Filed 12/8/09             NO. 4-08-0393

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

GEORGE H. PERBIX, JR., Trustee of the )     Appeal from
GEORGE H. PERBIX, JR., TRUST, Dated    )    Circuit Court of
March 22, 1991; JOHN C CHABUT,         )    Morgan County
Trustee of the JO ELLEN PERBIX KUZILA )     No. 05L2
TRUST, Dated November 30, 1998; and    )
JILL PERBIX CHABUT, Trustee of the     )
JILL PERBIX CHABUT TRUST, Dated        )
December 24, 1991,                     )
          Plaintiffs-Appellants,       )
          v.                           )    Honorable
VERIZON NORTH, INC., a Corporation,    )    Richard T. Mitchell,
          Defendant-Appellee.          )    Judge Presiding.
_________________________________________________________________

          JUSTICE POPE delivered the opinion of the court:

          In January 2005, plaintiffs, George H. Perbix, Jr.,

trustee of the George H. Perbix, Jr., trust, dated March 22,

1991; John C. Chabut, trustee of the Jo Ellen Perbix Kuzila

trust, dated November 30, 1998; and Jill Perbix Chabut, trustee

of the Jill Perbix Chabut trust, dated December 24, 1991, filed a

two-count complaint seeking (1) declaratory relief, which would

require defendant, Verizon North, Inc. (Verizon), to remove its

telecommunications cables from a 6.883-acre parcel owned by these

three trusts and (2) a finding that Verizon's failure to remove

its cables constituted trespass.   Hereinafter, for ease, we refer

to the plaintiff trusts as "the Trusts" and the individuals who

established the Trusts and their predecessors in interest, who

owned the land prior to its placement in these trusts, as "the

Perbix family."

          In March 2005, Verizon filed its answer, (1) denying
the Trusts were entitled to declaratory relief, (2) asserting

affirmative defenses, and (3) counterclaiming for (a) declaratory

relief and (b) an injunction.    In April 2007 and July 2007,

Verizon and the Trusts filed respective motions for summary

judgment.    In May 2008, the trial court granted Verizon's motion

for summary judgment, finding Verizon possessed an express

easement over the contested 6.883-acre parcel.

            The Trusts appeal, arguing the trial court erred by

granting Verizon's motion for summary judgment and denying the

Trusts' motion for summary judgment.      According to the Trusts,

Verizon was not entitled to keep its utility lines on the 6.883-

acre parcel of property, which were installed in that particular

location pursuant to a revocable license created by an Illinois

Department of Transportation (IDOT) utility permit.      We reverse

and remand with directions.

                          I. BACKGROUND

            Because (1) the parties are familiar with the location

of the real property in this case and (2) the precise location

and grid coordinates are not fundamental to the issues presented,

we have omitted precise locations and coordinates.

            In October 1965, the Perbix family granted General

Telephone Company of Illinois (GTE)--which would later become

Verizon--an express easement over a parcel of land it owned that

(1) abutted old United States Highway 36 on the north and south

and (2) was commonly known as section 26.     The easement autho-

rized GTE "to construct, operate, patrol and maintain its commu-


                                - 2 -
nication lines[,] including necessary underground cables, wires,

conduits, splicing boxes, surface terminals, markers, and appur-

tenances upon, over and across" section 26.    The next year, GTE

installed underground cables, which ran parallel and immediately

adjacent to old U.S. Highway 36 on the north side of the highway.

            In January 1976, the Perbix family conveyed a 31.53-

acre parcel of section 26 south of old U.S. Highway 36 to IDOT.

IDOT later constructed a highway interchange on this parcel.

(GTE's underground cables remained in their original location

just north of old U.S. Highway 36.)

            In June 1981, the Perbix family granted GTE a "right of

way easement" to construct, operate, patrol, and maintain its

communication lines directly north of the cables it had buried

pursuant to the original 1965 easement.    GTE later installed

additional cables north of its other lines pursuant to this

easement.    (At this point, GTE had two sets of cables running

north of and parallel to old U.S. Highway 36.)

            In June 1995, the Perbix family conveyed an additional

9.109-acre parcel immediately north of old U.S. Highway 36 to

IDOT.   Both of the sets of cables GTE installed pursuant to the

1965 and 1981 easements crossed this 9.109-acre parcel of prop-

erty.   IDOT thereafter planned a redesign of the interchange to

construct an additional ramp.    As a result, IDOT determined that

GTE's cables needed to be relocated to the south side of old U.S.

