MCMahon v. Hines

No. 3--97--0770
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

JAMES P. McMAHON, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant and )
Cross-Appellee, )
)
v. ) No. 95 MR 859
)
CHARLES L. HINES III and )
BERNADINE T. HINES, )
)
Defendants-Appellees and )
Cross-Appellants )
)
)
(Village of Hinsdale, ) Honorable
Defendant). ) Robert E. Byrne,
) Judge, Presiding.
______________________________________________________________

JUSTICE COLWELL delivered the opinion of the court:

Defendants, Charles Hines and Bernadine Hines, appeal the
trial court s order granting summary judgment in favor of the
plaintiff, James McMahon. The trial court s order permitted
McMahon to install an asphalt driveway over property granted as an
easement to the defendants. On appeal, the defendants argue that
the trial court erroneously concluded that a curb was not part of
the easement. Further, the defendants maintain that the trial
court s order should be reversed because it improperly allows for
a substantial alteration of the easement property. We affirm.
The record shows that the plaintiff and the defendants are
next-door neighbors. In 1926, an easement was recorded for the
benefit of the owners of the defendants property. In pertinent
part, the easement provided:
"WHEREAS the grantee now maintains and uses a driveway of
crushed stone, with concrete curb, a portion of which
encroaches upon the said land of the grantor, a distance of
about eight feet measured at the street line, and diminished
in width to the north until it comes entirely within the land
of the grantee; and
WHEREAS the grantor is willing to grant unto the said
grantee, his heirs and assigns, the perpetual right and
easement of maintaining and using the said driveway and curb
in its present location upon the land of the grantor;
NOW THEREFORE, this instrument WITNESSETH:
That, in consideration of one dollar ($1.00) and other
good and valuable consideration, receipt whereof is hereby
acknowledged, the said grantor for himself, his heirs and
assigns, hereby grants, bargains and sells unto the said
grantee, his heirs and assigns, the perpetual right and
easement of maintaining and using the said driveway as it is
now located on the grantor s land, to be used solely for
purpose of a driveway and to be maintained at the expense of
the grantee, his heirs and assigns."
Overall, the easement measures eight feet in width where it borders
the street. From there, it runs up onto McMahon s property,
diminishing in width until it reaches the defendants property. A
"curb" serves as a boundary between the defendants and McMahon s
property for the length of the easement. According to the
defendants, this curb serves as a gully, providing a means for
water runoff for both properties.
After purchasing his property in 1995, McMahon razed the
existing single-family residence located there and submitted a site
plan to the Village of Hinsdale for the construction of a new home.
This plan, shown below, proposed a circular paved driveway in front
of the house.

The defendants objected to the proposed driveway on the basis
that the paved driveway altered their easement of the driveway and
curb. We note that the previous owner s driveway did not encroach
upon the defendants easement, as it was located on the opposite
side of the lot. McMahon filed an action for declaratory judgment,
seeking court approval of the proposed driveway. McMahon then
filed an amended complaint, stating that, instead of a paved
driveway, he intended to install the driveway using asphalt.
Thereafter, McMahon and the defendants filed motions for
summary judgment. The defendants argued that the proposed driveway
would interfere with their use and enjoyment of the easement by
obliterating the curb between their and McMahon s driveways,
creating an inherently dangerous condition, and impeding their
ability to maintain the easement. On the other hand, McMahon
contended that the proposed driveway did not interfere with the
defendants use of the easement because the defendants would still
be able to use the area as a driveway to and from their property.
On October 28, 1996, the trial court granted McMahon s motion
for summary judgment. First, the trial court determined that the
defendants property was not granted an easement to the curb.
Then, the court permitted McMahon to install asphalt over the
easement property at substantially the same level as the existing
asphalt on the defendants driveway.
McMahon filed an appeal, and the defendants filed a cross-
appeal from the trial court s order. McMahon later moved to
dismiss his appeal, and the defendants appeal then became the only
appeal.
On appeal, the defendants argue that the trial court should
have ruled in their favor because the proposed driveway materially
alters the easement by allowing for the removal of the curb.
Alternatively, the defendants maintain that the reasonableness of
the alteration of the easement presented a question of fact that
cannot be resolved by summary judgment.
