Ellis v. McClung

                                                             FIRST DIVISION
                                                             JULY 21, 1997 








No. 1-95-1229


DANIEL S. ELLIS, JR., MABEL D. ELLIS,        )    APPEAL FROM THE
STEPHEN GRANT and GRETCHEN GRANT,            )    CIRCUIT COURT
                                             )    OF COOK COUNTY.
          Plaintiffs-Appellants,             )
                                             )
v.                                           )
                                             )
MICHAEL L. McCLUNG,                          )    HONORABLE
                                             )    THOMAS DURKIN,
          Defendant-Appellee.                )    JUDGE PRESIDING.


     PRESIDING JUSTICE CAMPBELL delivered the opinion of the
court:
     This appeal arises out of a dispute over the status of
certain easements on private property in Barrington Hills,
Illinois.  Daniel S. Ellis, Jr. and Mabel D. Ellis (Ellis plain-
tiffs), Stephen Grant and Gretchen Grant (Grant plaintiffs)
(cumulatively, plaintiffs), brought an action against defendant,
Michael L. McClung, to prevent him from constructing a driveway
on certain easements situated between plaintiffs' property and
defendant's property.  Following a bench trial, the circuit court
of Cook County entered judgment in favor of defendant, finding
that certain easements, validly created in 1938, were never
extinguished.  
     On appeal, plaintiffs contend that:  (1) a 1938 deed did not
create an express easement over the property owned by the plain-
tiffs for the benefit of the Fuller Tract; (2) no implied ease-
ment arose over the plaintiffs' property for the benefit of the
Fuller Tract; (3) any easements over the Cummins and Ellis Tracts
for the benefit of the Fuller Tract were extinguished through the
doctrine of merger; and (4) the trial court erred in failing to
rule on the reasonableness of McClung's use of the easement
arrangement.  We affirm the judgment of the trial court.
     The following facts are relevant to this appeal.  The
property at issue is located in what is now Barrington Hills,
Cook County, Illinois, and is referred to in the record as
follows:  the Cummins Tract (Grant Property); the Ellis Tract;
the Behrend Tract; the Fuller Tract; and the McClung Tract.  All
of the Tracts lie east of Brinker Road, and West of Caesar
Drive, between Lake Cook Road on the north and Otis Road on the
south.  (See attached plat, depicting the tracts and easements).
     In 1935, Walter Primley, et al., conveyed to Kenneth Smith
the entire Property as described above.  In 1938, Kenneth and
Cora Smith (the Smiths) were the common owners of all of the
Property described above.  By a deed dated August 18, 1938, and
recorded on August 26, 1938 (1938 Deed), the Smiths conveyed a
portion of the Property to William Hixon (Hixon).  That portion
conveyed to Hixon now constitutes approximately the upper two-
thirds of the Ellis Tract and the upper one-third of the Behrend
Tract, which is not at issue in this litigation. 
     The 1938 Deed created and reserved three contiguous ease-
ments for ingress and egress between Brinker Road and those parts
of the Property that were not conveyed to Hixon in the 1938 Deed:
          A.   Paragraph (a) of the 1938 Deed reserves
          from the grant to Hixon an easement 30 feet
          wide along the northern border of the land
          conveyed to Hixon (referred to in the record
          as the "Yellow Easement");
          B.   Paragraph (b)(1) of the 1938 Deed
          creates an easement 30 feet wide immediately
          to the north of the easement reserved in
          paragraph (a) (referred to in the record as
          the "Blue Easement"); and
          C.   Paragraph (b)(2) of the 1938 Deed
          creates an adjoining 60 foot easement to the
          west of the Yellow and Blue Easements, runn-
          ing west to Brinker Road (referred to in the
          record as the "Green Easement").
The 1938 Deed provided that the Easements (1) expressly run with
the land (paragraph (d)(1) of the 1938 Deed); and (2) are "for
the purpose of passage, ingress and egress by foot, horse, wagon
and/or automobile" to and from the dominant estate. (Paragraph
(d)(2) of the 1938 Deed).  Since 1938, the servient and dominant
estates under the Easements have been transferred to various
owners.
