                                        2018 IL App (3d) 160715

                                Opinion filed January 3, 2018
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2018

     RAINBOW COUNCIL BOY SCOUTS             )     Appeal from the Circuit Court
     OF AMERICA,                            )     of the 13th Judicial Circuit,
                                            )     Grundy County, Illinois.
           Plaintiff-Appellee,              )
                                            )     Appeal No. 3-16-0715
           v.                               )     Circuit No. 14-CH-153
                                            )

     LORETTA HOLM, ADAM HOLM,               )

     DANIEL HOLM, NICHOLAS HOLM,            )     Honorable

     and UNKNOWN OWNERS OF RECORD           )     Eugene P. Daugherity,

     AND PARTIES IN POSSESSION,             )     Judge, Presiding.

                                            )

           Defendants-Appellants.           )

                                            )

     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justices McDade and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          The plaintiff, Rainbow Council Boy Scouts of America, sought equitable relief regarding

     access to a path that went on to adjacent property owned by the defendants, Loretta, Adam,

     Daniel, and Nicholas Holm. The plaintiff’s petition for a permanent injunction and a prescriptive

     easement was granted, and the defendants appealed.

¶2                                               FACTS
¶3           The plaintiff operated property for the Boy Scouts adjacent to land owned by the

     defendants. At some point, the parties started feuding over an unpaved access road, or path, that

     crossed over onto the defendants’ property. The plaintiff filed a motion for a temporary

     restraining order (TRO), alleging that the defendants had made the path impassable. The trial

     court denied the TRO without prejudice and set the case for a hearing on preliminary injunctive

     relief. After that hearing, the trial court granted the plaintiff a temporary injunction to maintain

     the status quo. The matter was set for a hearing on the petition for a permanent injunction and

     complaint for declaratory relief on the grounds of prescriptive easement.

¶4           At the hearing for permanent relief, the parties stipulated as to the property lines. They

     also stipulated that the testimony of the witnesses called at the preliminary injunction hearing

     would be the same, and the trial court admitted the transcript of that hearing as an exhibit. At

     issue was a dirt path used by the plaintiff for access from its entrance on Winterbottom Road,

     over a dam, to the back portion of the plaintiff’s property. The path over the dam was the means

     by which the plaintiff could cross from the front to the back of its property, which was split by a

     lake. Margaret Heard, the treasurer of the Deer Lake Dam Association, had testified at the

     preliminary injunction hearing that the plaintiff had written permission from the Deer Lake Dam

     Association to cross back and forth across the portion of the dam owned by the Dam

     Association. Joshua Jansen, a district executive with the Rainbow Council Boy Scouts of

     America, had testified at the preliminary injunction hearing that the path in question was 10 to 12

     feet wide and was used by the Boy Scouts to reach the back side of the camp, both on foot and

     with all-terrain vehicles.

¶5           According to the survey that the parties stipulated was accurate, a portion of the path

     crossed over onto the defendants’ property prior to reaching the dam. Daniel Holm, one of the


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     defendants who lived at the property, testified that approximately 150 feet of the path crossed

     over on to the defendants’ property. Daniel testified that the path had been there for many years,

     before the plaintiff or the defendants owned their respective properties, but he only knew of the

     plaintiff using it since his grandfather died in 2011. Daniel testified that the plaintiff could access

     the back of its property by driving around to Whitetie Road, a distance of about five or six miles.

     Daniel also testified that the Boy Scouts had been trespassing on the defendants’ driveway and

     that the plaintiff was not acting to prevent the use of the driveway. In support, a video was shown

     of a Boy Scout bus turning around in the defendants’ driveway and causing tire ruts, which

     occurred after the preliminary injunction was entered. The video also showed a heated exchange

     between an employee of the plaintiff and one of the defendants. Daniel acknowledged that the

     plaintiff had put up two signs along Winterbottom Road directing people coming to the camp to

     proceed to the end of the road, but people still turned into their driveway.

¶6          Edward Karns, the chief executive officer of Rainbow Council Boy Scouts of America,

     testified that the plaintiff was using the path when he started working for the plaintiff in 1988,

     but he thought the various paths had been there since the 1960s. Karns testified that there was

     some access to the back side of the plaintiff’s property via Whitetie Road, but it would require a

     six- or seven-mile drive around the property and would not provide sufficient access for

     emergency personnel to the back half of the plaintiff’s property. The only other option to reach

     the back side of the property was to ferry boys across the lake in a row boat. Karns testified that

     map applications directed traffic to the camp to the defendants’ driveway. To prevent people

     from turning down the defendants’ driveway, the plaintiff contacted Google and other

     organizations to get the mapping changed, with no luck. The plaintiff had also put up signs on




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       Winterbottom Road directing traffic to the camp to the end of the road. The plaintiff also sent out

       maps to the troops coming to the camp.

¶7             The trial court granted the permanent injunction, concluding that the plaintiff had a

       clearly ascertainable legal right, a prescriptive easement, to use the path over the dam to access

       the property that was separated by the dam, the defendants were interfering with that right, and

       that constituted an irreparable injury because it deprived the plaintiff of the peaceable enjoyment

       of their property. The trial court concluded that there was no evidence of unclean hands or a lack

       of good faith that would preclude injunctive relief. The trial court also concluded that the

       plaintiff had a prescriptive right to use the path, so whether there was other access available to

       the plaintiff was irrelevant to that use, but even if relevant, necessity had been established due to

       the virtue of possible emergency access and the economic burden of establishing an alternate

       roadway. The defendants appealed.

