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March 6, 2001

No. 3--00--0451

    IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE SLATER delivered the opinion of the court:

Plaintiff, Peggy L. Sparling, brought an action for ejectment against defendants, Fon du Lac Township and Fon du LacRoad and Bridge Commission, seeking the removal of a drainage pipe maintained by defendants. After a bench trial, thetrial court granted plaintiff the relief she requested. This appeal followed.

Since November 1995, plaintiff has been the fee owner of a parcel of land commonly known as Lot 226. At someunknown time prior to 1983, defendants acquired an express easement to maintain a drainage pipe within a 10-foot widestrip along the southwest line of Lot 226. Five feet of the easement burden Lot 226. The remaining five feet burden theadjoining Lot 227.

In 1983, defendants moved the drainage pipe two to three feet outside of the easement onto Lot 226. In 1993, Gerald Graybecame the fee owner of Lot 226. In June 1995, Gray sent a letter to defendants advising them of the encroachment andrequesting that defendants remove the pipe. In 1996, plaintiff, now the fee owner of Lot 226, through her attorney, sentdefendants a letter expressing her objection to the encroachment. Defendants admitted receipt of these letters in theirresponse to a pretrial request to admit.

In May 1999, plaintiff filed her ejectment action against defendants. Defendants raised the affirmative defense that publicuse of plaintiff's land had established a prescriptive easement pursuant to section 2--202 of the Illinois Highway Code (605ILCS 5/2--202 (West 1998)).

The matter proceeded to a bench trial. Larry Borton, the elected road commissioner for Fon du Lac Township between1980 and 1993, testified that a resident of the home located on Lot 226 observed him move the drainage pipe in 1983. Although the resident chatted with Borton on a number of occasions while Borton was moving the pipe, the resident nevervoiced any objection to Borton's work or gave him any permission to continue. Borton also testified that he was unawareuntil shortly before trial that the drainage pipe was outside the bounds of the express easement. Borton's successor as roadcommissioner, Terry Tucker, testified that he only became aware that the pipe lay outside the easement in October 1999when he reviewed the results of a survey conducted at the request of the township.

The trial court found for plaintiff and ordered defendants to remove the drainage pipe from the area lying outside of theexpress easement. The trial court rejected defendants' claim that a prescriptive easement had been established. Inparticular, the trial court ruled that defendants did not occupy plaintiff's land under a claim of right because theencroachment was the result of a mistake. The trial court also found that defendants failed to show that plaintiff'spredecessors in title knew about the encroachment for the statutory period required to establish a prescriptive easement. Inparticular, the trial court reasoned that plaintiff could not be charged with knowledge of defendants' encroachment until thedate Gerald Gray complained to defendants and requested removal of the drainage pipe.

On appeal, defendants contend that the trial court erred by ruling: (1) that a prescriptive easement could not be establishedthrough the mistake of the encroaching party; and (2) that defendant failed to show plaintiff's knowledge of theencroachment for the statutory period required for establishment of a prescriptive easement. In response, plaintiff contendsthat, in addition to the reasons given by the trial court, she is entitled to judgment because defendants failed to proveacquiescence to the encroachment in light of her objection and that of her predecessor in title.

At common law, 20 years of continuous public use was necessary to establish a highway by prescription. Doss v. Bunyan,262 Ill. 101, 104 N.E. 153 (1914). Under section 2--202 of the Illinois Highway Code (605 ILCS 5/1--101 et seq. (West1998)), the term "highway" includes "drainage structures" and is, among other things, "any public way *** used by thepublic as a highway for 15 years." 605 ILCS 5/2--202 (West 1998).

A statute in derogation of the common law is to be strictly construed and cannot be interpreted to change the common lawbeyond what is expressed by the words of the statute or what is necessarily implied from them. Bush v. Squellati, 122 Ill.2d 153, 522 N.E.2d 1225 (1988). Accordingly, Illinois courts have interpreted section 2--202 and its predecessors aschanging the time within which a highway might be established by prescription but not doing away with any of the othercommon law requirements for establishing a prescriptive easement. See Feldker v. Crook, 208 Ill. App. 3d 1012, 567N.E.2d 1115 (1991) (requirements necessary to establish public highway by prescription under statute same as thosenecessary to establish private easement by prescription); Town of Deer Creek Road District V. Hancock, 198 Ill. App. 3d567, 555 N.E.2d 1147 (1990) (same); Doss, 262 Ill. 101, 104 N.E. 153 (enactment of statutory period for establishment ofpublic highway by prescription and subsequent amendments did not abolish other common law requirements forestablishing easement by prescription).