     At the time the Easements were created in 1938, the westerly
portion of the land that was subject to the three easements was
partially improved with a gravel road, the easterly portion of
the strip providing a dirt path which was used to travel between
Brinker Road and an apple orchard that occupied part of what is
called today the Fuller Tract.
     The 1938 Deed specifically provides that the Yellow Easement
is to be used:
          "in common, however, with the Grantee [Hixon]
          as owner of said real estate hereinabove
          conveyed and such of his grantees, successors
          in title, devisees, heirs and assigns as
          shall hereafter from time to time be or be-
          come owners of said real estate hereinabove
          conveyed, or of any part thereof, * * *." 
          (Emphasis in original).
The Yellow Easement was reserved to the grantors, the Smiths, "as
present owners" of the benefitted real estate described in
paragraph (a) of the 1938 Deed, which was defined as the property
north of Otis Road and east of Brinker Road in section 3 of
Barrington Township, title to which was in Kenneth and Cora
Smith.  The 1938 Deed conveyed a portion of the land that was
conveyed to Kenneth Smith in a 1935 deed from Walter S. Primley,
et al.  No part of the Fuller Tract, including the parts of the
apple orchard on it, were conveyed until the Estate of Kenneth
Smith quitclaimed it to David Chesrow, et al. (Chesrow) in 1947. 
Chesrow severed ownership of the Fuller Tract from ownership of
their portion of the Cummins Tract in 1948 when they conveyed the
Fuller Tract to Oliver Burnett.
     The Blue Easement is thirty feet wide and its southern
boundary is common with the northern boundary of the Yellow
Easement.  Together, the Blue and Yellow Easements form a sixty
foot way, straddling the north property line of the grant to
Hixon from its easterly boundary, where it abuts the Fuller Tract
to its westerly boundary, where it abuts the Green Easement.
     The Green Easement is sixty feet wide north to south,
running east to west between the westerly ends of the Blue and
Yellow Easements and the center line of Brinker Road.
     The Blue and Green Easements were to be used "in common
with" other land owners.  The 1938 Deed provides that the Blue
and Green Easements granted to Hixon in paragraphs (b)(1) and
(b)(2) were to be used:
          "in common, however, with the Grantors herein
          [the Smiths] as owners of said benefited real
          estate designated in paragraph (a) hereof and
          such of their grantees, successors in title,
          devisees, heirs and assigns as shall
          hereafter from time to time be or become
          owners of some, or of some part, of said
          benefited ownerships designated in paragraph
          (a) hereof, and with the lawful owners,
          tenants, occupiers and users from time to
          time of said benefited real estate designated
          in paragraph (a) hereof, or some part there-
          of, * * *."  (Emphasis in original).
     By deed dated September 19, 1940, the Smiths purportedly
conveyed certain additional real estate to William Hixon and
Frederick Hodgdon (1940 Deed).  The property conveyed constitutes
the eastern one-half of what is now the Cummins Tract.  The
southerly boundary of land conveyed in the 1940 Deed is contigu-
ous with a substantial portion, but not all, of the northerly
boundary of the land conveyed in the 1938 Deed.  The 1940 Deed
reserved from the conveyance an easement in favor of the grantors
(the Smiths) over the land encumbered by the Blue Easement:
          "The Grantors reserve unto themselves, their
          heirs and assigns, out of the property
          hereinabove conveyed, an easement over a
          strip of land 30 feet in width * * *."
The 1940 Deed also purportedly grants to Hixon and Hodgdon an
easement over the land, previously conveyed to Hixon, encumbered
by the Yellow Easement:
          "The Grantors in addition to the property
          hereinabove conveyed also grant unto the
          Grantees, their heirs and assigns, an ease-
          ment over a strip of land 30 feet in width,
          the North line of said strip being identical
          with the South line of the strip hereinabove
          reserved by the Grantors."
However, it is not disputed that Hixon, not the Smiths, owned the
real estate over which the Smiths purported to create the Yellow
Easement, such land having been conveyed to Hixon in the 1938
Deed.
