                                No. 2--06--1145     Filed: 4-25-08
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

JOHN BJORK and STEPHANIE BJORK,        ) Appeal from the Circuit Court
                                       ) of Lake County.
      Plaintiffs-Appellants and        )
      Cross-Appellees,                 )
                                       )
v.                                     ) No. 03--MR--1491
                                       )
JOHN DRAPER, LIZ DRAPER, and LAKE      )
FOREST OPEN LANDS ASSOCIATION,         )
                                       ) Honorable
      Defendants-Appellees and         ) Stephen E. Walter,
      Cross-Appellants.                ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

       The instant controversy arises from a dispute between the plaintiffs, John and Stephanie

Bjork, and their neighbors, the defendants John and Liz Draper, as to whether a conservation

easement on the Drapers' property could be amended. The defendant Lake Forest Open Lands

Association (the Association) is in charge of managing the conservation easement. The Association

allowed the Drapers to amend the easement on three occasions. The trial court ruled that, as a matter

of law, the conservation easement could be amended. Following a bench trial, the trial court

determined that the first two amendments to the easement were proper but that the third amendment

was not. The Bjorks filed a notice of appeal, contending that the trial court erred in determining that

the conservation easement could be amended. The defendants filed a cross-appeal, asserting that the
No. 2--06--1145


trial court erred in determining that the entire third amendment was invalid. We affirm in part,

reverse in part, and remand for additional proceedings.

                                          I. Background

        On December 30, 1998, J. Douglas Gray and Karen Z. Gray of 1240 North Sheridan Road

in Lake Forest made a grant of a conservation right and easement in favor of the Association. This

easement was granted pursuant to the provisions of the Real Property Conservation Rights Act (Act)

(765 ILCS 120/10.01 et seq. (West 1998)). The Act pertains to preserving property that has some

significant natural, historic, architectural, cultural, or scenic feature. 765 ILCS 120/1 (West 1998);

see also G. Covington, Conservation Easements: A Win/Win for Preservationists and Real Estate

Owners, 84 Ill. B.J. 628, 628 (1996). The Internal Revenue Code (Code) provides that conservation

easements are tax deductible if they meet certain requirements in the Code or in regulations. 26

U.S.C. §170(a)(1) (2000). Under sections 170(f)(3)(B)(iii) and 170(h) of the Code, a person who

contributes a "qualified real property interest" to a "qualified organization" exclusively for a

"conservation purpose" can claim an income tax charitable deduction to the extent of the value

contributed. 26 U.S.C. §§170(f)(3)(B)(iii), (h) (2000); see 84 Ill. B.J. at 629. A "qualified real

property interest" is defined by the Code as being "a restriction granted in perpetuity on the use

which may be made of the real property." (Emphasis omitted.) 26 U.S.C. §170(h)(2)(c) (2000); see

84 Ill. B.J. at 629.

        The Grays' property is located in the Lake Forest Historic District, which is listed on the

National Register of Historic Places in recognition of its exceptionally well-preserved buildings and

sites of architectural, cultural, and historic significance. The easement provided that the Grays'

property consisted of two lots. On lot 1 is a house known as the "Kerrigan House," which is



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reportedly the oldest house in the Lake Forest Historic District. Lot 2 is approximately 25,000

square feet in size and is adjacent to and part of the landscaped grounds of the historic house. The

easement set forth that the preservation of the open and landscaped grounds adjacent to the Kerrigan

House contributes greatly to the appearance of the Kerrigan House and the public enjoyment of the

Lake Forest Historic District. The easement further provided that the property is located on and

visible from Sheridan Road, a public road that forms part of the system of scenic roadways circling

Lake Michigan, known as the "Lake Michigan Circle Tour."

       The easement indicated that, by providing to the Association an easement on lot 2 the Grays

sought to achieve certain conservation purposes, including the preservation of the conservation

values of the property by continuing land-use patterns existing at the time of the grant and, in

general, by preserving the lawn and landscaped grounds surrounding the Kerrigan House as well as

a significant parcel of open space along Sheridan Road. The easement additionally stated that the

Association agreed to accept the grant to honor the intentions of the Grays and to endeavor to

preserve and protect in perpetuity the conservation values of lot 2 for the benefit of the present and

future generations.