Highway 36.    Sometime between June 1995 and the completion of

IDOT's redesign in 1996, GTE requested a new easement from the


                                - 3 -
Perbix family, instead of an easement or license from the state,

to install its cables south of old U.S. Highway 36 on the west

side of the remaining property the Perbix family still owned.

The Perbix family declined.

          According to an uncontradicted affidavit from George H.

Perbix, which was attached to the Trusts' memorandum in support

of their motion for summary judgment, he became aware sometime

prior to June 10, 1996, the State might not continue to use a

portion of the 31.53-acre parcel of land the Perbix family sold

to the State in January 1976.    On June 10, 1996, an attorney for

Perbix wrote to IDOT expressing an interest in purchasing any of

the surplus property.    On June 12, 1996, IDOT responded:

               "Presently within the development of the

          U.S. 67 extension, or Jacksonville Bypass to

          which it is commonly referred, there is not

          excess land.   A new interchange is to be con-

          structed at the above reference location.

          The existing ramp which is currently servic-

          ing traffic in the southeast quadrant of the

          proposed interchange will be redesigned dur-

          ing construction.

               There is the possibility that there may

          be some excess land at this location created

          with the redesign of this interchange.   It

          will not be known for certain until the con-

          struction project is completed, and there is


                                - 4 -
          no longer a transportation necessity for all

          properties.   Should any potential excess land

          be designated after completion of construc-

          tion, we will notify your office of such a

          situation and proceed with the process of

          disposal of excess land."

          In August 1996, following the Perbix family's denial of

GTE's request for an easement, GTE submitted a request to IDOT

for a utility permit for the relocation of its cables south of

old Highway 36 onto the land IDOT purchased from the Perbix

family in 1976.   Contrary to its actions with respect to its

request of the Perbix family, GTE did not ask the State to grant

it an easement.   In September 1996, IDOT approved GTE's request

and granted utility permit No. 6-25303.    That same month, IDOT

and GTE entered into an agreement for a reimbursable utility

adjustment in which IDOT agreed to pay 39.7% of the costs associ-

ated with relocating the underground cables.    In 1997, GTE in-

stalled its cables on (1) IDOT's parcel and, at that time, (2)

current state right of way that ran on the eastern edge of the

land south of old Highway 36 that the Perbix family sold to the

State in 1976.

          The redesign of the interchange resulted in unneeded

excess land, i.e., the 6.883 acres.    In June 1999, IDOT informed

George H. Perbix of the excess property.    IDOT stated it would

prepare an excess land plat and obtain an appraisal of this

parcel.   According to George H. Perbix's uncontradicted affida-


                               - 5 -
vit, prior to IDOT obtaining the appraisal of the 6.883-acre

parcel, IDOT removed the original exit ramp from the southeast

quadrant of the interchange, filled the ditch that was parallel

to the ramp, and created a surface on the 6.883-acre tract with

contours similar to those in existence in 1976.

          In November 2001, IDOT informed George H. Perbix it had

received and reviewed the appraisal for the 6.883-acre parcel.

IDOT told George H. Perbix to remit a $3,000 cashier's check to

IDOT for the property so that IDOT could request the directed

sale of the 6.883-acre parcel of property to George H. Perbix be

included in the annual highway bill submitted to the Illinois

General Assembly during the 2002 spring legislative session.

IDOT was authorized to sell the parcel to the Trusts in August

2002 pursuant to Public Act 92-0843.

          In September 2002, the State of Illinois, acting

through IDOT, executed a quitclaim deed conveying the property at

issue in this case to the Trusts.    (GTE's underground cables,

which it had moved in 1997, ran, in part, along the eastern

border of this 6.883-acre parcel.)    The quitclaim deed did not

reserve a license or easement for Verizon to keep and/or maintain

its utility lines on the 6.883-acre parcel.    According to the

uncontradicted affidavit of George H. Perbix, no one from IDOT

informed him or anyone else acting on behalf of the Trusts of the

issuance of utility permit No. 6-25303, dated September 24, 1996,

or revised utility permit No. 6-25303, dated October 30, 1996, or

of the existence of the underground cables on the 6.883-acre


                              - 6 -
parcel.

           In the spring of 2003, the Trusts began excavation work

on the 6.883-acre parcel acquired from IDOT in 2002.    Preparation

for this excavation work revealed the underground cables that

GTE--which was then Verizon--had installed on the eastern border

of that parcel pursuant to its September 1996 agreement with

IDOT.

