Perbix v. Verizon North , 396 Ill. App. 3d 652 ( 2009 )


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  • Filed 12/8/09             NO. 4-08-0393
    IN THE APPELLATE COURT
    OF ILLINOIS
    FOURTH DISTRICT
    GEORGE H. PERBIX, JR., Trustee of the )     Appeal from
    GEORGE H. PERBIX, JR., TRUST, Dated    )    Circuit Court of
    March 22, 1991; JOHN C CHABUT,         )    Morgan County
    Trustee of the JO ELLEN PERBIX KUZILA )     No. 05L2
    TRUST, Dated November 30, 1998; and    )
    JILL PERBIX CHABUT, Trustee of the     )
    JILL PERBIX CHABUT TRUST, Dated        )
    December 24, 1991,                     )
    Plaintiffs-Appellants,       )
    v.                           )    Honorable
    VERIZON NORTH, INC., a Corporation,    )    Richard T. Mitchell,
    Defendant-Appellee.          )    Judge Presiding.
    _________________________________________________________________
    JUSTICE POPE delivered the opinion of the court:
    In January 2005, plaintiffs, George H. Perbix, Jr.,
    trustee of the George H. Perbix, Jr., trust, dated March 22,
    1991; John C. Chabut, trustee of the Jo Ellen Perbix Kuzila
    trust, dated November 30, 1998; and Jill Perbix Chabut, trustee
    of the Jill Perbix Chabut trust, dated December 24, 1991, filed a
    two-count complaint seeking (1) declaratory relief, which would
    require defendant, Verizon North, Inc. (Verizon), to remove its
    telecommunications cables from a 6.883-acre parcel owned by these
    three trusts and (2) a finding that Verizon's failure to remove
    its cables constituted trespass.   Hereinafter, for ease, we refer
    to the plaintiff trusts as "the Trusts" and the individuals who
    established the Trusts and their predecessors in interest, who
    owned the land prior to its placement in these trusts, as "the
    Perbix family."
    In March 2005, Verizon filed its answer, (1) denying
    the Trusts were entitled to declaratory relief, (2) asserting
    affirmative defenses, and (3) counterclaiming for (a) declaratory
    relief and (b) an injunction.    In April 2007 and July 2007,
    Verizon and the Trusts filed respective motions for summary
    judgment.    In May 2008, the trial court granted Verizon's motion
    for summary judgment, finding Verizon possessed an express
    easement over the contested 6.883-acre parcel.
    The Trusts appeal, arguing the trial court erred by
    granting Verizon's motion for summary judgment and denying the
    Trusts' motion for summary judgment.      According to the Trusts,
    Verizon was not entitled to keep its utility lines on the 6.883-
    acre parcel of property, which were installed in that particular
    location pursuant to a revocable license created by an Illinois
    Department of Transportation (IDOT) utility permit.      We reverse
    and remand with directions.
    I. BACKGROUND
    Because (1) the parties are familiar with the location
    of the real property in this case and (2) the precise location
    and grid coordinates are not fundamental to the issues presented,
    we have omitted precise locations and coordinates.
    In October 1965, the Perbix family granted General
    Telephone Company of Illinois (GTE)--which would later become
    Verizon--an express easement over a parcel of land it owned that
    (1) abutted old United States Highway 36 on the north and south
    and (2) was commonly known as section 26.     The easement autho-
    rized GTE "to construct, operate, patrol and maintain its commu-
    - 2 -
    nication lines[,] including necessary underground cables, wires,
    conduits, splicing boxes, surface terminals, markers, and appur-
    tenances upon, over and across" section 26.    The next year, GTE
    installed underground cables, which ran parallel and immediately
    adjacent to old U.S. Highway 36 on the north side of the highway.
    In January 1976, the Perbix family conveyed a 31.53-
    acre parcel of section 26 south of old U.S. Highway 36 to IDOT.
