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No. 2--04--0224

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

PRESIDING JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, River's Edge Homeowners' Association, sued defendant, City of Naperville, for adeclaratory judgment that defendant's proposed bicycle path exceeded its easement rights on theRiver's Edge property. The trial court denied both parties' motions for summary judgment. After abench trial, the trial court denied plaintiff's complaint for declaratory judgment. Plaintiff appeals thetrial court's denial of its motion for summary judgment and the trial court's ultimate ruling fordefendant after a bench trial. Because we hold that the trial court erred in denying plaintiff's motionfor summary judgment, we do not reach plaintiff's appeal on the court's ultimate ruling after a benchtrial. We vacate the trial court's final ruling on the bench trial and we reverse the trial court's rulingon plaintiff's motion for summary judgment.

I. FACTS

The creation of a residential townhome development in Naperville was proposed to defendantin 1972. After some negotiation, defendant approved the development, called "River's Edge,"pursuant to the developers' agreement to dedicate an easement on the property to defendant. Thedevelopers and defendant entered into an agreement on March 19, 1973, and the agreement wasamended on July 2, 1974. Also on July 2, 1974, the developers executed a grant of easement. Thedevelopers are not parties to this lawsuit.

The amended agreement stated, in pertinent part:

"No public parks will be required due to the private open spaces in paragraph B [of thissection of the agreement] being more than adequate to meet open space requirements. Therewill be however, a dedicated walk easement along the river side of said property extendingfrom the [f]ive [f]eet [w]est of the retaining wall to the center line of the river--approximately4 acres. A 5 [foot] wide walkway constructed of 4 [inches] of Type 'B' Base and 4 [inches]of BAM meeting the requirements of the Standard Specifications for Road and BridgeConstruction of the State of Illinois, dated 1973, will follow a free form path in the areacommencing at the north end of said property and extending to the [s]outh limits."

The grant of easement stated:

"The [g]rantor *** hereby declares and grants in perpetuity an easement to [defendant] andto the public in general for the purpose of ingress and egress thereto and a walkway upon,under, along and across the following described property situated in DuPage County, Illinois,and identified as a walkway easement in this plat: [description]."

Pursuant to the above-quoted documents, defendant obtained an easement, consisting ofapproximately four acres, on the River's Edge property. The easement is approximately 1,400 feetlong, and it runs the entire length of the River's Edge property from north to south along the riverfront. Though the agreement required a walkway of 5 feet in width to be constructed, the developersconstructed a walkway that measures, on average, 8.7 feet in width.

Defendant now seeks to reconstruct the River's Edge path and widen it to approximately 12feet so that the path can comprise a portion of its newly proposed bicycle trail project. The new pathwould be a "multi-use" recreational trail, which would accommodate bicyclists and pedestrianssimultaneously. On July 9, 2003, plaintiff brought a complaint seeking a declaratory judgment thatdefendant's project was an illegal expansion of the purpose and scope of the easement. Both partiessubmitted motions for summary judgment, which the trial court denied.

After a bench trial, the trial court found that the original intent of the drafters of the easementcontemplated bicycle traffic and, thus, that the proposed reconstruction of the path was not anexpansion of the easement for which just compensation was due plaintiff. It based its ruling on thelanguage of the easement documents, the public use intended for the walkway, the documentary andtestimonial evidence concerning the meaning of the term "walkway" at the time the easementdocuments were written, the fact that no signs or other restrictive measures were ever imposed uponbicycle use on the path, the actual width of the sidewalk, and the fact that the easement was given inlieu of a public park. Plaintiff timely appeals.

II. DISCUSSION

Plaintiff's first contention on appeal is that the trial court erred in denying its motion forsummary judgment. We agree.

Plaintiff sought summary judgment because the easement documents unambiguouslyestablished that defendant did not have the right to create a bicycle path on its easement on the River'sEdge property. Summary judgment is appropriate where the pleadings, depositions, admissions, andaffidavits on file, when taken together in the light most favorable to the nonmovant, show that thereis no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fremont Casualty Insurance Co. v. Ace-Chicago Great Dane Corp., 317 Ill. App. 3d 67, 73 (2000). Our review of the trial court's ruling on a motion for summary judgment is de novo. FremontCasualty, 317 Ill. App. 3d at 73.

