Herren v. Beshears

2025 IL App (4th) 250219

FILED

September 12, 2025

NO. 4-25-0219

Carla Bender

4th District Appellate

IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

PATRICIA HERREN and MARY ANN HERREN, ) Appeal from the

Plaintiffs-Appellees, ) Circuit Court of

v. ) Calhoun County

BRENT J. BESHEARS, as Trustee of the Brent J. ) No. 23MR5

Beshears Revocable Living Trust, Dated )

November 11, 2016, ) Honorable

Defendant-Appellant. ) Zachary P. Boren,

) Judge Presiding.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with

opinion.

Justices Doherty and Grischow concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs—Patricia Herren and Mary Ann Herren—brought an action against

defendant—Brent J. Beshears, as trustee of the Brent J. Beshears revocable living trust, dated

November 11, 2016—seeking declaratory and injunctive relief based on a claim that they had

acquired a prescriptive easement over a private road on defendant’s property that allowed them to

access their own property. The trial court entered a preliminary injunction in plaintiffs’ favor,

ordering that plaintiffs, along with their guests, tenants, and invitees, had the right to use the private

road to access plaintiffs’ property and that defendant could not prevent or interfere with such use.

Defendant filed this interlocutory appeal, arguing the court abused its discretion in (1) granting

plaintiffs a preliminary injunction and (2) refusing to limit the scope of the preliminary injunction.

We affirm.

¶2 I. BACKGROUND

¶3 Plaintiffs and defendant own adjoining property located in Calhoun County,

Illinois. Defendant owns 70 acres (the Beshears property), which he purchased in January 2023.

At that time, plaintiffs owned more than 440 acres (the Herren property) located immediately to

the north of the Beshears property. The Beshears property bordered a public township road called

Panther Creek Road. The private road that is in dispute runs in a northerly direction from Panther

Creek Road across the Beshears property and to the Herren property.

¶4 In August 2023, plaintiffs initiated the underlying action, filing a complaint against

defendant for declaratory and injunctive relief related to their use of the private road. In October

2023, they filed an emergency motion for a temporary restraining order (TRO), seeking to prevent

defendant “from interfering with [plaintiffs], their guests, tenants[,] and invitees (including

hunters) use of the private road.” In November 2023, the trial court granted the emergency motion

and ordered as follows:

“[Defendant] shall take no action or cause any activities that would prevent

[plaintiffs], their guests, tenants, invitees (including hunters) from access to

[plaintiffs’] real estate through use of the road situated on [defendant’s] real estate

nor shall [defendant] interfere with [plaintiffs], their guests, tenants, and invitees

(including hunters) use of said road. [Plaintiffs], their guests, tenants, invitees

(including hunters[)] shall have the right to use said road for access to [plaintiffs’]

real estate until further order of this Court.”

¶5 In January 2024, plaintiffs filed a two-count first amended complaint, again seeking

declaratory and injunctive relief. Plaintiffs alleged the Herren property was “ ‘landlocked,’ ” as it

did not border a township road and that, for more than 60 years, Patricia and her guests, tenants,

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and invitees had exclusively used the private road for ingress to and egress from the Herren

property. According to plaintiffs, their use of the private road was done without the permission of

the individuals who had owned the Beshears property and defendant’s predecessor in title,

Lorraine McKay (also referred to in the record as Lorraine Derose or Lorraine DeRuntz), had

actual knowledge of plaintiffs’ use of the private road for more than 20 years. They maintained

that their use of the private road was uninterrupted and did not depend upon a like right in others.

Plaintiffs also alleged that defendant wrongfully and intentionally sought to deny them access to

their property by locking a gate that blocked entry onto the private road.

¶6 In count I of their amended complaint, plaintiffs asked the trial court to declare and

order that they and their successors and assigns had a “perpetual easement” for ingress to and

egress from the Herren property “over, through[,] and across the private road situated on” the

Beshears property and that the easement applied “to [plaintiffs], their successors and assigns and

their guests, tenants[,] and invitees (including hunters).” In count II, plaintiffs sought injunctive

relief, including a preliminary injunction “directing [defendant] to cease activities that would

prevent [plaintiffs], their guests, tenants, and invitees (including hunters) from access to” the

Herren property.

¶7 In July and August 2024, the trial court conducted hearings on plaintiffs’ request

for a preliminary injunction. The parties presented the testimony of several witnesses and exhibits.

Their exhibits included deeds that showed the various transfers of title for both the Herren and

Beshears properties.

¶8 Patricia testified she was 86 years old and widowed. Mary Ann was her daughter.

In June 1958, Patricia purchased 10 acres of the Herren property from Orlando and May Vetter,

whom she had known since she was a child. A house, referred to as the “basement house,” and a

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barn were located on the property. Around the same time, Patricia’s parents, Alfred and Eileen

Zipprich, purchased 80 acres of the Herren property, which was located immediately to the north

of Patricia’s 10 acres.

¶9 Patricia asserted that no portion of the 10 acres ever bordered a public road. The

Vetters had accessed the property by using the private road that ran from Panther Creek Road

through the Beshears property. Since 1958, Patricia had also used the private road as her means of

ingress to and egress from the 10 acres. She denied entering or exiting the property any other way.

Additionally, Patricia testified that the private road extended through and to the north of the 80

acres that her parents had purchased.

¶ 10 After acquiring the 10 acres, Patricia and her family used the property for her

father’s cattle, which he also kept on his 80 acres of property. Additionally, the 10 acres had a

small “field of corn” and a “big garden.” Patricia testified her family stayed at the house on the 10

acres on weekends and that her parents stayed there “[p]ractically every week when [her] dad had

days off.” They used the property for recreation and had family reunions there a couple of times a

year until 1962, when Patricia’s father died. Patricia testified she allowed a family friend to use

the property for hunting and, from 1967 to 1969, Patricia’s brother and sister-in-law resided on the

property full-time.

¶ 11 In 1961, Patricia obtained title to her parents’ 80 acres, which she stated also did

not border a public road. Both she and her parents used the private road that ran through the

Beshears property to access the 80 acres. The 80 acres had no “improvements” on it and was used

by Patricia’s parents for crops and cattle. They would get farm implements to the 80 acres to plant

and harvest crops by way of the private road. After Patricia obtained title to the 80 acres, she used

it to raise cattle.

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¶ 12 The remainder of the Herren property was located north of the 80 acres. In 1993,

Patricia’s husband, Ronald Herren, who also went by Gene, purchased that additional 352 acres

from Billy and Betty Koehler. The Koehlers had resided in a house on the 352 acres and used the

property for crops and cattle. Patricia and her husband used it for the same purposes. Patricia

denied that the additional acreage ever bordered a public road and asserted that the Koehlers had

accessed the property by using the private road. According to Patricia, the private road “from

Panther Creek [Road] up” was the only road available for accessing the 352 acres and that it was

the only road she ever used when going to that property. In October 2009, title to all the Herren

property was transferred to Patricia and Mary Ann as joint tenants, with the right of survivorship.

¶ 13 Patricia testified that when she originally purchased the 10 acres of the Herren

property in 1958, the Beshears property was owned by Otto Retzer. Patricia knew who Retzer was

and that he did not live on the Beshears property, which she described as “grown up in trees” and

consisting of “a creek and two hillsides,” with no crops or livestock. Patricia denied ever speaking

with Retzer about her use of the private road or ever obtaining his permission to use the private

road. She did not know if Retzer ever saw her using the private road to access the Herren property.