    IDOT later constructed a highway interchange on this parcel.
    (GTE's underground cables remained in their original location
    just north of old U.S. Highway 36.)
    In June 1981, the Perbix family granted GTE a "right of
    way easement" to construct, operate, patrol, and maintain its
    communication lines directly north of the cables it had buried
    pursuant to the original 1965 easement.    GTE later installed
    additional cables north of its other lines pursuant to this
    easement.    (At this point, GTE had two sets of cables running
    north of and parallel to old U.S. Highway 36.)
    In June 1995, the Perbix family conveyed an additional
    9.109-acre parcel immediately north of old U.S. Highway 36 to
    IDOT.   Both of the sets of cables GTE installed pursuant to the
    1965 and 1981 easements crossed this 9.109-acre parcel of prop-
    erty.   IDOT thereafter planned a redesign of the interchange to
    construct an additional ramp.    As a result, IDOT determined that
    GTE's cables needed to be relocated to the south side of old U.S.
    Highway 36.    Sometime between June 1995 and the completion of
    IDOT's redesign in 1996, GTE requested a new easement from the
    - 3 -
    Perbix family, instead of an easement or license from the state,
    to install its cables south of old U.S. Highway 36 on the west
    side of the remaining property the Perbix family still owned.
    The Perbix family declined.
    According to an uncontradicted affidavit from George H.
    Perbix, which was attached to the Trusts' memorandum in support
    of their motion for summary judgment, he became aware sometime
    prior to June 10, 1996, the State might not continue to use a
    portion of the 31.53-acre parcel of land the Perbix family sold
    to the State in January 1976.    On June 10, 1996, an attorney for
    Perbix wrote to IDOT expressing an interest in purchasing any of
    the surplus property.    On June 12, 1996, IDOT responded:
    "Presently within the development of the
    U.S. 67 extension, or Jacksonville Bypass to
    which it is commonly referred, there is not
    excess land.   A new interchange is to be con-
    structed at the above reference location.
    The existing ramp which is currently servic-
    ing traffic in the southeast quadrant of the
    proposed interchange will be redesigned dur-
    ing construction.
    There is the possibility that there may
    be some excess land at this location created
    with the redesign of this interchange.   It
    will not be known for certain until the con-
    struction project is completed, and there is
    - 4 -
    no longer a transportation necessity for all
    properties.   Should any potential excess land
    be designated after completion of construc-
    tion, we will notify your office of such a
    situation and proceed with the process of
    disposal of excess land."
    In August 1996, following the Perbix family's denial of
    GTE's request for an easement, GTE submitted a request to IDOT
    for a utility permit for the relocation of its cables south of
    old Highway 36 onto the land IDOT purchased from the Perbix
    family in 1976.   Contrary to its actions with respect to its
    request of the Perbix family, GTE did not ask the State to grant
    it an easement.   In September 1996, IDOT approved GTE's request
    and granted utility permit No. 6-25303.    That same month, IDOT
    and GTE entered into an agreement for a reimbursable utility
    adjustment in which IDOT agreed to pay 39.7% of the costs associ-
    ated with relocating the underground cables.    In 1997, GTE in-
    stalled its cables on (1) IDOT's parcel and, at that time, (2)
    current state right of way that ran on the eastern edge of the
    land south of old Highway 36 that the Perbix family sold to the
    State in 1976.
    The redesign of the interchange resulted in unneeded
    excess land, i.e., the 6.883 acres.    In June 1999, IDOT informed
    George H. Perbix of the excess property.    IDOT stated it would
    prepare an excess land plat and obtain an appraisal of this
    parcel.   According to George H. Perbix's uncontradicted affida-
    - 5 -
    vit, prior to IDOT obtaining the appraisal of the 6.883-acre
    parcel, IDOT removed the original exit ramp from the southeast
    quadrant of the interchange, filled the ditch that was parallel
    to the ramp, and created a surface on the 6.883-acre tract with
    contours similar to those in existence in 1976.