A court interprets an easement in the same manner it would interpret any agreement betweenparties. See Smith v. Heissinger, 319 Ill. App. 3d 150, 153 (2001) (looking at ambiguity of easementunder rules of interpreting agreements). Generally, an instrument creating an easement is construedin accordance with the intention of the parties, which is ascertained from the words of the instrumentand the circumstances contemporaneous to the transaction, including the state of the thing conveyedand the objective to be obtained. McMahon v. Hines, 298 Ill. App. 3d 231, 236 (1998). However,if the language of an agreement is facially unambiguous, then the trial court interprets the contractas a matter of law without the use of extrinsic evidence. Air Safety, Inc. v. Teachers Realty Corp.,185 Ill. 2d 457, 462 (1999); Duresa v. Commonwealth Edison Co., 348 Ill. App. 3d 90, 101 (2004). An agreement signed by the parties thereto speaks for itself, and the intention with which it wasexecuted must be determined from the language used in the agreement, without resort to extrinsicevidence. Air Safety, 185 Ill. 2d at 462.

In applying this "four corners rule," a court initially looks to the language of the agreementalone. Air Safety, 185 Ill. 2d at 462. If the language is unambiguous, then the trial court interpretsthe agreement without resort to parol evidence. Air Safety, 185 Ill. 2d at 462. However, if the courtfinds that the language of the contract is susceptible to more than one meaning, then an ambiguity ispresent, and parol evidence may be admitted to aid the trier of fact in resolving the ambiguity. AirSafety, 185 Ill. 2d at 462-63. Whether language of an agreement is ambiguous and requiresadditional evidence for interpretation is a question of law (Schnuck Markets, Inc. v. Soffer, 213 Ill.App. 3d 957, 976 (1991)), subject to de novo review (Smith, 319 Ill. App. 3d at 153).

We note that the above-described four corners rule has been questioned in several IllinoisAppellate Court cases by the introduction of the "provisional admission" approach to contractinterpretation (also referred to as the "extrinsic ambiguity" approach). See Air Safety, 185 Ill. 2d at463.

"Under the provisional admission approach, although the language of a contract isfacially unambiguous, a party may still proffer parol evidence to the trial judge for the purposeof showing that an ambiguity exists which can be found only by looking beyond the clearlanguage of the contract. [Citation.] Under this method, an extrinsic ambiguity exists 'whensomeone who knows the context of the contract would know if the contract actually meanssomething other than what it seems to mean.' [Citation.] Consequently, if after 'provisionally'reviewing the parol evidence, the trial judge finds than an 'extrinsic ambiguity' is present, thenthe parol evidence is admitted to aid the trier of fact in resolving the ambiguity. [Citation.]" Air Safety, 185 Ill. 2d at 463.

The supreme court has not squarely addressed the validity of the provisional admissionapproach in Illinois. In Air Safety, it noted that the appellate court has applied the approach in avariety of cases, but it declined to rule on the issue. Air Safety, 185 Ill. 2d at 463-64 (citing severalIllinois appellate cases); see also M. Monahan, Survey of Illinois Law: Contracts--The Disagreementover Agreements: The Conflict in Illinois Law Regarding the Parol Evidence Rule and ContractInterpretation, 27 S. Ill. L.J. 687, 701, 703 nn. 67 & 76 (2003) (hereafter Monahan) (citing manyIllinois cases following each approach). Instead, the supreme court held that the explicit integrationclause in the contract it was interpreting forestalled application of the provisional admission approach. Air Safety, 185 Ill. 2d at 464. The easement documents in the current case do not contain such anintegration clause. Therefore, we must determine whether to apply the four corners approach or theprovisional admission approach.

There are, of course, competing policy arguments to support either approach. In favor of thefour corners approach, the supreme court has stated:

"When parties sign a memorandum expressing all the terms essential to a complete agreementthey are to be protected against the doubtful veracity of the interested witnesses and theuncertain memory of disinterested witnesses concerning the terms of their agreement, and theonly way in which they can be so protected is by holding each of them conclusively bound byall the terms of the agreement as expressed in writing. All conversations and parolagreements between the parties prior to the written agreement are so merged therein that theycan not be given in evidence for the purpose of changing the contract or showing an intentionor understanding different from that expressed in the written agreement." Armstrong Paint& Varnish Works v. Continental Can Co., 301 Ill. 102, 106 (1921) (applying the four cornersrule to initial determinations of integration and ambiguity of a contract).

