                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




    Catholic Bishop of Chicago v. Chicago Title & Trust Co., 2011 IL App (1st) 102389




Appellate Court            CATHOLIC BISHOP OF CHICAGO, an Illinois Corporation Sole,
Caption                    Plaintiff-Appellee, v. CHICAGO TITLE AND TRUST COMPANY, as
                           Trustee Under Trust Agreement Dated July 7, 1993 and Known as Trust
                           No. 1098385; and NICK KARRIS, Beneficiary of Trust Agreement Dated
                           July 7, 1993 and Known as Trust No. 1098385, Defendants-Appellants
                           (Ole, Inc., an Illinois Corporation, d/b/a 1492 Tapas, Defendant).



District & No.             First District, Third Division
                           Docket No. 1–10–2389


Filed                      June 29, 2011


Held                       In an action seeking a declaratory judgment that defendants’ claim of a
(Note: This syllabus       prescriptive easement over a walkway on plaintiff’s property was invalid,
constitutes no part of     the trial court properly granted partial summary judgment in plaintiff’s
the opinion of the court   favor on the ground that defendants failed to establish exclusivity, since
but has been prepared      defendants failed to demonstrate that their possession of the walkway was
by the Reporter of         exclusive, and in Illinois, exclusivity is a necessary element to establish
Decisions for the          an easement by prescription and the burden of proving a prescriptive
convenience of the         right, including the element of exclusivity, is on the party alleging that
reader.)
                           right.



Decision Under             Appeal from the Circuit Court of Cook County, No. 08–CH–29795; the
Review                     Hon. LeRoy Martin, Judge, presiding.
Judgment                    Affirmed.


Counsel on                  Collins, Bargione & Vuckovich, of Chicago (George B. Collins and
Appeal                      Adrian Vuckovich, of counsel), for appellants.

                            Burke, Warren, MacKay & Serritella, P.C., of Chicago (Jay S. Dobrutsky
                            and Alexander D. Marks, of counsel), for appellee.


Panel                       PRESIDING JUSTICE QUINN delivered the judgment of the court, with
                            opinion.
                            Justices Neville and Steele concurred in the judgment and opinion



                                              OPINION

¶1          Plaintiff, Catholic Bishop of Chicago (Catholic Bishop), sought a declaratory judgment
        that defendants’ claim of a prescriptive easement over a walkway on plaintiff’s property was
        invalid. The circuit court granted summary judgment in plaintiff’s favor because defendants
        had not established exclusivity, where the Catholic Bishop, as owner, had not been altogether
        deprived of the use of the walkway. The issue before this court is whether “exclusivity” is
        a necessary element to establish an easement by prescription. For the following reasons, we
        hold that exclusivity is a necessary element for a prescriptive easement and affirm the grant
        of summary judgment in plaintiff’s favor.

¶2                                         I. BACKGROUND
¶3           On October 3, 2007, defendants Chicago Title & Trust Company and Nick Karris
        (defendants or Karris) recorded a claim of easement with the Cook County recorder of deeds,
        asserting an easement over a narrow walkway that bifurcates private property owned by the
        Catholic Bishop. The subject property owned by the Catholic Bishop is located at 38 East
        Superior Street, in Chicago. The property is improved with a building that is used as a
        residence hall, a small fenced-in parking lot for six to eight vehicles, and the paved walkway
        at issue that bifurcates the subject property. Directly adjacent to the eastern boundary of the
        Catholic Bishop’s property is a land parcel known as 40 East Superior Street, Chicago,
        Illinois, title to which is held in trust by defendant Chicago Title & Trust for the benefit of
        defendant Karris.
¶4           Defendants’ adjacent property is improved with a three-story building, which was leased
        to Ole, Inc., to operate a restaurant known as “1492 Tapas.” Defendants’ building includes
        a front entrance facing south, with access to Superior Street. Ole, Inc., has used the side door,
        facing west, of defendants’ building for access to the walkway on the Catholic Bishop’s

