Nopolous v. McCullough

Mr. JUSTICE HEIPLE delivered the opinion of the court: This suit concerns an easement across farm lands from a public road to a dwelling. The plaintiffs, Nopolous and Carlson, owner and tenant of the servient farm lands, had from time to time installed a gate at the easement entrance and had padlocked the gate with keys made available to the defendant. Plaintiffs had also moved the easement from its original path. Then plaintiffs obtained an injunction against the defendant McCullough, the owner of the dwelling and the party entitled to the use of the easement, which permanently enjoined McCullough from deviating from the altered roadway. The trial court further mandated the permanent installation of a padlock on the gate. McCullough appealed. We reverse for two reasons, one procedural and one substantive. First of all, the trial court committed a serious procedural error. The hearing before the trial court was on defendant’s motion to remove the plaintiff’s temporary injunction and on defendant’s countermotion to enjoin plaintiff from maintaining a gate and from locking it. The trial court erroneously treated the motion hearing as a full-scale hearing on the merits and permanently disposed of all pending matters and denied defendant’s counterclaim. Secondly, the court committed a substantive error in concluding that the easement entrance should be gated and padlocked and that the defendant should be enjoined from restoring the easement path to its original location. The installation of gates, posts and fences by the owner of the servient estate is antagonistic to the right of ingress and egress over the right of way and is improper unless circumstances exist which make such obstructions reasonable. Schaefer v. Burnstine (1958), 13 Ill. 2d 464. Moreover, the owner of an easement has the right to remove an improper obstruction. Schmidt v. Brown (1907), 226 Ill. 590; McEwan v. Baker (1901), 98 Ill. App. 271. In this case, there is no evidence to indicate any necessity for a gate since the farm use was for crops and not livestock. Mere crop raising requires neither fences nor gates. For the trial court to further require the padlocking of an unnecessary gate is to compound an error. The gate and the padlocking of the gate, notwithstanding McCullough was offered keys, are a serious deprivation of McCullough’s access. Friends, relatives, deliverymen, repairmen, mechanics, artisans, firemen and all callers are alike denied clear access. In addition to the gate and its padlocking, the evidence also disclosed that plaintiffs had changed the path of the easement by several feet toward more swampy ground. Defendant has both a right to restore the easement to its original path and to a hearing on the merits of his claim for damages for the moving of the easement path. It should not be concluded that defendant acquiesced in the movement of the easement merely because he didn’t file an immediate suit for damages. We conclude that the defendant-appellee proyed his entitlement to a dissolution of plaintiff-appellant’s temporary injunction and of his own right to an order enjoining plaintiffs from interfering with defendant’s access to his property by the installation of a gate with or without a padlock. Defendant is further entitled to a hearing on the merits of his counterclaim and the issues therein raised. Accordingly, we reverse and remand for further proceedings in accordance with the views herein expressed. SCOTT, J., concurs.