On the other hand, other courts have advocated the provisional admission approach:

"The 'four corners' test represents a mechanical approach to a difficult problem andpossesses two flaws in that it assumes a precision of language which cannot exist and furtherthat it places a trial judge in the uncomfortable position of determining the true intent of theparties in a transaction to which he is far removed both in time and circumstance. ***

* * *

*** [The provisional approach rule] will permit the trial judge to determine with greatercertainty whether in fact an ambiguity does exist or whether the parties were at one in theirunderstanding of the language used." URS Corp. v. Ash, 101 Ill. App. 3d 229, 234-35 (1981).

Given that much of the parol evidence used to establish ambiguity in the current case centeredaround the evolution of terminology used to describe sidewalks, bike paths, and multi-use paths fromthe 1970s to the current day, this case would seem to offer a tempting opportunity to invoke theprovisional admission approach. However, the supreme court's decision in Armstrong Paint Works,which declared the four corners rule, has never been reversed or modified. Monahan, 27 S. Ill. L.J.at 701. The supreme court in Air Safety may have "suggested" that it would later adopt theprovisional approach rule (see Monahan, 27 S. Ill. L.J. at 717), but suggestions and hints do notestablish precedent. The holding in Armstrong Paint Works remains binding precedent upon thiscourt. See Illinois Labor Relations Board v. Chicago Transit Authority, 341 Ill. App. 3d 751, 758(2003) ("After the supreme court has declared the law with respect to an issue, this court must followthat law because only the supreme court has the authority to overrule or modify its decisions"). Accordingly, we employ the four corners approach.

Before undertaking our review, we note that defendant proposes both to widen the walkwayon the easement and to use the easement as part of a bicycle path. Plaintiff argues only that theeasement should be restricted to use as a walkway. Therefore, we will review the easementdocuments to determine if the proposed use of the easement as a bicycle path would impermissiblyexpand the easement, and we will not consider whether a widening of the path on the easement wouldbe permissible.

Our de novo review of the easement documents reveals no facial ambiguities. The agreementbetween the parties states that the easement is to be a "walk easement." The easement grant itselfstates that the easement was "identified as a walkway easement in this plat." The dictionary definitionof the word "walkway" is "a passageway used or intended for walking." Webster's Third NewInternational Dictionary 2572 (1993). Neither term contemplates the use of bicycles on the easementpath. The faces of the documents themselves admit no ambiguity, and, therefore, under the fourcorners rule, we may not consider parol evidence in interpreting the documents (or in determiningwhether they are ambiguous). We hold that the easement granted to defendant was limited on its faceto use by pedestrian traffic.

" ' "The rule is that every incident of ownership not inconsistent with the easement and theenjoyment of the same, is reserved to the grantor." ' " Delgado v. Wilson, 178 Ill. App. 3d 634, 640(1989), quoting Dolske v. Gormley, 58 Cal. 2d 513, 519, 375 P.2d 174, 178, 25 Cal. Rptr. 270, 274(1962), quoting Webster's New World Dictionary 443 (1951). If an easement is limited in scope orpurpose, the owner of the property subject to the easement burden is entitled to prevent such burdenfrom being increased. Consolidated Cable Utilities, Inc. v. City of Aurora, 108 Ill. App. 3d 1035,1040 (1982).

Because the easement documents here restrict the easement to use as a walkway, we hold thatdefendant's proposed use of the property as a bicycle path constitutes an impermissible expansion ofthe purpose of the easement without just compensation. See Consolidated Cable Utilities, 108 Ill.App. 3d at 1040-41 (where easement lists purposes it is reserved for, "the plain meaning of thereservation does not also include other unnamed" rights); see also Delgado, 178 Ill. App. 3d at 635,639-40 (" 'right of way to be used as a driveway' " could not be used as a parking area (emphasisomitted)); Lien v. Loraus, 403 N.W.2d 286, 289 (Minn. Ct. App. 1987) (pedestrian walkway limitedto use by pedestrian traffic).