       The easement further set forth the following terms, which are pertinent to this appeal:

               "1. Purpose. It is the purpose of this Easement to assure that the Property will be

       retained forever predominantly in its scenic and open space condition, as lawn and

       landscaped grounds.

               2. Rights of Grantee. To accomplish the purpose of this Easement the following

       rights are conveyed to the Grantee by this Easement:




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                     (a) To take such actions as are reasonably necessary and consistent with the

             terms of this Easement to preserve and protect the conservation values of the

             Property;

                     ***

                     (c) To view the property in its scenic and open condition at ground level from

             publicly-accessible land adjacent to the Property;

                                              ***

             3. Prohibited Uses. Any activity on or use of the Property inconsistent with the

      purpose of this Easement is prohibited. Without limiting the generality of the foregoing, the

      following activities on and uses of the Property are expressly prohibited:

                     (a) The placement or construction of any buildings whatsoever, or other

             structures or improvements of any kind *** except that the existing driveways

             serving said Lot 1 and the existing encroachment of the Kerrigan House onto the

             Property may continue;

                                              ***

             4. Development Rights.        To the extent that Grantors own or are entitled to

      development rights which may exist now or at some time hereafter by reason of the fact that

      under any applicable zoning or similar ordinance the Property may be developed to a use

      more intensive *** than the Property is devoted as of the date hereof, such development

      rights shall not be exercisable on, above, or below the Property, nor shall they be transferred

      to any adjacent parcel and exercised in a manner that would interfere with the preservation

      and conservation purposes of this Easement. Notwithstanding the foregoing, *** the owner



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      of said Lot 1 may include the area of the Property along with the area of said Lot 1, but only

      to the extent that inclusion of the area of the Property will permit the construction of an

      additional one thousand five hundred (1,500) square feet of building floor area on said Lot

      1.

                                               ***

             7. Grantee's Discretion. Enforcement of the terms of this Easement shall be at the

      discretion of Grantee, and any forbearance by Grantee to exercise its rights under this

      Easement in the event of any breach of any term of this Easement by Grantors shall not be

      deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of

      the same or any other term of this Easement, or of any of Grantee's rights under this

      Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any

      breach by Grantors shall impair such right or remedy, or be construed as a waiver thereof.

                                               ***

             15. Extinguishment. If circumstances arise in the future which render the purpose of

      this Easement impossible to accomplish, this Easement can only be terminated or

      extinguished, whether in whole or in part, by judicial proceedings in a court of competent

      jurisdiction. ***

                                               ***

             16. Assignment. This Easement is transferable***. *** As a condition of such

      transfer, Grantee shall require the transferee to agree that the conservation purposes that this

      grant is intended to advance shall continue to be carried out in perpetuity.

                                               ***



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                23. General Provisions

                                                ***

                       (d) Entire Agreement. This instrument sets forth the entire agreement of the

                parties with respect to the Easement and supersedes all prior discussions,

negotiations,

                understandings, or agreements relating to the Easement, all of which are merged

                herein. No alteration or variation of this instrument shall be valid or binding unless

                contained in a written amendment first executed by Grantors and Grantee, or their

                successors, and recorded in the official records of Lake County, Illinois."

       On July 14, 2000, the Grays sold the property at 1240 Sheridan Road to the Drapers. Shortly

thereafter, the Drapers made several renovations to the residence. In the fall of 2000, the Drapers

enclosed the screened-in porch and converted it into living space. This porch was located on the first

floor, in a portion of the house that encroached onto lot 2. In the fall of 2002, the Drapers added an

addition to the residence that totaled in excess of 1,900 square feet. The Drapers consulted with the

Association prior to building the addition. The Association indicated that it would approve an

addition larger than 1,500 square feet in exchange for the Drapers replacing the aluminum siding on

the Kerrigan House with wooden siding. The Association's consultant, Stephen Christy, believed that

replacing the siding with wooden siding would restore the house to its original condition. After the

addition was completed, Christy viewed the property and determined that the addition was not visible

from Sheridan Road. He believed that the addition did not impair any conservation purpose set forth

in the conservation easement. Additionally, he observed that the addition would not be visible to a

person walking past lot 2 on Sheridan Road.



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       In the fall of 2003, the Drapers consulted with Christy about adding a brick driveway

turnaround to lot 1. This driveway would encroach onto lot 2. Also in 2003, the Drapers altered the

landscaping on lot 2. The Drapers had planted some additional trees in 2001 and 2002, including

four evergreens in the southeast corner of lot 2. In October 2003, the Drapers removed a row of

honeysuckle that was located on the eastern edge of lots 1 and 2. These plants were approximately

9 to 10 feet tall. In place of the honeysuckle, the Drapers planted a row of arbor vitae, an evergreen

shrub. These plants were approximately five feet tall. After the Association became aware of these

landscaping changes, its representatives scheduled a meeting with the Drapers. Following this

meeting, the Drapers made certain agreements with the Association concerning the landscaping.

       On November 5, 2003, the Drapers and the Association entered into an agreement to amend

the conservation easement (the first amendment). This document provided that the Drapers and the

Association desired to modify the boundaries of the conservation easement but that they intended that

the total amount of land subject to the easement would not be diminished and that the conservation

values that the easement intended to protect would not be impaired. The effect of this modification

was to remove from the easement property a portion of lot 2 upon which the new driveway turnaround

was to be located and to replace it with an equal amount of land from lot 1. The total area in question

was 809 square feet, or 3.2% of the total size of the easement property. While the driveway

turnaround as constructed is not visible from the sidewalk between Sheridan Road and the easement

property, the portion of lot 1 that was added to the easement property is visible from the sidewalk and

is closer to Sheridan Road.

       On November 21, 2003, the plaintiffs filed a complaint against the defendants for breach of

the conservation easement and for declaratory judgment. The complaint alleged that, because the



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plaintiffs lived within 500 feet of lot 2, they had standing to enforce the provisions of the conservation

easement. See 765 ILCS 120/4 (West 2002). Count I alleged that the conservation easement could

not be extinguished or amended without a court order. The plaintiffs alleged that they had been

damaged by the breach of the conservation easement in that lot 2 was not being "retained forever

predominantly in its scenic and open space condition, as lawn and landscaped grounds, as it existed

at the time the conservation easement was granted." The complaint therefore requested $50,000,

punitive damages, attorney fees, and costs. Count II demanded specific performance of the

conservation easement and sought an order requiring the Drapers to reduce the size of the addition

to the Kerrigan House to 1,500 square feet or less, to remove the brick driveway turnaround, and to

pay the plaintiffs' attorney fees and costs. Count III requested that the court issue a declaratory

judgment that the amendment to the conservation easement was not valid.

        On March 23, 2004, the Drapers and the Association, along with the Northern Trust Company,

executed the second amendment to the conservation easement (the second amendment). The second

amendment was identical to the first amendment in substance but, because the Drapers held title to

the property through the Northern Trust Company, as trustee under a trust agreement known as Trust

No. 9727, restating the first amendment was necessary because it had not been executed by the

Northern Trust Company.

        On June 13, 2004, the plaintiffs filed a second amended complaint for breach of the

conservation easement and for declaratory judgment. On February 4, 2005, the Drapers filed a motion

for summary judgment on count III of the plaintiffs' second amended complaint. Count III of the

second amended complaint sought a declaratory judgment that the first and second amendments to

the conservation easement were not valid and that the terms of the conservation easement could not



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be amended. On April 28, 2005, the plaintiffs filed a cross-motion for summary judgment as to count

III of their second amended complaint.

       On June 15, 2005, following a hearing, the trial court granted the Drapers' summary judgment

motion as to count III and denied the plaintiffs' cross-motion. The trial court found that neither the

conservation easement nor the amendments were ambiguous. The trial court found that neither the

Act (765 ILCS 120/1 et seq. (West 2004)) nor the Code (26 U.S.C. §170(h)(5)(A) (2000)) prohibited

amendments to conservation easements. Rather, the trial court found that the conservation easement

could be amended "by agreement of the parties to that agreement provided that the amendment is not

contrary to any controlling statute, regulation, ordinance or rule of law."

       On July 29, 2005, the Drapers and the Association executed a third amendment to the

conservation easement (the third amendment). The third amendment recited that, as measured by

Lake Forest's current building scale and environment ordinance, the Drapers' addition measured less

than 1,500 square feet. The amendment also stated that the Drapers never filed with Lake Forest any

document transferring development rights from lot 2 to lot 1 and never took any other action to

transfer development rights from lot 2 to lot 1. The parties acknowledged that the addition was not

readily visible from Sheridan Road and that, to the extent that it was visible, it was compatible with

the overall design of the Kerrigan House. Further, the amendment stated that, with regard to

questions raised by adjacent property owners concerning landscaping, a sprinkler system, a portable

badminton net, and the removal of a tree, the Association and the Drapers agreed that those matters

did not impair the purposes of the conservation easement.