     On August 14, 1991, plaintiffs filed their amended verified
complaint for declaratory judgment and other relief against
McClung, owner of the Fuller and McClung Tracts, alleging that
the Easements reserved in the 1938 Deed were void and of no
effect because a roadway had not been maintained on the property.
     At trial, plaintiff Daniel Ellis testified that his family
has lived at 29 Brinker Road in Barrington Hills since 1984.  The
Ellis property is defined as the Ellis Tract, and Mr. Ellis
accesses his property over the Green Easement from Brinker Road. 
The Ellis Tract also includes the Yellow Easement.  Mr. Ellis
testified that the Grant plaintiffs live north of the Ellis
Tract, on the property defined as the Cummins Tract.  Mr. Ellis
stated that the Grants own the underlying property which consti-
tutes the Green Easement, and that the Grants also access their
property over the Green Easement from Brinker Road.  The Grant
plaintiffs also own the property underlying the Blue Easement.
     Mr. Ellis testified that portions of the Blue and Yellow
Easements are obstructed in part by heavy woods; railroad ties;
rotted and broken fence rails; barbed wire; bushes, plants and
other vegetation; and the cement foundation of an old silo, with
a circumference of approximately 25 feet.  The results of an age
analysis performed on certain trees in the Easement area revealed
one tree that pre-dated 1938.
     Mr. Ellis also stated that a portion of the Blue and Yellow
Easement is used regularly by the Barrington Hills Riding Club as
a narrow horse trail, and that members of the Riding Club will
occasionally maintain and clear the trail with the property
owners' permission.  Mr. Ellis further stated that McClung has
obstructed the trail so that the Riding Club can not ride across
the Ellis Tract.
     Mr. Ellis stated that McClung was the first property owner
of the Fuller Tract who claimed that the Blue and Yellow Ease-
ments existed over the Ellis and Cummins Tracts.  He admitted
that an easement for ingress and egress recorded on his property
in the 1938 Deed is listed as a special exception on Schedule B
of his 1984 title policy. 
     Mabel Ellis testified that she first met McClung on Septem-
ber 25, 1991, when she noticed him pounding stakes into the
ground at the end of the horse trail on the Cummins Tract and
placing flags on trees in the area.  In response to her inquiry,
McClung stated that he was marking trees in order to decide which
ones to cut down for the purpose of constructing a driveway
through the easement.  Mrs. Ellis called the Barrington police,
who arrived at the scene and wrote a report pertaining to a crime
against property.   Until that time, Mrs. Ellis was not aware of
any easement on her property or the Cummins Tract.  
     Stephen Grant testified that he was aware of the litigation
pending against McClung when he contracted for the purchase of
his home from the Cummins' in 1993.  Mr. Grant stated that he was
neither aware that there was, in fact, an easement on the proper-
ty nor that there was a dispute over the benefits of such an
easement. 
     Robert Cummins, previous owner of the Cummins Tract, testi-
fied that the horse trail is obstructed at either end with
railroad ties.  Adjacent to the horse trail are a variety of
trees and shrubs, and at the eastern end of the trail is a
culvert that runs under the horse trail, linking two ponds. 
Cummins stated that there were signs stating "no trespassing"
posted at either end of the horse trail for a long time, and that
at one point members of the Riding Club replaced some old signs
with new signs.  During the time Cummins resided on the Cummins
Tract, no one drove any car or any other vehicle down the horse
trail, and it would have been impossible to drive a car on the
trail because of the obstructions.
     Cummins stated that upon first meeting McClung, McClung
assured Cummins that he would not use Cummins' property to access
Brinker Road.  Later, Cummins learned that McClung wanted access
to the Cummins and Ellis Tracts.
      McClung testified that he bought his home on the McClung
Tract in 1989.  McClung first became aware of the Blue, Green and
Yellow Easements on the Ellis and Cummins Tracts in 1990, when he
negotiated for the purchase of the Fuller Tract from Douglas and
Ruth Fuller.  McClung stated that he never took any steps to
build a roadway on the Easements; that he purchased the Fuller
Tract for investment purposes; and that he has been trying to
sell the property for three and a half years but has been unable
to do so because of the lawsuit.  McClung denied telling police
officers that he intended to build a driveway on the Easements in
September 1991.     