           In June 2003, George H. Perbix wrote to IDOT, inquiring

about permits or agreements between IDOT and GTE regarding the

cables running across the 6.883-acre parcel.    In September 2003,

George H. Perbix requested a copy of associated utility agreement

No. U-6-97-009.    In October 2003, IDOT provided copies of utility

agreement No. U-6-97-009 and utility permit No. 6-25303.    In

November 2003, George H. Perbix wrote to IDOT requesting further

information about the utility permit and utility agreement.      In

December 2003, IDOT responded to George H. Perbix, indicating

IDOT was unable to find documents or notes of conversations about

the utility permit and agreements relative to the sale of the

6.883-acre parcel of property.

           In January 2004, George H. Perbix wrote to Verizon,

informing Verizon that it must remove the cables on the 6.883-

acre parcel because Verizon did not have an easement over that

tract.    In August 2004, Verizon responded it was not legally

obligated to move the cables.    In November 2004, the Trusts sent

Verizon a notice, purporting to terminate its "license" under

utility permit No. 6-25303, which IDOT had previously granted to


                                 - 7 -
GTE, Verizon's predecessor in interest.   In December 2004,

Verizon responded it had the right to occupy the property pursu-

ant to the utility permit, as well as the easements previously

granted to GTE by the Perbix family.   Verizon stated in the

letter the costs to relocate its facilities would be approxi-

mately $40,000.

          In January 2005, the Trusts filed a two-count complaint

against Verizon, seeking (1) declaratory relief, which would

require Verizon to remove its telecommunications cables from the

6.883-acre parcel owned by the Trusts and (2) a finding Verizon's

failure to remove its cables constituted trespass.   In March

2005, Verizon filed its answer, (1) denying the Trusts were

entitled to declaratory relief, (2) asserting affirmative de-

fenses, and (3) counterclaiming for (a) declaratory relief and

(b) an injunction.

          In April 2007 and July 2007, Verizon and the Trusts

filed respective motions for summary judgment.   In May 2008, the

trial court (1) granted Verizon's motion for summary judgment,

finding that, as a matter of law, (a) the cables were originally

placed on the eastern border of the 6.883-acre parcel with the

consent of IDOT, the then fee-owner of the parcel, and (b) that

consent, together with the October 1965 express easement over all

of section 26 from the Perbix family, authorized Verizon to place

its cables south of Highway 36--which included the eastern border

of the 6.883-acre parcel--and (2) denied the Trusts' motion for

summary judgment.


                              - 8 -
           This appeal followed.

                            II. ANALYSIS

           The Trusts argue the trial court erred (1) in granting

Verizon's motion for summary judgment, finding Verizon was enti-

tled to maintain its telecommunication cables in their current

location pursuant to the 1965 easement and the utility permit,

and (2) in denying the Trusts' motion for summary judgment be-

cause Verizon's lines were installed pursuant to a license,

subject to revocation by the Trusts.

           "With a summary-judgment motion, the trial court does

not decide a question of fact but, rather, determines whether one

exists."   Coole v. Central Area Recycling, 384 Ill. App. 3d 390,

396, 893 N.E.2d 303, 309 (2008).   Therefore, a court may not

weigh evidence or make credibility determinations when deciding a

summary-judgment motion.    Coole, 384 Ill. App. 3d at 396, 893

N.E.2d at 309.

           We review de novo rulings on motions for summary judg-

ment, (1) examining the pleadings and depositions anew to deter-

mine whether a question of material fact exists and as a matter

of law, that the movant was entitled to judgment, and (2) giving

no deference to the trial court's ruling.     Interior Crafts, Inc.

v. Leparski, 366 Ill. App. 3d 1148, 1151, 853 N.E.2d 1244, 1247

(2006).    "[W]e may affirm a trial court's grant of summary judg-

ment on any basis appearing in the record."    State Automobile

Mutual Insurance Co. v. Habitat Construction Co., 377 Ill. App.

3d 281, 291, 875 N.E.2d 1159, 1168 (2007).


                                - 9 -
          Both the Trusts and Verizon agree the 1965 easement the

Perbix family granted to GTE was a "floating easement."    A float-

ing easement is "[a]n easement that, when created, is not limited

to any specific part of the servient estate."   Black's Law Dic-

tionary 528 (7th ed. 1999).

