Court Finds Daycare May Have Prescriptive Easement Against Village

Court Finds Daycare May Have Prescriptive Easement Against Village

  Thursday, July 22, 2021    Julie Tappendorf

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Ian and Eva James have operated a daycare in Bensenville since 1989. The daycare building sits immediately south of the Soo Railroad Line. The Railroad owns a strip of land between the Line and the daycare building. The daycare uses the strip for parking, a dumpster, and vendor deliveries, which is accessed from a Village road, over a driveway through which a public sidewalk runs. In 2015, the Village sought to establish a Quiet Zone along the Line so trains would not be required to sound their horns at crossings in the Village. Because that process required the Village to restrict access to crossings by pedestrians and vehicles, the Village barricaded the strip that the daycare had used for access.

The daycare owners sued the Village and asked the court to declare that they had a prescriptive easement to access their property and to award damages for blocking that access. The trial court ruled in favor of the Village. 

The appellate court reversed in Chicago Title and Trust Company v. The Village of Bensenville. The appellate court held that the daycare owners had made a case that they had a prescriptive easement for access over the strip of land that had been barricaded by the Village. A prescriptive easement requires evidence of a non-permissive use of land for a 20-year period that is adverse, uninterrupted, exclusive, continuous and under a claim of right notice to the landowner. The owners had used the land exclusively and uninterrupted for at least 20 years, and the Railroad had sufficient constructive notice of that use because the owners had openly used the land continuously for decades. There was no evidence that the Railroad had ever been asked permission by the owners, so their use was adverse. The appellate court also rejected the Village's argument that the owners use of the strip was presumed to be permissive. The case was sent back to the trial court to make a final determination on the owners' other claims.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink