                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                       Hahn v. County of Kane, 2012 IL App (2d) 110060




Appellate Court            MARJORIE C. HAHN, Successor Trustee to Robert C. Hahn, Trustee
Caption                    Under Trust Agreement Dated November 13, 1998, Plaintiff and
                           Counterdefendant-Appellant and Cross-Appellee, v. THE COUNTY OF
                           KANE and THE CITY OF ST. CHARLES, Defendants-Appellees
                           (Internal Combustion, LLC, Defendant and Counterplaintiff-Appellee and
                           Cross-Appellant).



District & No.             Second District
                           Docket No. 2-11-0060


Filed                      January 18, 2012


Held                       Where plaintiff granted defendant county a drainage easement on
(Note: This syllabus       property plaintiff owned near an intersection that was in the process of
constitutes no part of     being improved and then another defendant purchased an adjacent parcel
the opinion of the court   owned by plaintiff at the intersection and began using the servient
but has been prepared      property for drainage from its parcel, the trial court erred in entering
by the Reporter of         judgment for defendants based on the finding that the county assigned a
Decisions for the          right to use the easement to the purchaser of the parcel, since the county
convenience of the         was not entitled to assign to another party a right to join in the use of the
reader.)
                           easement and the county’s action went beyond both the civil rule
                           providing that the owner of higher ground may allow surface water to
                           follow its natural course and may construct artificial devices to make the
                           flow more efficient and the good husbandry exception providing that the
                           flow of surface water may be increased if required for proper husbandry;
                           however, the cause was remanded for consideration of the affirmative
                           defenses raised by defendants.
Decision Under             Appeal from the Circuit Court of Kane County, No. 10-MR-277; the Hon.
Review                     Thomas E. Mueller, Judge, presiding.


Judgment                   Affirmed in part and reversed in part; cause remanded.


Counsel on                 Joseph P. Sauber, of Shearer & Agrella, of St. Charles, for appellant.
Appeal
                           Jeffrey S. Torosian and Kimberly M. DeShano, both of Greenberg
                           Traurig, LLP, of Chicago, for appellee Internal Combustion, LLC.

                           Phillip A. Luetkehans and Robert W. Funk, both of Schirott, Luetkehans
                           & Garner, P.C., of Itasca, for appellee City of St. Charles.


Panel                      JUSTICE McLAREN delivered the judgment of the court, with opinion.
                           Justices Burke and Schostok concurred in the judgment and opinion.



                                            OPINION

¶1          Plaintiff, Marjorie C. Hahn, successor trustee to Robert C. Hahn, trustee under a trust
        agreement dated November 13, 1998, appeals from the trial court’s orders denying the Robert
        C. Hahn Trust’s (Hahn) request for an injunction and denying its motion to dismiss the
        counterclaim of defendant Internal Combustion, LLC (IC). In its cross-appeal, IC appeals
        from the trial court’s order entering judgment in favor of Hahn on IC’s counterclaim. We
        affirm in part, reverse in part, and remand.

¶2                                        I. BACKGROUND
¶3          In 1998, Robert C. Hahn deeded to the Robert C. Hahn Trust property on the west side
        of Randall Road, north of Route 64, and within the municipal limits of defendant the City
        of St. Charles (the City). This property was approximately 1,200 feet long and 360 feet wide.
        The property was also adjacent to part of a planned improvement of the intersection of
        Randall Road and Route 64 by defendant the County of Kane (the County), which had
        exclusive jurisdiction over Randall Road. In 2005, Hahn and the County entered into a sales
        agreement. In exchange for approximately $3.6 million, Hahn conveyed to the County: (1)
        a strip of land in fee simple for purposes of widening and improving Randall Road; (2) an
        exclusive and permanent easement on approximately 3.2 acres of property at the north end
        of the Hahn property for “storm water drainage, retention, detention and conveyance, and all
        things appurtenant thereto”; and (3) temporary easements for building, demolition, and