                                                  -2-
       property in order to access Wabash Avenue to remove trash, receive deliveries, and provide
       an employee entrance. Defendants’ claim of easement purported to state an implied easement
       on the walkway based upon (1) easement by prescription; (2) easement by reason of use as
       a public roadway; and (3) easement by necessity. Defendants’ claim of easement stated that
       their rights were for the “nonexclusive” use of the walkway.
¶5          On August 14, 2000, the Catholic Bishop filed a two-count complaint seeking a
       declaratory judgment that defendants’ claim of easement was invalid (count I) and asserting
       a claim of trespass against defendants unrelated to the purported easement (count II).
¶6          Defendants responded to the Catholic Bishop’s amended complaint for declaratory
       judgment. In response to the allegation that “at no relevant time has the Catholic Bishop been
       altogether deprived of the use and possession of the Walkway,” defendants stated, “The
       nature of the Easement does not deprive the Bishop or the Fire Department of access to or
       across the Easement property.” The Catholic Bishop served requests to admit on defendants,
       including to admit “that [the] Catholic Bishop has used the walkway during the Easement
       Period.” Defendants denied this request to admit, but also stated that “Karris has no
       knowledge of any use of the easement by the Catholic Bishop.”
¶7          During hearings before the circuit court, defense counsel argued that the element of
       “exclusivity” for a prescriptive easement “means that we have the right to use it and nobody
       has the right to stop us. It doesn’t mean that someone else can’t use it too. Obviously if the
       Bishop wishes to walk this alleyway he can. Actually anyone can. But we use it every day
       and we’ve used it for over twenty years.” Defense counsel argued that defendants’ use of the
       walkway was “the critical fact” and that the Catholic Bishop “own[s] the ground, they can
       walk upon it.”
¶8          On January 28, 2010, the Catholic Bishop filed a motion for partial summary judgment
       as to count I regarding defendants’ claim of easement. With respect to defendants’ claim of
       a prescriptive easement over the walkway, the Catholic Bishop argued that defendants failed
       to show that the use of the land was exclusive where defendants did not establish that the
       Catholic Bishop was deprived of use of the walkway during the relevant time period.
       Defendants maintained that the possible use by the Catholic Bishop during the relevant time
       period did not destroy defendants’ prescriptive easement over the walkway.
¶9          On July 30, 2010, the circuit court entered an order granting the Catholic Bishop’s
       motion for partial summary judgment as to count I regarding defendants’ claim of easement
       over the walkway by prescription, necessity, and public use based on “reasons stated in open
       court.” The circuit court’s order included a finding under Illinois Supreme Court Rule 304(a)
       (eff. Feb. 26, 2010) that there was no just reason to delay either enforcement or appeal from
       its order. The record of court proceedings on July 30, 2010 shows that defense counsel stated,
       “Your Honor ruled that the walkway was not an easement because the Catholic Bishop could
       walk upon it himself.” The court responded, “Not simply could, but did apparently.”
       Defendants now appeal the circuit court’s grant of partial summary judgment solely as to
       their claim of a prescriptive easement over the walkway.

¶ 10                                      II. ANALYSIS

                                                -3-
¶ 11                                   A. Standard of Review
¶ 12       Summary judgment is appropriate where the pleadings, depositions, admissions, and
       affidavits on file, when taken in the light most favorable to the nonmovant, show there is no
       genuine issue of material fact and the movant is entitled to judgment as a matter of law. 735
       ILCS 5/2–1005(c) (West 2008); Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Our
       review of the circuit court’s grant of summary judgment is de novo. Williams, 228 Ill. 2d at
       417.