          "[W]here an easement granted by deed is unde-

          fined as to its location and width, the di-

          mensions depend upon the intent of the par-

          ties, which can be shown by the extent of the

          actual use.   Consequently, '"[w]hen the char-

          acter of [the] easement is once fixed, no

          material alterations can be made by either

          the servient or easement owner without the

          other's consent."'"    Peters v. Milks Grove

          Special Drainage Dist. No. 1, 243 Ill. App.

          3d 14, 18-19, 610 N.E.2d 1385, 1389 (1993),

          quoting Vallas v. Johnson, 72 Ill. App. 3d

          281, 284, 390 N.E.2d 939, 942 (1979), quoting

          25 Am. Jur. Easements §87 (1966).

In its brief before this court, Verizon "acknowledge[d] that the

placement of its cables in 1966 established the initial parame-

ters of the 1965 easement."

          According to Verizon's brief, after the parameters of

the 1965 easement were established, "Verizon could not unilater-

ally relocate the easement; the consent of the servient estate

owner was a prerequisite to relocation."   However, Verizon con-


                                - 10 -
tends it had the consent of the State, the servient estate owner,

in 1997 to move its cables to their current location on the

6.883-acre parcel of land in question.      The Trusts argue the

State did not consent to the relocation of the easement itself.

According to the Trusts, the State only gave Verizon a license to

place its cables on the 6.883 acres.

            We agree with the Trusts.   The State did not consent to

the relocation of the easement.    The State merely granted GTE

permission pursuant to a utility permit to relocate the cables,

not the easement, to their current location on the subject prop-

erty.   As a result, the location of the easement was not moved;

nor was a new easement created.

            When the State determined GTE's lines had to be moved

to accommodate additional highway construction, GTE could not

acquire an easement on the ground the Perbix family still owned

immediately east of the 6.883 acres in question in this case.       As

a result, it sought a utility permit for the relocation of its

telephone cables adjacent to old U.S. Highway 36 to be placed on

the right-of-way of the state highway known as FAP310.      This

location was to the immediate west of the Perbix family's real

estate over which GTE had requested, unsuccessfully, to move its

easement.    As we noted earlier, although GTE tried to acquire an

easement from the Perbix family to relocate its lines, it never

sought an easement from the State.      It requested and received

only a permit.

            Pursuant to a revised utility permit granted by IDOT in


                               - 11 -
October 1996, GTE installed, in 1997, copper and fiber-optic

cables on property owned by the State of Illinois.       The revised

utility permit, on its face, was subject to the conditions and

restrictions of section 530 of Title 92 of the Illinois Adminis-

trative Code (Administrative Code) (92 Ill. Adm. Code §530, as

amended by 16 Ill. Reg. 2193 (eff. January 27, 1992)), and the

implementing regulations for section 9-113 of the Illinois High-

way Code (Highway Code) (605 ILCS 5/9-113 (West 1996)). Section

9-113(d) of the Highway Code provides:

            "In no case shall the written consent of the

            State highway authority give or be construed

            to give any entity any easement, leasehold[,]

            or other property interest of any kind in,

            upon, under, above[,] or along the non[]toll

            federal-aid fully access-controlled State

            highway right-of-way."   605 ILCS 5/9-113(d)

            (West 1996).

Thus, GTE was on notice it was only getting a permit and not an

easement.

            Section 530.40(b) of Title 92 of the Administrative

Code provides, "A permit from the Department grants a license

only *** and does not create a property right ***."        92 Ill. Adm.

Code §530.40(b), as amended by 16 Ill. Reg. 2212 (eff. January

27, 1992).    Further, subsection (h) provides:

                 "In no case shall the permit give or be

            construed to give an entity any easement,


                               - 12 -
          leasehold or other property interest of any

          kind in, upon, under, above[,] or along the

          State highway right-of-way."    92 Ill. Adm.

          Code §530.40(h), as amended by 16 Ill. Reg.

          2213 (eff. January 27, 1992).

          Thus, by express statutory and Administrative Code

language, the granting of a permit, which IDOT did in this case,

cannot constitute the granting of an easement.    Thus when the

Trusts acquired the 6.883-acre tract, GTE's lines were placed

there pursuant to a permit.   Thus Verizon held only a permitted-

use license.

               "A license in respect to real property

          is permission to do an act upon the land of

          another without possessing any estate or in-

          terest in such land. [Citation.]    A parol

          license is revocable, although a consider-

          ation has been paid or expenditures have been

          made on the faith of the agreement, except

          when revocation would operate as a fraud upon

          the licensee."   Wilder v. Finnegan, 267 Ill.