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     grading purposes on other parts of the Hahn property. The permanent easement extended to
     the “respective heirs, successors and assigns” of Hahn and the County. In addition, the
     agreement provided that, under certain circumstances, Hahn could relocate the permanent
     easement to other property.
¶4       In November 2005, Hahn entered into a sales agreement to sell approximately eight acres
     of land at the northwest corner of Randall Road and Route 64 to Resnick Acquisition Corp.,
     which planned to open an auto dealership. This parcel was directly south of the Hahn
     property. The use of the property as a dealership by defendant IC required the issuance of a
     special use permit by the City; IC applied for such a permit, with Hahn signing as record
     owner. An ordinance granting the special use was passed in April 2006. However, various
     other issues, including stormwater detention, prevented the closure of the deal as originally
     contemplated. Hahn agreed to extend the due diligence period of the sales agreement.
¶5       In November 2006, the City and the County entered into an intergovernmental agreement
     (IGA) regarding improvements to Randall Road north of Route 64. Among other things, the
     IGA required the County to expand the existing stormwater management facility located on
     the portion of the Hahn property that was encumbered by the permanent easement, which
     “currently service[d] the needs of the Randall Road Project.” The facility, which had a
     capacity of 11 acre-feet, was to be expanded to 16.6 acre-feet. The County agreed to “permit
     the CITY or their agents, subject to the conditions of the existing easement therefor, to
     construct the incremental additional capacity up to 5.6 [acre-feet] in the future.” The
     construction of additional capacity was to take place “if adjacent development desires to
     manage stormwater with a facility at the location of the afore described stormwater
     management facility.” The County reserved 1.6 acre-feet of the expansion “for the future
     expansion of Randall Road” as contained in its transportation plan and stormwater ordinance;
     “adjacent development” was to be allowed to utilize up to 4 acre-feet of the expansion.
¶6       The sale of the property to IC closed in December 2006, but the next several years were
     spent on planning and financing. On May 19, 2010, the County issued permits for expansion
     and use of the stormwater management facility; two days later, the City issued a building
     permit for the entire IC project, and work on the project began. On June 1, 2010, Hahn filed
     a complaint for declaratory judgment and other relief and a petition for a temporary
     restraining order (TRO) and a preliminary injunction, seeking to enjoin IC from constructing
     the stormwater management facility.1 The trial court denied the request for a TRO, and IC
     filed an answer, affirmative defenses, and a counterclaim against Hahn; in the counterclaim,
     IC alleged breach of the sales agreement. Hahn subsequently filed a three-count amended
     complaint seeking injunctive relief and the prevention of the use of the property for retention
     and detention of stormwater from the IC property.
¶7       After a December 2010 bench trial, the trial court found in favor of IC, the City, and the


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              IC continued the excavation, grading, and drainage work required to expand the stormwater
     detention facility. Eventually, IC completed the expansion, moving five acre-feet of dirt from the
     encumbered Hahn property and laying two pipes from its property onto the easement; one pipe
     extended 100 to 150 feet onto the property, while the other ran 50 to 60 feet onto the land.

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       County on all three counts of Hahn’s amended complaint. The court found that there was no
       language in the easement “which places any restrictions on the county use of the subject land
       in regards to the capacity or size of the stormwater detention facility to be constructed.”
       There was also no evidence of any intent that the easement “would only be used by the
       County for its Randall Road stormwater needs.” Therefore, Hahn’s argument that “the owner
       of the dominant easement may not materially alter the easement so as to place a greater
       burden on the subservient estate is clearly not applicable herein.” The trial court found that
       the easement was “available not only to Kane County, as grantee, but also to the county’s
       heirs, successors and assigns.” As there were “no capacity limitations applicable to the
       county’s assigns, *** there was no reason for [IC] to seek [Hahn’s] approval of its use of the
       detention facility.”
¶8         The court also found that “the natural flow of rainwater on the subject property” ran from
       south to north (IC property to Hahn property) and that the law provides that the owner of the
       higher estate “has the right to allow surface water to follow the natural course of drainage
       onto the lower estate” and may even construct “artificial devices such as ditches or drains”
       to more efficiently carry off surface water. While noting that Hahn, through its attorney, was
       aware as early as 2007 of IC’s desire to use the easement and did not express any opposition
       until 2010, the court did “not make any initial finding that [Hahn] had any rights which were
       waived or forfeited by laches.” The court also denied IC’s counterclaim, finding “no
       evidence of damages at this time.” Both Hahn and IC now appeal.