    In November 2001, IDOT informed George H. Perbix it had
    received and reviewed the appraisal for the 6.883-acre parcel.
    IDOT told George H. Perbix to remit a $3,000 cashier's check to
    IDOT for the property so that IDOT could request the directed
    sale of the 6.883-acre parcel of property to George H. Perbix be
    included in the annual highway bill submitted to the Illinois
    General Assembly during the 2002 spring legislative session.
    IDOT was authorized to sell the parcel to the Trusts in August
    2002 pursuant to Public Act 92-0843.
    In September 2002, the State of Illinois, acting
    through IDOT, executed a quitclaim deed conveying the property at
    issue in this case to the Trusts.    (GTE's underground cables,
    which it had moved in 1997, ran, in part, along the eastern
    border of this 6.883-acre parcel.)    The quitclaim deed did not
    reserve a license or easement for Verizon to keep and/or maintain
    its utility lines on the 6.883-acre parcel.    According to the
    uncontradicted affidavit of George H. Perbix, no one from IDOT
    informed him or anyone else acting on behalf of the Trusts of the
    issuance of utility permit No. 6-25303, dated September 24, 1996,
    or revised utility permit No. 6-25303, dated October 30, 1996, or
    of the existence of the underground cables on the 6.883-acre
    - 6 -
    parcel.
    In the spring of 2003, the Trusts began excavation work
    on the 6.883-acre parcel acquired from IDOT in 2002.    Preparation
    for this excavation work revealed the underground cables that
    GTE--which was then Verizon--had installed on the eastern border
    of that parcel pursuant to its September 1996 agreement with
    IDOT.
    In June 2003, George H. Perbix wrote to IDOT, inquiring
    about permits or agreements between IDOT and GTE regarding the
    cables running across the 6.883-acre parcel.    In September 2003,
    George H. Perbix requested a copy of associated utility agreement
    No. U-6-97-009.    In October 2003, IDOT provided copies of utility
    agreement No. U-6-97-009 and utility permit No. 6-25303.    In
    November 2003, George H. Perbix wrote to IDOT requesting further
    information about the utility permit and utility agreement.      In
    December 2003, IDOT responded to George H. Perbix, indicating
    IDOT was unable to find documents or notes of conversations about
    the utility permit and agreements relative to the sale of the
    6.883-acre parcel of property.
    In January 2004, George H. Perbix wrote to Verizon,
    informing Verizon that it must remove the cables on the 6.883-
    acre parcel because Verizon did not have an easement over that
    tract.    In August 2004, Verizon responded it was not legally
    obligated to move the cables.    In November 2004, the Trusts sent
    Verizon a notice, purporting to terminate its "license" under
    utility permit No. 6-25303, which IDOT had previously granted to
    - 7 -
    GTE, Verizon's predecessor in interest.   In December 2004,
    Verizon responded it had the right to occupy the property pursu-
    ant to the utility permit, as well as the easements previously
    granted to GTE by the Perbix family.   Verizon stated in the
    letter the costs to relocate its facilities would be approxi-
    mately $40,000.
    In January 2005, the Trusts filed a two-count complaint
    against Verizon, seeking (1) declaratory relief, which would
    require Verizon to remove its telecommunications cables from the
    6.883-acre parcel owned by the Trusts and (2) a finding Verizon's
    failure to remove its cables constituted trespass.   In March
    2005, Verizon filed its answer, (1) denying the Trusts were
    entitled to declaratory relief, (2) asserting affirmative de-
    fenses, and (3) counterclaiming for (a) declaratory relief and
    (b) an injunction.
