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Emanuel v. Hernandez - 313 Ill. App. 3d 192, 245 Ill. Dec. 892, 728 N.E.2d 1249 (2000)

Rule:

It is crucial to recognize that an implied easement is the product of the intention of the parties to the conveyance. The easement is "implied" in that courts attempt to ascribe an intention to parties who themselves did not put any such intention into words at the time of the conveyance. Because the intention of the parties to the conveyance that severs title is the crucial consideration, whether an easement exists depends wholly on the circumstances at the time of the severance of title. Thus, if an easement by implication does not arise at the moment of severance, a change in circumstances since the severance, no matter how great, cannot create any such easement.

Facts:

Plaintiffs-appellees Wayne and Katherine Emanuel (Emanuel) own the property at 920 Pearl Street in Belvidere. Defendants'appellants Jose and Lisa Hernandez (Hernandez) own the property immediately north at 914 Pearl Street. The two properties were previously consolidated in one title. Before title was separated, the use of the driveway to gain access to the garage was so long continued, open, and obvious as to show that it was intended to be permanent. The use of the driveway was essential to the enjoyment of the property at 920 Pearl,  because the driveway is the only way a car can get to the garage. When blocked the driveway with railroad ties and had begun constructing a fence on the property line so that the Emanuels could not use the driveway, cases were filed against Hernandez for declaratory judgment. The trial court ruled that the Emanuels have an easement by implication over defendants' property. On appeal, the Hernandezs argue that the judgment cannot stand because the Emanuels failed to prove all the elements of either an easement by necessity or an easement by prior existing use. 

Issue:

Were plaintiff adjacent landowners entitled to summary judgment on their claim for an easement by implication over the driveway, where defendants asserted that plaintiffs failed to prove all the elements of either easement by prior use or easement by necessity? 

Answer:

No

Conclusion:

The judgment of the circuit court was reversed. The Court held that the Emanuels did not prove either of the two types of easement by implication: easement by prior use and easement by necessity. The Emanuels also failed to prove at least one element of an easement by preexisting use-- the preexisting use. The elements of a preexisting use easement are (1) common ownership of the dominant and servient parcels and a conveyance or other transfer separating that ownership; (2) before the conveyance or transfer severing the unity of title, the common owner used part of the united parcel for the benefit of another part, and this use was apparent and obvious, continuous, and permanent; and (3) the claimed easement is necessary and beneficial to the enjoyment of the parcel conveyed or retained by the grantor or transferor. The Court found it crucial to recognize that an implied easement is the product of the intention of the parties to the conveyance. Because the intention of the parties to the conveyance that severs title is the crucial consideration, whether an easement exists depends wholly on the circumstances at the time of the severance of title. 

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