¶9                                          II. APPEAL
¶ 10        An easement provides a privilege or a right in the use of another’s property. Board of
       Managers of Hidden Lake Townhome Owners Ass’n v. Green Trails Improvement Ass’n, 404
       Ill. App. 3d 184, 190 (2010). An easement appurtenant is defined as “an incorporeal right,
       short of actual ownership, over the land of another.” McGoey v. Brace, 395 Ill. App. 3d 847,
       848 n.1 (2009). The tract of land that is benefitted by the easement is known as the dominant
       estate (or the easement owner), while the land burdened by the easement is known as the
       servient estate. McGoey, 395 Ill. App. 3d at 848 n.1. An easement provides use rights; it does
       not provide ownership rights or an ownership interest in the land. Matanky Realty Group,
       Inc. v. Katris, 367 Ill. App. 3d 839, 842 (2006). The easement owner is entitled to the
       necessary use of the easement. Matanky Realty Group, Inc., 367 Ill. App. 3d at 842.
       “Necessary use” is defined as use that is reasonably necessary for full enjoyment of the
       premises. McCann v. R.W. Dunteman Co., 242 Ill. App. 3d 246, 254-55 (1993). The owner
       of an easement cannot make a material alteration to the character of the easement if the
       alteration would place a greater burden on the servient estate or would interfere with the use
       and enjoyment of the servient estate. Professional Executive Center v. La Salle National
       Bank, 211 Ill. App. 3d 368, 380-81 (1991).
¶ 11        An easement appurtenant runs with the land and may be transferred. Kankakee County
       Board of Review v. Property Tax Appeal Board, 226 Ill. 2d 36, 48 (2007). It passes by
       conveyance of the land to which it is annexed. Beloit Foundry Co. v. Ryan, 28 Ill. 2d 379,
       388 (1963). No one but an owner of land can create an easement over it. Waller v.


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       Hildebrecht, 295 Ill. 116, 120 (1920); Heritage Standard Bank & Trust Co. v. Trustees of
       Schools of Township No. 37 North, Range 12, East of the Third Principal Meridian in Cook
       County, 84 Ill. App. 3d 653, 657 (1980). An easement appurtenant may not be extended by
       the owner of the dominant estate to accommodate other lands for which the easement was
       not originally intended. Beloit Foundry Co., 28 Ill. 2d at 388; McCann, 242 Ill. App. 3d at
       255. Any attempt to use an appurtenant easement for the benefit of nondominant land may
       be enjoined. McCann, 242 Ill. App. 3d at 255.
¶ 12        The interpretation of an easement is a question of law, subject to de novo review. Board
       of Managers of Hidden Lake Townhome Owners Ass’n, 404 Ill. App. 3d at 190. In general,
       an instrument creating an easement is construed in accordance with the parties’ intention,
       which is ascertained from the words of the instrument and the circumstances
       contemporaneous to the transaction, including the state of the thing conveyed and the
       objective to be obtained. River’s Edge Homeowners’ Ass’n v. City of Naperville, 353 Ill.
       App. 3d 874, 878 (2004). However, where the language of an agreement is facially
       unambiguous, the trial court interprets the contract as a matter of law, without the use of
       extrinsic evidence. River’s Edge Homeowners’ Ass’n, 353 Ill. App. 3d at 878.
¶ 13        Here, Hahn sold the County a strip of land for the purposes of widening and improving
       Randall Road. At the same time, it granted to the County and its “heirs, successors and
       assigns” an “exclusive permanent easement” for the purpose of stormwater “drainage,
       detention, retention, and conveyance over, upon, under, across, on and through the Easement
       Premises.” The trial court found that the easement was “available not only to Kane County,
       as grantee, but also to the county’s heirs, successors and assigns” and that, since there were
       “no capacity limitations applicable to the county’s assigns, *** there was no reason for [IC]
       to seek [Hahn’s] approval of its use of the detention facility.” There is no assertion that IC
       is an heir or successor to the County. However, the trial court found IC to be an assign of the
       County; in doing so, it misinterpreted the term “assign,” giving it no more meaning than that
       of a party that has been invited to partake of the use and enjoyment of the easement. This was
       error, as a matter of law.
¶ 14        The County did not assign to IC its right in the use of Hahn’s property. An assignment
       is the transfer of some identifiable right, property or claim from the assignor to the assignee.
       Toepper v. Brookwood Country Club Road Ass’n, 204 Ill. App. 3d 479, 489 (1990). It
       operates to transfer to the assignee all of the assignor’s right, title, and interest in whatever
       is assigned. Toepper, 204 Ill. App. 3d at 489. In addition, an easement passes by conveyance
       of the land to which it is annexed. Beloit Foundry Co., 28 Ill. 2d at 388. There was no such
       transfer here; the County neither transferred any rights nor conveyed any property. It kept its
       right to use the easement. The trial court’s finding that IC was the County’s assign was
       erroneous.
¶ 15        While not assigning its rights in the easement, however, the County extended an
       invitation, through the IGA, to “adjacent development” to partake of the easement for
       stormwater management needs. As we have stated, an easement may not be extended by the
       owner of the dominant estate to accommodate other lands for which the easement was not
       originally intended. Beloit Foundry Co., 28 Ill. 2d at 388; McCann, 242 Ill. App. 3d at 255.
       Clearly, the grant of an easement does not contemplate an open invitation to “adjacent