       The effect of the third amendment was to remove from the conservation easement the

provision allowing the transfer of development rights from lot 2 to lot 1 to the extent that it would



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allow a 1,500-square-foot addition to the Kerrigan House. This assured that the 1,500-square-foot

area transfer that was originally permitted by the conservation easement would be prohibited. Further,

the third amendment modified the conservation easement to the extent necessary to establish that

improvements existing at the time of the execution of the third amendment conformed to the

requirements of the conservation easement. It established that the trade involving the size of the

addition and the re-siding of the house was, according to the Association, a reasonable quid pro quo

that was consistent with the purposes of the conservation easement.

       On September 26, 2006, the day before trial began, representatives from the Association

visited the subject property. The representatives discovered that the landscaping did not conform with

the landscaping plan set forth in the first and second amendments. Specifically, at issue were four

or five spruce trees and several viburnum plants.

       On October 11, 2006, with the consent of the parties, the trial judge visited the property. From

walking along the sidewalk, the trial judge found that the plantings on the southeast corner of the

property obstructed the view of the home by a pedestrian at the southeast corner of the grounds. The

trial judge further found that the viburnum planted along the eastern line of the property topped out

above an average observer's height, in part because they were planted at a higher elevation than the

sidewalk, and thus those plants would obscure a pedestrian's view from the sidewalk. The trial judge

noted that he could not see the brick driveway turnaround and concluded that it would not be visible

to a pedestrian, even if the plants did not obstruct the view. After driving both north and south by the

property, the trial judge concluded that the view of the house and grounds by a driver of a passenger

car was more clear than that by a pedestrian on the sidewalk.




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       On October 17, 2006, following the conclusion of the bench trial, the trial court entered

judgment. The trial court held that the purposes of the conservation easement were:

       "[T]he preservation of the conservation values of the property by the continuation of land use

       patterns existing at the time of this grant, and in general, the preservation of the lawn and

       landscaped grounds surrounding the Kerrigan House as well as a significant parcel of open

       space on Sheridan Road, and to *** assure *** that the property *** will be retained forever

       predominantly in its scenic and open space condition, as lawn and landscaped grounds, all for

       the benefit of public passing by on Sheridan Road or along the walkways adjacent to Sheridan

       Road."

The trial court explained that its holding was based on the clear language of the conservation

easement as well as the circumstances surrounding its execution. The trial court additionally found

that section 23(d) of the conservation easement specifically contemplated the possibility of

amendments to the easement.

       As to the alterations the Drapers had made to the property, the trial court found that the

improvements to the screened-in porch did not violate or materially impair the purposes of the

conservation easement. The trial court found that the addition to the Kerrigan House was constructed

after an agreement was made with the Association, which agreement was later reduced to writing, and

that the cost of reducing the size of the addition would be very expensive and disproportionate to any

benefit that would be accorded the plaintiffs. This was particularly true in view of the purposes of

the conservation easement and the fact that the addition was not visible from Sheridan Road.

       The trial court additionally found that the brick driveway turnaround was not visible to

pedestrians and did not materially interfere with the purpose of the conservation easement. As to the



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landscaping, the trial court found that the Drapers' plantings did not conform to the plan set forth in

the first and second amendments and that the differences substantially interfered with the purpose of

the conservation easement. Specifically, the plants that materially impacted the purposes of the

conservation easement were additional spruce trees in the southeast corner of lot 2, the viburnum in

excess of those allowed by the landscape plan, two witchhazel plants, two blackhaws, a hawthorn,

and an elm.

        In construing the amendments, the trial court found that the first and second amendments did

not materially impair the purposes of the conservation easement and were not otherwise contrary to

applicable law or public policy. As to the third amendment, the trial court found that it was entered

into on the mistaken assumption that all the Draper's plantings were in accordance with the prior

amendments. As the third amendment approved these plantings, the trial court found that it materially

interfered with the purposes of the easement and was invalid as a matter of law. The trial court found

that the third amendment's provisions with regard to the plantings were not severable from the rest

of the agreement. The trial court explained that the basis for this finding was testimony from

Association representative Bartram that the Association would not have executed the third

amendment if it had been aware of nonconforming landscaping.