    In April 2007 and July 2007, Verizon and the Trusts
    filed respective motions for summary judgment.   In May 2008, the
    trial court (1) granted Verizon's motion for summary judgment,
    finding that, as a matter of law, (a) the cables were originally
    placed on the eastern border of the 6.883-acre parcel with the
    consent of IDOT, the then fee-owner of the parcel, and (b) that
    consent, together with the October 1965 express easement over all
    of section 26 from the Perbix family, authorized Verizon to place
    its cables south of Highway 36--which included the eastern border
    of the 6.883-acre parcel--and (2) denied the Trusts' motion for
    summary judgment.
    - 8 -
    This appeal followed.
    II. ANALYSIS
    The Trusts argue the trial court erred (1) in granting
    Verizon's motion for summary judgment, finding Verizon was enti-
    tled to maintain its telecommunication cables in their current
    location pursuant to the 1965 easement and the utility permit,
    and (2) in denying the Trusts' motion for summary judgment be-
    cause Verizon's lines were installed pursuant to a license,
    subject to revocation by the Trusts.
    "With a summary-judgment motion, the trial court does
    not decide a question of fact but, rather, determines whether one
    exists."   Coole v. Central Area Recycling, 
    384 Ill. App. 3d 390
    ,
    396, 
    893 N.E.2d 303
    , 309 (2008).   Therefore, a court may not
    weigh evidence or make credibility determinations when deciding a
    summary-judgment motion.    Coole, 384 Ill. App. 3d at 396, 
    893 N.E.2d at 309
    .
    We review de novo rulings on motions for summary judg-
    ment, (1) examining the pleadings and depositions anew to deter-
    mine whether a question of material fact exists and as a matter
    of law, that the movant was entitled to judgment, and (2) giving
    no deference to the trial court's ruling.     Interior Crafts, Inc.
    v. Leparski, 
    366 Ill. App. 3d 1148
    , 1151, 
    853 N.E.2d 1244
    , 1247
    (2006).    "[W]e may affirm a trial court's grant of summary judg-
    ment on any basis appearing in the record."    State Automobile
    Mutual Insurance Co. v. Habitat Construction Co., 
    377 Ill. App. 3d 281
    , 291, 
    875 N.E.2d 1159
    , 1168 (2007).
    - 9 -
    Both the Trusts and Verizon agree the 1965 easement the
    Perbix family granted to GTE was a "floating easement."    A float-
    ing easement is "[a]n easement that, when created, is not limited
    to any specific part of the servient estate."   Black's Law Dic-
    tionary 528 (7th ed. 1999).
    "[W]here an easement granted by deed is unde-
    fined as to its location and width, the di-
    mensions depend upon the intent of the par-
    ties, which can be shown by the extent of the
    actual use.   Consequently, '"[w]hen the char-
    acter of [the] easement is once fixed, no
    material alterations can be made by either
    the servient or easement owner without the
    other's consent."'"    Peters v. Milks Grove
    Special Drainage Dist. No. 1, 
    243 Ill. App. 3d 14
    , 18-19, 
    610 N.E.2d 1385
    , 1389 (1993),
    quoting Vallas v. Johnson, 
    72 Ill. App. 3d 281
    , 284, 
    390 N.E.2d 939
    , 942 (1979), quoting
    25 Am. Jur. Easements §87 (1966).
    In its brief before this court, Verizon "acknowledge[d] that the
    placement of its cables in 1966 established the initial parame-
    ters of the 1965 easement."
    According to Verizon's brief, after the parameters of
    the 1965 easement were established, "Verizon could not unilater-
    ally relocate the easement; the consent of the servient estate
    owner was a prerequisite to relocation."   However, Verizon con-
    - 10 -
    tends it had the consent of the State, the servient estate owner,
    in 1997 to move its cables to their current location on the
    6.883-acre parcel of land in question.      The Trusts argue the
    State did not consent to the relocation of the easement itself.
    According to the Trusts, the State only gave Verizon a license to
    place its cables on the 6.883 acres.
    We agree with the Trusts.   The State did not consent to
    the relocation of the easement.    The State merely granted GTE
    permission pursuant to a utility permit to relocate the cables,
    not the easement, to their current location on the subject prop-
    erty.   As a result, the location of the easement was not moved;
    nor was a new easement created.