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       development” to divert stormwater onto the easement property. No one but an owner of land
       can create an easement over it. Waller, 295 Ill. at 120.
¶ 16        In addition, the IGA does not expand the County’s power over the Hahn property. The
       City argues that this case involves not a “full transfer of the easement” but “the concurrent
       use of rights by two governmental agencies under the IGA.” Section 10 of article VII of the
       Illinois Constitution provides that units of local government may contract with each other to
       share or obtain services and to exercise, combine, or transfer any power or function if not
       otherwise prohibited by law. Ill. Const. 1970, art. VII, § 10. Further, the Illinois
       Intergovernmental Cooperation Act (Act) provides that local governmental units may jointly
       exercise powers, privileges, functions, or authority except where specifically and expressly
       prohibited by law. See 5 ILCS 220/3 (West 2008). Even if, as the City argues, the
       constitution and the Act encourage governmental bodies to transfer and share powers, neither
       the constitution nor the Act allows governmental bodies to transfer and share their powers
       with “adjacent development,” such as an auto dealership, that wants to use government
       property rights as its own. The County cannot use the IGA as a conduit through which it can
       share with another party, especially with another private entity, the use of its easement over
       private property.
¶ 17        The County, as easement owner, is entitled to the necessary use of the easement. See
       Matanky Realty Group, Inc., 367 Ill. App. 3d at 842. “Necessary use” is defined as use that
       is reasonably necessary for full enjoyment of the premises. McCann, 242 Ill. App. 3d at 254-
       55. The trial court noted that the easement contained “no capacity limitations applicable to
       the county’s assigns.” While this is true, it is also irrelevant. The County is not precluded
       from expanding the capacity of the stormwater detention facility for its own needs and “full
       enjoyment.” However, even a dominant estate is not free to invite whomever it wishes to join
       in the use of an easement just because there is room to do so. We conclude that the trial court
       erred in finding that IC was an assign of the County such that it obtained the County’s rights
       to use of the Hahn property under the easement.
¶ 18        The trial court also noted that “the natural flow of rainwater on the subject property” ran
       from south to north (IC property to Hahn property) and that the law provides that the owner
       of the higher estate “has the right to allow surface water to follow the natural course of
       drainage onto the lower estate” and may even construct “artificial devices such as ditches or
       drains” to more efficiently carry off surface water. This is known as the “civil rule.” See
       Bollweg v. Richard Marker Associates, Inc., 353 Ill. App. 3d 560, 573-74 (2004). The owner
       of the servient estate is not required to receive surface water in different quantities or at
       different times than would come to his land ordinarily; however, pursuant to the “good
       husbandry” exception, the owner of a dominant estate may increase or alter the flow of water
       upon a servient estate if it is required for the proper husbandry or reasonable development
       of the dominant estate. Bollweg, 353 Ill. App. 3d at 574. Even with this exception, the
       dominant estate’s right to increase the rate or amount of runoff onto the servient estate is not
       unlimited. Bollweg, 353 Ill. App. 3d at 574.
¶ 19        The actions taken by IC, the County, and the City in this case go well beyond the civil
       rule and the good husbandry exception. In order to handle the flow and detention of
       stormwater from IC and other “adjacent development,” four acre-feet of soil had to be