¶ 14 In April 1963, Retzer transferred title of the Beshears property to Orville and Edna

McKay. Patricia testified that the McKays periodically stayed in a house on the Beshears property

but did not live there. Her family had a “friendly” relationship with the McKays but did not

socialize with them. Patricia denied ever seeking permission from the McKays to use the private

road or discussing her use of the private road with them. However, “many times,” the McKays saw

Patricia using the private road to access the Herren property.

¶ 15 Around 1973, Patricia and her husband leased the Beshears property from the

McKays. Patricia stated they pastured cattle on the property and that their lease ended in

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approximately 1987. She testified the lease was oral, her husband had been the one to negotiate

the lease with Orville, and she did not know what the two men had discussed. While leasing the

Beshears property, Patricia’s husband purchased and installed a gate at the entrance of the private

road “to keep the cattle in.” The gate had a chain with separate locks for the McKays, the Herrens,

the Koehlers, and the electrical provider for the properties. The locks remained on the gate until

defendant purchased the Beshears property.

¶ 16 In February 1993, the McKays transferred title of the Beshears property to their

granddaughter, Lorraine McKay, and her husband. Patricia denied ever discussing the use of the

private road with either Lorraine or her husband. Additionally, she stated she never received

permission from Lorraine or her husband to use the private road. Patricia estimated that Lorraine

had observed her using the private road on the Beshears property four or five times a year “[u]ntil

the later years,” when Lorraine “didn’t come up as much.” Patricia testified she got along very

well with Lorraine and was friendly with her. She talked to Lorraine when she saw her. However,

Patricia denied that the two ever discussed the private road or that she ever asked Lorraine for an

easement across the Beshears property. Additionally, Patricia recalled an occasion when Lorraine

asked to use her key to the gate at the entrance of the private road because Lorraine had forgotten

her own key.

¶ 17 In describing the uses of the Herren property, Patricia testified that, currently, a

barn was located on her original 10 acres of the Herren property. The barn was used for storage

and contained farm equipment, a boat, and “a lot of junk.” The land was also used for hunting. The

80 acres of the Herren property originally purchased by Patricia’s parents was similarly used for

hunting. A barn on the 352 acres of the Herren property originally purchased by Patricia’s husband

was also used for storing farm equipment. In the past, portions of the Herren property had crops

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and were used for raising cattle. Patricia estimated that her family raised cattle on the Herren

property from the early 1960s through approximately 2007. When Patricia first purchased a portion

of the Herren property, she used the private road every weekend. In addition to driving cars on the

private road, farm machinery and equipment were driven to the Herren property on the private

road each year in the spring and fall. When Patricia and her husband had cattle on the property,

they used the private road three or four days a week to check on the cattle. They also transported

cattle on the private road using trailers.

¶ 18 Patricia testified that a portion of the Herren property was currently enrolled in the

Conservation Reserve Program (CRP). She estimated that her property had been enrolled in CRP

for more than 10 years and “maybe” as much as 20 years. The CRP ground was managed by

Norman Becker. To be enrolled in CRP, a landowner was required to maintain roads on the

property, spray crops and weeds, mow, and sometimes reseed. Patricia stated she received

compensation for being enrolled in CRP and that she would lose her compensation if the property

was not maintained as required.

¶ 19 Patricia also hunted mushrooms on the Herren property with family and friends.

Mushroom hunting typically occurred in the month of April. Patricia stated she regularly hunted

mushrooms on the Herren property until she was about 82 or 83 years old. Her children also hunted

mushrooms each year on the Herren property.

¶ 20 Patricia testified that in the past, her husband had hunted squirrels on the Herren

property. She had also allowed her sons and various friends and acquaintances to hunt on the

property. Individuals named Ed Dudley and Doug Klucker had paid to hunt on the Herren property,

leasing portions of the property from 2001 until 2020. Patricia testified as follows: “[Dudley and

Klucker] came from Pennsylvania, originally. There were 13 of them, but Klucker and Dudley are

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the only two names I remember because they kept coming back until [2020].” She described the

lease as being “only for shotgun season” and agreed that Klucker and Dudley only visited the

Herren property and used the private road during the month of November. One of the Pennsylvania

hunters was deceased and had been buried on the Herren property.

¶ 21 Patricia testified that a portion of the Herren property was also leased for hunting

to Illinois Trophy Bowhunters (ITB). In June 2003, she signed her first lease agreement with that

organization. That initial lease was for bow hunting for one year on the “back part of the 350 acres”

of the Herren property. Patricia identified a second lease she had with ITB for 2021 through 2023.

Her most current agreement with ITB covered deer hunting on the Herren property from 2024

through 2026. Patricia asserted that ITB leased the northernmost 352 acres of the Herren property.

She reserved the remaining 90 acres of Herren property for hunting by her sons and friends.

¶ 22 Patricia denied that she was ever given permission by anyone to use the private

road on the Beshears property. After defendant obtained the Beshears property in 2023, he met

with her and discussed moving the private road. Later, in March 2023, defendant sent Patricia a

letter stating he was “changing the locks” on the gate at the entrance to the private road and that

she had no right to access to the road without his permission. After discovering that a new lock

was placed at the gate, Patricia contacted a lawyer. Patricia testified there were times her sons cut

the chain on the gate so that they could gain access to the Herren property. Ultimately, she decided

to take legal action against defendant because “he was denying [her family] access to [their] farm.”

¶ 23 Defendant testified he was a licensed real estate broker in Michigan and worked as

an independent contractor with a commercial brokerage house. He asserted that he had been doing

“corporate work in real estate matters” for 30 years. In January 2023, he purchased the Beshears

property from Lorraine. He described the property as having mostly timber, with some open

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ground that was planted with soybeans. Defendant testified he never spoke directly with Lorraine

prior to purchasing the property. Rather, the Beshears property was listed with the realty firm

Tarrant and Harmon, and defendant communicated with two individuals associated with that

firm—Travis Tarrant and Ryan Bland. Defendant stated that before he purchased the property,

Tarrant informed him during a phone call that the McKays and the Herren family had “a handshake

agreement” that allowed the Herrens to use the private road. Defendant asserted Tarrant told him

about the handshake agreement “[m]ultiple times,” but he did not know whether Tarrant mentioned

the topic in a text message or e-mail. Defendant also admitted that the only written communications

he could provide regarding the topic were text messages from Tarrant and Bland regarding the

Beshears property that stated (1) “the seller is adamant there is an existing easement” and

(2) “[b]oth the seller [and] the neighbor say there is an easement, but neither can produce a written

document [and] nothing has been found.”

¶ 24 After closing on the Beshears property, defendant communicated with Patricia.

Patricia told him that the Herren property was used for commercial hunting, some of the property

was in CRP, and the Herren family used the private road to access their property. Defendant

believed that Patricia told him “in an indirect way” that she had permission to use the private road

because she informed him of who had access to the private road and how much they used it. He

agreed that Patricia did not tell him about a “handshake agreement.”

