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Illinois

Easements

Perbix v Verizon North, Inc, 396 Ill App 3d 652, 919 NE2d 1096, 336 Ill Dec 171 (4th D 2009).

Facts:The Perbix family, through the George H. Perbix Jr. Trust (the trust), owned a parcel of land (known as "Section 26") that abutted the old U.S. Highway 36 to the north and south. In 1965, the Perbix family granted the General Telephone Company of Illinois, which would later become Verizon North (referred to as "Verizon" throughout), an easement to construct, operate, and maintain communication lines across Section 26. This was originally a floating easement and Verizon chose to exercise it north of the old Highway 36.

Between the 1970s and 1990s, the Perbix family conveyed parts of Section 26 to the Illinois Department of Transportation (IDOT) for the construction of a new highway interchange. IDOT informed Verizon that their cables would have to be relocated to the south of Highway 36. Verizon sought a new easement from the Perbix family, but the family refused to grant it. Verizon therefore sought, and was granted, a license from the state to install its cables on part of the parcel owned by the state through IDOT.

IDOT did not fully use all of the land they acquired from the Perbix family and eventually sold it back to Perbix when it was determined that IDOT did not need any of the excess land. In 2002, IDOT executed a quitclaim deed conveying the parcel back to the Perbix family, and this deed did not reserve a license or easement for Verizon, whose cables were now on this parcel. George H. Perbix claimed that IDOT did not inform him or any other agent of the trust that Verizon had utility permit to use the land, or that any buried cables existed. In 2003, George H. Perbix, trustee of the Perbix family trust, was informed by IDOT that Verizon only had a license to be present on the property.

In 2004, Perbix informed Verizon that it had to remove its cables from the trust's property. Verizon refused. The trust filed suit to remove Verizon from the parcel. The trial court sided with Verizon on summary judgment and found that IDOT's approval of the location of the cables combined with the original floating easement to Verizon's predecessor in 1965 authorized Verizon to place the cables on the Perbix property. The trust appealed the decision.

Holding:Reversed. The appellate court found that the state, through IDOT, did not actually agree to relocate the easement when it allowed Verizon to move its cables south of Highway 36. Instead, the court determined, the state only granted Verizon a license to do so. The court in part decided this based on the agreement with Verizon, but also cited the Highway Code, which prevents IDOT from giving any entity an easement over its land. As a result, the court found, Verizon and its predecessor in interest were fully aware and on notice that IDOT had not granted an easement. Furthermore, the Administrative Code is also clear that a permit to use government land is a license only and does not constitute a property interest of any kind. The court concludes that, because Verizon only had a license, its use of the land was either terminated by the sale, or could be terminated by the trust.

Verizon argued that it had an implied easement. However, the appellate court reminded that for an implied easement to exist, there had to be a servient and a dominant estate and that no dominant estate existed in this case. Furthermore, the "common owner" required for an implied easement, IDOT, did not consider the Verizon lines necessary and beneficial to the enjoyment of either the parcel conveyed to the trust or the parcel they retained, containing the interchange. As a result, Verizon met none of the requirements for an implied easement.

As a result, the court concluded that Verizon only a license to have cables on the property and had no property interest. Therefore, this license was terminated due to the sale of the parcel containing the cables to the Perbix trust, and Verizon has no right to continue its presence and summary judgment should have been granted for the trust.

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