    When the State determined GTE's lines had to be moved
    to accommodate additional highway construction, GTE could not
    acquire an easement on the ground the Perbix family still owned
    immediately east of the 6.883 acres in question in this case.       As
    a result, it sought a utility permit for the relocation of its
    telephone cables adjacent to old U.S. Highway 36 to be placed on
    the right-of-way of the state highway known as FAP310.      This
    location was to the immediate west of the Perbix family's real
    estate over which GTE had requested, unsuccessfully, to move its
    easement.    As we noted earlier, although GTE tried to acquire an
    easement from the Perbix family to relocate its lines, it never
    sought an easement from the State.      It requested and received
    only a permit.
    Pursuant to a revised utility permit granted by IDOT in
    - 11 -
    October 1996, GTE installed, in 1997, copper and fiber-optic
    cables on property owned by the State of Illinois.       The revised
    utility permit, on its face, was subject to the conditions and
    restrictions of section 530 of Title 92 of the Illinois Adminis-
    trative Code (Administrative Code) (92 Ill. Adm. Code §530, as
    amended by 
    16 Ill. Reg. 2193
     (eff. January 27, 1992)), and the
    implementing regulations for section 9-113 of the Illinois High-
    way Code (Highway Code) (605 ILCS 5/9-113 (West 1996)). Section
    9-113(d) of the Highway Code provides:
    "In no case shall the written consent of the
    State highway authority give or be construed
    to give any entity any easement, leasehold[,]
    or other property interest of any kind in,
    upon, under, above[,] or along the non[]toll
    federal-aid fully access-controlled State
    highway right-of-way."   605 ILCS 5/9-113(d)
    (West 1996).
    Thus, GTE was on notice it was only getting a permit and not an
    easement.
    Section 530.40(b) of Title 92 of the Administrative
    Code provides, "A permit from the Department grants a license
    only *** and does not create a property right ***."        92 Ill. Adm.
    Code §530.40(b), as amended by 
    16 Ill. Reg. 2212
     (eff. January
    27, 1992).    Further, subsection (h) provides:
    "In no case shall the permit give or be
    construed to give an entity any easement,
    - 12 -
    leasehold or other property interest of any
    kind in, upon, under, above[,] or along the
    State highway right-of-way."    92 Ill. Adm.
    Code §530.40(h), as amended by 
    16 Ill. Reg. 2213
     (eff. January 27, 1992).
    Thus, by express statutory and Administrative Code
    language, the granting of a permit, which IDOT did in this case,
    cannot constitute the granting of an easement.    Thus when the
    Trusts acquired the 6.883-acre tract, GTE's lines were placed
    there pursuant to a permit.   Thus Verizon held only a permitted-
    use license.
    "A license in respect to real property
    is permission to do an act upon the land of
    another without possessing any estate or in-
    terest in such land. [Citation.]    A parol
    license is revocable, although a consider-
    ation has been paid or expenditures have been
    made on the faith of the agreement, except
    when revocation would operate as a fraud upon
    the licensee."   Wilder v. Finnegan, 
    267 Ill. App. 3d 422
    , 427, 
    642 N.E.2d 496
    , 501 (1994).
    Verizon has made no allegations of fraud in this case.
    While the State could have, when transferring the
    property to the Trusts, reserved an easement for the benefit of
    Verizon (see Champaign National Bank v. Illinois Power Co., 
    125 Ill. App. 3d 424
    , 431, 
    465 N.E.2d 1016
    , 1021 (1984) ("The weight
    - 13 -
    of modern authority supports the position that commercial ease-
    ments in gross are alienable, especially when the easements are
    for utility purposes")), it did not do so.    Consequently, Verizon
    only held a license permitting its use of the 6.883 acres.
