Case of the Day – Wednesday, December 16, 2022


It started out harmlessly enough. About 65 years ago, the owner of a piece of land gave some neighbors an easement to use a gravel driveway over his property in order to get to their own houses. But time marched on, the grantor of the easement moved elsewhere, and a few conveyances later, Chris Clark and his wife owned the property over which the easement ran (the “servient estate,” we call it).

The Clarks apparently liked neither the easement nor the easement holders. Chris argued that the easement and the driveway it surrounded were in the wrong place, but that complaint seemed to just be a makeweight for his general irritation over there being an easement at all. Trees and shrubs overgrew the gravel driveway, but when the easement holders would try to trim them back, Chris and his wife would threaten them, even calling the police on one occasion. Chris erected stakes and signs marking what he thought was the proper easement, leaving a width more suitable for a rattlesnake to negotiate than a car or pickup truck. It got so bad that even the fire department complained it could not get to the easement holders’ homes in the event of fire.

You could have made it easy, Chris. Read your deed, note the easement it reserved to the dominant estate, and then just go with the flow for a change… But not you: you’re the guy who intends to take the “ease” out of easement, but all you ended up doing – several years and a lot of legal fees later – was to find yourself under a permanent injunction that left you a lot more restricted than you would have been if you had just shaken hands with your neighbors and made it easy.

You can’t spell “easement” without “e-a-s-e,” but you can spell “l-a-w-s-u-i-t” without it if you put your mind to it.

Crittenden v. Clark, 2018 Ill.App.Unpub. LEXIS 2236 (Ct. App. Illinois, Dec. 18, 2018). The Crittendens and some of their neighbors had a permanent easement over Chris Clark’s property for purposes of getting to their residences and businesses. The easement was improved with a gravel driveway, but memories clouded over exactly where the easement lay. Over the years, trees and bushes encroached on part of the easement, even as Chris got increasingly steamed at the easement holders.

For their part, the easement holders were equally unhappy with Chris. Whenever they attempted to maintain or improve the easement by removing the trees and shrubs or even just fixing potholes, Chris threatened them and called the cops. Later on, Chris placed signs and metal stakes inside the easement area. The distance between the signs and stakes did not allow the easement holders to get through. Additionally, it was impossible for fire, emergency, and waste removal vehicles to properly access their properties.

There had been many other arguments between the holders and Chris related to the maintenance and use of the easement. Chris even threatened to move the driveway at one point.

Finally having had enough, the Crittendens and five neighbors sued Chris for a declaratory judgment that they had an “exclusive right to reasonable maintenance of the Permanent Easement at their expense to preserve their ingress and egress without unreasonable interference” from Chris. They requested an injunction prohibiting Chris “from interfering with the full rights of ingress and egress over the Permanent Easement, including a mandatory injunction ordering Defendant to remove the existing impediments to such access.” The Crittendens demanded attorney fees.

The trial court granted the injunction, ruling that the easement was 20′ wide and 13.5’ tall, and inside the easement area, Chris was prohibited from “inserting any object that would restrict or impede the use of the drive portion of the easement” by the easement holders. The injunction gave Chris until November 30, 2016, to trim the trees and remove any impediments, after which the easement holders could remove trees, shrubs and impediments that interfered with the easement.

Chris appealed.

Held: The permanent injunction was affirmed.

Chris argued that the trial court erroneously granted a permanent injunction. He said the court should have simply affirmed “the existence of the Subject Easement as platted,” which he claimed should just be a 10-12 foot-wide gravel driveway rather than allowing the Crittendens to improve the easement with a wider drive. Chris argued that the court materially altered the easement, placed a greater burden on his servient estate, interfered with his use and enjoyment of the land, and exposed him to liability to the electric utility because the wider easement purportedly invaded the utility’s easement. Chris argued the easement holders suffered no irreparable harm and the equities did not favor their position.

The Crittendens cited trial evidence supporting the court’s finding that the defendant unreasonably interfered with their rights under the easements.

An easement is a right or privilege in the real estate of another. The Crittendens and their neighbors, the Court said, as the owners of the dominant estates are entitled to the “necessary use of the easements.” This means such use as is “reasonably necessary for full enjoyment of the premises,” including the right to maintain the easement. Easement holders may not, however, for the mere sake of convenience, “materially alter the easements so as to place a greater burden on the servient estate or interfere with the use and enjoyment of the servient estate by its owner.”

Chris, the Court said, as the owner of the servient estate may use his property for any purpose that is consistent with the easement holders’ use of the easement, provided Chris’s use does not materially interfere with or obstruct the use of the land as a right of way. The reasonableness of the use of an easement presents a question of fact that depends on the circumstances of the case.

Here, the Court ruled, the trial judge’s findings were supported by the evidence, and the injunction was not an abuse of discretion. Chris insisted the easement was only the existing 10-12’ wide drive, but the evidence showed the easement area is about twice that width. The rule is that the owner of a right of way for ingress and egress has the right to use the full width of the area or strip having definite boundaries, unhampered by obstructions.

This case depended a lot on witness credibility, and Chris’s habit of preventing the Crittendens from maintaining the drive, placing delineators and signs along the drive that made it impossible for two cars to use it at the same time, and planting lilacs within the easement area, did not help his case. The Court of Appeals held that “instead of altering the parties’ rights and obligations with respect to the easements, it is apparent that the trial court merely intended to allow plaintiffs to restore the drive to something approximating what it believed were the dimensions prior to the mid-2000s. It seems that the court also had safety concerns in mind.” The width the trial court allowed for the easement comported with a fire chief’s testimony about the requirements for this drive as a fire apparatus access road.

The Court dismissed Chris’s fear that he might encounter problems with ComEd if the width of the drive was changed, noting that the Crittendens’ easement predated ComEd’s utility easement, and ComEd’s own evidence showed that there was no clearance issue.

– Tom Root


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.