Our review of case law supports both our conclusion that the easement documents areunambiguous on their faces and our interpretation of those documents as allowing only foot trafficover the easement. In Cleveland v. Clifford, 121 Ohio App. 3d 59, 61, 698 N.E.2d 1045, 1047(1997), the court held that an easement which described itself as a "drive easement" wasunambiguous. It then held that the easement was limited to use as a driveway and thus that parkingon the easement was not contemplated in the easement grant. Cleveland, 121 Ohio App. 3d at 60-63,698 N.E.2d at 1046-48; see also Delgado, 178 Ill. App. 3d at 635, 639-40.

In Dolske, 58 Cal. 2d at 519, 375 P.2d at 78, 25 Cal. Rptr. at 274 (cited in Delgado, 178 Ill.App. 3d at 640), the court held that an easement granting the "right to use as a driveway" did notallow for pedestrian access. The court construed the term "driveway" narrowly because " 'everyincident of ownership not inconsistent with the easement and enjoyment of same [should be] reservedto the grantor.' " Dolske, 58 Cal. 2d at 519, 375 P.2d at 178, 25 Cal. Rptr. at 274, quoting Webster'sNew World Dictionary 443 (1951). Likewise, here, the terms "walk easement" and "walkway"should be construed narrowly, because they plainly express the purpose for the easement and becauseadditional uses not expressed in the easement should be reserved to the grantor.

In Lien, 403 N.W.2d 286, the court considered an easement which provided for a "pedestrianwalkway" to a lake. The plaintiffs in Lien sought to build a dock on the lake pursuant to theireasement. Lien, 403 N.W.2d at 287. The court stated that the easement was ambiguous as towhether it included a right to build a dock, and the court turned to parol evidence to resolve thatquestion. Lien, 403 N.W.2d at 289. However, the court stated that the term "pedestrian"unambiguously limited the mode of travel over the easement to foot traffic. Lien, 403 N.W.2d at 289. Likewise, here, the terms "walkway" and "walk easement" unambiguously limit the mode of passageover the easement to pedestrian travel⁽¹⁾.

Defendant argues that we should not reverse the trial court's denial of summary judgmentbecause plaintiff failed to present a record of the summary judgment hearing for our review. However, as noted above, our review here centered around issues of law, on which we give nodeference to the trial court. Thus, while a transcript of the summary judgment hearing wouldcertainly have been helpful, we did not require it to conduct our review.

Defendant argued in its brief in opposition to plaintiff's motion for summary judgment that itseasement encompassed not only the walkway, but also a substantial amount of land surrounding thewalkway. Thus, defendant argued, in pursuing its right to full enjoyment of the easement, it shouldbe entitled to expand the walkway farther into the remaining easement property. However, thisargument ignores the express limitation on the purpose of the entire easement: the easement wascreated to serve as a "walkway" and not as a bicycle path. Turning the walkway into a bicycle pathwould change and expand defendant's use of the easement beyond the rights defendant currentlypossesses.

We hold that the trial court should have granted summary judgment in favor of plaintiff anddeclared that defendant's proposed use of the easement property constitutes an expansion of thepurpose of the original easement without just compensation.

The judgment of the circuit court of Du Page County in favor of defendant shall be vacated. The order of the circuit court denying plaintiff's motion for summary judgment shall be reversed. Pursuant to Supreme Court Rule 366 (155 Ill. 2d R. 366), because our holding disposes of all issuesin the current case as a matter of law, we enter judgment in favor of plaintiff on its motion forsummary judgment. See Flink v. Remington Rand, Inc., 24 Ill. App. 2d 445 (1960) (abstract of op.). A declaration shall be entered stating that defendant's proposed use exceeds its rights in the River'sEdge easement.

Vacated in part and reversed in part; judgment entered.

KAPALA and GILLERAN JOHNSON, JJ., concur.

1.  In reaching our holding, we acknowledge the decision in Copans v. Loehr, 876 S.W.2d 691, 696 (Mo. App. 1994), which reaches a broader interpretation of a "walk" easement. We find the case to be factually distinguishable, and we find the Missouri law it cites to be contrary to Illinois law.