 821 Ridgewood Drive north of the
gutter and south of his property line. Plaintiff's prescriptive easement claim concerns his right to
use the roadway portion of 821 Ridgewood Drive south of his property.
¶ 15 C. Pertinent Ownership History of the Properties
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¶ 16 1. 815 Ridgewood Drive
¶ 17 In July 1986, Joseph and Anneliese Arnoldi deeded 815 Ridgewood Drive to Ter-
ry and Gina Miller. In July 1994, the Millers deeded 815 Ridgewood Drive to Deborah Holman
(then Deborah McCormick). In July 1997, Holman deeded 815 Ridgewood Drive to plaintiff,
who owned and lived at the property thereafter.
¶ 18 2. 821 Ridgewood Drive
¶ 19 Arthur Stipp and his wife, Doris, owned 821 Ridgewood Drive until May 2007,
when Doris, then Arthur's widow, deeded 821 Ridgewood Drive to defendants.
¶ 20 3. 825 Ridgewood Drive
¶ 21 Although 825 Ridgewood Drive is not at issue in this appeal, we briefly review
the ownership history of that property to provide context for the parties' present dispute. The
Stipps lived at 825 Ridgewood Drive until some time prior to 1979. (Although the record con-
tains no direct evidence of when the Stipps moved out of 825 Ridgewood Drive, plaintiff intro-
duced a 1979 document in which the Stipps granted Raymond and Lorraine Kibitlewski a per-
petual right-of-way over 821 Ridgewood Drive for ingress and egress to the Kibitlewskis' prop-
erty on 825 Ridgewood Drive. The record is not clear whether someone else owned 825 Ridge-
wood Drive between the Stipps and the Kibitlewskis.)
¶ 22 At some point between 1979 and 2006, Bernard Goggins purchased 825 Ridge-
wood Drive. In August 2006, defendants purchased 825 Ridgewood Drive through a sheriff's
deed pursuant to a foreclosure sale after Goggins defaulted on his mortgage payments. (825
Ridgewood Drive was Cynthia's childhood home, where she lived with her parents, Arthur and
Doris Stipp, until she married defendant George Johnson in 1970.) Defendants renovated the
residence at 825 Ridgewood for over a year, and moved in sometime around August 2007 or lat-
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er. Defendants concede that they purchased both 821 and 825 Ridgewood Drive after the alleged
20-year statutory adverse possession period (July 1986 to July 2006) had already elapsed.
¶ 23 4. 831 Ridgewood Drive
¶ 24 Although 831 Ridgewood Drive is also not at issue in this appeal, we note that its
original occupant, a man by the name of Zang, codeveloped the subdivision along with Stipp.
Zang and the subsequent owners of 831 Ridgewood Drive used the roadway on 821 Ridgewood
Drive for ingress and egress during the 20-year statutory period.
¶ 25 D. Defendants' 2009 Modifications to 821 Ridgewood Drive
¶ 26 In April 2009, defendants hired contractors to remove the asphalt road on 821
Ridgewood Drive, including the gutters, and replace it with a narrower gravel road, approximate-
ly 15 feet wide, which matched the existing gravel road providing access to 825 Ridgewood
Drive. Plaintiff was displeased with these modifications for a host of reasons, including the ef-
fect that the modifications had on (1) flooding in the south-east corner of his property, (2) gravel
runoff onto his property, which exacerbated the flooding problem, (3) his ability to back out of
his driveway, and (4) the aesthetic qualities of his yard.
¶ 27 E. Plaintiff's Complaint
¶ 28 In November 2011, plaintiff filed his third amended complaint, alleging—as rele-
vant to this appeal—that (1) he acquired through adverse possession a 10-foot strip of 821
Ridgewood Drive immediately south of his property line (during trial, the trial court granted
plaintiff's motion to amend the pleadings pursuant to section 2-616 of the Code of Civil Proce-
dure (735 ILCS 5/2-616(c) (West 2012)) to claim only a 7.5-foot strip of 821 Ridgewood Drive,
which was based on plaintiff's realization that his original 10-foot measurement included the 2.5-
foot gutter), and (2) he acquired a prescriptive easement over the portion of the roadway south of
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his property for purposes of ingress and egress, parking, and general use and enjoyment. Plain-
tiff alleged that the relevant 20-year statutory adverse possession period (735 ILCS 5/13-101
(West 2010)) ran from July 11, 1986, to July 11, 2006—a period ending before defendants pur-
chased 821 Ridgewood Drive or removed the asphalt roadway.
¶ 29 F. Trial
¶ 30 A bench trial on plaintiff's third amended complaint took place over six days be-
tween January and May 2013. (Much of the evidence presented concerned the third count of
plaintiff's complaint, which alleged that defendants tortiously diverted surface water onto plain-
tiff's property. The trial court denied that count, and it is not at issue in this appeal.)
¶ 31 As to plaintiff's adverse possession and prescriptive easement claims, the trial
court found that plaintiff proved (1) his ownership over the northern 7.5-foot strip of 821 Ridge-
wood Drive by adverse possession, and (2) his right to a prescriptive easement over the roadway
south of his property. As part of the relief granted on plaintiff's prescriptive easement claim, the
court ordered defendants to restore the roadway south of plaintiff's property to the condition it
was in prior to April 2009, including installation of a new gutter and removal of all gravel.