     Herbert Walbaum testified that he has lived in the Barring-
ton Hills area since his birth in 1910, and that he has lived at
411 Caesar Drive since June 1966.  Walbaum stated that as a real
estate developer in Barrington Hills, he created Lot 19, the
Fuller and McClung Tracts, as the Dorvillee Hills Subdivision in
the 1960s.  Originally, the Fuller Tract was part of a 40-acre
apple orchard that was established in 1916.
     Walbaum examined a 1938 aerial photograph taken of the
property and identified the Cummins Tract and the apple orchard
as farmland which were originally all part of the Otis farm. 
Near the Cummins and Ellis Tracts was a gravel road path extend-
ing east from Brinker Road.  Walbaum stated that in 1938, the
path stopped at an old farmhouse.  The only trees located in the
area were in the orchard, off to the east in the Fuller Tract. 
Walbaum stated that the path was ten to twelve feet wide; wide
enough for car travel in 1938.
     William Fuller testified that he lived in the house on the
McClung Tract from 1971 to 1978 with his parents, Douglas and
Ruth Fuller.  Douglas and Ruth also owned the adjoining Fuller
Tract.  William stated that he accessed Brinker Road from the
bridle path when he lived on the McClung Tract, walking right
through the Blue Easement to reach the Green Easement, at which
point there existed gravel driveways.  William knew that the
route to Brinker Road was over other people's property, but he
believed he had the right to use the horse trail based on what
his father described to him as an easement that went along with
the Fullers' property.  William stated that no one ever tried to
stop him from walking on the horse trail, that he never observed
any signs reading "no trespassing," and that he last walked on
the trail in the summer of 1986.   
     The trial court entered judgment in favor of defendant on
March 8, 1995, finding as follows:  (1) plaintiffs failed to
prove that the Easements created in paragraphs (a), (b)(1), and
(b)(2) of the 1938 Deed were extinguished through adverse posses-
sion or abandonment; (2) the three Easements created in the 1938
Deed were validly created; and (3) the three Easements were not
extinguished by the doctrine of merger.
     On April 5, 1995, plaintiffs filed their timely notice of
appeal of portions of the order of the March 8, 1995.  Plaintiffs
did not appeal from the trial court's ruling regarding abandon-
ment or adverse possession. 
     Preliminarily, plaintiffs state that the trial court's
rulings regarding the Easements are subject to de novo review by
this court as questions of law.  Defendant points out that not
all of the issues raised by plaintiffs are questions of law, but
rather, some are questions of fact, and therefore require rever-
sal only if the trial court's determination was against the
manifest weight of the evidence.  Harris Trust & Savings Bank v.
Barrington Hills, 133 Ill. 2d 146, 157, 549 N.E.2d 578 (1989). 
We will address each issue raised on appeal according to the
appropriate standard of review.
     Initially, plaintiffs contend that the 1938 Deed failed to
create any express easements over the property owned by the Grant
and Ellis plaintiffs for the benefit of the Fuller Tract, citing
numerous reasons in support of their contention.
     First, plaintiffs contend that McClung failed to prove by
clear and convincing evidence that the Easements were created for
the benefit of the Fuller Tract under the terms of the 1938 Deed.
Plaintiffs argue that paragraph (b) of the 1938 Deed fails to
provide that the Green and Blue Easements were granted for the
benefit of the Fuller Tract, or any other land owned in 1938 by
the Smiths; rather, plaintiffs argue that the 1938 Deed granted
the Blue and Green Easements to Hixon for the benefit of the
Hixon property only, not the Fuller Tract.
     The record shows that the 1938 Deed created easements for
the benefit of the entire property north of Otis Road and East of
Brinker Road.  This property includes the Fuller Tract.  There-
fore, the trial court properly determined that the Fuller Tract
is an intended beneficiary of the Green, Yellow and Blue Ease-
ments created in the 1938 Deed.
     Plaintiffs further contend that:  (1) Smith could not have
created the Green and Blue Easements for the benefit of the
Fuller Tract because a landowner cannot have an easement on his
own property, and Smith owned the land underlying the Green and
Blue Easements; and (2) the 1940 Deed shows that neither Smith
nor Hixon believed that the 1938 Deed had reserved the Blue and
Green Easements for the benefit of the Fuller Tract.