¶ 25 In March 2023, defendant sent a letter to Patricia, stating he intended to install his

own locks on the gate and that the Herrens had to have his permission before using the private

road. He later installed the new locks on the gate; however, he agreed the new locks did not stop

the Herrens from using the private road. According to defendant, the Herrens cut the chain on the

gate to access the road “[m]ultiple times.” Defendant asserted the Herrens “would just use the land

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like they owned it, cut the locks, and keep on with their daily business with no regard of [his]

concerns or interests.”

¶ 26 On cross-examination, defendant was allowed to present evidence of verbal and

text communications he had with Lorraine after closing on the Beshears property. According to

defendant, Lorraine informed him that Patricia’s family had been using the private road for years,

that they had permission to use the private road, Orville had originally granted permission to

Patricia’s husband, and that although Patricia had asked Lorraine “to put [her] permission in

writing,” Lorraine refused. Defendant also presented evidence that he drafted a document that put

Lorraine’s statements in writing. Defendant sent the document to Lorraine through her attorney,

asking that she sign it. He later received a signed copy of the letter from Lorraine. Plaintiffs

objected to defendant’s testimony and evidence on hearsay grounds, noting that Lorraine was

deceased and could not be cross-examined. Ultimately, the trial court allowed the evidence for the

purpose of showing the effect of Lorraine’s statements on defendant and what he knew or believed

leading up to the litigation but not to establish the truth of the matters asserted therein.

¶ 27 During his case-in-chief, defendant testified on his own behalf that he purchased

the Beshears property to hunt deer and turkey and to plant crops. He asserted that the use of the

private road by the Herren family negatively impacted his ability to hunt because they were

“driving in and out of the roads running the deer out of the ag fields that [he] was hunting.” He

stated that video footage from cameras placed on his property showed there were days when six

or seven vehicles used the private road. Defendant estimated that he had hunted on the Beshears

property 15 to 20 times and that on three of those occasions, deer were “run off by people using

the private road.” He believed that use of the private road “by people coming in from the south”

had “the effect of pushing deer” from his property in a northerly direction, to the Herren property.

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Defendant explained that on two occasions, he observed someone “drive in from the south,”

causing deer to run to the north and onto the Herren property. On a third occasion, he observed

someone coming “from the north,” which “pushed” the deer south.

¶ 28 Additionally, defendant testified that after closing on the Beshears property, he

cleared eight acres of land for planting crops. He intended to continue to plant crops on his property

and wanted to expand his cropland onto the area covered by the private road, giving him an

additional two acres for planting crops. He also testified that the Herrens “did some roadwork” on

the private road and left piles of gravel in his bean field while performing their work.

¶ 29 Norman Becker testified he had known the Herren family all his life and was

familiar with the Herren property. In 2000 or 2002, he began hunting on the Herren property after

receiving permission from Patricia’s husband. He hunted on the property every year since that time

and about 15 times each year. Becker hunted for squirrels from August to September, turkeys in

April and May, and coyotes from the end of November through February. From approximately

2008 to 2010, Becker helped take care of cattle on the property, including moving cattle to and

from the property. In 2013, he began taking care of the Herren property’s CRP ground. Maintaining

the CRP ground required mowing, spraying for noxious weeds, brush cutting, and reseeding. He

estimated that he spent 12 to 15 days per year maintaining the CRP ground. Becker also testified

that beginning in 2013, he planted “food plots” for deer on the Herren property to assist with deer

hunting. He visited the property two or three times a year to take care of the “food plots.”

¶ 30 Becker stated he was familiar with the boundaries of the Herren property. He

indicated the property did not border a public road and that he accessed it by using the private road

off Panther Creek Road. Becker was not aware of any other roads leading to or from the Herren

property. Additionally, he stated he sometimes used a tractor when maintaining the CRP ground,

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which he had driven on the private road. He also hauled equipment to the Herren property using

his truck and a trailer. Becker estimated that he drove the tractor on the private road 10 to 15 times

a year.

¶ 31 Shirley Cloninger testified she was 84 years old, having been born in 1939, and that

she and Patricia were “distant cousins.” Her parents, the Vetters, previously owned portions of the

Herren property, selling it when she was 18 years old. Cloninger testified she resided on the

property as a child and used only the private road on the Beshears property to get to and from her

family’s residence. When she was growing up, the Beshears property was owned by “Mr. Retzer.”

Cloninger knew Retzer and had conversations with him, but the two never discussed the private

road.

¶ 32 On cross-examination by defendant’s counsel, Cloninger recalled that Retzer’s

wife’s name was Katie and agreed that “[e]verybody was friends.” Cloninger further testified as

follows:

“Q. Did your parents socialize with the Retzers?

A. Well, not that much. Nobody ever visited a whole lot, but, I mean, you

knew them when you seen [sic] them and you talked. That’s it.

Q. But, they did, from time to time, socialize?

***

A. Yes.

Q. Ms. Cloninger, isn’t it true that you assume that the Retzers gave your

family permission to use that road, isn’t that right?

A. Nobody, just automatically we did it, and nobody ever said anything

about it.

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Q. But, your assumption is that the Retzers gave your family permission, is

that right?

A. I guess. I don’t know.

Q. You said you guessed that they gave your family permission?

A. They had to give them, I guess. We went up and down there. We was

[sic] all neighbors and friends.

Q. And your testimony is that they had to have given you permission, is that

right?

A. I guess. I don’t know. My folks, too many years.”

On redirect examination by plaintiffs’ counsel, Cloninger stated she did not know what agreements

or arrangements there were for the use of the private road, stating, “We just went up and down it.”

On recross-examination, defendant’s counsel asked whether Cloninger’s testimony was that “it

was [her] assumption that the Retzers gave [her] family permission to use the private road,” and

Cloninger responded as follows:

“We just went up and down it. I never heard of anything. I don’t know. I

was young, and I was 18 when I moved out. But, I don’t ever know nothing [sic]. I

just know we went up and down and nobody said anything to anybody. They were

friends.”

On questioning by the trial court regarding whether she “assumed there had been permission

given,” Cloninger responded, “I really don’t know.”

¶ 33 Later, defendant called Cloninger as a witness during his case-in-chief. She testified

that at the time she lived on the Herren property, the Retzers owned the Beshears property. She

stated her family and the Retzer family were all “friendly,” noting that they were “all neighbors.”

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The Retzers knew Cloninger’s parents and went to the same church. Cloninger recalled a period

of about two weeks when she worked for the Retzers, staying with them and doing their cooking

and laundry after Katie had a medical procedure. Upon questioning by defendant’s counsel,

Cloninger testified as follows:

“Q. *** So, *** back when you were living at the home place and using the

private road ***, isn’t it true you assumed that the Retzer’s [sic] gave your parents

and your brother permission to use that road?

A. Yeah, I suppose. I didn’t hear them, but, I mean—”

On cross-examination by plaintiffs’ counsel, Cloninger then testified as follows:

“Q. So, just as a wrap up from me, you don’t know if any permission was

given to your parents or not?

A. Not that I ever known of. Of course, I was only six-weeks old when we

moved up there, so I don’t know.”

¶ 34 Cindy Zipprich testified that Patricia was her sister-in-law. She was familiar with

the Herren property and lived there with her husband from 1967 to 1969. During that time, she and

her husband regularly used the private road on the Beshears property to access the Herren property.

Cindy estimated that she used the private road once or twice a week and that her husband, who

worked outside the home, used it every day. She also observed members of the Vetter family, who

resided further north, “[u]p the hollow,” using the private road on a regular basis. Cindy denied

having any conversations or hearing any conversations about the private road with the individuals

who owned the Beshears property at the time she lived there.