¶ 13                                B. Easement by Prescription
¶ 14        Under Illinois law, an easement obtained by prescription is based on the same principles
       as title obtained by adverse possession. Chicago Steel Rule Die & Fabricators Co. v. Malan
       Construction Co., 200 Ill. App. 3d 701, 705 (1990) (citing Rita Sales Corp. v. Bartlett, 129
       Ill. App. 2d 45, 51-52 (1970)). Thus, to establish an easement by prescription, a claimant
       must show that the use of the land was: hostile or adverse, exclusive, continuous,
       uninterrupted, and under a claim of right or title inconsistent with that of the true owner.
       Chicago Steel, 200 Ill. App. 3d at 705-56; City of Des Plaines v. Redella, 365 Ill. App. 3d
       68, 76 (2006); 527 S. Clinton, LLC v. Westloop Equities, LLC, 403 Ill. App. 3d 42, 49
       (2010); Bogner v. Villiger, 343 Ill. App. 3d 264, 270 (2003). These elements must have
       shared a concurrent existence for a period of 20 years. 735 ILCS 5/13–101 (West 2008);
       Chicago Steel, 200 Ill. App. 3d at 706. All presumptions are in favor of the titleholder, and
       the burden of proving a prescriptive right, which must be clearly and unequivocally proved,
       is on the party alleging such right. Bogner, 343 Ill. App. 3d at 270; Illinois District of
       American Turners, Inc. v. Rieger, 329 Ill. App. 3d 1063, 1073 (2002).

¶ 15                                  1. Element of Exclusivity
¶ 16       The question before this court is whether defendants demonstrated that their use of the
       walkway was exclusive, such that a genuine issue of material fact remains to preclude
       summary judgment in this case.
¶ 17       In Chicago Steel, this court explained that the party claiming exclusivity need not show
       that he possessed the property to the exclusion of all others. Chicago Steel, 200 Ill. App. 3d
       at 707. However, because exclusivity requires that the claimant possess the property
       independent of a like right in others, the rightful owner must be “altogether deprived of
       possession.” Chicago Steel, 200 Ill. App. 3d at 707. This court explained, “ ‘A joint
       possession by two, even though the claim of each is adverse to the other, will not be disseizin
       [a deprivation of possession] unless the rightful owner is altogether deprived of
       possession.’ ” Chicago Steel, 200 Ill. App. 3d at 707 (quoting Towle v. Quante, 246 Ill. 568,
       576 (1910)).
¶ 18       In Chicago Steel, this court affirmed the circuit court’s dismissal of the plaintiff’s
       complaint seeking a declaratory judgment that it had a prescriptive easement over a roadway.
       This court found, inter alia, that the plaintiff failed to allege sufficient facts to state a cause


                                                  -4-
       of action for a declaration of a prescriptive easement where there was “no allegation that the
       true owners were deprived of use or possession of the roadway.” Chicago Steel, 200 Ill. App.
       3d at 707.
¶ 19       In City of Des Plaines, this court followed its previous decision in Chicago Steel that the
       establishment of an easement by prescription requires a claimant to show its use of the land
       was exclusive, such that “the true owners were deprived of use or possession” of the land.
       City of Des Plaines, 365 Ill. App. 3d at 76. In City of Des Plaines, this court reversed the
       award of summary judgment because genuine issues of material fact remained as to whether
       the general public’s use of a private road altogether deprived the true owners of the use of
       the easement for the statutory period, such that a public highway had been created by
       prescriptive easement. City of Des Plaines, 365 Ill. App. 3d at 76-77.
¶ 20       Here, as in Chicago Steel and City of Des Plaines, defendants did not allege in their
       pleadings that the Catholic Bishop, the true owner, had been altogether deprived of use of
       the walkway. Defendants argue on appeal that the “possibility that the underlying property
       owner might walk on the property” does not defeat their claim of a prescriptive easement.
       However, the record shows that the circuit court determined that the Catholic Bishop “did
       apparently” walk on the walkway. The record also shows that in response to the allegation
       that “at no relevant time has the Catholic Bishop been altogether deprived of the use and
       possession of the Walkway,” defendants stated, “The nature of the Easement does not
       deprive the Bishop or the Fire Department, of access to or across the Easement property.”
       Further, during arguments before the circuit court, defense counsel stated: “Obviously if the
       Bishop wishes to walk this alleyway he can. Actually anyone can. But we use it every day
       and we’ve used it for over twenty years.” Defense counsel also argued that defendants’ use
       of the walkway was “the critical fact” and that the Catholic Bishop “own[s] the ground, they
       can walk upon it.” Therefore, defendants failed to demonstrate that its possession of the
       walkway was exclusive and we affirm the circuit court’s grant of partial summary judgment.