     In determining that the Easement arrangement was valid, the
trial court relied on Beloit Foundry Co. v. Ryan, 28 Ill. 2d 379,
192 N.E.2d 384 (1963).  In that case, Janvrin was the common
owner of Lot 40.  Janvrin conveyed a parcel of Lot 40 to Goodall
in 1925; this parcel became the Goodall tract.  The deed from
Janvrin to Goodall created two separately described but contigu-
ous easements:  one easement was reserved for the benefit of the
property retained by Janvrin, over the south 15 feet of the
property granted to Goodall; and the second easement was granted,
for the benefit of the property conveyed, over the north 15 feet
of the property retained by Janvrin.  Although the record did not
show that Goodall had signed the deed, the deed provided in
pertinent part that, "it is mutually agreed between the parties
that a private alley is hereby created thirty feet wide" over the
two easements.  Our supreme court determined that Janvrin and
Goodall intended that the easement should serve not only the
dominant tracts of land, "but should also accommodate the partic-
ular tracts from which they were carved, and there was evidence
to indicate that such in fact occurred."  The court stated:
          "Of course, a person cannot claim an easement
          over his own land [citations omitted], but he
          may arrange his property in such a manner
          that one portion thereof derives a benefit
          from another, and upon the severance of such
          common ownership, easements and servitudes
          arise which correspond with the benefits and
          burdens existing at time of sale."  Beloit
          Foundry, 28 Ill. 2d  at 388-89.
     Janvrin subsequently conveyed most of the land retained by
him to Freeman.  Freeman later divided and sold most of his land,
including certain parts which were encumbered by the easements
granted to Goodall.  Beloit Foundry acquired several parcels of
land, two parcels of which underlie the easement.  Eventually,
Goodall's successors, the Ryans, acquired fee title to all of
Goodall's land and a substantial length of the southerly ease-
ment.  The Ryans then attempted to obstruct the use of the
easement by Beloit Foundry by claiming that the divided tracts
were not benefitted by the easements, including the southerly
easement granted by Janvrin, in favor of the Goodall property,
over Janvrin's property.
     The court found that Beloit Foundry Company was benefitted
by the entire easement arrangement created in the 1925 deed from
Janvrin to Goodall.  The court stated:
          "When Janvrin conveyed the remainder of lot
          40 to Freeman, except tract A, said parcels
          not only retained their dominance as to the
          northerly half of the 30-foot easement, but
          also acquired a dominance over that portion
          of the southerly half of such easement in-
          cluded within the other parcel.  And upon the
          subsequent sale of tract B by Freeman to
          Goodall, a similar easement by implication
          arose across tract B for the benefit of the
          balance of the Freeman property.  According-
          ly, when the Freeman land was subdivided in
          1932, each lot thereof carried with it this
          dominant characteristic which passed with the
          land to Freeman's grantees. Furthermore, the
          plat of Freeman's subdivision clearly indi-
          cated the existence of the easement adjoining
          the subdivision on the north, and the con-
          veyance of these lots having been made with
          reference to such plat, Freeman and his suc-
          cessors in interest are estopped to now deny
          the existence of such servitude."  Beloit
          Foundry, 28 Ill. 2d  at 389.
     In the present case, the 1938 Deed clearly shows that the
Smiths and Hixon agreed to an express easement to benefit the
balance of the Smiths' land, which included the Fuller Tract. 
Paragraphs (b)(1) and (b)(2) of the 1938 Deed clearly create the
three Easements for the benefit of the Smiths, as well as for the
successive owners of any part of their land:
          "in common, however, with the Grantors herein
          as owners of said benefited real estate
          designated in paragraph (a) hereof and such
          of their grantees, successors in title,
          devisees, heirs and assigns as shall
          hereafter from time to time be or become
          owners of some, or of some part, of said
          benefited ownerships designated in paragraph
          (a) hereof."