    Because Verizon only had a license to run its lines on
    the 6.883-acre parcel, the license could be revoked, unlike an
    easement.    See Keck v. Scharf, 
    80 Ill. App. 3d 832
    , 835, 
    400 N.E.2d 503
    , 505 (1980).    In addition, "[a] license ordinarily is
    revoked by a sale, conveyance, or lease of the land, without a
    reservation to the licensee."    25 Ill. L. & Prac. Licenses §59,
    at 106 (2001).    If the license was not automatically revoked by
    the sale of the parcel from the State to the Trusts, the license
    was subject to revocation by the Trusts, the subsequent purchas-
    ers.
    Verizon also argues both (1) it possesses an implied
    easement arising from a preexisting use and (2) it should be
    allowed to continue to use the subject parcel as a matter of
    public policy.    We disagree with Verizon on both points.
    We first address Verizon's implied-easement contention.
    According to our supreme court:
    "The easement implied from a prior ex-
    isting use, often characterized as a 'quasi-
    easement,' arises when an owner of an entire
    tract of land or of two or more adjoining
    parcels, after employing a part thereof so
    that one part of the tract or one parcel de-
    - 14 -
    rives from another a benefit or advantage of
    an apparent, continuous, and permanent na-
    ture, conveys or transfers part of the prop-
    erty without mention being made of these in-
    cidental uses.   In the absence of an
    expressed agreement to the contrary, the con-
    veyance or transfer imparts a grant of prop-
    erty with all the benefits and burdens which
    existed at the time of the conveyance of the
    transfer, even though such grant is not re-
    served or specified in the deed. [Citations.]
    This court has stated on numerous occasions
    that an easement implied from a preexisting
    use is established by proof of three
    elements: first, common ownership of the
    claimed dominant and servient parcels and a
    subsequent conveyance or transfer separating
    that ownership; second, before the conveyance
    or transfer severing the unity of title, the
    common owner used part of the united parcel
    for the benefit of another part, and this use
    was apparent and obvious, continuous, and
    permanent; and third, the claimed easement is
    necessary and beneficial to the enjoyment of
    the parcel conveyed or retained by the
    grantor or transferrer."     Granite Properties
    - 15 -
    Ltd. Partnership v. Manns, 
    117 Ill. 2d 425
    ,
    436-37, 
    512 N.E.2d 1230
    , 1236 (1987).
    The facts in this case do not meet the requirements for an im-
    plied easement.    As for the first element, a dominant estate did
    not exist.   As for the second element, the common owner, i.e.,
    the State, was not using the parcel that was sold to benefit the
    property it retained, at least with regard to Verizon's lines.
    Finally, as for the third element, while the lines are important
    to Verizon, the lines are not necessary and beneficial to the
    enjoyment of either the parcel of land conveyed or the land kept
    by the State.
    As for Verizon's public-policy argument, Verizon incor-
    rectly cited section 9-127 of the Highway Code from the 2006
    edition of the State Bar Association edition of the Illinois
    Compiled Statutes (605 ILCS 5/9-127 (West 2006)).     Between the
    time the subject property was sold by the State to the Trusts in
    September 2002 and the publication of the 2006 State Bar edition
    of the Illinois Compiled Statutes, the language of section 9-127
    was amended on two separate occasions.     Pub. Act 93-321, §5, eff.
    July 23, 2003 (
    2003 Ill. Legis. Serv. 2056
    , 2056-57 (West)); Pub.
    Act 94-476, §5, eff. August 4, 2005 (
    2005 Ill. Legis. Serv. 2545
    (West)).   However, the amendment of section 9-127 does impact our
    result.