¶ 21              2. Defendants’ Argument That Exclusivity Does Not Require
                            an Owner Be Altogether Deprived of Use
¶ 22       Defendants, nonetheless, argue that in order to establish an easement by prescription, the
       element of exclusivity did not require defendants to establish that the true owner was
       altogether deprived of use of the walkway. Defendants cite several cases to support their
       argument that a prescriptive easement may be upheld where both the claimant and true owner
       use the land. However, we find that the cases cited by defendants are inapposite because they
       do not address the element of exclusivity, which requires that the true owner be altogether
       deprived of use, for establishing a prescriptive easement.
¶ 23       Defendants first rely on Wehde v. Regional Transportation Authority, 237 Ill. App. 3d
       664 (1992), to support their argument. In Wehde, the owners of two land parcels claimed a
       prescriptive easement to a railroad crossing over tracks owned by Metra. In reversing the
       judgment entered in favor of Metra, the appellate court found that a genuine issue of material
       fact existed concerning the adverse, open, notorious, and continuous use of the crossing by
       the property owners. Wehde, 237 Ill. App. 3d at 681-82. Specifically, the appellate court

                                                -5-
       found that there was evidence that the crossing was torn down, but the record did not indicate
       which party tore down the crossing. As a result, the court found that it could not conclude
       that the statutory period for establishing a prescriptive easement was interrupted by the
       destruction of the crossing. Wehde, 237 Ill. App. 3d at 682. The court explained, “not every
       slight or occasional use of the land, even by the owner, will constitute an interruption.”
       Wehde, 237 Ill. App. 3d at 681. Contrary to defendants’ argument, the court in Wehde did not
       address the element of exclusivity with respect to an owner’s use of land, but rather, the court
       considered when an interruption in a claimant’s use of the land will stop the running of the
       statutory easement period. Wehde, 237 Ill. App. 3d at 681-82.
¶ 24       Defendants also rely on Petersen v. Corrubia, 21 Ill. 2d 525 (1961), to argue that
       exclusivity does not require that the true owner be altogether deprived of use of the land. In
       Petersen, the plaintiff claimed a prescriptive easement to an alley running behind her and
       four defendants’ contiguous business properties. Petersen, 21 Ill. 2d at 529-30. Our supreme
       court rejected the defendants’ contention that the plaintiff disavowed a claim of right to any
       use of the areaway and upheld the easement by prescription. Petersen, 21 Ill. 2d at 533-34.
       We find the decision in Petersen inapplicable to the present case where the parties did not
       address the issue of exclusivity and our supreme court did not reach the issue in that case.
¶ 25       Defendants next rely on Thorworth v. Scheets, 269 Ill. 573 (1915), in support of their
       argument that a true owner’s use of land does not defeat an easement by prescription. In
       Scheets, our supreme court upheld a prescriptive easement based on public use, claimed by
       business owners whose properties were situated along a common alleyway against the
       defendant, who owned one of the lots and also used the alleyway. Thorworth, 269 Ill. at 582-
       84. Again, neither the parties nor our supreme court addressed the element of exclusivity in
       that case.
¶ 26       Defendants further rely on Limestone Development Corp. v. Village of Lemont, 284 Ill.
       App. 3d 848 (1996), to argue that the true owner’s use does not defeat a prescriptive
       easement. However, in Limestone, this court determined that a prescriptive easement by
       public use had been established and explained that the extent of the prescriptive easement
       would be determined by the “prescriptive use that led to the easement’s creation.” Limestone,
       284 Ill. App. 3d at 855. This court noted that the true owner’s use of the land was irrelevant
       to determine the scope of the prescriptive easement. Limestone, 284 Ill. App. 3d at 856. Thus,
       Limestone did not consider the element of exclusivity or whether the true owner must be
       altogether deprived of use of the land for a claim of easement by prescription.
¶ 27       Defendants lastly rely on Schultz v. Kant, 148 Ill. App. 3d 565 (1986), to support their
       argument. In Schultz, the appellate court upheld the finding of a prescriptive easement
       running along a river situated on two adjacent lots. In Schultz, the true owner challenged the
       finding that the plaintiffs had used the roadway during the easement period in an open
       manner, such that his knowledge of the use could be inferred. Schultz, 148 Ill. App. 3d at
       570. The appellate court considered the owner’s testimony that he was extremely familiar
       with the areas surrounding his property and plaintiffs’ property, including defendant’s
       testimony that he walked down the river, traveled down the river by boat, and even had flown
       over it. Schultz, 148 Ill. App. 3d at 570. The appellate court found that the evidence showed
       that the defendant possessed actual, as well as inferred, knowledge of the plaintiffs’ use of