To establish an easement by prescription, the claimant must prove that the use of the land was adverse, exclusive,continuous, and under a claim or title inconsistent with that of the true owner. Wehde v. Regional TransportationAuthority, 237 Ill. App. 3d 664, 604 N.E.2d 446 (1992). These elements must be simultaneously present for the statutorily-mandated period. See Wehde, 237 Ill. App. 3d 664, 604 N.E.2d 446. With respect to the element of adversity, the claimantmust show that the use of the property was with the knowledge and acquiescence of the owner but without his permission. Wehde, 237 Ill. App. 3d 664, 604 N.E.2d 446. However, where the property has been used in an open, uninterrupted,continuous and exclusive manner for the required period, adversity will be presumed and the burden of proof shifts to theparty denying the prescriptive easement to rebut the presumption. Wehde, 237 Ill. App. 3d 664, 604 N.E.2d 446.

We agree with defendants that they are not precluded from establishing a prescriptive easement because the public use ofplaintiff's land resulted from a mistake. In the context of a claim of title by adverse possession, our supreme court held thatthe fact that the party claiming title by adverse possession took possession through mistake or ignorance as to boundarylines is immaterial to the adverse character of the claim. Joiner v. Janssen, 85 Ill. 2d 74, 421 N.E.2d 170 (1981). Plaintiffclaims that Joiner is distinguishable from the case at bar as it is an adverse possession case while the instant case involves aprescriptive easement. We acknowledge that there are significant differences between a claim of title by adversepossession and a claim of an easement by prescription. However, we discern no reasoned basis to declare that mistakenpossession is immaterial to an effort to obtain fee title to land, but the same mistake is fatal to a claim seeking limitedpossession, use, or enjoyment of land. Accordingly, defendants' mistake as to the boundary of the express easement doesnot defeat their claim to a prescriptive easement.

In addition, the trial court was wrong to conclude that plaintiff could not be charged with knowledge of defendants'encroachment until the date of Gerald Gray's letter to defendants. As noted previously, once continuous public use for thestatutory period is demonstrated, the burden of proof shifts to the party denying a prescriptive easement to rebut thepresumption that the other elements are present. See Wehde, 237 Ill. App. 3d 664, 604 N.E.2d 446. One such element isthe fee owner's knowledge of the public use. Verh v. Morris, 410 Ill. 206, 101 N.E.2d 566 (1951). The fee owner'sknowledge may be inferred from the manner, character, and frequency of the public's use. Verh v. Morris, 410 Ill. 206, 101N.E.2d 566.

Here, continuous public use of plaintiff's land for the statutory period was not disputed by the parties. Plaintiff, therefore,had the burden of rebutting the presumption that she and her predecessors in title knew of defendants' encroachment. Plaintiff presented no evidence tending to rebut the presumption. Consequently, the trial court's finding that plaintiff couldnot be charged with knowledge of defendants' encroachment until the date of Gray's letter is contrary to the manifest weightof the evidence.

Having rejected the trial court's rationale for its judgment, we consider plaintiff's argument that the judgment shouldnevertheless be sustained because plaintiff rebutted the presumption that she acquiesced to defendants' encroachment. SeeMessenger v. Edgar, 157 Ill. 2d 162, 623 N.E.2d 310 (1993) (reviewing court may sustain trial court's judgment on anyground supported by the record).

Defendants argue that it is not necessary to show the acquiescence of the fee owner in order to establish a prescriptiveeasement. Moreover, defendants contend that such a requirement is incompatible with the requirement that the public usebe without the consent of the fee owner. We reject both of these propositions.

It is beyond peradventure that acquiescence of the fee owner is necessary to establish an easement by prescription inIllinois. Not all rhetorical formulations of the elements required to a finding of a prescriptive easement contained in Illinoiscase law use the term "acquiescence." See, e.g., Swinford v. Roper, 389 Ill. 340, 344, 59 N.E.2d 863, 865 (1945) ("usemust be adverse, under claim of right, continuous and uninterrupted, with the knowledge of and without the consent of theowner of the estate"). Nonetheless, the supreme court precedent that includes the term is legion. See, e.g., Nitterauer v.Pulley, 401 Ill. 494, 82 N.E.2d 643 (1948); Bontz v. Stear, 285 Ill. 599, 121 N.E. 176 (1918); City of Princeton v.Gustavson, 241 Ill. 566, 89 N.E. 653 (1909); Chicago, Burlington & Quincy R.R. Co. v. Ives, 202 Ill. 69, 66 N.E. 940(1903); Rose v. City of Farmington, 196 Ill. 226, 63 N.E. 631 (1902); City of Chicago v. Chicago, Rock Island & PacificRy. Co., 152 Ill. 561, 38 N.E. 768 (1894); Chicago & Northwestern Ry. Co. v. Hoag, 90 Ill. 339 (1878). Accordingly, asthese cases have not been overruled and are controlling authority, this court has no option but to follow them.