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 Defendants argue that (1) plaintiff failed to prove his ownership of the disputed
strip of land by adverse possession, (2) plaintiff failed to prove that he acquired a prescriptive
easement over portions of the roadway, and (3) even if plaintiff did prove his rights to ownership
by adverse possession and a prescriptive easement, the trial court's remedies went beyond the
scope of the proof. We address defendants' contentions in turn.
¶ 35 A. The Trial Court's Adverse Possession Finding
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¶ 36 1. Burden of Proof and Standard of Review
¶ 37 To establish title by adverse possession, the claimant must prove possession of the
property for the entire 20-year statutory period (735 ILCS 5/13-101 (West 2010)), "and that pos-
session must have been '(1) continuous; (2) hostile or adverse; (3) actual; (4) open, notorious,
and exclusive; and (5) under claim of title inconsistent with that of the true owner.' " Davidson
v. Perry, 386 Ill. App. 3d 821, 824-25, 898 N.E.2d 785, 788 (2008) (quoting Gacki v. Bartels,
369 Ill. App. 3d 284, 292, 859 N.E.2d 1178, 1186 (2006)). Further, although not one of the five
elements of possession, the claimant must also prove "by clear and convincing evidence the ex-
act location of the boundary line to which they claim[]." Schwartz v. Piper, 4 Ill. 2d 488, 494,
122 N.E.2d 535, 539 (1954).
¶ 38 In adverse possession cases, "[a]ll presumptions are in favor of the title owner,
and the party claiming title by adverse possession must prove each element by clear and une-
quivocal evidence." Knauf v. Ryan, 338 Ill. App. 3d 265, 269, 788 N.E.2d 805, 808 (2003). Be-
cause the supreme court has not explained the meaning of "clear and unequivocal evidence,"
courts have applied the clear and convincing burden of proof in adverse possession cases. Dot-
son v. Former Shareholders of Abraham Lincoln Land & Cattle Co., 332 Ill. App. 3d 846, 855,
773 N.E.2d 792, 800 (2002). We will not disturb the trial court's findings unless they were
against the manifest weight. Knauf, 338 Ill. App. 3d at 269, 788 N.E.2d at 808. "A judgment is
against the manifest weight of the evidence only when an opposite conclusion is apparent or
when findings appear to be unreasonable, arbitrary, or not based on the evidence." Lawlor v.
North American Corp. of Illinois, 2012 IL 112530, ¶ 70, 983 N.E.2d 414.
¶ 39 2. Continuous Possession
¶ 40 Plaintiff presented testimony from (1) Terry Miller, who owned and lived at 815
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Ridgewood Drive from July 1986 until July 1994; (2) Deborah Holman, who bought the property
from Miller and lived there until July 1997; and (3) himself, who bought the property from Hol-
man and lived there until well after July 2006, when the adverse possession period ended. Plain-
tiff also presented deeds showing the chain of title during the 20-year period. Plaintiff and his
predecessors in title each testified that they used the portions of 821 Ridgewood Drive at issue in
substantially the same way. Defendants presented no evidence that the witnesses' use or posses-
sion of the disputed property was interrupted during the 20-year adverse possession period. No
one but the owners of 815 Ridgewood Drive, or their families and guests, used or maintained the
property at issue. The owners of 821 Ridgewood Drive never attempted to exclude anyone from
the property. Accordingly, the trial court's finding that the possession was continuous was not
against the manifest weight of the evidence.
¶ 41 3. Hostile Possession
¶ 42 The "hostility" element of adverse possession "does not imply actual ill will, but
only the assertion of ownership incompatible with that of the true owner and all others." Joiner
v. Janssen, 85 Ill. 2d 74, 81, 421 N.E.2d 170, 174 (1981). "Although evidence of the use and
control over land is the typical manner by which any claimant establishes title by adverse posses-
sion, it must be clearly shown that the use of the land was adverse and not merely permissive,
since permissive use of land, no matter how long, can never ripen into an adverse possessory
right." Mann v. La Salle National Bank, 205 Ill. App. 3d 304, 309-10, 562 N.E.2d 1033, 1037
(1990).
¶ 43 Miller, Holman, and plaintiff each testified that during their time living at 815
Ridgewood Drive, they treated all the land north of the gutter as their own. They engaged in
general yard maintenance, including mowing the grass and weeding. They shoveled snow from
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the entire driveway down to the gutter. Their children played games and sports on the driveway,
the roadway, and the grass. They, their children, and their guests parked their cars on the road-
way and on the grass. Miller parked a trailer and a "hunting thing" on the roadway or on the
grassy area immediately north of the roadway.
¶ 44 Plaintiff's son, Aaron Brandhorst, testified that when he lived at 815 Ridgewood
Drive from 1997 until approximately 2004, he would (1) camp outside on the area of 821
Ridgewood Drive north of the gutter, (2) use an electric edger to edge the grass along the gutter,
(3) mow the lawn down to the gutter, (4) shovel snow off the driveway down to the gutter, and
(5) generally play on the grassy area of 821 Ridgewood Drive.