                                                 -6-
       the roadway. Schultz, 148 Ill. App. 3d at 571. The appellate court noted that the defendant
       did not challenge the other elements for a prescriptive easement and, therefore, “assume[ed]
       that defendant does not disagree with the trial court’s findings that plaintiffs’ use of the
       roadway was uninterrupted, continuous, and exclusive.” Schultz, 148 Ill. App. 3d at 570.
       Therefore, contrary to defendants’ contention, the appellate court in Schultz did not consider
       the true owner’s use of land with respect to the element of exclusivity to establish an
       easement by prescription.

¶ 28                                3. Courts in Other Jurisdictions
¶ 29        Defendants also argue that this court should adopt the view of the majority of courts that
       either relax or do not require the element of exclusivity for a claim of prescriptive easement
       as it does for a claim of adverse possession. Defendants cite a law review article that
       examines the differences between adverse possession and easements by prescription and
       suggests that since a majority of courts do not apply the exclusiveness requirement with any
       effect, exclusiveness should be eliminated as a requirement for obtaining a prescriptive
       easement. Dena Cohen, Exclusiveness in the Law of Prescription, 8 Cardozo L. Rev. 611
       (1987).
¶ 30        While the Cardozo Law Review article does explain that a majority of courts do not give
       effect to the requirement of exclusiveness, the article also notes that a “sizeable minority of
       courts view exclusiveness as essential” for easements by prescription. Id. at 625-26. The
       article notes that this minority of courts looks for the same acts in prescriptive easement
       claims as they do for title claims by adverse possession. Id. at 626. The article explains that
       there are merits to a strict exclusiveness requirement, including the consideration that
       prescriptive claims, like claims of title by adverse possession, generally are disfavored since
       they transfer property rights without the landowner’s consent. The article explains:
                “A strict exclusiveness requirement encourages a claimant to exclude the landowner
                who seeks to participate in the use in order to continue his prescriptive claim. If this
                occurs, the landowner receives clear notice that his rights are being invaded and he
                has an opportunity to prevent the easement from arising. Additionally, once a
                claimant knows that he must exclude others, he will be encouraged to bargain with
                the landowner for an easement by grant. In this way, both the claimant and the
                landowner gain something in exchange for the transfer. Moreover, if the claimant
                successfully uses the land exclusively for the prescriptive period, this indicates that
                the landowner has not kept himself informed about his land or does not care that it
                is being used by another. In either case, the usual hesitancy surrounding land transfers
                is diminished.” Id. at 626-27.
       This court’s previous holdings in Chicago Steel and City of Des Plaines make clear that in
       Illinois, exclusivity is a necessary element to establish an easement by prescription. Chicago
       Steel, 200 Ill. App. 3d at 705; City of Des Plaines, 365 Ill. App. 3d at 76. Since prescriptive
       easements over land, being acquired in the manner of adverse possession, are disfavored in
       law, the burden of proving a prescriptive right, including the element of exclusivity, is on the
       party alleging such right. Bogner, 343 Ill. App. 3d at 270, Illinois District of American


                                                 -7-
       Turners, Inc. v. Rieger, 329 Ill. App. 3d 1063, 1073 (2002).
¶ 31       We find no reason to depart from this court’s previous holdings that require the element
       of exclusivity to establish an easement by prescription.

¶ 32                                  III. CONCLUSION
¶ 33       For the above reasons, we affirm the partial grant of summary judgment in favor of the
       Catholic Bishop where defendants failed to establish the element of exclusivity as required
       for a claim of easement by prescription.
¶ 34       Affirmed.




                                               -8-