Summary judgment is appropriate when there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law. Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Summary judgment
is a drastic measure and should be granted only if the movant's
right to judgment is clear and free from doubt. Outboard, 154 Ill. 2d at 102. Therefore, where a reasonable person can draw divergent
inferences from undisputed facts, summary judgment should be
denied. Outboard, 154 Ill. 2d at 102. Finally, our review of the
trial court's entry of summary judgment is de novo. Monticello
Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill. App. 3d
697, 701 (1996).
We turn first to the trial court s ruling that the defendants
property was not granted an easement to the curb. Initially, we
review the basic tenets of easement law. An easement is a right or
privilege in the real estate of another. McCann v. R.W. Dunteman
Co., 242 Ill. App. 3d 246, 254 (1993). An easement is considered
appurtenant when the easement requires a dominant estate and a
servient estate. Maywood-Proviso State Bank v. Village of Lisle,
234 Ill. App. 3d 206, 218 (1992). The user of the right of the
easement enjoys what is referred to as a dominant estate over the
used land, which is the servient estate. Coomer v. Chicago & North
Western Transportation Co., 91 Ill. App. 3d 17, 22-23 (1980). In
this case, the defendants have a dominant estate and McMahon has a
servient estate, as the defendants have the right to the portion of
the driveway that is located on McMahon s property.
As the owners of the dominant estate, the defendants are
entitled to necessary use of the easement. McCann, 242 Ill. App.
3d at 254. Necessary use is the use that is reasonably necessary
for full enjoyment of the premises. Flower v. Valentine, 135 Ill.
App. 3d 1034, 1039 (1985). For example, the owner of an easement
of right-of-way for ingress and egress has the right to use the
full width of the easement area, unhampered by any obstructions.
Schaefer v. Burnstine, 13 Ill. 2d 464, 469-70 (1958).
There is no dispute that the defendants have an easement to
the driveway on McMahon s property. The defendants, however,
contend that the instrument creating the easement was clear that
the easement also includes the curb. On the other hand, McMahon
maintains that the recorded easement is clear that the defendants
have an easement only in the driveway. Thus, this issue hinges on
the interpretation of the language in the instrument conveying the
easement.
To acquire an easement by grant, no particular words are
necessary, but the words that are used must clearly show an
intention by the grantor to confer an easement, and such terms must
be definite, certain, and unequivocal. Friedman v. Gingiss, 182
Ill. App. 3d 293, 295-96 (1989). Indeed, an instrument creating an
easement is construed in accordance with the intention of the
parties. Koplin v. Hinsdale Hospital, 207 Ill. App. 3d 219, 230
(1990). Such intent is ascertained from the words of the
instrument and the circumstances contemporaneous to the
transaction, including the state of the thing conveyed and the
objective to be obtained. Maywood-Proviso, 234 Ill. App. 3d at
218.
In addition, agreements imposing burdens on one estate for the
benefit of another must be strictly construed. Maywood-Proviso,
234 Ill. App. 3d at 218. Indeed, because an easement is an
interest in land, a grant of an easement by contract must contain
all the formal requirements of a deed. Coomer, 91 Ill. App. 3d at
23. Accordingly, the conveyance of an easement by contractual
agreement should be supported by consideration, and the terms of
contract must be unequivocal. Coomer, 91 Ill. App. 3d at 23. The
practical construction given to the instrument granting the
easement by the parties conduct is to be considered only if there
is an ambiguity. Koplin, 207 Ill. App. 3d at 230. Courts have
tended to construe strictly the easement agreement so as to permit
the greatest possible use of the servient tenement. Coomer, 91
Ill. App. 3d at 25. Finally, the interpretation of a party s
agreement or contract is a question of law to be determined by the
appellate court de novo. Regnery v. Meyers, 287 Ill. App. 3d 354,
360 (1997).
Here, the easement was granted to the defendants property in
an instrument dated July 3, 1926. Neither of the present parties
owned either property in question at that time. As a result, we
must rely on the language in the instrument to determine the
parties intent in establishing the easement. See Delgado v.
Wilson, 178 Ill. App. 3d 634, 640 (1989).
The first three paragraphs of this instrument identify the
grantor and give a detailed description of the grantor s property.