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       removed from the Hahn property. In addition, water pipes extending from 150 to 210 feet
       were placed on the Hahn property. Even good husbandry does not allow for such a
       substantial incursion on a servient estate.
¶ 20       Defendants raised various affirmative defenses in the trial court, including laches,
       waiver, unclean hands, failure to exhaust administrative remedies, and adequate remedy at
       law. While the court found that Hahn, through its attorney, was aware as early as 2007 of
       IC’s desire to use the easement for stormwater detention but did not express opposition until
       2010, the court did not base its decision on the defense of laches, nor did it make any initial
       finding that Hahn had any rights that were waived or forfeited by laches. The court did not
       even address any of the other defenses. As we have determined that the court erred in
       entering judgment in defendants’ favor based on its finding that IC was an assign of the
       County under the easement, we must remand the cause for the court’s consideration of the
       affirmative defenses.

¶ 21                                    III. CROSS-APPEAL
¶ 22        IC filed a counterclaim against Hahn, alleging that Hahn breached the purchase
       agreement for the IC property by objecting to IC’s use of the stormwater detention facility
       and instituting its case for injunctive relief. IC sought damages for the resistance to the
       expansion and sought attorney fees and costs for its successful prosecution of the suit. The
       trial court entered judgment on the counterclaim in favor of Hahn, as it found “no evidence
       of damages at this time.” IC appeals from the entry of that judgment. The counterclaim
       alleged that Hahn’s actions in resisting the expansion of the easement were a breach of the
       contract. We deem neither that such appropriate actions by Hahn violated the contract nor
       that IC has successfully prosecuted this suit; thus, we agree that the counterclaim should have
       been denied.
¶ 23        IC also cross-appeals from the trial court’s denial of its motion for judgment on the
       pleadings on Hahn’s amended complaint. Judgment on the pleadings is proper only if
       questions of law, and no questions of fact, exist after the pleadings are filed. Millers Mutual
       Insurance Ass’n of Illinois v. Graham Oil Co., 282 Ill. App. 3d 129, 134 (1996). Our review
       is de novo. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003).
¶ 24        In its motion, IC argued that Hahn’s claims sounded in quo warranto and that Hahn had
       failed to meet the requirements for such a claim. The trial court denied the motion, stating
       that Hahn was “not limited to an action in quo warranto.”
¶ 25        A quo warranto action challenges a governmental body’s authority to act. The Reserve
       at Woodstock, LLC v. City of Woodstock, 2011 IL App (2d) 100676, ¶ 35. Hahn challenged
       the County’s ability to assign its rights under the easement and also alleged that the County
       would violate various ordinances and constitutional clauses by allowing the use of the
       encumbered property. However, several of the allegations cited by IC clearly sounded in
       contract law, not quo warranto. For example, the allegation that “Kane County cannot assign
       its easement rights to St. Charles or [IC]” (emphasis in original) and that “Kane County has
       no authority to allow [IC] to use the Easement,” while speaking to the County’s ability to act,
       challenged not exclusively the County’s right or authority to act as a county but its rights and

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       authority to act as the grantee of an easement. Quo warranto was not the exclusive remedy
       sought, or even alleged, here, and we find no error in the trial court’s denial of IC’s motion.

¶ 26                                   IV. CONCLUSION
¶ 27      For these reasons, the judgment of the circuit court of Kane County is affirmed in part
       and reversed in part, and the cause is remanded for further proceedings consistent with this
       opinion.

¶ 28      Affirmed in part and reversed in part; cause remanded.




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