¶ 45 No one ever attempted to exclude Miller, Holman, plaintiff, their children, or their
guests from the area of 821 Ridgewood Drive north of the gutter. During the adverse possession
period, Miller, Holman, and plaintiff all believed that the city owned the asphalt roadway. Miller
and Holman believed that 815 Ridgewood Drive extended all the way to the gutter. Plaintiff
suspected that the city might own a portion of the grassy area north of the gutter, but that he was
obligated to maintain that area.
¶ 46 Defendants argue that because plaintiff thought for a time that the city of Quincy
owned the roadway and a portion of the lawn north of the gutter, his possession was not hostile
because it was not inconsistent with that of the record owner. This argument would be meritori-
ous only if the city was the record owner. If that were the case, and plaintiff were required under
the municipal code to maintain the city property, then it would be true that his possession was
not inconsistent with that of the record owner. However, the Stipps—a private party—owned the
land at issue. It is inconsistent with a private party's ownership of a piece of land for a non-
owner to maintain and assert dominion over the land without any agreement to do so. Plaintiff's
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belief that his maintenance and control over the property was consistent with the city's ownership
does not matter because the city was not the actual owner. What matters is that plaintiff's actions
were incompatible with Stipp's ownership of the land at issue.
¶ 47 The evidence showed that plaintiff's actions with regard to the 7.5-foot strip—just
like those of his predecessors in title—were equivalent to a claim of ownership inconsistent with
the Stipps' ownership. Plaintiff's knowledge that he did not own the land did not defeat the ele-
ment of hostility. Joiner, 85 Ill. 2d at 81, 421 N.E.2d at 174 ("To hold that because the possessor
knows or should know that record title is in another precludes any possibility of the possessor's
title being adverse is the antithesis of the doctrine of adverse possession as it has existed in this
State."). Accordingly, the trial court could properly conclude that the owners of 815 Ridgewood
Drive asserted ownership over the portions of 821 Ridgewood Drive north of the gutter incom-
patible with that of the true owners.
¶ 48 Defendants further argue that plaintiff failed to prove that his use of the land at
issue was not permissive in nature. Specifically, defendants contend that because Stipp built the
residence at 815 Ridgewood Drive with a driveway attached to the private roadway on 821
Ridgewood Drive, he implicitly granted the residents of 815 Ridgewood Drive permission to use
821 Ridgewood Drive. Although the evidence suggests that Stipp may have contemplated the
owners of 815 Ridgewood Drive using the roadway for ingress and egress, the question of per-
missive use is not so simple.
¶ 49 The original plat map designated the lot we have referred to as 821 Ridgewood
Drive as "Future Roadway – Not Dedicated." The original plat map also showed that lot extend-
ing eastward to the end of the subdivision (at some point in time, the eastern end of 821 Ridge-
wood Drive merged with 825 Ridgewood Drive). The unfinished asphalt road, the designation
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of "Future Roadway – Not Dedicated," the opened-ended layout of the roadway, and the fact that
the driveways of 815 and 831 Ridgewood Drive were built connected to the roadway all indicate
that Stipp originally intended the roadway to be dedicated as a public street to provide access to
the homes in the subdivision, which may have grown much larger than only three homes. The
evidence suggests that Stipp's original plans for the subdivision did not come to fruition. This
would explain why 821 Ridgewood Drive exists as a lot containing nothing more than a private
roadway, owned by people who apparently gain no benefit from its use by others. The trial court
could have reasonably concluded that the owners of 815 Ridgewood Drive began using the
roadway simply because it was there, and not because Stipp granted them permission. Indeed,
the parties do not dispute that the record contains no evidence that Stipp granted the owners of
815 Ridgewood Drive written or oral permission to use the roadway.
¶ 50 Further, the trial court noted in its written order that Stipp granted the former
owners of 825 Ridgewood Drive—the Kibitlewskis—a perpetual right-of-way for ingress and
egress. Like 815 Ridgewood Drive, 825 Ridgewood Drive has a driveway attached to the road-
way on 821 Ridgewood Drive. The court found that if Stipp intended to permit the owners of
815 Ridgewood Drive to use 821 Ridgewood Drive for ingress and egress, he would have grant-
ed them a similar perpetual right-of-way. The fact that Stipp did not shows that plaintiff and his
predecessors' use of 821 Ridgewood Drive was not pursuant to Stipp's permission. In fact, plain-
tiff's evidence showed that Stipp moved out of the subdivision no later than 1979— 7 years be-
fore the 20-year adverse possession period started. Stipp may not have even been aware that
Miller, Holman, or plaintiff was using the roadway.
¶ 51 We also note that plaintiff's adverse possession claim concerned the entire area of
821 Ridgewood Drive north of the gutter, not just the driveway portion. Even if Stipp had im-
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plicitly granted the residents of 815 Ridgewood Drive permission to use the driveway portion of
821 Ridgewood Drive, that grant of permission would not extend to the grassy areas to the east
and west of the driveway, which made up most of the 7.5-foot strip.