        Based on these findings, the trial court found that the third amendment was invalid and

unenforceable. The Drapers were ordered to remove certain vegetation within 90 days. The trial

court awarded the plaintiffs their costs. The trial court denied the plaintiffs all the other relief that

they requested. On November 8, 2006, the plaintiffs filed a timely notice of appeal. On November

17, 2006, the Drapers filed a timely notice of cross-appeal.

                                         II. Plaintiffs' Appeal



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                    A. Whether the Conservation Easement Could be Amended

       The plaintiffs' first contention on appeal is that the trial court erred in determining that the

conservation easement could be amended. Specifically, the plaintiffs argue that the intent of the

parties who created the conservation easement was that it be perpetual. The plaintiffs note that the

easement uses the phrase "in perpetuity" on at least five occasions. The plaintiffs maintain that there

is nothing in the easement to indicate that it could be amended.

       It is well established that an easement is " 'a right or a privilege in the real estate of another

[citation]' " (McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1, 20 (1992)), which may

be created by an express grant that determines the extent of the easement (Duresa v. Commonwealth

Edison Co., 348 Ill. App. 3d 90, 101 (2004)). The same rules that apply to deeds and other written

instruments apply to grants of easements: in the construction of instruments creating easements,

courts ascertain and give effect to the intentions of the parties. Duresa, 348 Ill. App. 3d at 101;

McDermott, 240 Ill. App. 3d at 20. That consideration should include the circumstances at the time

of the conveyance, including the nature of the interest conveyed and the objective of the conveyance.

McDermott, 240 Ill. App. 3d at 20. Where an easement exists by express grant, and the language

thereof is clear and free from doubt, the use of the easement must be confined to the terms and

purposes of the grant. Duresa, 348 Ill. App. 3d at 101. Courts generally construe easement

agreements strictly, so as to permit the greatest possible use of the property by its owner. Duresa, 348

Ill. App. 3d at 101; McMahon v. Hines, 298 Ill. App. 3d 231, 235 (1998). We review the language

of an easement de novo. See River's Edge Homeowners' Ass'n v. City of Naperville, 353 Ill. App.

3d 874, 880 (2004).




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       The easement at issue sets forth that its purpose is "to assure that the Property will be retained

forever predominantly in its scenic and open space condition, as lawn and landscaped grounds." The

easement later provides, in section 23(d), that "[n]o alteration or variation of this instrument shall be

valid or binding unless contained in a written amendment first executed by Grantors and Grantee, or

their successors." As the above provisions are not ambiguous, the plain language controls. See

Duresa, 348 Ill. App. 3d at 101. Consequently, the easement could be amended.

       In arguing that the easement could not be amended, the plaintiffs insist that, because the

document uses the phrase "in perpetuity" on five different occasions, such language indicates that the

drafters intended that it never be amended. We disagree. The first three references to "in perpetuity"

occur in the preamble. The preamble first sets forth that the "Grantors further intend, as owners of

the Property, to convey to Grantee the right to preserve and protect the conservation values of the

Property in perpetuity." Later, the preamble states:

       "[The] Grantee agrees by accepting this grant to honor the intentions of [the] Grantors stated

       herein and to endeavor to preserve and protect in perpetuity the conservation values of the

       Property for the benefit of this generation and the generations to come."

Both of these references refer to the property's "conservation values" being protected in perpetuity.

The conservation values of the property are not synonymous with the language of the easement.

Thus, although the easement sets forth that the conservation values of the property are to be protected

in perpetuity, it does not logically follow that the language of the easement could never be amended

to allow that to occur. Indeed, it is conceivable that the easement could be amended to add land to

the easement. Such an amendment would most likely enhance the conservation values of the

property.



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       The third reference to "in perpetuity" provides that "Grantors hereby voluntarily grant and

convey to Grantee a conservation right and easement (the 'Easement') in perpetuity over the Property

of the nature and character and to the extents hereinafter set forth." (Emphasis added.) In order to

understand this reference, one must look to the language that the entire easement "set[s] forth."

Section 23(d) clearly provides that the easement may be amended.

