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June 28, 2001

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JUSTICE TURNER delivered the opinion of the court:

In April 1999, plaintiffs, David and Marie Weaver,filed a single-count complaint against defendants, Robert andNancy Cummins, seeking the enforcement of easement rights arisingfrom a November 1995 grant of easement. After the trial courtgranted defendants' motion to dismiss the original count, plaintiffs filed an amended complaint seeking an easement by necessityover defendants' property. After holding an August 2000 evidentiary hearing, the trial court found plaintiffs were entitled toan easement by necessity over defendants' property. In October2000, the trial court denied defendants' motion to reconsider. On appeal, defendants argue (1) plaintiffs failed to prove thenecessity required for an easement by necessity and (2) theeasement granted by the trial court is too broad. We affirm inpart and vacate in part.

In June 1993, Merle and Cheryl Buerkett (Buerketts) owned about 146 acres of property called "Preacher's Knob." Atthat time, the Buerketts had divided a portion of their propertyinto three lots, with lots numbered two and three being commonlyknown as "flag lots." See Appendix A. A "flag lot" is a standard lot with a narrow strip of land ("flagpole") that connectsthe lot to a roadway. The Buerketts signed a declaration ofeasements, restrictions, and covenants, granting lots two andthree a reciprocal easement over the road created by the twoflagpoles for access to Irwin Bridge Road. As for the otherlots, the grantors reserved for themselves and their assigns aneasement to use the entire width of the roadway created by thetwo flagpoles for ingress and egress to and from Preacher's Knob.

In May 1993, the Buerketts conveyed plaintiffs' property to James and Vickie Cornwell (Cornwells). According toMerle Buerkett, the roadway across defendants' property existedwhen the Buerketts conveyed plaintiffs' property to theCornwells. Plaintiffs' property is a triangle-shaped lot with 60feet of frontage on Irwin Bridge Road. See Appendix A. Currently, a house is on the back portion of the property, and theroadway is the only means of access to the house. The Cornwellslater conveyed the property to Harry and Marsha Long.

In August 1993, the Buerketts transferred the remainingland into the Cheryl L. Buerkett Irrevocable Living Trust(Trust). In April 1994, the trustee of the Trust conveyeddefendants' property to defendants subject only to the declaration of easements. Defendants' property has a 20-foot-wideflagpole adjacent to lot three's flagpole. See Appendix A.

In November 1995, the Buerketts granted the Cornwellsan easement for the roadway over the flagpoles of lots two andthree, defendants' property, and the larger tract (024). SeeAppendix A. The grant also included a 20-foot-wide easementconnecting plaintiffs' property to the easement over the flagpoles. The roadway runs from Irwin Bridge Road over the variousflagpoles, then curves to the left on defendants' flagpole, andcontinues straight across defendants' flagpole, eventuallyreaching plaintiffs' property.

In fall 1998, plaintiffs purchased their property. Plaintiffs own an antique-truck collection, which they display atantique shows. Plaintiffs use semitrailer trucks to transporttheir collection to the various shows. Although both plaintiffsand defendants have contributed to the maintenance of the roadway, plaintiffs themselves hired a contractor to widen the curvedportion of the roadway in order for their semitrailer trucks tomake the turn. The contractor began working on widening thecurve when defendants stopped him.

In April 1999, plaintiffs filed suit against defendants, seeking to enforce the 1995 easement. Defendants filed amotion to dismiss, asserting the Buerketts had no right to grantan easement over their property. In July 1999, the trial courtgranted defendants' motion but allowed the plaintiffs to amendtheir complaint. That same month, plaintiffs filed an amendedcomplaint, asserting they had an easement by necessity overdefendants' property. In September 1999, defendants filedanother motion to dismiss, which the trial court denied.

In April 2000, plaintiffs filed a motion for summaryjudgment. After a May 2000 hearing, the trial court grantedplaintiffs' motion. Defendants filed a motion to reconsider,which the trial court granted.