¶ 52 Defendants' permissive use argument rests entirely upon the layout of plaintiff's
driveway in relation to the roadway. This is not enough to warrant reversal of the trial court's
finding that the use was hostile. The fact that Stipp did not prevent plaintiff or his predecessors
in title from using the roadway or driveway portions of 821 Ridgewood Drive does not automati-
cally equate to a grant of permission. If such were the case, a claimant could never establish ad-
verse possession because the true owner's failure to exclude the claimant from the land for the
20-year period would always lead to the conclusion that the use was permissive. In this case, the
court reasonably concluded that the owners of 815 Ridgewood Drive did not have permission to
use the roadway or driveway portions of 821 Ridgewood Drive. That finding was not against the
manifest weight of the evidence.
¶ 53 4. Actual Possession
¶ 54 "The making of improvements or acts of dominion over land, indicating to per-
sons residing in the immediate neighborhood who has exclusive management and control of the
land, are sufficient to constitute possession." Ewald v. Horenberger, 37 Ill. App. 3d 348, 351,
345 N.E.2d 524, 527 (1976). In this case, plaintiff and his predecessors in title exerted manage-
ment and control over the 7.5-foot strip just as if they were the true owners. They mowed the
lawn, weeded, raked leaves, and shoveled snow, and their children played on the land. Defend-
ants claim that these actions were not enough to demonstrate that the owners of 815 Ridgewood
Drive "planted their flag" on the 7.5-foot strip. However, given the characteristics of the land at
issue, we fail to see what more was needed to establish actual possession. The law is well settled
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that adverse claimants need not erect a fence or other structures on the disputed land to prove
actual possession. See Augustus v. Lydig, 353 Ill. 215, 222, 187 N.E. 278, 281 (1933) ("It is not
necessary that land should be [e]nclosed by a fence or that a house should be erected on it to
constitute possession, or that it should be reduced to cultivation. Such improvements or acts of
dominion over the land as will indicate to persons residing in the immediate neighborhood who
has the exclusive management and control of the land are sufficient to constitute possession.").
Plaintiff and his predecessors in title exercised management, maintenance, and control over the
7.5-foot strip during the 20-year adverse possession period. Accordingly, the trial court's finding
that plaintiff proved actual possession was not against the manifest weight of the evidence.
¶ 55 5. Open, Notorious, and Exclusive Possession
¶ 56 The adverse claimant's possession of the land at issue must "be of such open and
visible character as to apprise the world, that the property has been appropriated, and is occu-
pied." (Internal quotation marks omitted.) Estate of Welliver v. Alberts, 278 Ill. App. 3d 1028,
1038, 663 N.E.2d 1094, 1100 (1996) (quoting Travers v. McElvain, 181 Ill. 382, 387, 55 N.E.
135, 136 (1899)). For much of the same reasons that plaintiff and his predecessors' possession
was hostile and actual, so too was it open, notorious, and exclusive. During the relevant 20-year
statutory period, no one but the owners of 815 Ridgewood Drive maintained or regularly used
the 7.5-foot strip. Yard maintenance, such as mowing, weeding, and raking, is of such an openly
visible and notorious character that it sufficiently demonstrates to the neighborhood that the per-
son doing the maintenance has claimed ownership over the land.
¶ 57 Defendants argue that plaintiff failed to prove exclusive possession because nei-
ther he nor his predecessors in title ever excluded anyone from the 7.5-foot strip. While defend-
ants acknowledge that they did not present evidence that the Stipps or anyone else ever entered
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the 7.5-foot strip during the statutory period, they claim that this does not matter because plain-
tiff carries the burden of proof. We reject defendants' assertion that the element of exclusivity
required plaintiff to prove that he excluded people from the 7.5-foot strip during the 20-year stat-
utory period. Instead, "exclusivity requires that the claimant possess the property independent of
a like right in others, [and that] the opponent, the alleged rightful owner, must be altogether de-
prived of possession." Malone v. Smith, 355 Ill. App. 3d 812, 817, 823 N.E.2d 1158, 1162
(2005). Plaintiff was not required to prove that he ever excluded the Stipps from the 7.5-foot
strip, but only that the Stipps never possessed the strip during the adverse possession period.
¶ 58 Plaintiff's evidence showed that he and his predecessors in title controlled and
maintained the 7.5-foot strip during the statutory period as if they were the true owners. Miller,
Holman, and plaintiff testified that no one else ever maintained the strip, or engaged in any other
actions that would constitute the assertion of dominion or control over the property. Plaintiff's
evidence sufficiently established that (1) he and his predecessors in title possessed the property
independent of a like right in others, and (2) the Stipps were altogether deprived of possession
during the 20-year statutory period. Accordingly, the trial court's finding that the possession was
open, notorious, and exclusive was not against the manifest weight of the evidence.