¶ 35 Mary Ann testified that she and her mother owned the Herren property together.

She recalled going to the property as a child with her family to check on the cattle or go mushroom

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hunting. In the last five years, she visited the property approximately once a year. Mary Ann stated

no public roads bordered the Herren property and that she only ever accessed the property by using

the private road on the Beshears property. She denied knowing of any permission given to the

Herrens related to the use of the private road.

¶ 36 Dennis Herren testified Patricia and Mary Ann were his mother and sister,

respectively. He was born in 1965 and had visited the Herren property hundreds of times over the

years. The property had been used for raising cattle, growing crops, and hunting. Beginning in

1993 and until the Herren property was enrolled in CRP, Dennis planted corn or hay on portions

of the property. Until 2012, cattle were raised on the property. Dennis stated his family’s cattle

were brought to the Herren property in April each year and then moved to other property the family

owned in October. Dennis tended to the cattle on the Herren property at least three times a week

from April to October. Since he was 14 years old, he would mow the Herren property at least twice

a year.

¶ 37 Dennis also hunted deer and squirrels on the Herren property. He estimated that he

had hunted on the Herren property every year since age 14. He visited the Herren property to hunt

for squirrels 9 or 10 times in August each year. Dennis testified he hunted deer during both shotgun

and bow hunting season. For the last six years, he would haul a trailer to the Herren property so

that he could stay there while hunting. Dennis identified three other individuals who would hunt

on the Herren property with him. Additionally, he stated he had also hunted for mushrooms on the

property five or six times a year since he was about 10 years old.

¶ 38 Dennis maintained that the Herren property did not border a public road and that

the only means of accessing the property was by way of the private road on the Beshears property.

During times that he planted crops on the Herren property, he traveled over the private road with

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farming implements and equipment. Dennis asserted that each year for as long as he could

remember, he had cut brush along the private road on the Beshears property “[t]o keep the road

from growing in.” Over the years, previous owners of the Beshears property had observed him

using the private road. Dennis denied that Lorraine had ever discussed the issue of permission to

use the private road with him. Further, he was unaware of any oral agreements regarding the use

of the private road. Other than one time when there was a flood and he had to access the Herren

property by boat, Dennis otherwise always used the private road to get to the Herren property.

¶ 39 Steve Phelps testified he was the founder and president of ITB, an outfitter for deer

hunting. Phelps stated ITB leased property and managed the land for hunting. It also had guides

that worked with hunters. ITB first leased 170 acres of the Herren property in 2003. At that time,

other hunters not associated with ITB hunted on other portions of the property. ITB did not lease

the Herren property again until 2021, when it signed a three-year lease for the northernmost 352

acres of the property. In 2024, it signed another three-year lease for hunting on the same 352 acres.

¶ 40 Phelps testified ITB used the private road when accessing the Herren property. ITB

hauled all-terrain vehicles on the private road to navigate the Herren property. It also used a tractor

on the private road to haul equipment. Phelps denied ever discussing the issue of permission to use

the private road with the Herrens.

¶ 41 Phelps testified that each year, ITB hunters went to the Herren property for a total

of 25 days of hunting during both “archery season” and “gun season.” ITB also visited the property

to prepare for the hunters. Preparation involved planting and mowing the food plots, hanging tree

stands, trimming brush, cutting trails, and “hunting sheds.” The various preparation activities

occurred at different times during the year. Specifically, “shed hunts” with ITB hunters and guides

would typically occur in March for three to four days. Phelps also hunted shed antlers on his own

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three to four times a year. In May and June, ITB would plant food plots and mow. Mowing

occurred approximately once a month, and the food plots were “assessed” from May to September.

In August or September, ITB would hang tree stands, which consisted of three or four days of

work. Typically, ITB would hang approximately 20 tree stands on the Herren property each year.

Someone from ITB would also travel to the Herren property to check trail cameras. Additionally,

in March and August, ITB spent four or five days on the property cutting trails.

¶ 42 Phelps agreed that ITB hunters used the private road at least twice a day while

hunting but that they could use it four times daily or more often if they had “to leave for some

reason.” Typically, ITB had four hunters on the Herren property for bow hunting and three or four

hunters on the property for gun season. The hunters were also accompanied by one or two ITB

guides. In 2023, 13 ITB hunters were on the Herren property. Phelps stated that the ITB hunters

and guides used their personal vehicles on the private road to access Herren property. He also

agreed that he visited the property 8 to 10 times per year.

¶ 43 Calhoun County Sheriff William Heffington testified he was familiar with the

Herren family and the Herren property. Beginning in the late 1970s or early 1980s, he had hunted

for coyotes on the property. The frequency of his hunting on the property varied. Some years, he

visited the property three or four times to hunt, and other years, he would not hunt at all. Heffington

agreed that he hunted on the Herren property more frequently in the 1980s than he did currently

and stated that he last hunted on the property two years prior. Aside from one instance when he

accessed the Herren property by walking “up through the timber,” he otherwise accessed it by use

of the private road on the Beshears property.

¶ 44 Travis Tarrant was called by plaintiffs as a witness and testified that he was the

managing broker for Tarrant and Harmon realty firm. He stated he was involved in Lorraine’s sale

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of the Beshears property to defendant, noting Lorraine had enlisted his firm to market the property.

When Tarrant met Lorraine, she informed him that the Herrens used the private road. Tarrant

recalled defendant reaching out to him about the Beshears property. He did not recall whether their

first communication was by phone or by text. After their initial communication, the two

communicated by text message or e-mail. Tarrant did not remember having any other phone calls

with defendant and denied that he ever showed defendant the Beshears property.

¶ 45 On cross-examination by defendant’s counsel, Tarrant agreed that Lorraine told

him that her neighbors to the north, the Herrens, “were using the private road with her permission.”

Plaintiffs raised no objection to Tarrant’s testimony. On redirect examination by plaintiffs’

counsel, Tarrant agreed that during his deposition in the case, he testified he did not remember the

exact words used by Lorraine during their conversation and that he did not remember whether

Lorraine stated the Herrens had “permission” or were “allowed” to use the private road. On re-

cross-examination, he agreed that Lorraine used language that conveyed to him that the Herrens

“had permission, authorization, they were allowed to use the road.”

¶ 46 Harold Herren, Patricia’s son and Mary Ann’s brother, testified he was born in

1962. He had been on the Herren property thousands of times to help take care of his family’s

cattle and to engage in hunting activities. He stated cattle were raised on the property from the

time he was a child until approximately 2010. He helped tend to the cattle three times a week.

According to Harold, cattle were taken to the Herren property in May or June each year and then

removed from the property in October. Stock trucks and horse trailers were used to transport the

cattle. Harold recalled mowing the Herren property. He mowed some portions every two weeks

using a small lawn mower and other portions on an annual basis using a tractor with a 15-foot

mower. Harold also recalled that his brother, Dennis, had raised crops on the property for their

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parents, specifically, corn and hay. He observed Dennis using farming equipment on the property,

including tractors, combines, and grain wagons.