In addition, requiring the acquiescence of the fee owner is not inconsistent with the rule that the consent of a fee owner cannever ripen into a prescriptive right. Clearly, a fee owner may acquiesce to public use of his land without giving consent. Mere acquiescence is not consent. See Bontz, 285 Ill. 599, 121 N.E. 176. The passive fee owner may choose to remainsilent and not object to public use of his land yet, nevertheless, withhold his consent. If he does so for 15 years or more, heruns the risk that the public will acquire the legal right to its use of the land.

Recognizing, then, that acquiescence of the fee owner is necessary to establishing a prescriptive easement, we mustdetermine whether plaintiff rebutted the presumption that she and her predecessors in title acquiesced in defendants'encroachment. Gerald Gray's letter of June 1995 and plaintiff's own 1996 letter clearly put defendants on notice that the feeowner of Lot 226 objected to the encroachment of the drainage pipe. Defendants' receipt of these letters within the 15-yearstatutory period for establishing a public way by prescription is judicially admitted. Accordingly, we hold that plaintiffrebutted the presumption of acquiescence and, thereby, rebutted the presumption of a prescriptive easement. See Hoag, 90Ill. 339; see also Ruck v. Midwest Hunting & Fishing Club, 104 Ill. App. 2d 185, 243 N.E.2d 834 (1968). Therefore, weaffirm the trial court's judgment ordering defendants to remove the drainage pipe from that portion of plaintiff's land lyingoutside the express easement.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

HOLDRIDGE, J., concurs.

BRESLIN, J., specially concurs.

JUSTICE BRESLIN, specially concurring:

I agree with the majority's analysis except with respect to its extension ofthe rule set forth in Joiner v. Janssen, 85 Ill. 2d 74, 421 N.E.2d 170(1981), regarding mistake, as it applied to the facts of this case. As themajority points out, Joiner was concerned with adverse possession whilethis case concerns a prescriptive easement. Still, the majority applies the Joinercourt's analysis of mistake to this case because, it surmises, there is no basisfor differentiating between the mistaken possession of a fee title to land andthe mistaken possession of an easement. I disagree.

In Joiner, the supreme court held that mistake as to a boundary linedoes not negate an adverse or hostile claim of title because, if it did, therewould exist no protection to the landowner who "innocently and mistakenlyoccupies and improves land" beyond his boundaries. Joiner, 85 Ill.2d at 83, 421 N.E.2d at 175. Thus, the person who, for instance, mistakenlybuilds a portion of his home over the boundary line separating his land andanother's land will be protected if the other elements for an adverse possessionare met. This is logical. A court would be reticent to force the homeowner totear down his dwelling after inhabiting it for the statutory period simplybecause his possession was not sufficiently adverse due to a mistaken beliefthat the whole of his home was rightfully built on his land.

It is not similarly logical to apply this rule of mistake to a prescriptiveeasement. Extensive improvements are not likely to be made to an easement.Additionally, as the majority points out, acquiescence or knowledge of the feeowner is necessary to establish an easement by prescription in Illinois. Ruckv. Midwest Hunting & Fishing Club, 104 Ill. App. 2d 185, 243 N.E.2d 834(1968). No similar acquiescence of the fee owner is necessary for an adversepossession to occur. See Joiner, 85 Ill. 2d at 81, 421 N.E.2d at 174.Accordingly, assuming extensive improvements to an easement are made, such asthe paving of a road, the doctrine of equitable estoppel would sufficientlyprotect the owner of the easement. See Klobucar v. Stancik, 138 Ill. App.3d 342, 485 N.E.2d 1334 (1985) (a court of equity may impose an easement byestoppel as a remedy on behalf of a party who, in reliance upon the conduct ofthe adjoining landowner concerning the purported easement, has taken an actionconcerning his land which would not have been taken absent that conduct).

I would apply the position espoused in People ex rel. Carson v. Mateyka,57 Ill. App. 3d 991, 373 N.E.2d 471 (1978), that use by mistake is notsufficiently adverse or under claim of right to establish a public way byprescription. I suggest that Larry Borton's mistaken belief that he waspositioning the pipe within the easement is the basis upon which Peggy Sparlingshould prevail. Therefore, I specially concur.