¶8                                                 ANALYSIS

¶9            The defendants argue that a lack of necessity, the clean hands doctrine, and the balancing

       of the hardships barred the issuance of the permanent injunction allowing the plaintiff to use the

       path on the defendants’ property and enjoining the defendants from interfering with that use. The

       plaintiff contends that the trial court’s factual conclusions were not against the manifest weight

       of the evidence and its grant of a permanent injunction was not an abuse of discretion.

¶ 10          An easement is a nonpossessory interest in another person’s land. Nationwide Financial,

       LP v. Pobuda, 2014 IL 116717, ¶ 28. To establish an easement by prescription, the claimant

       must prove the use of the land for at least 20 years was adverse, exclusive, continuous,

       uninterrupted, and under a claim of right inconsistent with that of the true owner. Id. ¶ 27. The

       party claiming the easement bears the burden of proving distinctly and clearly all the elements of


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       the easement. Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶ 68. Whether those elements

       have been proven involve questions of fact, so we will affirm the trial court’s ruling regarding a

       prescriptive easement unless it was against the manifest weight of the evidence. Id. ¶ 69.

¶ 11          The trial court found that the plaintiff had established that it had a prescriptive easement

       over that portion of the path that passed onto the defendants’ land between the plaintiff’s land

       and the land over the dam owned by the Deer Lake Dam Association. The plaintiff had been

       repeatedly using the path since at least 1988 under a claim of right, without permission from the

       defendants. Although the plaintiff was not the only party to use the path, its right to do so did not

       depend on a like right in others, so it was exclusive. See Nationwide Financial, LP, 2014 IL

       116717, ¶ 33 (exclusivity does not mean that no one used the easement other than the claimant of

       the easement; it only means that the claimant’s right does not depend on a like right in others).

       We find that the trial court’s conclusion that the plaintiff distinctly and clearly proved all the

       elements of the prescriptive easement was not against the manifest weight of the evidence.

¶ 12          In any event, the defendants do not challenge those factual findings on appeal. Instead,

       they argue that injunctive relief was not warranted because of a lack of necessity, the clean hands

       doctrine, and the balancing of the hardships. The trial court considered and rejected all of those

       arguments. We review the grant of injunctive relief for an abuse of discretion. Brandhorst, 2014

       IL App (4th) 130923, ¶ 94.

¶ 13          The clean hands doctrine operates to bar equitable relief to a party asking for such relief

       if that party has been guilty of misconduct, fraud, or bad faith in connection with the matter in

       dispute. Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 26. The defendants

       argue that the plaintiff did not have clean hands because it did not warn its invitees to avoid

       trespassing on the defendants’ property, it failed to supervise the Boy Scouts, and an employee


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       of the plaintiff was verbally abusive. The evidence showed that the plaintiff did attempt to

       prevent its invitees from accidently turning down the defendants’ driveway by posting signs and

       contacting online mapping websites including Google Maps to correct its website’s

       misinformation about the location of the camp. Further, there was no evidence that the plaintiff

       directed anyone to damage defendant’s property. The incident on the video showing the

       argument with the employee of the plaintiff and defendant was in the context of an ongoing,

       contentious property dispute. As such, there was no abuse of discretion in the trial court’s

       conclusion that there were no actions by the plaintiff arising to a level sufficient to bar injunctive

       relief. See Mascenic v. Anderson, 53 Ill. App. 3d 971, 972 (1977) (the doctrine of unclean hands

       is not favored by the courts and its application is a matter of discretion).

¶ 14          As the trial court found, the issue of necessity was irrelevant to the legal finding of a

       prescriptive easement. However, it was arguably relevant to the defendants’ argument that the

       balancing of the hardships favored a denial of the permanent injunction. See Nitterauer v. Pulley,

       401 Ill. 494 (1948) (when an encroachment is slight, the cost of removal great, and the benefit of

       removal small, courts will generally refuse injunctive relief). The defendants argue that the

       plaintiff had other options to reach the back half of its property, and it could have incurred the

       cost of upgrading roads rather than “taking” the defendants’ property for access. The trial court

       found, however, that there was a necessity for access to the path because, even if there had never

       been an emergency, the possibility of an emergency existed. Also, due to the topography of the

       area, there was no existing alternative access and establishing such access would be an economic

       burden to the plaintiff. Considering the trial court’s factual findings, and the fact that the




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       defendants were not ordered to remove any encroachments 1 but only to allow the plaintiff to

       access the path, we find that there was no abuse of discretion in granting the permanent

       injunction.

¶ 15                                              CONCLUSION

¶ 16           The judgment of the circuit court of Grundy County is affirmed.

¶ 17           Affirmed.




               1
                In the order granting preliminary injunctive relief, the defendants were ordered to remove
       downed trees that blocked the path. According to the record, that had already been accomplished by the
       time of the hearing on the permanent injunction.
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