¶ 47 Harold estimated that he began hunting deer on the Herren property in 1980. He

only hunted deer during shotgun season and, at the most, three to four times a year. Later, he also

hunted on the property for squirrels and turkeys. He would hunt squirrels in August and September

and hunt turkeys in April. Harold stated he had hunted on the Herren property every year except

for about five years and that he last hunted on the property in 2022. At times, he hunted on the

Herren property with his brothers and various friends and relatives. He had also observed others

hunting on the property, including the hunters from Pennsylvania. Additionally, Harold stated he

hunted mushrooms on the Herren property two or three times a year.

¶ 48 Harold stated he used the private road on the Beshears property to access the Herren

property. The Herren property did not border a public road, and Harold had never entered or exited

the property by any path or road other than the private road. Harold further testified that he had

driven trucks, tractors, a hay baler, and a hay rake on the private road. He stated previous owners

of the Beshears property observed him using the private road. He denied ever having

communications with any prior owners regarding the use of the private road.

¶ 49 The parties presented written closing arguments to the trial court. In February 2025,

the court entered a written order, granting plaintiffs a preliminary injunction under the same terms

and conditions as its previously entered TRO. Notably, in setting forth its decision, the court found

that plaintiffs had established a fair question about the existence of a prescriptive easement. It

stated plaintiffs had presented evidence that they used the private road for ingress to and egress

from the Herren property, as well as evidence showing that their use of the private road since 1958

had been adverse or hostile, exclusive, open and notorious, and uninterrupted. The court rejected

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defendant’s argument that there was a presumption of permissive use of the private road due to

evidence of a “neighborly relationship” between the property owners, finding (1) “there was not a

particularly neighborly relationship between *** Patricia *** and Otto Retzer, who owned the

[Beshears property] when she purchased the 10 acres in 1958” and (2) there was “ ‘ample evidence

of nonpermissive use’ ” that overcame any presumption of permissive use based on a neighborly

relationship.

¶ 50 The trial court also rejected arguments defendant raised regarding the “extent” of

the preliminary injunction. It found plaintiffs had not sought to increase the size of the easement

or make any material alterations to the easement. Additionally, it found that plaintiffs had

“presented evidence that they intend[ed] to use the property in a way that [was] far less burdensome

than many of the prior uses that established the prescriptive right.”

¶ 51 This interlocutory appeal followed.

¶ 52 II. ANALYSIS

¶ 53 A. Grant of the Preliminary Injunction

¶ 54 On appeal, defendant first argues the trial court abused its discretion in granting

plaintiffs’ request for a preliminary injunction. He contends the court erred in finding that plaintiffs

raised a fair question that they were likely to succeed on the merits of their claim and show the

existence of a prescriptive easement over the private road for the purpose of accessing the Herren

property. More specifically, defendant asserts the evidence presented was insufficient to show that

plaintiffs’ use of the private road was adverse and not permissive.

¶ 55 1. Preliminary Injunctions

¶ 56 “A preliminary injunction preserves the status quo until the merits of the case are

decided.” Alms v. Peoria County Election Comm’n, 2022 IL App (4th) 220976, ¶ 25. “Because a

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preliminary injunction is an extraordinary remedy, it should only be granted in situations of

extreme emergency or where serious harm would result if the preliminary injunction were not

issued.” Id.

¶ 57 “To obtain a preliminary injunction, the moving party must show (1) a clearly

ascertained right in need of protection, (2) irreparable injury in the absence of an injunction, (3) no

adequate remedy at law, and (4) a likelihood of success on the merits of the case.” Id. “The moving

party must raise a fair question as to all four elements ***.” Id.

“To establish that it has a clearly ascertainable right in need of protection and a

likelihood of success on the merits, the plaintiff need only raise a fair question as

to the existence of the right and lead the court to believe that it will probably be

entitled to the relief requested if the proof sustains its allegations.” Scheffel

Financial Services, Inc. v. Heil, 2014 IL App (5th) 130600, ¶ 10.

If a court finds that all the elements for obtaining a preliminary injunction are met, it must balance

the equities associated with the claim, weighing the benefits of granting an injunction against the

possible injury to the opposing party. Alms, 2022 IL App (4th) 220976, ¶ 26. “Additionally, the

court should consider the effect of the injunction on the public.” Id.

¶ 58 Generally, a trial court’s grant or denial of a preliminary injunction is reviewed for

an abuse of discretion. Id. ¶ 24. “A trial court abuses its discretion only where its ruling is arbitrary,

fanciful, or unreasonable or where no reasonable person would adopt the court’s view.” Id. Further,

we note that when a court rules on a motion for preliminary injunctive relief, “controverted facts

on the merits of the case are not decided.” Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 156

(1992).

“When considering the discretion exercised by the trial court in issuing a

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preliminary injunction, a reviewing court may decide only whether the petitioner

has demonstrated a prima facie case that there is a fair question as to the existence

of the rights claimed; that the circumstances lead to a reasonable belief that they

probably will be entitled to the relief sought, if the evidence sustains the allegations

of the petition; and that matters should be kept in status quo until the case can be

decided on the merits. Thus, the only question before the reviewing court is whether

there is a sufficient showing to sustain the order of the trial court.” Id. at 157.

¶ 59 2. Prescriptive Easements

¶ 60 “An easement is a right or privilege in the real estate of another ***.” Nationwide

Financial, LP v. Pobuda, 2014 IL 116717, ¶ 28. “[G]aining an easement by prescription means

merely divesting the true owner of the right to exclude the claimant from using the easement

property for a certain limited purpose.” Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶ 76.

“To establish an easement by prescription, the use of the way in question must have been—for a

20-year period—adverse, uninterrupted, exclusive, continuous, and under a claim of right.”

Nationwide Financial, 2014 IL 116717, ¶ 27.

¶ 61 To satisfy the adversity element, “[t]he 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, revocable at the pleasure of the owners of the soil.”

(Internal quotation marks omitted.) Id. ¶ 43. “Mere permission to use land cannot ripen into a

prescriptive right, no matter how long the permissive use is enjoyed.” Id.; see Weihl v. Wagner,

210 Ill. App. 3d 894, 895-96 (1991) (“To meet the requirement of adversity, a claimant must show

the use of the property was with the knowledge and acquiescence of the owner but without his

permission.”). A rebuttable presumption of adverse use can arise from the “long acquiescence” of

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a landowner. Nationwide Financial, 2014 IL 116717, ¶ 44.

“ ‘Where a way has been used openly, uninterruptedly, continuously and

exclusively for more than a period of twenty years, the origin of the way not being

shown, there is a presumption of a right or grant from the long acquiescence of the

party upon whose land the way is located.’ ” Id. (quoting Rush v. Collins, 366 Ill.

307, 315 (1937)).

This presumption of adverse use is based “on the theory that where a right-of-way existed with the

knowledge and acquiescence of the owner of the premises for a sufficient period of years, it was

presumed that he or his predecessors in title had actually granted an easement and that the easement

document had been lost.” (Internal quotation marks omitted.) Id. ¶ 47.

¶ 62 “The evidence usually resorted to in order to establish the permissive nature of a

use is a written or oral license; however, the permission may be inferred from the neighborly

relationship of the parties or from other circumstances attending the use.” Roller v. Logan Landfill,

Inc., 16 Ill. App. 3d 1046, 1052 (1974). Evidence of a neighborly relationship at the inception of

a use “may under the appropriate circumstances show the origin of the way.” Nationwide

Financial, 2014 IL 116717, ¶ 53; see Healy v. Roberts, 109 Ill. App. 3d 577, 581 (1982) (stating

“that evidence of a neighborly relationship may give rise to a rebuttable presumption of permissive

use”).

