Summary: When construing the scope of easements, the term “assign” follows its legal definition, which is a transfer of all identifiable rights from assignor to assignee.

Hahn v County of Kane, 2012 IL App (2d) 110060, 964 NE2d 1216, (2d D, 2012).

Facts: Robert Hahn owned a 1,200-foot by 360-foot property on the west side of Randall Road and north of Route 64.  Robert Hahn put this property into the Robert C. Hahn Trust (Hahn).  Hahn entered into an agreement with Kane County, which had exclusive jurisdiction over Randall Road, for the improvement of the road.  In exchange for $3.6 million, the county received the following interests in the Hahn property: (1) a fee simple strip of land for road expansion, (2) an exclusive and permanent easement on approximately 3.2 acres on the north end of the Hahn property for stormwater drainage, retention, detention, and conveyance, and all things appurtenant, and (3) temporary easements for building, demolition, and grading.  The permanent easement extended to the county’s respective heirs, successors, and assigns.

In November of 2005, Hahn entered into a sales agreement with Internal Combustion, LLC (IC) to sell approximately 8 acres of land at the northwest corner of Randall Road and Route 64.  Various issues prevented the closure of the deal as originally contemplated so Hahn extended the due diligence period of the agreement. The City of St. Charles and the county entered into an intergovernmental agreement (IGA) regarding the improvements of Randall Road that, in part, required the expansion of the stormwater management facility from 11 acre-feet to 16.6 acre-feet.  The county permitted “the city or their agents, subject to the conditions of the existing easement therefor, to construct the incremental additional capacity up to 5.6 [acre-feet] in the future…if adjacent development desires to manage stormwater with a facility at the location of the afore described stormwater management facility.” The city reserved 1.6 acre-feet for the future expansion of Randall Road and 4 acre-feet for use by adjacent development.

The sale of the property to IC closed in December of 2006, with the subsequent years spent on planning and financing.  On May 19, 2010, the county issued permits for the expansion and use of the stormwater management facility, and the city issued a building permit for the IC project.  

Hahn filed a complaint that sought a temporary injunction against IC and sought prevention of the use of the stormwater facility by the IC property.  IC filed an answer and a counterclaim which alleged breach of contract against Hahn.  The trial court denied the temporary injuction.  IC expanded the stormwater management facility, which included the removal of five acre-feet of dirt from the Hahn property as well as laying two pipes from that ran from the IC property to the Hahn property.  The trial court found that (1) there was no language in the easement which placed restrictions on the county’s use of the subject land in terms of size, scope or whose stormwater needs may be served, (2) the easement was for the county and its assignees with no restrictions on who it could be assigned to and therefore IC did not need to seek Hahn’s permission, (3) the natural flow of the water ran from IC to the Hahn property, and (4) the higher estate has the right to allow and construct devices for the efficient carry off of surface water.  For those reasons, the trial court held in favor of IC.  Hahn appealed. 

Holding: Affirmed in part, reversed in part, and cause remanded.  The trial court erred by using the term “assign” to mean one who is invited to use the easement as opposed to its legal definition as a transfer of all identifiable rights from assignor to assignee.  The County never transferred rights or conveyed property to IC and therefore the holding that IC was allowed to use the easement as an assignee was erroneous. 

The county could not extend the easement through the IGA.  The Illinois constitution allows local units of government to share any power or function so long that it is not otherwise prohibited by law.  While the city and the county may share powers, this does not allow them to share powers with an adjacent non-governmental entity.  Because the county cannot accomplish a forbidden act through the IGA, IC did not gain use of the easement based upon that agreement.  While there is no limiting language in the easement, the necessary use of the easement does not extend to the invitation of whoever wishes to use the easement simply because there is room to do so.

The civil rule allows a higher estate to construct artificial devices to aid the efficient carry off of surface water. However, the servient estate is not required to receive surface waters in different quantities or at different times with the exception of the good husbandry rule.  The good husbandry rule allows additional runoff for proper husbandry or reasonable development. Id.  The removal of 5 acre-feet worth of land as well as the additional of two pipes goes well beyond the good husbandry exception.

The appellate court found that Hahn’s actions did not violate the contract and therefore affirmed the holding of the trial court in regards to IC’s counterclaim.  For the above reasons the holding was affirmed in part, reversed in part, and remanded for further proceedings.