The second three paragraphs are "whereas" paragraphs, which mention
that the grantee maintains and uses a driveway "with concrete curb"
and that the grantor is willing to grant an easement "maintaining
and using the said driveway and curb" to the grantee. The final
section of the instrument begins with a "now therefore" clause. In
this clause, the grantor includes the required element of
consideration before stating that he grants an easement for
maintaining and using the "said driveway * * * solely for [the]
purpose of a driveway" to the grantee. The instrument is then
notarized and signed.
The defendants claim that, since the instrument refers to the
curb and the driveway, the curb is part of the easement. We
disagree.
Although the instrument contains language referring to the
driveway and the curb, it does not clearly and unequivocally state
that the easement includes the curb and the driveway. The
instrument does not state that the grantor grants the use of both
the driveway and the curb to the grantee. Rather, the only mention
of the curb occurs in the "whereas" clauses that precede the
agreement. Illinois courts have held that such "whereas" clauses
serve as recitals and are merely explanations of the circumstances
surrounding the execution of the contract. Regnery, 287 Ill. App.
3d at 360. These recitals are not binding obligations unless
referred to in the operative portion of the contract. Compare
Regnery, 287 Ill. App. 3d at 360 ("whereas" clause merely a recital
paragraph, the terms of which are not part of contract) with Brady
v. Prairie Material Sales, Inc., 190 Ill. App. 3d 571, 577 (1989)
(holding that recital paragraphs were part of agreement because
operative clause stated that the preceding terms of the agreement
were not a mere recital).
Consequently, in the case at bar, we find that the language in
the recitals in the instrument granting the easement were included
for purposes of explaining and describing the property involved and
the circumstances surrounding the execution of the easement for the
purpose of a driveway. Therefore, because there is no mention of
the curb in the operative paragraph, we find that the parties did
not intend to include the curb as part of the easement.
The defendants argue that the law regarding recital paragraphs
concerns contract law, and there is no Illinois law that applies
the recital rule to the interpretation of easements. We agree with
the defendants that we are unable to find a case wherein a dispute
existed regarding recital paragraphs in an instrument conveying an
easement. The defendants fail to recognize, however, that the
conveyance of easements through instruments is rooted in contract
law. Indeed, as with contracts, an instrument granting an easement
must contain terms that are definite, certain, and unequivocal.
See McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d
1, 20 (1992).
In this case, the definite, certain, and unequivocal language
is contained in the paragraph following the "whereas" clauses.
After indicating that the agreement is supported by consideration,
this paragraph uses specific language to grant to the grantee s
heirs the "perpetual right and easement of maintaining and using
the said driveway as it is now located on the grantor s land, to be
used solely for purpose of a driveway." This language could not be
clearer that the purpose of the easement is for the grantee to be
able to use the land "solely" for a driveway for ingress and egress
to his house. The curb plays no role in this purpose.
Indeed, our court has defined the term "driveway" as a
passageway, travelway, and way of ingress and egress. Delgado, 178
Ill. App. 3d at 639. In other words, a curb is not an essential
feature of a driveway. Rather, a driveway s purpose is for "
'coming and going.' " Delgado, 178 Ill. App. 3d at 639, quoting In
re Emmet S. Hickman Co., 49 Del 13, 19, 108 A.2d 667, 670 (1954).
Here, the instrument granting the easement stated that the easement
was to be used "solely" for the purpose of a driveway.
Consequently, the easement is to be used solely as a way for
vehicles to come and go to and from the defendants residence. As
the curb s existence is immaterial to this purpose, and the
operative paragraph does not refer to the recital paragraphs,
incorporate the recital paragraphs, or mention that the curb is
included in the easement, we find that the curb is not part of the
easement.
The defendants contend also that we should consider the use of
the easement over time. The defendants assert that, because they
used the driveway with the curb since the grant of the easement,
the curb became part of the easement and cannot now be altered. In
support of their argument, the defendants cite Vallas v. Johnson,
72 Ill. App. 3d 281 (1979) and Peters v. Milks Grove Special
Drainage District No. 1, 243 Ill. App. 3d 14 (1993).
In Vallas, the recorded easement at issue lacked a definite
width. The Vallas court concluded that the width of the easement
would be confined to the dimensions that were reasonably necessary
for the purposes for which it was created, as established by actual
use. Vallas, 72 Ill. App. 3d at 284.