¶ 59 6. Claim of Title Inconsistent With That of the True Owner
¶ 60 "Using and controlling property as owner is the ordinary mode of asserting a
claim of title inconsistent with that of the true owner." Peters v. Greenmount Cemetery Ass'n,
259 Ill. App. 3d 566, 570, 632 N.E.2d 187, 190 (1994). This element is similar to the elements
of actual possession and hostility. Based upon the evidence already mentioned, we conclude that
the trial court's finding that plaintiff satisfied this element of adverse possession was not against
the manifest weight of the evidence.
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¶ 61 7. Plaintiff Proved the Precise Boundaries of the Area Claimed
¶ 62 Defendants argue that plaintiff's evidence failed to satisfy the requirement that the
party claiming adverse possession must prove "by clear and convincing evidence the exact loca-
tion of the boundary line to which they claim[]." Schwartz, 4 Ill. 2d at 494, 122 N.E.2d at 539.
Specifically, defendants contend that because plaintiff's witnesses delivered their trial testimony
before plaintiff amended his pleadings from claiming a 10-foot strip to claiming a 7.5-foot strip,
it is possible that the witnesses described behaviors—such as yard maintenance and children
playing—that took place entirely within the 2.5-foot strip north of the boundary line. This ar-
gument misses the point.
¶ 63 Plaintiff's witnesses testified that they used the entire yard all the way south to the
gutter. Their testimony in that regard was not contingent upon whether the actual boundary line
was 10 feet or 7.5 feet north of the gutter. As defendants acknowledge in their brief, the trial
court granted plaintiff's motion to amend the pleadings because plaintiff had reached the 10-foot
figure by measuring the distance from the inside edge of the gutter to the boundary line of 815
Ridgewood Drive. By amending his pleadings, plaintiff no longer claimed adverse possession
over the width of the gutter, but only over the land north of the gutter and south of the boundary.
¶ 64 Plaintiff's amendment to the pleadings substantively changed the relief he sought,
but it had no effect on the probative value of his witnesses' earlier testimony. Although the at-
torneys questioned plaintiff's witnesses in reference to the "10-foot strip" lying north of the gut-
ter, what mattered was not the exact width of the strip, but instead that the witnesses understood
the strip as part of the lawn north of the gutter. None of the witnesses displayed exacting certain-
ty as to the dimensions or measurements of the area at issue. It is inconceivable to us that the
witnesses' testimony would have been different if they had been questioned about a 7.5-foot strip
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north of the gutter instead of a 10-foot strip. After plaintiff amended his pleadings, his witnesses'
testimony was no less probative because it still showed that plaintiff and his predecessors in title
used and maintained the land all the way south to the gutter. The trial court found, based upon
the evidence presented, that plaintiff met his burden of proving that the exact area of adverse
possession was a strip extending 7.5 feet south of the boundary line of 815 Ridgewood Drive and
running east to west the length of 815 Ridgewood Drive. We conclude that this finding was not
against the manifest weight of the evidence.
¶ 65 Because none of the trial court's findings as to the elements of adverse possession
were against the manifest weight of the evidence, we affirm the court's order granting plaintiff
ownership over the 7.5-foot strip of land immediately south of his boundary line.
¶ 66 B. The Trial Court's Prescriptive Easement Finding
¶ 67 1. Burden of Proof and Standard of Review
¶ 68 To establish an easement by prescription, the claimant must prove that the use of
the land existed for 20 years and was (1) hostile or adverse, (2) exclusive, (3) continuous and un-
interrupted, and (4) under a claim of right inconsistent with that of the true owner. Wehde v. Re-
gional Transportation Authority, 237 Ill. App. 3d 664, 676, 604 N.E.2d 446, 455-56 (1992). The
party claiming the easement must prove the elements "distinctly and clearly." Bogner v. Villiger,
343 Ill. App. 3d 264, 269, 796 N.E.2d 679, 685 (2003).
¶ 69 The establishment of a prescriptive easement is almost always a question of fact.
Chicago Title Land Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420, ¶ 31, 977 N.E.2d 198;
City of Des Plaines v. Redella, 365 Ill. App. 3d 68, 75-76, 847 N.E.2d 732, 738 (2006); Schultz
v. Kant, 148 Ill. App. 3d 565, 569, 499 N.E.2d 131, 135 (1986). Likewise, "[w]hether there was
adverse use of the way under a claim of right for a period of 20 years, or the use of the way is
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only permissive, is almost wholly a question of fact." Petersen v. Corrubia, 21 Ill. 2d 525, 532,
173 N.E.2d 499, 502 (1961). Accordingly, we will affirm the trial court's finding unless it was
against the manifest weight of the evidence. JS II, LLC, 2012 IL App (1st) 063420, ¶ 31, 977
N.E.2d 198.
¶ 70 In this case, the trial court found that plaintiff was entitled to a prescriptive ease-
ment over the portion of 821 Ridgewood Drive spanning 32.5 feet south from the 7.5-foot strip,
and running east to west 101.34 feet. This area corresponded to the entire portion of the old as-
phalt road north of its southern gutter. Because the court found that plaintiff owned a prescrip-
tive easement over this area prior to defendants' 2009 modifications, the court ordered defendants
to restore the road to its condition prior to those modifications. The court's order granting the
prescriptive easement further prohibited defendants from interfering with plaintiff's "historic use"
of the easement area, which included "driving upon, parking upon, walking upon, and any other
uses of said premises as a street."