       The fourth reference to "in perpetuity" occurs in section 16. This section provides that

"Grantee shall require the transferee to agree that the conservation purposes that this grant is intended

to advance shall continue to be carried out in perpetuity." The plain language of this section indicates

that the "conservation purposes" of the easement are to be carried out "in perpetuity." Like the

property's "conservation values," the easement's "conservation purposes" being protected in perpetuity

is not the same as the easement's language being protected in perpetuity. It is possible that the

conservation purposes of the easement could remain the same even if the language of the easement

were subsequently altered. Indeed, the drafters of the easement envisioned this, as is evident by their

insertion of section 23(d), which specifically allows for amendments.

       The final reference to "in perpetuity" occurs in section 20. This section provides that "Grantee

may, prior to the fortieth anniversary of the date of this Easement and at such other times as Grantee

deems necessary, record a claim pursuant to the Illinois Code of Civil Procedure, 735 ILCS 5/13--18,

for the purpose of preserving the lien of this Easement in perpetuity." This provision provides that

the lien of the easement, not its specific language, will last "in perpetuity." Thus, none of these

references support the plaintiffs' argument that the specific language of the easement prohibited it

from being amended.




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       The plaintiffs additionally argue that the trial court erred in relying on section 23(d) to

determine that the easement could be amended, because that section conflicts with those provisions

that set forth the purposes of the easement. See Premier Title Co. v. Donahue, 328 Ill. App. 3d 161,

166 (2002) (explaining that " 'it is a basic principle of contract construction that where two clauses

conflict, it is the duty of the court to determine which of the two clauses most clearly expresses the

chief object and purpose of the contract' [citation]"). In making this argument, the plaintiffs rely on

the above references to the easement being granted "in perpetuity." As noted above, none of the

provisions that the plaintiffs rely upon specifically provide that the language of the easement could

not be amended. Additionally, it is well settled that, when construing a document, a reviewing court

should avoid any interpretation that would render a section meaningless. See Srivastava v. Russell's

Barbecue, Inc.,168 Ill. App. 3d 726, 730 (1988) (contracts should be interpreted as a whole, giving

meaning and effect to each provision thereof). We reject the plaintiffs' request for this court to ignore

the plain language of section 23(d).

       The plaintiffs next argue that amendments to this type of conservation easement are not

allowed under either the Code (26 U.S.C. §170(h)(5)(A) (2000)) or the Act (765 ILCS 120/1 (West

2004)). This argument is premised on the plaintiffs' assertion that "[t]here is no provision in the

Conservation Easement that allows the parties to amend or modify the Conservation Easement."

However, as explained above, this argument is without merit because section 23(d) of the easement

sets forth that the easement may in fact be amended.

           B. Validity of First and Second Amendments to the Conservation Easement

       The plaintiffs' second contention on appeal is that the trial court erred in ruling that the first

and second amendments to the conservation easement were valid. The plaintiffs argue that, even if



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the easement could be amended, those amendments are invalid because they materially alter the

easement and materially interfere with the conservation purposes. Specifically, the plaintiffs note that

section 3 of the easement prohibits certain uses of the property. The plaintiffs maintain that any

amendment to section 3 constitutes a per se material interference with the conservation purpose. The

plaintiffs insist that certain uses or activities are prohibited because the original parties determined

that such uses and activities would materially interfere with the conservation purposes. The plaintiffs

argue that the trial court should not be allowed to substitute its judgment of what uses or activities

interfere with the conservation purposes for the parties' clearly stated intent.

       Section 3(a) of the easement specifically prohibited any improvement on the subject property.

Thus, the easement did not allow the Drapers to use any part of lot 2 to install their new driveway.

However, the first and second amendments specifically allowed the Drapers to build on part of lot 2

in exchange for transferring into the easement property an equal amount of land from lot 1.

       As explained above, a contract should be interpreted as a whole, giving meaning and effect

to each provision thereof. See Srivastava, 168 Ill. App. 3d at 730. Here, the easement set forth in

section 1 that its purpose was to assure that the property would be "retained forever predominantly

in its scenic and open space condition, as lawn and landscaped grounds." Section 3 provided that this

purpose would be achieved, in part, by "expressly prohibit[ing]" "[t]he placement or construction of

any buildings whatsoever, or other structures or improvements of any kind." Section 15 provided that

the easement could "only be terminated or extinguished, whether in whole or in part, by judicial

proceedings in a court of competent jurisdiction."

