Emanuel v. Hernandez
728 N.E.2d 1249 (2000)
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Rule of Law:
An easement by implication from a prior existing use requires proof of three elements, all evaluated based on the circumstances existing at the time of the severance of common ownership. A party cannot substitute proof of present-day necessity for the required element of a pre-existing use at the time of severance.
Facts:
- Plaintiffs, the Emanuels, and defendants, the Hernandezes, own adjacent properties at 920 and 914 Pearl Street, respectively.
- A driveway, located mostly on the Hernandezes' property, provides the only vehicular access to a garage at the rear of the Emanuels' property.
- Originally, a single owner, Benjamin Brock, owned both parcels of land.
- In 1890, Brock conveyed the parcel now owned by the Emanuels to Arthur Bassett, severing the unity of title.
- There is no evidence that a driveway or garage existed on either property in 1890; the earliest evidence of a garage is from a 1922 map.
- For many years, the occupants of both properties shared the use and upkeep costs of the driveway.
- Upon purchasing their property, the Hernandezes blocked the driveway with railroad ties and began constructing a fence along the property line.
Procedural Posture:
- Wayne and Katherine Emanuel filed a two-count complaint for declaratory judgment against Jose and Lisa Hernandez in the circuit court of Boone County.
- The Emanuels moved for summary judgment on Count II, which sought an easement by implication.
- The trial court granted the Emanuels' motion for summary judgment, ruling that they had an easement by implication.
- The Hernandezes, as appellants, appealed the trial court's order to the appellate court, with the Emanuels as appellees.
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Issue:
Does an easement by implication from a prior existing use arise where there is a severance of title and a present-day necessity for the use, but no evidence that the use existed at the time of the original severance?
Opinions:
Majority - Justice Bowman
No. An easement by implication from a prior existing use does not arise unless the party claiming the easement proves that the use existed at the time of the severance of title. An implied easement is a product of the intention of the parties to the original conveyance, meaning the court must look at the circumstances at the time of severance. There are two types of implied easements: easement by necessity (which requires that the property be landlocked at severance) and easement by prior existing use. The Emanuels do not have an easement by necessity, as their property was never landlocked. For an easement by prior existing use, they must prove three elements: (1) common ownership followed by severance; (2) before severance, a use by the common owner that was apparent, continuous, and permanent; and (3) that the easement is necessary for the enjoyment of the land. The Emanuels failed to produce any evidence of the second element, as there was nothing to suggest a driveway or garage existed in 1890 when title was severed. The trial court erroneously relied on 'Deem v. Cheeseman' to hold that present-day necessity could substitute for proof of prior use. This court holds that 'Deem' was wrongly decided and clarifies that all three elements, evaluated at the time of severance, are required.
Analysis:
This decision reaffirms the traditional, strict requirements for establishing an easement by implication from a prior existing use in Illinois. It clarifies that the analysis is fundamentally historical, focusing on the implied intent of the original parties at the moment of severance, not on modern convenience or necessity. By explicitly rejecting the reasoning in 'Deem v. Cheeseman', the court prevents a significant dilution of the doctrine that would have made it easier to create easements based on present circumstances. This holding makes it more difficult for property owners to claim implied easements, especially when the original severance occurred long ago, as it places a heavy evidentiary burden on the claimant to prove historical facts about property use.