¶ 63 3. This Case

¶ 64 Here, as noted, defendant challenges the trial court’s determination based on the

adversity element of plaintiffs’ prescriptive easement claim. In finding plaintiffs presented a fair

question about the existence of a prescriptive easement, the court determined that the evidence

supported applying the presumption of adverse use. The court noted that evidence was introduced

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that the private road had served as the only access to the land comprising the Herren property since

the 1940s and that since 1958, i.e., for more than 60 years, the Herrens and their invitees had used

the private road to access the Herren property. It further noted that plaintiffs denied that they ever

discussed permission to use the private road with anyone; that there was evidence of exclusivity,

in that their claimed right to use the private road did not depend on a like right in others; that their

use had been open, with knowledge of the various owners of the Beshears property; and that their

use of the private road had been continuous.

¶ 65 Defendant complains the trial court erred in applying the presumption of adverse

use. Initially, he contends that the court’s analysis of the presumption was incomplete because one

consideration for its application is that the origin of the way is unknown and, according to

defendant, the court omitted that consideration from its analysis. Defendant also argues that the

presumption is inapplicable under the facts of this case because evidence in the record did establish

the origin of use of the private road by individuals residing on the Herren property. In particular,

defendant notes that Cloninger’s family, the Vetters, owned the Herren property before plaintiffs.

He also points to evidence of a deed, showing that in 1955, the Vetters transferred “a portion” of

what is now the Beshears property to the Retzers. Based on that evidence, defendant concludes

that a portion of the private road on the Beshears property was owned by the Vetters while they

resided on the Herren property. According to defendant, “[t]he ownership of a portion of the

Beshears Property by the Vetters allows this Court to determine the point in time when use of the

Private Road on the Beshears Property by individuals who did not own the Beshears property

began.”

¶ 66 We disagree with defendant’s arguments. First, in setting forth its decision, the trial

court fully and correctly recited the applicable law, stating as follows:

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“ ‘Where a way has been used openly, uninterruptedly, continuously and

exclusively for more than a period of 20 years, the origin of the way not being

shown, there is a presumption of a right or grant from the long acquiescence of the

party upon whose land the way is located. Rush, 366 Ill. at 315.’ ” (Emphasis

added.)

The court also specifically addressed “the origin of the way” in a footnote of its decision. In its

footnote, the court stated Cloninger’s testimony strengthened plaintiffs’ showing that their use of

the private road was adverse “and that the origin of the way is unknown.” Thus, the court was

clearly aware of the applicable law and did not omit any necessary considerations for applying the

presumption of adverse use.

¶ 67 Second, the record is sufficient to sustain the trial court’s finding that the origin of

the way, i.e., the use of the private road on the Beshears property by individuals residing on the

Herren property, was unknown. Patricia testified that she began using the private road on the

Beshears property in 1958, when she first purchased 10 acres of the Herren property. At the time,

the Beshears property was owned by the Retzers, and Patricia had no discussions with the Retzers

about the private road. Evidence showed Patricia purchased portions of the Herren property from

the Vetters, who were also Cloninger’s parents. Cloninger testified she was born in 1939 and

resided on portions of the Herren property as an infant until she was 18. While she resided there,

the Retzers owned the Beshears property. Cloninger further testified that she used the private road

to access her residence. She asserted that her family “automatically” used the private road and she

did not recall their use of the private road ever being discussed.

¶ 68 As defendant points out on appeal, a deed that was entered into evidence indicates

that in March 1955, the Vetters transferred 5 acres of the 70 acres that later became the Beshears

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property to the Retzers. However, we fail to see how this evidence establishes the origin of the use

of the private road. Notably, defendant’s suggestion that the private road was located on the

transferred five acres is not supported by the record. In fact, descriptions of the property in the

1955 deed and other deeds submitted by the parties, along with a map of the properties presented

by plaintiffs, indicate otherwise. Specifically, a deed transferring the Beshears property from

Lorraine to defendant contains the following description of the 70 acres of Beshears property: “The

North Half of the South East [sic] Quarter of Section 9 Except Ten Acres off of the North Side of

the Northeast Quarter of the Southeast Quarter of Said Section 9.” The record indicates the 10

acres referenced in the above description is the same 10 acres of the Herren property originally

purchased by Patricia in 1958. The map and other evidence in the record further indicate that part

of Panther Creek Road ran along the southeastern border of the Beshears property. The private

road then would have extended in a northerly direction from the southeastern portion of the

Beshears property to the 10 acres of the Herren property. The 1955 deed describes the five acres

transferred from the Vetters to the Retzers as being “off of the North side of the Northwest Quarter

*** of the Southeast Quarter *** of Section 9.” (Emphasis added.) Thus, the five acres was located

on the west side of the Beshears property, while the private road sits on the east side of that

property.

¶ 69 Additionally, the mere fact that the Vetters once owned a portion of the Beshears

property does not establish the circumstances under which their use of the private road began,

particularly when the evidence indicates the private road was located on a different portion of that

property. Accordingly, we find no support for defendant’s contention that the 1955 transfer

required the trial court to find that the “origin of the way” was known in this case.

¶ 70 Defendant next argues that the trial court should have presumed permissive use of

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the private road based on the neighborly relationship between the Retzers and the Vetters. In other

words, defendant contends that evidence of a neighborly relationship between those families

“supports the idea that the origin of the way *** arose from the neighborly relationship.” He relies

on Cloninger’s testimony regarding her family’s interactions with the Retzers to support his

contentions. Additionally, he contends her testimony shows her family’s use of the private road

could not have been done under a claim of right because Cloninger assumed her family had been

given permission by the Retzers to use the private road.

¶ 71 As set forth above, permissive use “may be inferred from the neighborly

relationship of the parties.” Roller, 16 Ill. App. 3d at 1052. Also, evidence of a neighborly

relationship at the inception of a use “may under the appropriate circumstances show the origin of

the way.” Nationwide Financial, 2014 IL 116717, ¶ 53.

¶ 72 In Nationwide Financial, 2014 IL 116717, ¶¶ 48-53, the supreme court rejected a

similar argument to the one defendant presents here. There, the parties, Nationwide Financial, LP

(Nationwide), and the Pobudas, owned adjacent properties, and the Pobudas claimed a prescriptive

easement to travel over a strip of Nationwide’s land. Id. ¶¶ 1-3. In addressing the element of

adversity, the court found the presumption of adverse use applied and that the evidence in the case

“unequivocally indicate[d] that the origin of the way across [Nationwide’s] property ha[d] not been

shown and that it [was] unknown.” (Emphasis omitted.) Id. ¶ 46. In particular, it noted that the

Pobudas’ predecessor in title had testified that the way across Nationwide’s property had already

been established when she bought the adjacent property, she traveled over Nationwide’s strip of

property to access her own property, “she never discussed permission to travel that way with

anyone at anytime,” and the prior owners never informed her that permission was required to travel

across Nationwide’s property. Id. The court concluded as follows:

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“It could be speculated that the origin [of use of the challenged way] was

that the original owners of [Nationwide’s] property merely granted permission to

the original owners of [the Pobudas’] property to travel across the northwest corner

strip ***. It is also possible that the original owners of each property had a parol

agreement to grant an easement to the owners of [the Pobudas’] property ***.