Likewise, in Peters, the easement at issue was either "lost or
not recorded." Consequently, although the defendant claimed that
the easement was a certain width, there was no proof of it.
Following the reasoning in Vallas, the Peters court determined the
easement s width by restricting it to the extent of its actual use.
Peters, 243 Ill. App. 3d at 19.
Unlike Vallas and Peters, here there is a record of the
instrument granting the easement. As a result, there is no reason
for this court to look at the extent of use of the easement. Even
if we did examine the extent of use, however, under Vallas the
easement would not include the curb. Indeed, under Vallas, the
width of an easement is confined to the dimensions that are
reasonably necessary for the purposes for which it was created.
Vallas, 72 Ill. App. 3d at 284. Here, the purpose of the easement
was for a driveway, and that purpose is satisfied without including
the curb.
The defendants next contend that the court should not have
granted summary judgment for McMahon because the question of
reasonableness of the alteration of the easement is a question of
fact.
A principle of concurrent, rather than exclusive, use
underlies the law concerning easements. The owner of the servient
estate must not interfere with the use of the easement for purposes
of access by the owner of the dominant estate. Beggs v. Ragsdale,
120 Ill. App. 3d 333, 337 (1983). For his part, the owner of the
dominant estate has the right to maintain the easement, although he
cannot, for the sake of his convenience, materially alter the
easement so as to place a greater burden on the servient estate or
interfere with the use and enjoyment of the servient estate by its
owner. Beggs, 120 Ill. App. 3d at 337. Therefore, use of an
easement by both landowners must be permitted in accordance with
their individual interests. Keessen v. Zarattini, 119 Ill. App. 2d
284, 292 (1969).
Absent an agreement to the contrary, the servient owner may
use his property for any purpose consistent with the dominant
owner s enjoyment of his easement. Coomer, 91 Ill. App. 3d at 25.
In other words, the servient owner may use his land in any manner
that does not materially interfere with or obstruct its use as a
right of way. See Kirnbauer v. Cook County Forest Preserve
District, 215 Ill. App. 3d 1013, 1021 (1991); Coomer, 91 Ill. App.
3d at 25. As no precise rule can be stated as to when the use by
the owner of the servient or dominant estate is a reasonable use as
distinguished from an unreasonable use, it is a question of fact to
be determined from the facts and conditions prevailing.
Professional Executive Center v. La Salle National Bank, 211 Ill.
App. 3d 368, 379 (1991).
The defendants argue that there are genuine issues of material
fact in dispute that prohibit the trial court s granting summary
judgment on this issue. Primarily, the defendants maintain that
various factors exist that would make the installation of the
driveway unreasonable. For example, the defendants argue that the
resurfacing will create a dangerous condition to pedestrian
traffic, cause difficulty in the removal of ice and snow, require
changes in the grade and slope as required by the village code, and
adversely alter water drainage and absorption on their property.
Because of these possible results, the defendants ask this court to
reverse and remand this cause for further proceedings so that they
will have an opportunity to have a hearing wherein they could prove
that these facts make the installation unreasonable.
We find that there is no disputed issue of relevant facts. A
servient owner may use his land for any purpose consistent with the
dominant owner s enjoyment of his easement. See Coomer, 91 Ill.
App. 3d at 25. We have determined that the purpose of this
easement was for use as a driveway for ingress and egress to the
defendants house. None of the defendants arguments allege a
disruption or obstruction of this purpose. Rather, the defendants
concerns regard features separate from the easement s use as a
driveway. In other words, whether the new driveway will cause
runoff or changes in grade and slope are not material questions of
fact that need to be resolved in this case. Instead, the only
issue is whether the new driveway obstructs the defendants use of
their driveway as a right-of-way. As the defendants will still be
able to use their easement for ingress and egress without any
interference, we find, as a matter of law, that the new driveway is
not such an obstruction. See Schaefer, 13 Ill. 2d at 468-69
(holding that owner of servient estate could not install a gate on
easement property because it interfered with dominant estate s
right-of-way).
For the foregoing reasons, the judgment of the circuit court
of Du Page County is affirmed.
Affirmed.
INGLIS and McLAREN, JJ., concurring.