     Plaintiffs attempt to distinguish Beloit Foundry by arguing
that Beloit Foundry is a case about an "implied easement" as
opposed to an "express easement."  Plaintiffs' argument is
unavailing.  In Beloit Foundry, the supreme court explicitly
found that express statements in the 1925 deed created an ease-
ment intended to serve the dominant tracts and the subservient
tracts of the lots at issue.
     Plaintiffs further contend that the 1940 Deed shows that
neither Smith nor Hixon "believed" that the 1938 Deed had re-
served the Blue and Green Easements for the benefit of the Fuller
Tract.  Plaintiffs argue that the Smiths' reservation of an
additional easement over the Blue Easement for their benefit in
the 1940 Deed is an indication that the Smiths, in the 1938 Deed,
had merely retained the right to reserve easements in the future
but did not create any arrangement for their respective succes-
sors in title.
     The record shows that the 1940 Deed clearly grants to Hixon
and Hodgdon another easement over the Yellow Easement, the Yellow
Easement having been conveyed to Hixon in the 1938 Deed. 
     Plaintiffs also argue that the purpose of the Easements
created in the 1938 Deed is allegedly different from the purpose
of the easements in Beloit Foundry. 
     The purposes of the easements in Beloit Foundry have no
legal significance to the purpose of the Easements in the present
case.  In any event, both the easements here and in Beloit
Foundry are essentially the same for the same purpose:  ingress
and egress between private land and a public road.     
     Plaintiffs argue that the purposes of the Blue and Green
Easements were limited to ingress and egress between the land
conveyed to Hixon and the 1938 Deed.  Plaintiffs cite to the so-
called "common use" clause of the 1938 Deed, paragraph (d)(2),
which creates the Easements:
          "for the purpose of passage, ingress and
          egress by foot, horse, wagon and/or automo-
          bile, which passage, ingress and egress
          shall, in the case of said easement so re-
          served in paragraph (a) hereof [Yellow Ease-
          ment], relate to such passage, ingress and
          egress to and from said benefited real estate
          designated in paragraph (a) hereof, or to or
          from some part of that real estate, and shall
          as to the two easements granted in clauses 1
          and 2 of paragraph (b) hereof, respectively,
          relate to such passage, ingress and egress to
          and from said real estate hereinabove to the
          Grantee herein * * *."
Plaintiffs argue that paragraph (d)(2) establishes that:  (1) the
Yellow Easement was established solely for ingress and egress
between Brinker Road and the land described in paragraph (a)
[which property, in fact, includes the Fuller Tract], or the land
retained by the Smiths; and (2) ingress and egress over the Blue
and Green Easements was solely between Brinker Road and the land
conveyed to Hixon.  
     Contrary to plaintiffs' contention, the "common use" clauses
in paragraph (d)(2) of the 1938 Deed show that the Smiths agreed
to give Hixon, and the successors to all or any part of his land,
the right to use the Yellow Easement in common with the Smiths.
The arrangement itself suggests that Hixon and his successors
would have no reason to travel between Brinker Road and the land
retained by the Smiths.
     Similarly, in the common use clause after paragraph (b)(3)
of the 1938 Deed, the Smiths retained for themselves, and the
successors to all or any part of their land, the right to use the
Blue and Green Easements in common with Hixon:
          "in common, however, with the Grantors herein
          [the Smiths] as owners of said benefited real
          estate designated in paragraph (a) hereof and
          such of their grantees, successors in title,
          devisees, heirs and assigns as shall here-
          after from time to time be or become owners
          of some, or of some part, of said benefited
          ownerships designated in paragraph (a) here-
          of."
We agree with defendant that a logical interpretation of this
common use clause is that the Smiths and Hixon, anticipating that
the land might be divided in the future, agreed that the Smiths
and any successors to part of their land (i.e., defendant) could
use the Blue and Green Easements to access their part of such
land, including the Fuller Tract.   
     Finally, plaintiffs contend that subsequent deeds in the
Smith's chain of title created different easements, each with
different benefitted properties, and for expressly different
purposes.  Therefore, plaintiffs argue that the 1938 Deed failed
to create any "express easements," unlike those created in Beloit
Foundry.