In August 2000, the trial court held an evidentiaryhearing. At the hearing, Gary Goodwin, a contractor, testifiedit would cost about $24,341.63 plus the cost of fill, a culvert,permits, and wetland reclamation for plaintiffs to build aroadway on their property from Irwin Bridge Road to their house. Michael P. Irwin, an engineer, testified such a road would costabout $68,850. Testimony was also presented indicating propanetrucks, delivery trucks, and farm machinery now use the roadway.

After the evidentiary hearing, the trial court foundplaintiffs had an easement by necessity over defendants' 20-footflagpole along the current and existing roadway. The courtfurther ordered plaintiffs could make only 12 round trips peryear with their semitrailer trucks to transport their collection. Moreover, plaintiffs were responsible for any damages caused tothe roadway by the semitrailer trucks. In October 2000, thetrial court denied defendants' motion to reconsider. This appealfollowed.

To have an easement by necessity for access to apublic road, plaintiffs had to prove (1) unity of title betweentheir property and defendants' property followed by a separationof title and (2) no access to the public road, i.e., necessity. See Martin v. See, 232 Ill. App. 3d 968, 978, 598 N.E.2d 321, 328(1992). Defendants contend plaintiffs failed to prove thenecessity element. This court will not disturb the trial court'sfinding of an easement by necessity unless it is contrary to themanifest weight of the evidence. Smith v. Heissinger, 319 Ill.App. 3d 150, 153, 745 N.E.2d 666, 671 (2001).

Plaintiffs presented testimony their property lacksreasonable access to Irwin Bridge Road. The lands of strangersborder their property on all sides, except 60 feet of frontage onthe road.

According to Irwin, a great deal of water runs down theditch on plaintiffs' property along the road. Culverts wouldhave to be installed to provide for the water. The area bordering the public road is a floodplain, and plaintiffs would need apermit from the Army Corps of Engineers to construct a road. Such a permit would require the construction of a pond to offsetthe amount of fill added to the floodplain. Moreover, safetyconcerns exist involving the frontage's proximity to a bridge.

In Martin, this court found the plaintiffs had aneasement by necessity over the defendant's property where anirrigation ditch ran between the plaintiffs' property and thepublic road. Martin, 232 Ill. App. 3d at 980, 598 N.E.2d at 329. The defendant had argued the plaintiffs could construct a culvertover the ditch, allowing the plaintiffs to access the publicroad. Martin, 232 Ill. App. 3d at 979, 598 N.E.2d at 328. Weheld it would be unreasonable to require the plaintiffs toinstall a culvert over the ditch when the defendant's roadalready existed. Martin, 232 Ill. App. 3d at 980, 598 N.E.2d at329.

Defendants argue this court applied the wrong necessitystandard in Martin. They contend the three cases cited in Martinare all preexisting-use easements, not easements by necessity. See Martin, 232 Ill. App. 3d at 980, 598 N.E.2d at 328-29. Accordingly, we clarify the necessity requirement.

Under Illinois law, two types of implied easementsare recognized: the easement by necessity and the easementimplied by a preexisting use. Smith, 319 Ill. App. 3d at 153,745 N.E.2d at 670. Both types of easements arise from an inference of the intention of the parties to a conveyance of land. Such an inference represents the courts' attempt to ascribe anintention to the parties who had failed to put their intentioninto words at the time of conveyance. Granite Properties Ltd.Partnership v. Manns, 117 Ill. 2d 425, 437, 512 N.E.2d 1230, 1237(1987). To fill in the gaps, courts find particular factssuggestive of intent on the part of the parties to the conveyance. Granite Properties, 117 Ill. 2d at 437-38, 512 N.E.2d at1237.

While the establishment of an easement by necessitydoes not require the proof of preexisting use (see Smith, 319Ill. App. 3d at 154, 745 N.E.2d at 670), proof of prior use isevidence of the parties' intent to create an easement (GraniteProperties, 117 Ill. 2d at 438, 512 N.E.2d at 1237). Suchevidence demonstrates the parties' intent not to render the landunfit for occupancy. To the extent evidence of prior usestrengthens the implication, the extent of necessity required forimplication is reduced. Granite Properties, 117 Ill. 2d at 440,512 N.E.2d at 1238. Thus, even in easement-by-necessity cases,evidence of prior use may lower the necessity requirement becausethe goal of both implied easements is to fulfill the intent ofthe parties.

