Dana Herra Mar. 18, 2016, 5:10pm

An appellate court panel has waded into a dispute between Winnetka neighbors, affirming a lower court’s ruling that a couple whose home borders the Lake Michigan shore has no legal obligation to allow neighbors to cross their property in order to access the beach.

George and Kathryn Katsoyannis and Nikki Alexander, all residents of a small subdivision on Lake Michigan, had sued James Findlay and Susan Small because the defendants, who have beachfront property in the same neighborhood, refused to allow the neighbors to access the beach by crossing their property.

According to the lawsuit, there is a 15-foot beach easement established in 1960 on the edge of the defendants’ property, at the end of Cherry Street. In the 1990s, however, the village of Winnetka placed a gate on the easement at Cherry Street. The gate is kept locked between 9:30 p.m. and 6 a.m. April-November and all of the time from December to March each year.

“When the gate is closed, the only means for plaintiffs to access the beach is over defendants’ property,” the suit explained.

Court documents said the Katsoyannises purchased their property in 1998 and Alexander bought her property in 2005. Neither of the properties has private access to the beach, so the residents were in the habit of accessing the beach by walking about 200 feet south on the property purchased in 2007 by Findlay and Small, bringing them onto the beach just east of the Cherry Street gate.

When the subdivision’s developer, LaSalle National Bank, first deeded the property now owned by Findlay and Small to the original homeowners, the deed specified “an easement over the South 15 feet of Lot 5 … for reasonable beach privileges in favor of the owner and future owners of Lots 8, 9 and 10.”

Lot 8 is owned by George and Kathryn Katsoyannis, Lot 9 by Nikki Alexander, and Lot 5 by Findlay and Small. The language in the deed creates the Cherry Street easement, which granted the residents of Lots 8 and 9 unfettered access to the beach for more than 30 years, until the village erected the gate. In their suit, the neighbors argued that the original property deeds granted them rights to cross Lot 5 to access the beach; because the gate impedes that path, they asked the court to recognize an implied easement, and sought a permanent injunction to prevent the defendants from “interfering with their use and enjoyment of the beach easement.”

The plaintiffs claimed the defendants’ interference included fencing in the property, allowing large, unleashed dogs to run in the yard and “verbally accosting” people crossing their property.

For their part, Findlay and Small asked the court to sanction the plaintiffs for filing a frivolous lawsuit with the intention to harass them.

The implied easement argument failed at the trial court level because at the time the original deeds were enacted, the Cherry Street gate did not exist, so all residents had unfettered access to the beach. In order for an implied easement to exist, the court said, a parcel must be landlocked from the beginning; a change in conditions, such as the construction of a gate, cannot create an implied easement. The appellate court upheld this ruling.

The defendant’ cross-appeal also failed at trial, a decision that was upheld by the appellate court, which said the question of whether a legal easement existed was a material dispute.

“All the parties in this case are privileged to live on or in close proximity to one of the Chicago area’s most beautiful natural features,” the appellate court justices wrote in their ruling. “While defendants, as relative newcomers to Winnetka Beach Estates and in the interest of good relations with their new neighbors, might have decided to allow the owners of Lots 8 and 9 to walk down their driveway to access Cherry Street … nothing in the law requires them to do so.”

The appellate court opinion was written by Justice Mary Anne Mason. Justices Terrence J. Lavin and Aurelia Pucinski concurred.

According to Cook County Circuit Court records, the Katsoyannises were represented in the action by attorneys with the firm of Larson & Associates, of Chicago, while Findlay and Small represented themselves.

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Organizations in this Story

Larson & Associates, P.C.
230 W Monroe St
Chicago, IL 60606

Illinois First District Appellate Court
160 N Lasalle St
Chicago, IL 60601

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