     Beloit Foundry holds that an easement that runs with the
land passes by a conveyance of the land to which it is annexed
without having to be mentioned in subsequent deeds.  Beloit
Foundry, 28 Ill. 2d  at 388.  Therefore, whether or not subsequent
deeds in defendant's chain of title mention the easements in the
1938 Deed, those easements described in paragraph (d)(1) of the
1938 Deed, which expressly run with the land, passed to defen-
dant.  Nevertheless, the record reveals a complete chain of title
of all of the relevant tracts of land, showing that certain of
the deeds do, in fact, mention the Easements, thereby creating an
independent ground for upholding the continuing existence of the
Easements.   
     The record therefore shows that the Yellow, Blue and Green
Easements continue to be valid.
     Next, plaintiffs contend that even if the Fuller Tract was
benefited by the Easements granted to Hixon in the 1938 Deed
across the Cummins Tract, those easements were extinguished
through the doctrine of merger.
     The merger of estates is a question of intent.  Chicago
Title & Trust Co. v. Wolchinovesky, 326 Ill. App. 194, 200, 61 N.E.2d 264, 266 (1945).  A merger occurs when the dominant
(benefited) estate and the servient (burdened) estates are owned
by the same person, thereby extinguishing an easement by virtue
of unity of title and possession, given that one has no need of
an easement over one's own property.  Seymour v. Harris Trust &
Savings Bank, 264 Ill. App. 3d 583, 599, 636 N.E.2d 985 (1994). 
Ownership of both the dominant and servient estates must be
identical in duration, quality, and all other circumstances of
right.  Smith v. Roath, 238 Ill. 247, 252-53, 87 N.E.2d 414, 416
(1909).  The party asserting merger has the burden of proving a
merger at trial.  Seymour, 264 Ill. App. 3d at 599.
     In the present case, plaintiffs argue that the Green and
Blue Easements were extinguished as to the Fuller Tract upon
execution of the 1938 Deed, because the Smiths owned all of the
land affected by the Easements described in paragraphs (b)(1) and
(b)(2).  Plaintiffs continue that there was complete unity of
title between the Fuller Tract and the servient estate for the
easement granted in paragraph (b)(2) of the 1938 Deed in 1947,
when Smith conveyed all of that property to Chesrow, et al.,
thereby extinguishing the Green Easement as to the Fuller Tract. 
Plaintiffs further argue that Harvey Branigar's simultaneous
ownership of the Cummins and Fuller Tracts between 1958 and 1963
also extinguished the Green and Blue Easements as to the Fuller
Tract.  
     The record shows that the trial court found no merger as to
the Blue and Green Easements because one owner did not also own
all of the servient estate to the Yellow Easement.  The trial
court stated:
          "Since the 1938 Deed, no person has held
          complete and coextensive ownership of the
          Fuller Tract, the former Hixon property now
          comprising the Ellis and Behrend Tracts and
          the Grant Tract."
The record further shows that while Harvey Branigar and his wife,
Sarah owned the Cummins Tract as joint tenants, Harvey Branigar
alone owned the Fuller Tract.  Although subject to Sarah Brani-
gar's marital interest, Harvey Branigar's fee title to the Fuller
Tract was not identical in duration, quality and all other
circumstances of right to his undivided one-half interest as a
joint tenant in the Cummins Tract.  Therefore, the Easements
could not merge into the fee title of any property.
     The record further shows that the Easements were not extin-
guished.  The 1971 deed of the Fuller Tract from Harvey and Sarah
Branigar to Douglas and Ruth Fuller expressly refers to the
Easements created in the 1938 and 1940 Deeds.  In addition,
William Fuller testified that he used the Easements to access
Brinker Road, and that his father, Douglas, described the Ease-
ments to him.  The conveyance of the Fuller Tract to defendant
also specifically refers to the Easements in the 1938 Deed.



     By virtue of the facts in the record, plaintiffs have failed
to show that a merger extinguished the Easements.
     Lastly, plaintiffs contend that the trial court erred in
failing to rule on what "reasonable use" may be made of the
Easements.  Because the record shows that this issue was not
raised at trial, it is not properly before this court on appeal.
     For the reasons stated above, we therefore affirm the
judgment of the trial court.
     Affirmed.
     BUCKLEY, J., and GALLAGHER, J., concur.