       The trial court's construction of the easement essentially rendered the above provisions

meaningless. Although section 23(d) provided that the easement could be amended, that section must



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be interpreted in harmony with the other provisions of the easement. That is accomplished by

interpreting section 23(d) to mean that, although the easement allows amendments, no amendment

is permissible if it conflicts with other parts of the easement. Section 3 expressly prohibits

improvements of any kind to the easement property. However, that is what the first and second

amendments specifically authorize, allowing the Drapers to construct a driveway that encroaches onto

the easement property. As the first and second amendments conflict with the plain language of

section 3, the trial court erred in determining that those amendments were valid. We therefore reverse

the trial court's judgment on that matter. As we determine that the first and second amendments were

not valid based on the plain language of the easement, we need not address whether the amendments

were also invalid on public policy grounds.

           Having determined that the first and second amendments were not valid, we next address to

what relief the plaintiffs are entitled. The plaintiffs insist that there is no provision in section 4(c) of

the Act to require a balancing of the equities or great necessity for specific performance. The

plaintiffs maintain that, if a finding of great necessity were required for specific performance of a

conservation easement, it is unlikely that any adjacent property owner could meet the criteria for

enforcement of a conservation easement. The plaintiffs contend that the trial court should not be

allowed to substitute its judgment, under the guise of balancing the equities, as to what uses of the

property interfere with the conservation purposes of the easement for the clearly stated intent of the

parties.

           A court may grant such relief as it deems equitable to enforce an easement, and the granting

or denying of such relief is a discretionary ruling by the court. Page v. Bloom, 223 Ill. App. 3d 18,

23 (1991). Absent an abuse of discretion, such a ruling will not be overturned upon review. Schnuck



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Markets, Inc. v. Soffer, 213 Ill. App. 3d 957, 974 (1991). However, when an encroachment of an

easement is intentional or culpably negligent, the court may properly refuse to balance the equities.

Borrowman v. Howland, 119 Ill. App. 3d 493, 502 (1983).

        We believe that in this case it is appropriate for the trial court to exercise its discretion and

balance the equities to determine to what relief the plaintiffs are entitled due to the Drapers' violations

of the conservation easement. The Drapers' violations were not intentional or culpably negligent such

that they would preclude the trial court from balancing the equities of the case. Prior to making most

of the alterations, the Drapers did enter into oral agreements with the Association as well as consult

with an attorney. Under these circumstances, preventing the trial court from considering the equities

of this case would be contrary to the trial court's obligation to achieve a just result. See Mellon v.

Coffelt, 313 Ill. App. 3d 619, 626 (2000).

        That being said, the plaintiffs' concern is valid that an adjacent property owner would have

great difficulty demonstrating the need for the specific performance of a conservation easement. The

detriment and cost to the landowner associated with returning the affected property to its original

condition would in most cases far outweigh any benefit to the adjacent landowner. Moreover, if a

landowner could avoid complying with the terms of a conservation easement by making alterations

and then claiming that it would be too costly (and, thus, inequitable) to return the property to its

original condition, then the restrictions placed in a conservation easement could be rendered

meaningless. As explained above, we must avoid interpreting an easement such that any provision

becomes superfluous. See Srivastava, 168 Ill. App. 3d at 730.

        Based on the above considerations, we remand this cause for the trial court to equitably

consider which of the alterations to the property the Drapers must remove. We note that the trial



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court determined that the third amendment was not valid and thus equitably determined which of

those alterations should be removed. However, as we have now determined that neither the first nor

the second amendment is valid, we believe that, on remand, the trial court should equitably consider

again whether any of the alterations to the property should be removed. If the trial court were to

consider the changes individually or consider only those approved by the first and second

amendments, the trial court could determine that none of the alterations should be removed. This

would in effect validate the plaintiffs' concern that an adjacent property owner would be deprived of

any relief if a conservation easement were violated. By considering all of the changes together, the

trial court is in the best position to equitably exercise its discretion as to which alterations, if any,

must be removed and which, if any, may be retained.

                                          C. Attorney Fees

        The plaintiffs' final contention on appeal is that the trial court erred in not awarding them

attorney fees. The plaintiffs note that the conservation easement provides that, in the event the

defendants are adjudicated to have violated any of their obligations, they shall then reimburse the

grantee for any expenses incurred in connection with the enforcement of its rights, including attorney

fees. The plaintiffs maintain that, since they have standing to enforce the terms of the conservation

easement, pursuant to section 4 of the Act they are entitled to reimbursement of their attorney fees

incurred in enforcing the conservation easement.

