Nationwide Financial v. Pobuda (IL)

Summary: The exclusivity element required in adverse possession and prescriptive easements are not one in the same. The former requires that title be divested, while the latter limits the title owner from divesting a party from using it for an intended purpose.


Nationwide Financial, LP v. Pobuda, 2014 IL 116717 (Ill.), rehearing denied.


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Facts: In June 2008, Nationwide became the owner of a parcel of land commonly known as 275 Donlea Road in Barrington Hills, Illinois (the 275 property). Since December 1986, the Pobudas owned and were in possession of the adjacent lot to the west, located at 281 Donlea Road (the 281 property). Both the 275 property and the 281 property were landlocked and the only access road was centered at the northern dividing line of the two properties. Until Nationwide brought suit, the Pobudas, as well as the predecessor in title of the 281 property, used the northwest corner of the 275 property for egress and entry onto their property.

In 2009, Nationwide demanded that the Pobudas cease using the northwest corner or pay a rental fee for the continued use. The Pobudas refused. Subsequently, Nationwide filed a complaint seeking declaratory judgment against the Pobudas for wrongful trespass. The Pobudas counterclaimed with allegations of a prescriptive easement, arguing that their use was exclusive and adverse to the owners of the 275 property. In March 2012, the Pobudas filed a motion for summary judgment, and Nationwide responded to their motion by filing a cross-motion for summary judgment, asserting that the Pobudas did not a have a prescriptive easement because they had failed to establish exclusive use, which according to Nationwide, required the Pobudas to show that the owner of the 275 property had been “altogether deprived of possession” of the northwest corner strip.

In July 2012, the trial court granted Nationwide partial summary judgment after concluding that it was bound by Catholic Bishop of Chicago v. Chicago Title & Trust Co., 2011 IL App (1st) 102389, which held that a claimant must prove the true owner was altogether deprived of the property to establish exclusivity. The Pobudas appealed, and the appellate court affirmed the lower court’s ruling. The Illinois Supreme Court granted the Pobudas’ petition to appeal.


Holding: Reversed and remanded. After considering each element, the court held that the appellate court erred in affirming the circuit court’s decision to grant Nationwide partial summary judgment because the Pabudas were entitled to a prescriptive easement. In Illinois, to establish an easement by prescription, the use of the way in question must have been (a) for a 20–year period; (b) adverse, uninterrupted, exclusive, continuous; and (c) under a claim of right.

The exclusivity element required for a prescription easement is not one in the same with the exclusivity element required in a claim of adverse possession. Obtaining ownership of land through adverse possession means that the original owner is divested of his title. In contrast, gaining an easement by prescription merely means that the true owner's right to exclude the claimant from using the easement for a certain limited purpose, such as traveling over it, is divested. Thus, the exclusivity element for prescriptive easements does not require exclusive possession.

Furthermore, to satisfy adversity, the use must have been enjoyed under such circumstances as will indicate that it has been claimed as a right, and has not been regarded by the parties merely as a privilege or license. Given the absence of evidence that the origin of the way was merely permissive, the presumption is that of a right or grant based on the long acquiescence of the owners on whose land the way is located.


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By: ATG Underwriting Department | Posted on: Fri, 01/16/2015 - 4:19pm