Neither of those scenarios, however, has been shown. 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.” Id. ¶ 47.

¶ 73 In support of its challenge to the finding of a prescriptive easement, Nationwide

argued that the presumption of adversity could not apply “because the evidence show[ed] that

‘neighbors simply began using one another’s driveways,’ and evidence of a neighborly relationship

gives rise to a presumption of permissive use.” Id. ¶ 48. In rejecting that argument, the supreme

court distinguished cases that had applied a “presumption of permissive use” (id.), noting that in

those cases, courts had found the origin of the way based on (1) direct testimony from a

landowner’s predecessor in title that the use sprang “from a neighborly relationship where the

owners simply began using one another’s driveways and had no agreement in writing” (id. ¶ 50;

see Piper v. Warren, 61 Ill. App. 2d 460, 463-66 (1965)); (2) direct testimony from a landowner’s

predecessor in title “testifying that he gave express permission to the plaintiffs to use the driveway”

(Nationwide Financial, 2014 IL 116717, ¶ 51; see Deboe v. Flick, 172 Ill. App. 3d 673, 675-76

(1988)); and (3) testimony from a party defendant that the plaintiff landowner’s predecessor in

title “did not object to his use of the way because ‘ “he was just like one of the family,” ’ ” along

with evidence that the defendant had requested permission from the plaintiff’s predecessor

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(Nationwide Financial, 2014 IL 116717, ¶ 52 (quoting Castle v. Yenerich, 95 Ill. App. 3d 39, 44

(1981))).

¶ 74 We find Nationwide Financial is instructive. Here, Cloninger was the earliest

eyewitness to the use of the private road on the Beshears property. Significantly, however, she was

not a predecessor in title to either plaintiffs or defendant. Rather, Cloninger’s parents, the Vetters,

were the ones who held title to portions of the Herren property (and at least five acres of the

Beshears property). Cloninger was a minor when she resided on the Herren property and used the

private road, living there from infancy until the age of 18. Additionally, her testimony showed she

had no conversations with the Retzers or anyone regarding the use of the private road, that her

family just “automatically” used the road, that her family used the private road to access the Herren

property the entire time she resided there, and that, ultimately, she did not know the circumstances

under which her family came to use the private road. These facts distinguish the present case from

those cases that were identified in Nationwide Financial as having applied the presumption of

permissive use.

¶ 75 Defendant points out that Cloninger testified to a “friendly” and neighborly

relationship between her family and the Retzers. However, while true, nothing in her testimony

necessarily reflects which came first, the neighborly relationship or the Vetters’ use of the private

road. We note that the fact “[t]hat a neighborly relationship later develop[s] is completely

consistent with the lost grant theory” upon which the presumption of adverse use is based. See id.

¶ 54 (“Although the evidence showed that [the Pobudas’ predecessor in title] eventually developed

a neighborly relationship with Nationwide’s predecessor in title, it is also the case that this was not

the origin of the use, but rather that the way had already been established at the time of [the

Pobudas’ predecessor’s] purchase”). As noted, Cloninger’s testimony indicates her family used

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the private road while residing on the property in the 1940s and 1950s. Nothing in her testimony

necessarily establishes when a neighborly relationship developed between her family and the

Retzers or that it predated her family’s use of the private road.

¶ 76 Finally, defendant also argues that the trial court erred by failing to consider

Tarrant’s testimony regarding statements allegedly made by Lorraine that she permitted or allowed

the Herrens to use the private road. He contends that because plaintiffs did not object to Tarrant’s

testimony, Lorraine’s alleged statements should have been considered.

¶ 77 The record shows that both defendant and Tarrant testified to statements made by

Lorraine regarding the Herrens’ use of the private road. During defendant’s testimony, plaintiffs

repeatedly raised hearsay objections, noting that Lorraine had died and could not be called as a

witness. The trial court allowed the testimony but ruled that Lorraine’s alleged statements could

only be used to show their effect on defendant and not to prove the truth of the matter asserted.

Later, Tarrant also testified regarding statements allegedly made by Lorraine, and plaintiffs offered

no objection to such testimony. In its written decision, the trial court stated it would not consider

any statement allegedly made by Lorraine to prove permissive use, stating as follows:

“To the extent Defendant attempts to rely on any statement attributed to Lorraine

McKay, the Court made it abundantly clear that no such statement was allowed for

the purpose of proving the truth of the matter asserted, and therefore no alleged

statement by Lorraine McKay communicated in any way to Defendant or the realty

firm is available to prove permissive use.”

¶ 78 As defendant argues, “[h]earsay evidence admitted without objection may be

considered by a trial court and is given its natural probative effect.” King v. Ashbrook, 313 Ill.

App. 3d 1040, 1045 (2000). However, “[w]hen unobjected-to hearsay statements are before the

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fact finder, it is ‘his prerogative to give those statements whatever weight he thought they should

be given.’ ” S.W. v. Department of Children & Family Services, 276 Ill. App. 3d 672, 682 (1995)

(quoting Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d 501, 509 (1985)).

Here, although plaintiffs raised no specific contemporaneous objection to Tarrant’s testimony

regarding Lorraine’s statements, the court was not required to give the challenged testimony any

weight. Accordingly, we find that the court did not commit reversible error by declining to consider

the testimony at issue.

¶ 79 Moreover, even had the trial court considered Tarrant’s testimony, such

consideration would not have required a finding of permissive use. Tarrant testified that although

he did not remember Lorraine’s precise statements to him, she conveyed that the Herrens “had

permission, authorization, they were allowed to use the road.” However, even if we were to assume

as defendant suggests that such indefinite testimony showed Lorraine conveyed her permission for

use of the private road, the testimony would, at most, be conflicting with other evidence in the

record showing no such permission was granted, including testimony from the Herrens that they

never had any discussions with Lorraine regarding the use of the private road. As noted, when

ruling on a motion for a preliminary injunction, “controverted facts on the merits of the case are

not decided.” Hartlein, 151 Ill. 2d at 156.

¶ 80 Here, the evidence presented was sufficient to sustain the trial court’s finding that

plaintiffs demonstrated a prima facie case that there was a fair question regarding their entitlement

to a prescriptive easement over the private road. We find defendant’s arguments to the contrary

are unpersuasive and that the court committed no abuse of discretion in granting plaintiffs’ request

for a preliminary injunction.

¶ 81 B. Extent of the Preliminary Injunction

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¶ 82 On appeal, defendant next argues the trial court abused its discretion in refusing to

narrow the scope of plaintiffs’ preliminary injunction. He contends plaintiffs’ current use of the

private road impermissibly exceeds the scope of the uses that created the easement and increases

the burden to his property. To support his argument, defendant primarily points to the commercial

hunting practices of ITB, arguing those practices result in hundreds of trips over the private road

each year to reach the Herren property, thereby increasing its use. Additionally, he complains that

ITB’s use of heavy farm equipment and machinery, which it hauls to the Herren property on trailers

on the private road, similarly “exceeds the scope of any prescriptive easement.” Defendant further

challenges Dennis Herren’s bow hunting activities on the Herren property and Norman Becker’s

maintenance of the CRP ground on that property, suggesting that because such activities were not

ongoing for 20 years, they, too, amount to impermissible expansions of the prescriptive easement.

