The Grays granted Lake Forest Open Lands Association a conservation easement over lot 2 of their Lake Forest property, adjacent to the historic Kerrigan House. The easement sought to preserve the lot’s scenic, open, lawn, and landscaped character for public viewing from Sheridan Road. It prohibited buildings and other improvements on the easement property, while providing in section 23(d) that an alteration or variation would be valid only if made by a written, executed, and recorded amendment.
After buying the property, the Drapers enclosed a porch that encroached on lot 2, built an addition to the Kerrigan House, changed landscaping, and constructed a driveway turnaround that encroached on lot 2. The Association approved arrangements concerning these changes. Its first and second written amendments removed 809 square feet from the easement for the turnaround and substituted an equal amount of land from lot 1. A third amendment later approved existing improvements and landscaping while eliminating a previously available development-rights transfer.
The Bjorks, neighboring owners with statutory standing to enforce the easement, sued for breach, declaratory relief, specific performance, damages, and attorney fees. The circuit court held on summary judgment that the easement could be amended. After a bench trial, it upheld the first two amendments, invalidated the entire third amendment because nonconforming landscaping materially interfered with the easement’s purposes, ordered removal of specified vegetation, and denied the Bjorks’ remaining relief and attorney fees. The Bjorks appealed, and the Drapers cross-appealed the invalidation of the third amendment.
Issue #1
Whether the conservation easement could be amended despite its repeated references to protection “in perpetuity.”
Holding
Yes. Section 23(d) expressly authorized written, executed, and recorded amendments, so the easement was amendable.
Reasoning
An express easement is construed under the ordinary rules governing deeds and written instruments. The court therefore looked first to the document’s unambiguous language and read the easement as a whole, giving effect to every provision.
Section 23(d) plainly stated that no alteration or variation would be binding unless it appeared in a written amendment executed by the grantors and grantee or their successors and recorded in Lake County. That language affirmatively contemplated amendments rather than barring them.
The easement’s references to perpetuity did not create a conflict. They required preservation of the property’s conservation values, conservation purposes, or easement lien in perpetuity; they did not require every word of the original instrument to remain unchanged forever. An amendment could, for example, add protected land while continuing to advance the easement’s enduring conservation purposes.
Neither the Illinois Real Property Conservation Rights Act nor the cited federal tax provisions independently barred amendments. The Bjorks’ contrary statutory argument depended on the incorrect premise that the easement contained no amendment clause.
Issue #2
Whether the first and second amendments, which allowed a driveway turnaround to encroach on the easement property in exchange for an equal-area land substitution, were valid.
Holding
No. The amendments directly conflicted with the easement’s express prohibition on improvements to the easement property.
Reasoning
Although section 23(d) permitted amendments, it could not be read in isolation. The amendment authority had to be harmonized with the easement’s central provisions: its purpose of retaining the land predominantly as scenic open space and its specific ban in section 3(a) on buildings, structures, and improvements of any kind.
The first and second amendments authorized precisely what section 3(a) prohibited: construction of a driveway turnaround on land then subject to the easement. Allowing an amendment to override that express restriction would effectively render the prohibition, as well as related provisions protecting the easement from partial termination without judicial proceedings, meaningless.
Because the amendments failed under the easement’s plain language, the court did not reach the Bjorks’ separate argument that they were invalid as contrary to public policy.
Issue #3
What relief should be considered after the first and second amendments were held invalid.
Holding
The case was remanded for the trial court to exercise equitable discretion and reassess, collectively, which alterations, if any, the Drapers must remove.
Reasoning
Relief to enforce an easement is equitable and ordinarily rests within the trial court’s discretion. A court may balance the equities unless the encroachment was intentional or culpably negligent.
The Drapers’ conduct did not preclude equitable balancing. Before making most changes, they consulted the Association, reached oral understandings with it, and consulted counsel. Those circumstances supported allowing the trial court to seek a just result rather than imposing an automatic remedy.
At the same time, an equitable analysis cannot make conservation-easement restrictions practically unenforceable. If an owner could violate an easement and then avoid compliance merely because restoration had become expensive, the easement’s restrictions would become hollow and neighboring owners would have little meaningful remedy.
The trial court had evaluated removal issues after treating the first two amendments as valid. On remand, it had to reconsider all alterations together, rather than separately or only those addressed by the invalid amendments, so it could determine what restoration or retention of improvements equity warranted.
Issue #4
Whether the Bjorks could recover attorney fees under the easement’s fee-shifting provision.
Holding
No. The provision granted reimbursement only to the easement’s grantee, the Association, not to neighboring owners enforcing the easement.
Reasoning
Illinois follows the general rule that each party bears its own attorney fees unless a statute or contract clearly provides otherwise. Contractual fee-shifting clauses are strictly construed according to their precise terms.
The easement required the grantors to reimburse “Grantee” for enforcement expenses, including attorney fees. The Association was the grantee; the Bjorks were not. Their statutory standing to enforce the easement did not expand the contractual fee provision to include them.
Issue #5
Whether the trial court erred by invalidating the entire third amendment rather than severing its landscaping provisions.
Holding
No. The trial court properly found the third amendment indivisible and therefore entirely invalid.
Reasoning
Whether a contract is divisible turns on the parties’ intent. The relevant question is whether the parties would have exchanged the remaining performance even if the invalid portion had been omitted or had failed.
The Association’s representative testified that he would not have executed the third amendment had he known that the Drapers’ landscaping failed to comply with the plan incorporated through the prior amendments. That testimony established that the landscaping approval was part of the bargain as a whole, not an independent and severable provision.
Because the trial court’s finding of indivisibility was supported by the evidence and was not against the manifest weight of the evidence, the appellate court upheld invalidation of the entire third amendment.