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Beebe v. DeMarco

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Property Law Keyed to Cribbet

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Bloomberg Law

Citation. 22 Ill.157 Or. App. 176, 968 P.2d 396 (Ct. App. 1999)

Brief Fact Summary. Plaintiff claims a prescriptive easement across Defendants’ property due to the open and notorious use of Defendants’ property as a roadway for more than ten years.

Synopsis of Rule of Law. In order to establish a prescriptive easement a claimant must show, by clear and convincing evidence, an open and notorious use of Defendants’ land adverse to the rights of Defendants for a continuous and uninterrupted period of ten years.

Facts. In 1957, Plaintiff and her deceased husband purchased lot 11 in the River Crest Acres Subdivision. Defendants’ parents owned lot 14 in the subdivision, which was three lots west of Plaintiff’s and bordered Fifth Avenue. Both lots face Sunset Avenue. In 1958, the owners of the subdivision built a new subdivision called Hidden Acres. That development created a six-foot wide alley running to Fifth Avenue along the rear of lots on Plaintiff and Defendants’ block. As a result of the alley, Plaintiff and her husband gained access to Fifth Avenue from the rear of their property. The alley was not wide enough to accommodate the Plaintiff’s boat so they traveled over a portion of lots 12, 13 and 14 (Defendants’ lot) to get from their house to Fifth Avenue. The Plaintiff testified that she and her husband used the path every weekend from 1959 to 1969 and that from 1970 until 1993, when her husband died, he took the boat out using the alley. In 1979, Plaintiff’s husband built a large sho
p to the rear of the house and that her husband would drive from 5th Avenue along the alley to the rear of their house approximately five days per week. The path was shown to have tire ruts from usage. Also, contractors and guests of Plaintiff also used the alley. No one ever gave Plaintiff or her deceased husband permission to use the alley as it passed through lot 14. In 1994, Defendants inherited lot 14 and divided the lot into three parcels. During the construction of a house on a portion of lot 14, a fence was erected which blocked the Plaintiff’s path across the rear of lot 14. Plaintiff instituted this suit claiming an easement by prescription. The trial court held that Plaintiff had established an easement twelve feet across the southern portion of lot 14, and directed the Defendants to tear down the fence and that Plaintiff and her successors had the right to enter onto the land and grade, level, drain, build and maintain the roadway. The Defendants appealed.

Issue. Did the Plaintiff establish a prescriptive easement?
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