          App. 3d 422, 427, 642 N.E.2d 496, 501 (1994).

Verizon has made no allegations of fraud in this case.

          While the State could have, when transferring the

property to the Trusts, reserved an easement for the benefit of

Verizon (see Champaign National Bank v. Illinois Power Co., 125

Ill. App. 3d 424, 431, 465 N.E.2d 1016, 1021 (1984) ("The weight


                              - 13 -
of modern authority supports the position that commercial ease-

ments in gross are alienable, especially when the easements are

for utility purposes")), it did not do so.    Consequently, Verizon

only held a license permitting its use of the 6.883 acres.

            Because Verizon only had a license to run its lines on

the 6.883-acre parcel, the license could be revoked, unlike an

easement.    See Keck v. Scharf, 80 Ill. App. 3d 832, 835, 400

N.E.2d 503, 505 (1980).    In addition, "[a] license ordinarily is

revoked by a sale, conveyance, or lease of the land, without a

reservation to the licensee."    25 Ill. L. & Prac. Licenses §59,

at 106 (2001).    If the license was not automatically revoked by

the sale of the parcel from the State to the Trusts, the license

was subject to revocation by the Trusts, the subsequent purchas-

ers.

            Verizon also argues both (1) it possesses an implied

easement arising from a preexisting use and (2) it should be

allowed to continue to use the subject parcel as a matter of

public policy.    We disagree with Verizon on both points.

            We first address Verizon's implied-easement contention.

According to our supreme court:

                 "The easement implied from a prior ex-

            isting use, often characterized as a 'quasi-

            easement,' arises when an owner of an entire

            tract of land or of two or more adjoining

            parcels, after employing a part thereof so

            that one part of the tract or one parcel de-


                                - 14 -
rives from another a benefit or advantage of

an apparent, continuous, and permanent na-

ture, conveys or transfers part of the prop-

erty without mention being made of these in-

cidental uses.   In the absence of an

expressed agreement to the contrary, the con-

veyance or transfer imparts a grant of prop-

erty with all the benefits and burdens which

existed at the time of the conveyance of the

transfer, even though such grant is not re-

served or specified in the deed. [Citations.]

This court has stated on numerous occasions

that an easement implied from a preexisting

use is established by proof of three

elements: first, common ownership of the

claimed dominant and servient parcels and a

subsequent conveyance or transfer separating

that ownership; second, before the conveyance

or transfer severing the unity of title, the

common owner used part of the united parcel

for the benefit of another part, and this use

was apparent and obvious, continuous, and

permanent; and third, the claimed easement is

necessary and beneficial to the enjoyment of

the parcel conveyed or retained by the

grantor or transferrer."     Granite Properties


                    - 15 -
           Ltd. Partnership v. Manns, 117 Ill. 2d 425,

           436-37, 512 N.E.2d 1230, 1236 (1987).

The facts in this case do not meet the requirements for an im-

plied easement.    As for the first element, a dominant estate did

not exist.   As for the second element, the common owner, i.e.,

the State, was not using the parcel that was sold to benefit the

property it retained, at least with regard to Verizon's lines.

Finally, as for the third element, while the lines are important

to Verizon, the lines are not necessary and beneficial to the

enjoyment of either the parcel of land conveyed or the land kept

by the State.

           As for Verizon's public-policy argument, Verizon incor-

rectly cited section 9-127 of the Highway Code from the 2006

edition of the State Bar Association edition of the Illinois

Compiled Statutes (605 ILCS 5/9-127 (West 2006)).     Between the

time the subject property was sold by the State to the Trusts in

September 2002 and the publication of the 2006 State Bar edition

of the Illinois Compiled Statutes, the language of section 9-127

was amended on two separate occasions.     Pub. Act 93-321, §5, eff.

July 23, 2003 (2003 Ill. Legis. Serv. 2056, 2056-57 (West)); Pub.

Act 94-476, §5, eff. August 4, 2005 (2005 Ill. Legis. Serv. 2545

(West)).   However, the amendment of section 9-127 does impact our

result.

