The Trusted Adviser May 2010 | Volume 3 • Number 5




Dudley v Neteler, 392 Ill App 3d 140, 2009 WL 1846540 (4th D, 2009).

Facts:By warranty deed, Irene Neteler conveyed a tract of land to her great nephew, David Neteler (Neteler). She also conveyed an adjacent tract to Clark Dudley, which passed by will to Barbara Dudley (Dudley) upon his death. A home straddled both tracts of land. Dudley's deed included a reservation of a life estate for Irene in the home; Neteler's deed did not mention it. The residence was taxed as part of Dudley's tract while Neteler's tract was taxed as a vacant lot.

Dudley subsequently filed a quiet title action asserting that she should possess the land free from any claim by Neteler. The trial court granted Dudley's motion for summary judgment and ruled in her favor. Neteler appealed.

Holding:Affirmed in part and remanded.The appellate court agreed with the trial court that Dudley had superior title to the house based on both the tax bill and the conspicuous reservation of a life estate in Irene Neteler's conveyance to Dudley. However, instead of the judgment to quiet title issued by the trial court, the appellate court found it more appropriate to issue a declaratory judgment that Dudley had an implied easement (specifically, an "easement for preexisting use" or "quasi-easement") in the portion of the house on Neteler's tract.

Three elements must exist for there to be an implied easement: (1) "common ownership of the claimed dominant and servient parcels and a subsequent conveyance or transfer separating that ownership"; (2) before severance, "the common owner used part of the united parcel for the benefit of another part, and this use was apparent and obvious, continuous, and permanent"; and (3) "the claimed easement is necessary and beneficial to the enjoyment of the parcel conveyed or retained by the grantor or transferor."

The court found all three elements to be satisfied based on the evidence that Irene Neteler owned all the land prior to conveyance, that she split the land into dominant and servient estates to convey them, and that the portion of the house on the servient estate was both necessary for and used for the enjoyment of the rest of the house. The case was remanded for an evidentiary hearing to determine how much curtailage, if any, existed as part of the conveyed easement.

THE TRUSTED ADVISER is published by Attorneys’ Title Guaranty Fund, Inc., P.O. Box 9136, Champaign, IL 61826-9136. Inquiries may be made directly to Mary Beth McCarthy, Corporate Communications Manager. ATG®, ATG® plus logo, are marks of Attorneys’ Title Guaranty Fund, Inc. and are registered in the U.S. Patent and Trademark Office. The contents of the The Trusted Adviser © Attorneys' Title Guaranty Fund, Inc.

[Last update: 4-23-10]