¶ 71 2. Hostile Use
¶ 72 Defendants' argument that plaintiff failed to prove hostile use of the easement ar-
ea is substantially identical to their argument concerning plaintiff's adverse possession claim.
Specifically, defendants contend that plaintiff and his predecessors in title used the easement area
with permission, as demonstrated by the layout of the driveway and roadway portions of 821
Ridgewood Drive. For the same reasons we affirm the trial court's finding of hostility regarding
the adverse possession claim, we also conclude that the court's finding of hostile use was not
against the manifest weight of the evidence regarding plaintiff's prescriptive easement claim.
¶ 73 3. Exclusive Use
¶ 74 Exclusive use "does not mean that no one may or does use the way, except the
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claimant of the easement. It means no more than that his right to do so does not depend upon a
like right in others, and it does not mean that the claim is necessarily well founded." Petersen,
21 Ill. 2d at 531, 173 N.E.2d at 502. Citing the First District case of Catholic Bishop of Chicago
v. Chicago Title & Trust Co., 2011 IL App (1st) 102389, 954 N.E.2d 797, defendants argue that
plaintiff was required to prove that the true owners were altogether deprived of use of the ease-
ment property during the 20-year period. We disagree with this impossibly high standard, which
runs afoul of supreme court precedent.
¶ 75 Catholic Bishop relied upon two earlier First District cases: Chicago Steel Rule
Die & Fabricators Co. v. Malan Construction Co., 200 Ill. App. 3d 701, 707, 558 N.E.2d 341,
345 (1990), and City of Des Plaines, 365 Ill. App. 3d at 76, 847 N.E.2d at 738. In Chicago
Steel—which City of Des Plaines relied upon—the First District cited the Third District case of
Morris v. Humphrey, 146 Ill. App. 3d 612, 616, 496 N.E.2d 1209, 1212 (1986), for the rule that
"exclusivity does require that the rightful owner be altogether deprived of possession." Chicago
Steel, 200 Ill. App. 3d at 707, 558 N.E.2d at 345. However, Morris was an adverse possession
case. The Morris court based its holding on this court's holding in Hartzler v. Uftring, 114 Ill.
App. 3d 427, 432, 450 N.E.2d 1208, 1212 (1983), and the supreme court's holding in Towle v.
Quante, 246 Ill. 568, 576, 92 N.E. 967, 970 (1910)—also adverse possession cases. Hartzler and
Towle held that in adverse possession cases, exclusive possession requires that the true owner be
altogether deprived of possession during the 20-year statutory period.
¶ 76 Gaining ownership of land through adverse possession means divesting the true
owner of title, whereas gaining an easement by prescription means merely divesting the true
owner of the right to exclude the claimant from using the easement property for a certain limited
purpose. JS II, LLC, 2012 IL App (1st) 063420, ¶ 43, 977 N.E.2d 198. Adverse possession
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claimants must prove that the true owner was altogether deprived of possession during the 20-
year period. Malone, 355 Ill. App. 3d at 817, 823 N.E.2d at 1162. However, because of the
lesser interests at stake, and because it is possible for both the owner and the claimant to simulta-
neously use the same piece of property, prescriptive easement claimant cases need not prove that
the true owner was altogether deprived of use during the 20-year period.
¶ 77 In Catholic Bishop, the First District erroneously conflated the "exclusive use"
element of prescriptive easement claims with "exclusive possession" element of adverse posses-
sion claims. These elements are much different. As previously explained, possession requires
some exercise of dominion or control over a piece of land. See, e.g., Ewald, 37 Ill. App. 3d at
351, 345 N.E.2d at 527. Use, on the other hand, can be as simple as driving or walking upon a
piece of land. See, e.g., Wehde, 237 Ill. App. 3d at 678-80, 604 N.E.2d at 457-58. Proving that
no one else possessed a piece of land over a 20-year period is much easier than proving that no
one else used a piece of land over a 20-year period. Indeed, it is difficult to imagine any case in
which a claimant could prove the latter by clear and convincing evidence. Because granting a
prescriptive easement constitutes a much lesser deprivation of the true owner's rights than does
granting ownership through adverse possession (JS II, LLC, 2012 IL App (1st) 063420, ¶ 43, 977
N.E.2d 198), it would make no sense to require a prescriptive easement claimant to satisfy a
much more difficult burden of proof than an adverse possession claimant. Requiring proof that
the true owner was altogether deprived of use for the entire 20-year period would do just that.
¶ 78 As the First District acknowledged in Catholic Bishop, a majority of jurisdictions
have either relaxed or eliminated the exclusivity requirement for prescriptive easements. Catho-
lic Bishop, 2011 IL App (1st) 102389, ¶ 30, 954 N.E.2d 797 (citing Dena Cohen, Exclusiveness
in the Law of Prescription, 8 Cardozo L. Rev. 611 (1987)). Although exclusivity remains an el-
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ement of prescriptive easements in Illinois, it does not require the claimant to prove that the true
owner never once used the land during the 20-year statutory period. Instead, the supreme court's
holdings in Schmidt v. Brown, 226 Ill. 590, 599, 80 N.E. 1071, 1074 (1907), and its progeny—
such as Leesch v. Krause, 393 Ill. 124, 129, 65 N.E.2d 370, 372 (1946), and Petersen, 21 Ill. 2d
at 531, 173 N.E.2d at 502—remain the controlling standard.