           When the State sold the subject property to the Trusts,

section 9-127(a) of the Highway Code stated in part:

                  "Except as provided in subsection (b)


                                - 16 -
          and in cases where the deed, or other instru-

          ment, dedicating a highway or part thereof,

          has expressly provided for a specific devolu-

          tion of the title thereto upon the abandon-

          ment or vacation thereof, whenever any high-

          way or any part thereof is vacated under or

          by virtue of any Act of this State or by the

          highway authority authorized to vacate the

          highway, the title to the land included with-

          in the highway or part thereof so vacated,

          vests in the then owners of the land abutting

          thereon, in the same proportions and to the

          same extent, as though the highway had been

          dedicated by a common law plat (as distin-

          guished from a statutory plat) and as though

          the fee of the highway had been acquired by

          the owners as a part of the land abutting on

          the highway except, however, such vacation

          shall reserve to any public utility with fa-

          cilities located in, under, over[,] or upon

          the land an easement for the continued use,

          if any, by such public utility." (Emphasis

          added.)   605 ILCS 5/9-127(a) (West 2002).

This statute is in derogation of the common law because, as we

stated earlier, "[a] license ordinarily is revoked by a sale,

conveyance, or lease of the land, without a reservation to the


                              - 17 -
licensee."    25 Ill. L. & Prac. Licenses §59, at 106.     Statutes in

derogation of the common law must be construed in favor of the

party whose common law interest is affected.     J. C. Penney Co. v.

Andrews, 68 Ill. App. 3d 901, 904, 386 N.E.2d 923, 926 (1979).

            If the State had simply vacated the property, this

provision would have applied.    Verizon does not contend the State

vacated the subject parcel by an "[a]ct of this State."      Verizon,

in its brief, acknowledges the subject parcel was sold to the

Trusts as surplus property pursuant to Public Act 92-843, eff.

August 22, 2002.    Further, Verizon admits IDOT should have ex-

pressly reserved an easement for Verizon for its continued use of

the subject parcel.    The courts cannot judicially create what the

State failed to grant to Verizon--an easement.

            On August 4, 2005, section 9-127 was amended by adding

subsection (d) pursuant to Public Act 94-476.    Subsection (d)

provides:

                 "When any highway authority determines

            to vacate a highway or a part of a highway

            under its jurisdiction, the authority may

            sell the vacated highway property to any

            third party at fair market value if (1) the

            authority has either a fee simple interest in

            the vacated highway property or a dedication

            of that property by statutory plat and (2)

            the right of first refusal with regard to the

            vacated highway property has been granted to


                                - 18 -
            adjoining landowners for fair market value."

            605 ILCS 5/9-127(d) (West 2008).

Subsection (d) provides authorization to the highway authority to

sell vacated highway property to third parties at fair market

value where the highway authority is the fee owner of the vacated

highway property and it has granted adjoining landowners the

right of first refusal.    Under subsection (a), when a highway or

part thereof is vacated, the vacation "shall reserve to any

public utility with facilities located in, under, over[,] or upon

the land an easement for the continued use, if any, by such

public utility."    605 ILCS 5/9-127(a) (West 2008).   While this

language is not repeated in subsection (d), it arguably applies

to sales of vacated property.    Under subsection (a), the vacation

itself requires the reservation of an easement.    Subsection (d)

merely adds an additional method of disposal of vacated highway

property.

            However, because Verizon does not contend the State

vacated its interest in the property, we need not decide the

issue.   The State sold the 6.883-acre parcel as surplus property

and did not reserve an easement to Verizon.    As a result, Verizon

merely held a revocable permit to place its lines on the parcel.

That permit, by its express terms, did not create an easement.

Accordingly, the Trusts, as subsequent fee owners, had the abil-

ity to require Verizon to remove its lines.

                           III. CONCLUSION

            For the reasons stated, we reverse the trial court's


                                - 19 -
judgment and remand with directions to grant the Trusts' motion

for summary judgment.

          Reversed and remanded with directions.

          MYERSCOUGH, P.J., concurs.

          STEIGMANN, J., dissents.




                             - 20 -
            JUSTICE STEIGMANN, dissenting:

            I respectfully dissent.   The easement in this case

should not be restricted to its "actual use," as that phrase is

defined by the Trusts.    However, even if the easement were re-

stricted to its actual use, the State, as the servient landowner,

gave Verizon its "consent" to relocate the easement.

