Emanuel v. Hernandez

Illinois Appellate Court · 2000 · Property

PropertyEasementsImplied easementseasement by implicationeasement by necessityeasement by prior existing useseverance of titleintent of parties

Facts

Plaintiffs owned 920 Pearl Street, and defendants owned the adjoining parcel at 914 Pearl Street; the property line split a driveway, but most of the driveway lay on defendants' land. Plaintiffs alleged the driveway was the only way to reach their attached garage and sought a declaration of an easement by implication after defendants blocked the driveway. The chain of title showed both parcels were once commonly owned and were severed in 1890. Plaintiffs presented evidence of driveway and garage use dating from the 1950s and 1965 onward, but presented no evidence that a driveway, garage, or comparable use existed at the time of the 1890 severance.

Issue

Whether plaintiffs were entitled to summary judgment declaring an implied easement over defendants' property when they showed severance of title and present-day usefulness or necessity of the driveway, but did not show either that the property became landlocked at severance or that a qualifying use existed before severance.

Rule

There are two types of implied easements: easements by necessity and easements implied from a preexisting use. Because an implied easement depends on the intent of the parties to the conveyance that severed title, the existence of the easement depends wholly on the circumstances at the time of severance. An easement by necessity requires severance that leaves the parcel wholly surrounded or landlocked. An easement by preexisting use requires (1) common ownership followed by severance, (2) before severance, an apparent, obvious, continuous, and permanent use by the common owner of one part for the benefit of another, and (3) necessity and benefit to the enjoyment of the parcel conveyed or retained. Present-day necessity alone cannot create an implied easement if none arose at severance.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In 1910, a common owner in Peoria split a large parcel into Lot 1 fronting a public street and Lot 2 directly behind it, with a narrow recorded alley already touching Lot 2 on the east. In 2024, Olivia Marsh, owner of Lot 2, asks a court to imply an easement across Lot 1 because the alley is too narrow for modern delivery trucks and crossing Lot 1 would be far more convenient.

Should Olivia prevail on a claim for an implied easement based solely on these facts?

Explanation. An implied easement arises, if at all, at the moment title is severed. The controlling inquiry is the parties' presumed intent based on circumstances existing at severance, not present-day convenience or expense. Because Lot 2 had access via the alley when severed, later changes making that access less useful for modern trucks do not create an implied easement now.