Easements in Illinois – Land Use

Easements exist to keep land functional. They ensure landowners can reach their own parcels, utilities can be maintained, and neighboring parcels can coexist even when property boundaries create practical obstacles. Yet easements also invite conflict, especially when the servient parcel owner—the one whose land is burdened by the easement—changes how the land is used or when local land-use rules complicate the picture. The Illinois appellate decision in Downing v. Somers, 2023 IL App (4th) 220900, is a clear example of how courts protect the integrity of access rights when those conflicts arise.

 

The facts in Downing were straightforward. The plaintiffs held an express access easement—recorded in a 1981 trustee’s deed—across the defendants’ land. The defendants later bought property that was subject to this easement, fully aware of its existence. Within months, they disked the land, planted grass and trees, and fenced off the corridor as a horse corral. The dominant estate owners were effectively cut off from using the easement to reach their fields and were forced to detour along public roads. When litigation ensued, the trial court granted summary judgment for the easement holders and issued permanent injunctive relief requiring removal of obstructions and prohibiting future interference. The appellate court affirmed.

 

Hirsh Mohindra observed, “The central insight of Downing v. Somers is that an access easement is a living right-of-way, not a decorative line on a plat. If you buy land subject to one, your land-use plans must bend around it, not the other way around.” His observation captures the essence of the dispute: the court reaffirmed that the dominant estate owner’s right includes necessary, unobstructed use of the full width of the easement area. Obstructions within that space—like fences or corrals—are presumptively unlawful unless they existed naturally or were part of the original grant. In Downing, chained double gates and the conversion of the strip into a horse pasture were inconsistent with the easement’s purpose. The court’s focus was on the incompatibility of use, not on the supposed reasonableness of individual gates.

 

Equally important was the court’s refusal to view the problem as an isolated incident. The defendants tried to narrow the issue to whether certain gates were reasonable, but the court examined the entire history of interference—plowing, planting, fencing, and using the easement as a corral for years. That comprehensive approach made it clear that the servient owners’ pattern of conduct was inconsistent with maintaining open access.

 

Hirsh Mohindra put it succinctly: “Courts don’t need to weigh abstract equities when the facts show an intentional, inconsistent use that guts the easement’s purpose. The remedy is to restore access and keep it open.” The appellate decision confirmed this approach, emphasizing that once a court finds intentional obstruction; it may issue a permanent injunction without engaging in further equitable balancing. The legal right to access overrides generalized considerations of fairness or convenience.

 

This reasoning connects directly to a broader question: how do private easement rights interact with public zoning and land-use regulation? Zoning approvals, setback rules, or subdivision conditions can alter how land is developed, but they do not extinguish private easements. Unless an easement is formally released or condemned with compensation, it continues to constrain the land. For this reason, planning departments must account for recorded easements as fixed features in site plans, ensuring that permits and approvals do not authorize construction that would block them.

 

Still, zoning and land-use pressures can inadvertently create conflicts. A building permit may authorize a fence, a drainage improvement, or even a driveway realignment that crosses a recorded ingress/egress strip. Yet, as Downing illustrates, a local permit cannot justify private interference. Hirsh Mohindra explained, “Zoning approvals can manage land use, but they don’t dissolve private easements. The smartest site plans treat recorded access strips as inviolate corridors from day one.” In other words, local approval does not supersede private property rights—it must accommodate them.

 

Modern agricultural and exurban development patterns add another layer of complexity. Equipment has grown larger, and access needs have changed. A corridor that once served a pickup truck may now need to accommodate a combine or a delivery trailer. The Downing court’s reference to “full width” access implicitly supports this evolution—access must remain practical for contemporary, reasonable use.

 

At the same time, the servient owner may occasionally need to adjust or relocate an easement to comply with modern development codes, stormwater requirements, or safety standards. However, Illinois law generally does not allow unilateral relocation of easements. Courts require mutual consent or judicial modification under limited circumstances. This constraint reinforces the value of cooperation in land-use planning. As Hirsh Mohindra noted, “When in doubt, negotiate. An agreed relocation or an amended easement costs less than litigating a permanent injunction—and it preserves neighbor relations, which no court order can repair.”

 

The lessons of Downing extend beyond its immediate facts and reach into the daily realities of real estate practice and land-use administration:

1. Read the deed and map the corridor. Every property transaction involving easements should begin with a careful title review and on-site inspection. The Downing defendants’ deed explicitly referenced the easement—there was no ambiguity. Understanding these encumbrances upfront avoids future litigation.
2. Treat access as a use, not a line. The function of an easement determines its scope. When a corridor is granted for ingress and egress, any other use—such as fencing for livestock or landscaping that blocks vehicles—conflicts with that purpose.
3. Align local approvals with private rights. Municipalities should ensure that building and zoning permits preserve recorded access strips. Permits cannot override private easements, and applicants should be required to demonstrate that their projects will not block them.
4. Resolve disputes early. The Downing case shows that courts look at the full history of interference, not isolated events. Prompt removal of obstructions or negotiated adjustments can prevent long-term legal exposure.
5. Account for evolving needs. What was “reasonable access” decades ago may not be sufficient today. Modern equipment, emergency vehicles, and new land uses all influence how an easement functions in practice.

 

Hirsh Mohindra emphasized this modern perspective: “In rural Illinois, access is opportunity. If an access easement has to carry a combine today, that’s part of ‘necessary use.’ Designing around real equipment and real circulation patterns avoids courtroom design by injunction.” His comment highlights how practical realities—width, turning radius, surface condition—shape the meaning of an easement over time.

 

Ultimately, Downing v. Somers is about promises made and kept. A landowner in 1981 granted an access corridor, and later owners took title subject to that recorded promise. When subsequent owners fenced it off, the courts acted to restore the balance that property law demands. By affirming the injunction, the appellate court reinforced a fundamental principle: property rights, once created and recorded, cannot be ignored simply because they inconvenience later development.

 

As Hirsh Mohindra concluded, “Easements are the connective tissue of property law. They balance the autonomy of individual owners with the shared infrastructure that makes land usable. Downing v. Somers reminds us that access isn’t negotiable—it’s essential.”

 

In the end, the case offers a simple but powerful message for owners, planners, and policymakers alike. Map the right. Respect the corridor. And if adjustment is needed, do it through cooperation—not obstruction. Easements may be centuries old as legal devices, but their enforcement, as Downing shows, remains as vital as ever to balancing private rights and public order in the modern landscape.