Here, the record shows the road existed when the commongrantor conveyed plaintiffs' property to the Cornwells. Thepreexisting use, therefore, reduces the extent of necessityrequired to be proved. Thus, plaintiffs are entitled to aneasement by necessity if the easement is reasonable, highlybeneficial, and convenient for the enjoyment of their property. See Martin, 232 Ill. App. 3d at 980, 598 N.E.2d at 329. Plaintiffs have established their need to use the road acrossdefendants' land. Requiring plaintiffs to install culverts,build a pond, and bring in large amounts of fill to construct apotentially dangerous road is unreasonable when a road overdefendants' property exists to allow plaintiffs safe access tothe public road.

The record also contains evidence of the parties'intent. In 1995, after the conveyance to defendants, the commongrantor gave plaintiffs an express easement for the entire roadfrom plaintiffs' property to Irwin Bridge Road. While theeasement failed as to the portion of the road over defendants'property, such easement was evidence of the parties' intent atthe time of conveyance.

Accordingly, we hold the trial court's judgment granting plaintiffs an easement by necessity was not against themanifest weight of the evidence.

Defendants also argue the easement granted by the trialcourt is too broad. Specifically, they assert the easementshould not include semitrailer truck use. Plaintiffs argue norestrictions should have been placed on their use of the easement.

In determining the scope of the easement, recognitionthat an implied easement is the product of the intention of theparties to the conveyance is crucial. Emanuel v. Hernandez, 313Ill. App. 3d 192, 196, 728 N.E.2d 1249, 1252 (2000). Here, theintent of the parties is evidenced by the dimensions of theroadway at the time of separation of title. Since the separation, plaintiffs have attempted to widen the road approximatelythree feet but were precluded from doing so. The trial courtdefined the scope of the easement as the "current and existingroadway." We understand the trial court's order to mean "thecurrent and existing roadway," which does not include the unfinished widening.

Plaintiffs, the owners of the dominant estate, areentitled to the necessary use of the easement. Necessary use hasbeen defined as such use as is reasonably necessary for the fullenjoyment of the premises. Seymour v. Harris Trust & SavingsBank, 264 Ill. App. 3d 583, 595, 636 N.E.2d 985, 994 (1994). Thequestion of reasonableness is one of fact (Seymour, 264 Ill. App.3d at 596, 636 N.E.2d at 994), and we will not disturb the trialcourt's finding unless it is against the manifest weight of theevidence or an abuse of discretion (see In re Marriage of Carter,317 Ill. App. 3d 546, 551, 740 N.E.2d 82, 86 (2000)).

Here, the weight of the evidence demonstrated thesemitrailer trucks could not use the roadway at its current widthbecause the roadway is too narrow at the turn located on defendants' property. Plaintiffs propose to use semitrailer trucks totransport their antique collection. Under plaintiffs' proposal,the semitrailer trucks might use the roadway up to four round-trips per month. Although the trial court limited the round-trips to 12 annually, the scope of the easement is too broad innature. The implied easement allows plaintiffs reasonableingress and egress to their property, but the record is devoid ofevidence that the parties to the original conveyance contemplatedthe type of use plaintiffs proposed. Accordingly, the portion ofthe trial court's order permitting plaintiffs to transport theirantiques with semitrailer trucks was against the manifest weightof the evidence.

For the reasons stated, we affirm the judgment of thetrial court finding an easement by necessity but vacate theportion of the judgment allowing plaintiffs to use semitrailertrucks on the roadway to transport antique trucks and makingplaintiffs responsible for the repair of any damage caused bysuch usage.

Affirmed in part and vacated in part.

McCULLOUGH and COOK, JJ., concur.