¶ 83 “[T]he extent of the prescriptive easement *** is defined by the prescriptive use

that led to the easement’s creation.” Limestone Development Corp. v. Village of Lemont, 284 Ill.

App. 3d 848, 855 (1996). “All easements are limited and qualified by the use that established the

prescriptive right.” Id.; see Klose v. Mende, 329 Ill. App. 3d 543, 549 (2001) (“The common and

ordinary use establishing the right to an easement by prescription limits and qualifies it so that it

cannot be given to different uses and purposes.”). “Although the owners of an easement are

allowed to make repairs so that the easement is reasonably usable, they cannot make material

alterations in the easement’s character that place a greater burden on the property.” Limestone, 284

Ill. App. 3d at 857.

¶ 84 Initially, we note that in reaching its decision, the trial court relied on this court’s

unpublished decision in H&R Property Service, LLC v. Conine, 2018 IL App (4th) 170602-U.

Neither party has objected to the trial court’s reliance on Conine and, in fact, both reference Conine

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on appeal, comparing and contrasting its facts to those of the present case. Nevertheless, we note

that Illinois Supreme Court Rule 23(e) (eff. Feb. 1, 2023) provides that unpublished orders are

generally nonprecedential and that only nonprecedential orders entered on or after January 1, 2021,

may be cited for persuasive purposes. This court has also held that a trial court commits error by

relying on an unpublished decision entered before January 1, 2021, although such error may be

deemed harmless where the court otherwise reaches the correct conclusion. See People v.

Washington, 2021 IL App (4th) 200196, ¶ 59 (involving an unpublished order from 2014). But see

Habdab, LLC v. County of Lake, 2023 IL App (2d) 230006, ¶ 38 n.5 (recognizing the trial court’s

reliance on an unpublished decision from 2011 and noting that “courts may adopt the reasoning of

unpublished orders”). In this instance, we find any error by the court in relying on Conine was

harmless and that it reached the correct conclusion, i.e., one that was sufficiently supported by the

record.

¶ 85 Here, in addressing and rejecting defendant’s arguments regarding the extent or

scope of the easement and preliminary injunction, the trial court found it significant that plaintiffs

had not sought to increase the size or materially alter the easement. It also concluded that “use of

the easement over the Private Road was simply for access to the Herren property.” The court

further stated as follows:

“Plaintiffs have presented evidence that they intend to use the property in a way

that is far less burdensome than many of the prior uses that established the

prescriptive right. For years, Plaintiffs, their invitees, and other parties have been

using the Private Road for hauling cattle in large trailers for checking on cattle

many times per week; for hauling significant farm implements including tractors

and combines; for hunting in essentially every season of the year; and for all the

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comings and goings of everyday residential life. *** Plaintiffs intend primarily to

continue a use—hunting—that has been ongoing for at least 50 years, that would

be less burdensome than many of the uses that established the prescriptive right,

and that has been ongoing as a commercial enterprise for more than 20 years.”

¶ 86 The trial court’s findings are supported by the evidence presented. The evidence

showed that, for decades, plaintiffs used the private road as their way of accessing the Herren

property. They used the Herren property for various purposes, including gardening and growing

crops; residential living; family reunions; pasturing cattle; storage; maintaining the CRP and other

ground; mushroom hunting; and deer, squirrel, turkey, and coyote hunting. Over the years, various

friends and family members were given permission to hunt on the property. Additionally, since

2001, plaintiffs had allowed hunters to lease portions of their property. In connection with

maintaining the property and plaintiffs’ farming activities, different types of machinery and

equipment were transported to the Herren property on the private road. As the trial court noted,

evidence indicated that cattle had been pastured on the property from the 1960s until 2010 or 2012.

For approximately six months out of each year, individuals visited the Herren property three to

four times a week to check on the cattle. Cattle were also transported to and from the Herren

property in trailers via the private road. Given the evidence presented, we find defendant’s

contentions of increased traffic and use of the private road, which allegedly increased the burden

to his property, are unpersuasive.

¶ 87 Additionally, the case authority defendant relies upon is distinguishable and does

not require reversal of the trial court’s decision. Defendant cites two cases—McCann v. R.W.

Dunteman Co., 242 Ill. App. 3d 246 (1993), and Schultz v. Kant, 148 Ill. App. 3d 565 (1986)—for

the proposition that “[a]n an increase in the use of a roadway ***, even by the same types of

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vehicles the use of which created the prescriptive easement, can result in an impermissible

expansion of the easement that increases the burden to the servient estate.” First, in McCann, 242

Ill. App. 3d at 254-56, the reviewing court essentially found that increased traffic on an easement

appurtenant was impermissible because it was for the benefit of two parcels of land that were not

part of the dominant estate, i.e., “[t]he tract of land benefitted by the easement.” In setting forth its

decision, the court stated “[a]n easement appurtenant may not be extended by the dominant estate’s

owner to accommodate other lands which he may own and for which the easement was not

originally intended.” Id. at 255. Ultimately, McCann involved a different type of easement than

the one involved in this case and is factually dissimilar.

¶ 88 Second, like this case, Schultz, 148 Ill. App. 3d at 573, involved an easement by

prescription and a contention by the defendant that the trial court should have placed restrictions

on its scope. However, in that case, the reviewing court ultimately rejected the defendant’s

argument that the trial court erred in failing “to limit the easement to the character, frequency, and

purpose made of the easement during the prescriptive period.” Id. In particular, it found there had

been no present increase in the burden of the defendant’s property and “no real evidence of any

occurring in the future.” Id. at 575. Further, it held that “[w]hether future uses will go beyond the

extent and scope of the easement is a matter for the future determination of the court, if and when

the question is presented.” Id.

¶ 89 In reaching its decision, the Schultz court distinguished a California case, wherein

the reviewing court affirmed the lower court’s decision to limit the frequency of use of an easement

based upon a finding that the “contemplated future use” of the easement could have unreasonably

increased “the burden to the servient tenement.” Id. at 574 (citing Cushman v. Davis, 145 Cal.

Rptr. 791 (Ct. App. 1978)). It noted that evidence in the California case showed the easement at

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issue had been used 10 times a year for purposes associated with caring for an apricot orchard but

that the owner of the dominant estate planned to subdivide his property and use the easement for

residential purposes. Id. Ultimately, Schultz does not support the argument defendant advances on

appeal, and the California case it discusses, Cushman, is factually distinguishable.

¶ 90 Here, the record contains sufficient evidence to sustain the trial court’s factual

determinations. We find defendant’s arguments to the contrary are unpersuasive and that the court

did not abuse its discretion with respect to the extent of the preliminary injunction that it granted

in plaintiffs’ favor.

¶ 91 III. CONCLUSION

¶ 92 For the reasons stated, we affirm the trial court’s judgment.

¶ 93 Affirmed.

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Herren v. Beshears, 2025 IL App (4th) 250219

Decision Under Review: Appeal from the Circuit Court of Calhoun County, No. 23-MR-

5; the Hon. Zachary P. Boren, Judge, presiding.

Attorneys Brian D. Lee, of Sorling Northrup, of Springfield, for appellant.

for

Appellant:

Attorneys Riley P. Hamilton, of Gates Wise Schlosser & Goebel, of

for Springfield, for appellees.

Appellee:

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