            The Trusts argue that the trial court improperly

granted Verizon's motion for summary judgment because Verizon was

not entitled to maintain its cables on the 6.883-acre tract based

on the express easement the Trusts' predecessors in interest

granted GTE in 1965.    Specifically, the Trusts contend that (1)

while the 1965 easement was a "floating" easement--that is, an

easement granting GTE authority to install telecommunication

cables on any part of section 26--once GTE installed the cables,

its easement should have been limited by GTE's--and later

Verizon's--"actual use" and, having no authority to relocate the

cables GTE had installed, (2) the utility permit and agreement

with the State did not amount to sufficient consent to allow

Verizon to relocate its original easement.     I disagree.

         A. The Trusts' Claim That Verizon's Easement Should
                  Have Been Limited to Its Actual Use

            In support of its argument that the easement should

have been limited to its actual use, the Trusts rely on Vallas,

72 Ill. App. 3d 281, 390 N.E.2d 939, and Peters, 243 Ill. App. 3d

14, 610 N.E.2d 1385.

            In Vallas, the easement at issue lacked a defined

width.    Vallas, 72 Ill. App. 3d at 282, 390 N.E.2d at 941.      The

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court concluded that the width of the easement should be confined

to the dimensions that were reasonably necessary to achieve the

purpose for which the easement was created, as established by its

actual use.   Vallas, 72 Ill. App. 3d at 284, 390 N.E.2d at 942.

          Similarly, in Peters, the language granting the ease-

ment at issue was not available to the parties or the court.

Peters, 243 Ill. App. 3d at 18, 610 N.E.2d at 1388.   As a result,

the court followed the rationale in Vallas, concluding that the

easement's width--which was the subject of controversy--should be

restricted to the extent of its actual use.    Peters, 243 Ill.

App. 3d at 18-19, 610 N.E.2d at 1388-89.

          Unlike Vallas and Peters, however, the easement in this

case was definite.   "Actual use" is only an issue when the param-

eters of an easement are in question because those parameters put

the parties and subsequent purchasers on notice of its existence,

size, and location (see Peters, 243 Ill. App. 3d at 18-19, 610

N.E.2d at 1389 ("where an easement granted by deed is undefined

as to its location and width, the dimensions depend upon the

intent of the parties, which can be shown by the extent of the

actual use" (emphasis added))).   The original 1965 easement in

this case--which was recorded--specifically delineated that it

encompassed all of section 26.    Thus, subsequent bona fide pur-

chasers would have been on notice that Verizon's cables could

have been buried on any part of section 26.   The fact that the

Trusts and the Perbix family had some general knowledge of the

cables' original location is of no moment, as they should be


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treated as any other bona fide purchaser.

B. The Trusts' Claim That the Utility Permit Was Insufficient To
Demonstrate Its Intent To Allow Verizon To Relocate Its Easement

            The Trusts further contend that, having no authority to

relocate the cables GTE had installed, the utility permit was

insufficient to demonstrate the State's intent to allow Verizon

to relocate its easement.     The majority agrees with the Trusts,

citing the following excerpt from Peters:

            "'[W]here an easement granted by deed is

            undefined as to its location and width, the

            dimensions depend upon the intent of the

            parties, which can be shown by the extent of

            the actual use.   Consequently, '"[w]hen the

            character of [the] easement is once fixed, no

            material alterations can be made by either

            the servient or easement owner without the

            other's consent.'"'    [Citations.]" (Emphasis

            added.)   Slip op. at 10.

            Accordingly, consent was the only requirement necessary

to effectuate the reallocation of the cables.      To be clear, the

law requires "consent" to relocate, not the granting of a new

easement.    Here, the State, through IDOT--the then-servient

landowner--gave such consent.      The utility permit--like the

documents in this record that show that the cables were moved

with the financial assistance of the State--was merely evidence

of such consent.

            In support of its conclusion that Verizon was not

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granted permission to move its easement, the majority notes that

"although GTE tried to acquire an easement from the Perbix family

in order to relocate its lines, it never sought an easement from

the State.   It requested and received only a permit."     Slip op.

at 11.   Of course it did.   GTE never sought an easement from the

State because it already had one.    It was merely seeking consent

to relocate its lines within an easement it already had on land

owned by the State.

           The majority also points to the language of (1) the

utility permit and (2) section 530.40(b) of Title 92 of the

Administrative Code to demonstrate that the permit should not be

construed to grant the permit's holder an easement or any other

property interest for that matter.      This language would be

significant if the State had granted Verizon an interest in land.

However, as previously stated, it did not.      Instead, the State

granted Verizon--in part, by way of permit--consent to relocate a

property interest it already had in land owned by the State.




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