Brace Yourself: Illinois Appellate Court Adopts Equity-Based Approach Towards Easement Modification

Prepared by Eugene J.M. Leone, Esq. and Katherine P. Casale, Esq.
September 7, 2010

Late last year, the Illinois Court of Appeals, First District, Sixth Division, adopted a new test as to when the owner of a servient estate may modify an easement without the consent of the dominant estate holders. The decision has national implications, as this holding places Illinois among a small but growing minority of states embracing the right of a property owner burdened by an easement to modify that easement on the basis of equitable principles.

Trouble on Tower Road

Pursuant to a written easement agreement from 1940, the five owners of four parcels of land (collectively, the “dominant estate owners”) held an easement over a portion of the property that their neighbor, Ann McGoey, used as a driveway for access to and from their properties on Tower Road in Winnetka, Illinois. Due to the location and use of the easement, McGoey suffered poor drainage of storm water from her property, and her home frequently flooded. In an effort to alleviate the problem, she offered to move the easement at her own expense to a new location on her property, keeping the easement available in its existing location until the newly located easement was ready. Although three of the dominant estate owners agreed to this plan, the other two refused to consent.

McGoey sued the dominant estate owners, seeking to obtain a judicial declaration explicitly permitting her to move the easement without the consent of the dominant estate owners. On the trial level, the Cook County Circuit Court granted the motion of one of the dominant estate owners to dismiss. Stating that the Illinois Supreme Court addressed the matter in Sullivan v. Bagby, 335 Ill. 192, 166 N.E. 449 (1929), the trial court ruled that any substantial change in an easement necessarily required the consent of all easement holders and that the proposed change was substantial as a matter of law.

McGoey’s Appeal

On appeal, McGoey argued that the lower court erred in granting the motion to dismiss because (a) Sullivan only applies when the modification of an easement will alter the identity of the servient estate owner, and (b) even if the rule in Sullivan does apply, the proposed modification is not substantial, and thus does not require the consent of the dominant estate owners. In making the first argument, McGoey contended that she would remain the servient estate owner should the easement relocation occur, and therefore the Sullivan rule did not apply. Accordingly, she could unilaterally modify the easement. The court of appeals disagreed, however, noting that a “full reading of Sullivan does not support” McGoey’s interpretation, and a change of servitude is simply one example of a substantial change for which the consent of all estate owners is required. , 918 N.E.2d 559, 563 (Ill. App. Ct. 1st Dist. 2009). In confirming that the Sullivan rule applies, the court stated that, in Illinois, “[c]ases involving alterations to easements are consistently handled…with the focus entirely on the substantiality of the proposed change.” McGoey, 918 N.E.2d at 564.

The appellate court was more receptive to McGoey’s second argument, though, in which she asserted that only a substantial change requires the consent of the easement owners, and a modification should not be considered “substantial” unless it harms the interests of the easement owners. Contending that the relocation of the easement 70 feet to the east would not harm the easement owners, McGoey argued that she could modify the easement unilaterally. At the same time, McGoey acknowledged that the court might read Sullivan to disallow “inquiry into the detriment caused to the easement holder” (McGoey, 918 N.E.2d at 564), urging the court in that instance to adopt the position articulated in §4.8(3) of the Restatement (Third) of Property. Noting that neither the trial court nor Brace offered a definition of “substantiality,” the court of appeals indicated that the utility loss approach asserted by McGoey related the impact of the easement modification to the ability of the easement owners to use and enjoy their property. The court interpreted McGoey’s analysis as “akin to the equity-based test laid out” in the Restatement:

Unless expressly denied by the terms of an easement…the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

McGoey, 918 N.E.2d at 565, citing Restatement (Third) of Property § 4.8(3), at 559 (2000).

In its examination of the Restatement test, the appellate court recognized that the equity-based Restatement test is in contrast to both the traditional rule at common law and to the position of the majority of states regarding the modification of easements. At the same time, the court cited cases from a number of states that have adopted either the Restatement explicitly, or a similar equity-based test. Indeed, in reviewing the cases cited by the Sullivan court as well as subsequent Illinois case law interpreting the benchmark case, the appellate court found that the substantiality standard articulated in Sullivan “is more consistent with the Restatement approach than the traditional common law view.” McGoey, 918 N.E.2d at 567. The court of appeals reversed the ruling of the trial court and remanded the case for trial to determine whether the relocation of the easement constitutes a “substantial” modification of the easement, given an equity-based consideration.

State and National Implications

With this decision, Illinois joins a small but growing number of states, including New York, Massachusetts, Colorado, South Dakota, Kentucky and Nebraska, whose courts have interpreted easements with an eye towards fairness for both dominant and servient estate owners. Rather than requiring consent of all easement holders for even de minimis alterations, courts are more frequently considering the vulnerability of servient estates and the true equities of cases in an effort to allow all parties to maximize use and enjoyment of their properties.

If you have any questions concerning this Legal Update, please feel free to contact us:

Eugene J.M. Leone
Pircher, Nichols & Meeks
900 North Michigan Avenue
Suite 1050
Chicago, Illinois 60611
(Tel.) 312.915.3113

Katherine P. Casale
Pircher, Nichols & Meeks
900 North Michigan Avenue
Suite 1050
Chicago, Illinois 60611
(Tel.) 312.915.3139

The PN&M Legal Update is published as a service to our clients and friends. It is intended to provide general information and should not be acted upon without first obtaining professional advice appropriately tailored to your individual needs.