¶ 79 The facts of Schmidt were relatively simple. The Smith farm sat immediately
south of the Brown farm. Schmidt, 226 Ill. at 591-92, 80 N.E. at 1071. Brown accessed his
home via a private road that cut directly north and south through the Smith farm. Schmidt, 226
Ill. at 593, 80 N.E. at 1071. Smith also used that road to access his home. Schmidt, 226 Ill. at
591, 80 N.E. at 1071. This situation existed for approximately 40 years. Schmidt, 226 Ill. at 596,
80 N.E. at 1073. Schmidt, a subsequent owner of the Smith farm, attempted to exclude Brown
from using the private road. Schmidt, 226 Ill. at 594, 80 N.E. at 1072. The supreme court held,
as follows:
"Brown's use of this road was adverse, uninterrupted, continuous,
and exclusive, and under a claim of right. The fact that other per-
sons also used the roadway does not prevent Brown's [use] from
being exclusive. 'Exclusive use' does not mean that no one used
the way except the claimant of the easement. It means no more
than that his right to do so does not depend on a like right in others.
The use may be exclusive, within the meaning of this rule, even
though Smith and others also used the road." (Emphasis added.)
Schmidt, 226 Ill. at 599, 80 N.E. at 1074.
We are unable to square the First District's holding in Catholic Bishop with the supreme court's
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holding in Schmidt. Pursuant to the supreme court's holding in Schmidt and its progeny, exclu-
sivity in prescriptive easement cases means "no more" than that the claimant's right to use the
easement property does not depend on a like right in others. Petersen, 21 Ill. 2d at 531, 173
N.E.2d at 502.
¶ 80 In this case, plaintiff sufficiently proved that his use of the easement property was
exclusive. He and his predecessors in title believed that the roadway was a city street, entitling
them to use it in the manner that they did during the 20-year statutory period. It does not matter
whether that claim of right was well founded. Petersen, 21 Ill. 2d at 531, 173 N.E.2d at 502.
Similar to plaintiff's exclusive possession of the adverse possession property, plaintiff and his
predecessors' use of the easement property did not depend on the rights of others.
¶ 81 Even assuming, arguendo, that the true owner's use of the roadway would have
defeated exclusivity, we note the evidence showed that the Stipps did not live in the subdivision
during the 20-year statutory period. The record contains no evidence that the owners of 821
Ridgewood Drive entered that property during the 20-year period. Accordingly, the trial court
could have reasonably concluded that the Stipps did not use the easement property during that
period. The court's finding that plaintiff proved his exclusive use of the easement property was
not against the manifest weight of the evidence.
¶ 82 4. Continuous and Uninterrupted Use
¶ 83 Defendants' brief to this court does not address the continuous and uninterrupted
element of plaintiff's prescriptive easement claim. Suffice it to say that plaintiff's evidence
proved that the owners of 815 Ridgewood Drive used the easement property on an almost daily
basis throughout the 20-year statutory period. The Stipps never attempted to prevent the owners
of 815 Ridgewood Drive from using the easement property. We conclude that the trial court's
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finding in favor of plaintiff as to this element was not against the manifest weight of the evi-
dence.
¶ 84 5. Claim of Right Inconsistent With That of the True Owner
¶ 85 For the same reasons that plaintiff and his predecessors' use of the easement prop-
erty was hostile and exclusive, their claim of right to use the easement property was also incon-
sistent with the rights of the true owner. Plaintiff and his predecessors in title claimed a right to
use the roadway based upon their understanding that it was public property. As with plaintiff's
adverse possession claim, it does not matter whether this claim of right was well founded, so
long as it existed for the entire 20-year statutory period. Using the private roadway as if it were
public property constitutes use under a claim of right inconsistent with that of the true owner.
Based upon the evidence presented, the trial court's finding as to this element was not against the
manifest weight of the evidence.
¶ 86 Because none of the trial court's findings as to the elements of plaintiff's prescrip-
tive easement claim were against the manifest weight of the evidence, we affirm the court's order
granting plaintiff a prescriptive easement.
¶ 87 C. The Scope of the Trial Court's Remedies
¶ 88 Defendants argue that even if plaintiff proved his rights to ownership by adverse
possession and a prescriptive easement, the trial court's remedies went beyond the scope of the
proof. Specifically, defendants contend that (1) the court's relief, which granted plaintiff owner-
ship and an easement over the portions of 821 Ridgewood Drive east of the driveway, was
against the manifest weight of the evidence, and (2) the court improperly ordered defendants to
restore the roadway to the condition it was in prior to the April 2009 modifications. We disa-
gree.
