An easement is a non-possessory right or privilege in another’s real estate. Nationwide Financial, LP v. Pobuda, 2014 IL 116717 at ¶ 29; McMahon v. Hines, 298 Ill.App.3d 231, 236 (2nd Dist. 1998). A party with the right to use an easement enjoys a “dominant estate.” Id. The estate subject to the easement is the “servient estate.” Id.
Illinois recognizes express, implied, and presumed easements. An express easement is formed by an agreement between the owners of the dominant estate and servient estate. Chicago Title Land Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420 at ¶ 32. Implied and presumed easements do not arise out of an express agreement. Rather, they are created under special circumstances.
There are two types of implied easements – an easement by necessity and an easement arising from a pre-existing use. Granite Properties Ltd. v. Partnership v. Manns, 117 Ill.2d 425, 435 (1987). Both require the party attempting to obtain the easement to establish proof by clear and convincing evidence. Katsoyannis v. Findlay, 2016 IL App (1st) 150036 at ¶ 28. Implied easements are favored by public policy because they encourage full utilization of land. Smith v. Hessinger, 319 Ill.App.3d 150, 155 (4th Dist. 2001).
A common example of an easement by necessity is a land-locked parcel of property. Manns, 117 Ill.2d at 435. Unless a contrary intent between the owner of the land-locked parcel and owner(s) of the surrounding property is manifested, the owner of the land-locked parcel can be found to have ingress and egress rights over the surrounding property. Id.
Easements implied from a prior existing use arise when an owner of a tract of land, or two (or more) adjoining parcels, uses one part of the tract, or one of the adjoining parcels for the benefit of another part of the tract or other adjoining parcel. Id. at 436. The use of one part of the tract, or of the other adjoining parcel, must be apparent, continuous, and permanent in nature. Id.
Again, in the absence of a contrary agreement, conveyance of part of the tract or adjoining parcel that was providing the benefit to the rest of the tract or other adjoining parcel, will include an implied easement from pre-existing use, even if the easement is not specified in the deed. Id.
Further case law has articulated three elements required for an implied easement from a pre-existing use, 1) common ownership of the claimed dominant and servient parcels with a subsequent conveyance that separates that ownership, 2) prior to the conveyance, the common owner used part of the united parcel for the benefit of another part of the parcel, and the use was apparent, obvious, continuous, and permanent, and 3) the claimed easement is necessary and beneficial for the enjoyment of the conveyed parcel. Burrell v. Bishing, 2017 IL App (5th) 160223-U at ¶ 22 (unpublished opinion).
An example of an easement implied from a pre-existing use would be an individual that owns two adjoining properties (“Parcel 1” and “Parcel 2”). A well is built on Parcel 1 that supplies water to both Parcel 1 and Parcel 2. The individual eventually sells Parcel 2 but the conveyance does not mention any utility easement. Parcel 2’s new owners likely have an easement implied from a pre-existing use if the original common owner of Parcel 1 and Parcel 2 used the well to provide water to both parcels in an apparent, obvious, and continuous manner, and the water well is necessary and beneficial for the enjoyment of the conveyed Parcel 2. See Frantz v. Collins, 21 Ill.2d 446 (1961).
Finally, an easement may be presumed. A presumed easement is also called an easement by prescription. To establish an easement by prescription, the use in question must occur for 20 years, and be adverse, uninterrupted, exclusive, continuous, and under a claim of right. Pobuda, 2014 IL 116717 at ¶ 28. When an easement meets the preceding criteria, there is a presumption of a right to the easement for the owner of the dominant estate due to the long acquiescence of the owner of the servient estate. Id. at 29.
In the context of a prescriptive easement, “exclusivity” does not mean that the owner of the servient estate cannot be using that property for the same reason as the dominant estate (for example, a shared driveway). Id. Exclusivity means only that the rights of the dominant estate’s owner does not depend on the rights of any other parties, including the owner of the servient estate. Id. In addition, to meet the requirement for “adversity,” the use must be enjoyed under circumstances that it has been claimed as a right, not a privilege or license that can be revoked at the pleasure of the servient estate’s owner. Id.
For additional reading on easements see:
Emanuel v. Hernandez, 313 Ill.App.3d 192 (2nd Dist. 2000) (re: easements by necessity);
Dudley v. Neteler, 392 Ill.App.3d 140 (4th Dist. 2009) (re: pre-existing use easements);
Olson v. Barbara, 2016 IL App (1st) 142810-U (re: prescriptive easements).