        Ordinarily, the losing party in a lawsuit cannot be required to pay attorney fees to the winning

party. Chapman v. Engel, 372 Ill. App. 3d 84, 87 (2007). There is an exception to the rule, however;

contractual "fee-shifting" provisions for the award of attorney fees will be enforced by the courts.

Chapman, 372 Ill. App. 3d at 87.



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        Here the conservation easement contained the following "fee-shifting" provision:

        "Grantors shall reimburse Grantee for any costs or expenses incurred in connection with the

        enforcement of its rights, including court costs and attorneys' fees."

Our decision on this issue turns on the precise wording of this fee-shifting provision. We are required

to strictly construe a contractual provision for attorney fees. Grossinger Motorcorp, Inc. v. American

National Bank & Trust Co., 240 Ill. App. 3d 737, 752 (1992). That is, we construe the fee-shifting

provision "to mean nothing more--but also nothing less--than the letter of the text." Erlenbush v.

Largent, 353 Ill. App. 3d 949, 952 (2004). The construction of a contract's fee-shifting provision

presents a question of law, which we review de novo. Fontana v. TLD Builders, Inc., 362 Ill. App.

3d 491, 510 (2005).

        In the case herein, the Association was the grantee of the easement, not the plaintiffs. Thus,

based on the principles enunciated above, the plaintiffs are not entitled to the recovery of their

attorney fees. The trial court therefore did not err in denying them this requested relief. See

Chapman, 372 Ill. App. 3d at 87.

                                    III. The Drapers' Cross-Appeal

        In their cross-appeal, the Drapers maintain that the trial court erred in determining that the

entire third amendment was not valid. The Drapers argue that the third amendment was a severable

document and that the landscaping provisions in that amendment, which were invalid, should not

render the entire amendment invalid.

        In determining whether a contract is divisible, as in other aspects of contract interpretation,

a court attempts to effectuate the intent of the parties. Kaplan v. Keith, 60 Ill. App. 3d 804, 808

(1978). Of course, in reality, especially in a case that reaches litigation, the parties often will not have



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considered the question of divisibility in making their contract, so in practice " '[t]he test is whether,

had the parties thought of it, they would be willing to exchange the part performance irrespective of

what transpired subsequently.' " Kimco Corp. v. Murdoch, Coll & Lillibridge, Inc., 313 Ill. App. 3d

768, 773 (2000), quoting Trapkus v. Edstrom's, Inc., 140 Ill. App. 3d 720, 727 (1986). In other terms:

                "A contract is not divisible where the parties assented to all the promises as a single

                whole so that there would have been no bargain whatsoever if any promise or set of

                promises were struck out. 6 Williston, Contracts §863 (3rd ed. 1962)." Meredith v.

                Knapp, 62 Ill. App. 2d 422, 425 (1965).

The trial court's determination of the intent of the parties will not be disturbed on review unless it is

contrary to the manifest weight of the evidence. Installco, Inc. v. Whiting Corp., 336 Ill. App. 3d 776,

783 (2002).

        On behalf of the Association, Bartram entered into the third amendment to the easement with

the Drapers. At trial, the trial court asked Bartram if he would have executed the third amendment

had he known that the plantings had not been altered or modified in accordance with the landscape

plan. Bartram indicated that he would not have. Thus, the intent of the parties in this case is readily

apparent. The Association would not have executed the third amendment to the easement had it

known that the plantings on the property were not in conformance with the landscape plan. The trial

court therefore properly determined that the third amendment was not a divisible contract and that the

entire third amendment was not valid. See Kimco Corp., 313 Ill. App. 3d at 773.

        The Drapers insist that Bartram's testimony on the matter is inconclusive because he was never

questioned as to whether he would have signed an agreement that was silent as to landscaping.




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However, in light of what Bartram did testify to, we need not speculate as to how he may have

answered other questions.

                                         IV. Conclusion

       For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed in part

and reversed in part, and the cause is remanded for additional proceedings.

       Affirmed in part and reversed in part; cause remanded for additional proceedings.

       BYRNE, P.J., and O'MALLEY, J., concur.




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