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¶ 89 1. The Area East of the Driveway
¶ 90 Defendants contend that plaintiff failed to prove his adverse possession and pre-
scriptive easements claims with regard to the portion of 821 Ridgewood Drive east of the drive-
way. Specifically, they assert that Miller's testimony failed to establish his continuous assertion
of ownership and use of that area while he was living at 815 Ridgewood Drive.
¶ 91 Miller testified that he maintained the lawn east of the driveway all the way south
to the gutter. For a period of time, he parked a trailer and a "hunting thing" in the grassy area
just north of the gutter and east of the driveway, or on the roadway itself east of the driveway.
Miller's children would play and ride bikes in the roadway. Miller testified that he and his wife
drove over the roadway and into the driveway every day. When Miller backed out of his drive-
way, he "would back out and square [him]self probably about where the gravel road was an then
head toward Ridgewood." Miller's testimony established that his assertion of ownership and use
of the portions of 821 Ridgewood Drive east of his driveway was continuous and uninterrupted.
We conclude that the trial court's findings regarding the portion of 821 Ridgewood Drive east of
the driveway were not against the manifest weight of the evidence.
¶ 92 2. Restoration of the Roadway
¶ 93 Defendants argue that, assuming the trial court properly granted plaintiff an ease-
ment over the area of 821 Ridgewood Drive where the asphalt roadway used to be, the court's
mandatory injunctive relief requiring defendants to restore the roadway was improper because
plaintiff failed to demonstrate that defendants' 2009 removal of the asphalt roadway interfered
with his use of the easement. In their brief, defendants characterize the 2009 modifications to the
roadway as "cosmetic," and insufficient to threaten plaintiff's historical use of the easement area,
which the court found to include "driving upon, parking upon, walking upon, and any other
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common uses of said premises as a street."
¶ 94 The granting or denying of injunctive relief is reviewed for an abuse of discretion.
Seymour v. Harris Trust & Savings Bank of Chicago, 264 Ill. App. 3d 583, 595, 636 N.E.2d 985,
993 (1994). An abuse of discretion exists only when no reasonable person would have adopted
the trial court's view. Fennell v. Illinois Central RR. Co., 2012 IL 113812, ¶ 21, 987 N.E.2d 355.
¶ 95 "[T]he use to which an easement is devoted or for which it is granted determines
its character, and to the extent for which it is necessary to carry out the purpose of the grant, the
rights of the owner of the easement are paramount." (Internal quotation marks omitted.) Schnuck
Markets, Inc. v. Soffer, 213 Ill. App. 3d 957, 974, 572 N.E.2d 1169, 1182 (1991) (quoting Farm-
ers Grain & Supply Co. of Warsaw v. Toledo, Peoria & Western R.R., 316 Ill. App. 116, 123, 44
N.E.2d 77, 80 (1942)). "An easement's actual use determines its width." JS II, LLC, 2012 IL
App (1st) 063420, ¶ 44, 977 N.E.2d 198.
¶ 96 In this case, the trial court determined that plaintiff was entitled to an easement
over the portions of 821 Ridgewood Drive once covered by the asphalt road. The easement en-
compassed the "common uses of said premise as a street." (Emphasis added.) The court, after
presiding over a 6-day bench trial at which it heard lengthy testimony from witnesses on both
sides and accepted dozens of exhibits into evidence, found that defendants unreasonably inter-
fered with plaintiff's use of the easement by removing the 35-foot-wide asphalt road and replac-
ing it with a 15-foot-wide gravel drive. Based upon the evidence and arguments, the court found
that equity required defendants to restore the easement area to the condition it was in prior to the
2009 modifications. We disagree that this ruling constituted an abuse of discretion.
¶ 97 Defendants' removal of the asphalt roadway was clearly more than a cosmetic
change. Although it was still physically possible for an ordinary vehicle to get in and out of the
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driveway, plaintiff and his predecessors' historical use of the easement area was much broader
than simple ingress and egress to the driveway. They used the roadway for parking, walking,
and general recreation. The new 15-foot-wide gravel road was not suitable for those uses. Even
with regard to ingress and egress, plaintiff testified that he was no longer able to back his boat
trailer out of his driveway following the 2009 modifications, particularly because defendants
oddly chose to place their mailbox along the north side of the new gravel road several feet direct-
ly east of plaintiff's driveway. See Schaefer v. Burnstine, 13 Ill. 2d 464, 469, 150 N.E.2d 113,
116 (1958) ("The rule obtaining in this State is that the owner of a right of way for ingress and
egress has the right to use the full width of the area or strip having definite boundaries, unham-
pered by obstructions placed thereon."). Based upon the evidence presented, the court's determi-
nation of the appropriate scope of injunctive relief was well within its discretion.
¶ 98 As a final matter, we express our gratitude to the trial court for stating its findings
and reasoning in a written order, which we found very useful in our consideration of this appeal.
¶ 99 III. CONCLUSION
¶ 100 For the foregoing reasons, we affirm the trial court's judgment.
¶ 101 Affirmed.
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Brandhorst v. Johnson
Court: Appellate Court of Illinois
Date filed: 2014-06-11
Citations: 2014 IL App (4th) 130293
Copy CitationsCombined Opinion