## Facts

- Wayne and Katherine Emanuel owned 920 Pearl Street in Belvidere, Illinois; Jose and Lisa Hernandez owned the adjacent 914 Pearl Street to the north.
- A driveway running between the properties was the only vehicular route to the Emanuels’ rear garage, and the boundary line bisected the driveway with most of it on the Hernandezes’ land.
- After purchasing 914 Pearl, the Hernandezes blocked the driveway with railroad ties and began building a fence along the property line, preventing the Emanuels from using the driveway.
- The parcels had once been under common ownership and were severed by conveyance in 1890.
- The Emanuels claimed that they and prior owners of 920 Pearl had long used and helped maintain the driveway, sharing costs with successive owners of 914 Pearl.
- The Emanuels presented no evidence that a driveway (or comparable access use) existed or was used for the benefit of the 920 Pearl parcel at the time of the 1890 severance.

## Issues

1. Whether the Emanuels established an implied easement over the Hernandezes’ land, either by prior existing use or by necessity, sufficient to support summary judgment.

## Decision

- The appellate court reversed the trial court’s summary judgment declaring an easement by implication in favor of the Emanuels.
- The court held the Emanuels failed to prove an implied easement from prior use because they did not show a preexisting, apparent, continuous, and permanent use at the time of the 1890 severance.
- The court held an easement by necessity was not established because necessity must exist at the time of severance, and the record did not show the required level of necessity in 1890.

## Legal Principles

- An implied easement from prior existing use requires: (1) unity of title and subsequent severance; (2) a preexisting use at severance that is apparent, continuous, and permanent; and (3) reasonable necessity for enjoyment of the dominant parcel.
- An implied easement must arise, if at all, at the moment of severance; later changes in circumstances cannot create an implied easement.
- An easement by necessity requires unity of title followed by severance and necessity for access existing at the time of severance, not a necessity created by later development or later hardship.

## Conclusion

Because the Emanuels did not show that a driveway-related use (or strict necessity for access) existed when the properties were divided in 1890, the appellate court reversed summary judgment and rejected an implied easement based on later, long-standing practice and current convenience.


Emanuel v. Hernandez, 313 Ill. App. 3d 192, 728 N.E.2d 1249 (Ill. App. Ct. 2000)