    When the State sold the subject property to the Trusts,
    section 9-127(a) of the Highway Code stated in part:
    "Except as provided in subsection (b)
    - 16 -
    and in cases where the deed, or other instru-
    ment, dedicating a highway or part thereof,
    has expressly provided for a specific devolu-
    tion of the title thereto upon the abandon-
    ment or vacation thereof, whenever any high-
    way or any part thereof is vacated under or
    by virtue of any Act of this State or by the
    highway authority authorized to vacate the
    highway, the title to the land included with-
    in the highway or part thereof so vacated,
    vests in the then owners of the land abutting
    thereon, in the same proportions and to the
    same extent, as though the highway had been
    dedicated by a common law plat (as distin-
    guished from a statutory plat) and as though
    the fee of the highway had been acquired by
    the owners as a part of the land abutting on
    the highway except, however, such vacation
    shall reserve to any public utility with fa-
    cilities located in, under, over[,] or upon
    the land an easement for the continued use,
    if any, by such public utility." (Emphasis
    added.)   605 ILCS 5/9-127(a) (West 2002).
    This statute is in derogation of the common law because, as we
    stated earlier, "[a] license ordinarily is revoked by a sale,
    conveyance, or lease of the land, without a reservation to the
    - 17 -
    licensee."    25 Ill. L. & Prac. Licenses §59, at 106.     Statutes in
    derogation of the common law must be construed in favor of the
    party whose common law interest is affected.     J. C. Penney Co. v.
    Andrews, 
    68 Ill. App. 3d 901
    , 904, 
    386 N.E.2d 923
    , 926 (1979).
    If the State had simply vacated the property, this
    provision would have applied.    Verizon does not contend the State
    vacated the subject parcel by an "[a]ct of this State."      Verizon,
    in its brief, acknowledges the subject parcel was sold to the
    Trusts as surplus property pursuant to Public Act 92-843, eff.
    August 22, 2002.    Further, Verizon admits IDOT should have ex-
    pressly reserved an easement for Verizon for its continued use of
    the subject parcel.    The courts cannot judicially create what the
    State failed to grant to Verizon--an easement.
    On August 4, 2005, section 9-127 was amended by adding
    subsection (d) pursuant to Public Act 94-476.    Subsection (d)
    provides:
    "When any highway authority determines
    to vacate a highway or a part of a highway
    under its jurisdiction, the authority may
    sell the vacated highway property to any
    third party at fair market value if (1) the
    authority has either a fee simple interest in
    the vacated highway property or a dedication
    of that property by statutory plat and (2)
    the right of first refusal with regard to the
    vacated highway property has been granted to
    - 18 -
    adjoining landowners for fair market value."
    605 ILCS 5/9-127(d) (West 2008).
    Subsection (d) provides authorization to the highway authority to
    sell vacated highway property to third parties at fair market
    value where the highway authority is the fee owner of the vacated
    highway property and it has granted adjoining landowners the
    right of first refusal.    Under subsection (a), when a highway or
    part thereof is vacated, the vacation "shall reserve to any
    public utility with facilities located in, under, over[,] or upon
    the land an easement for the continued use, if any, by such
    public utility."    605 ILCS 5/9-127(a) (West 2008).   While this
    language is not repeated in subsection (d), it arguably applies
    to sales of vacated property.    Under subsection (a), the vacation
    itself requires the reservation of an easement.    Subsection (d)
    merely adds an additional method of disposal of vacated highway
    property.
    However, because Verizon does not contend the State
    vacated its interest in the property, we need not decide the
    issue.   The State sold the 6.883-acre parcel as surplus property
    and did not reserve an easement to Verizon.    As a result, Verizon
    merely held a revocable permit to place its lines on the parcel.
    That permit, by its express terms, did not create an easement.
    Accordingly, the Trusts, as subsequent fee owners, had the abil-
    ity to require Verizon to remove its lines.
    III. CONCLUSION
    For the reasons stated, we reverse the trial court's
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    judgment and remand with directions to grant the Trusts' motion
    for summary judgment.
    Reversed and remanded with directions.
    MYERSCOUGH, P.J., concurs.
    STEIGMANN, J., dissents.
    - 20 -
    JUSTICE STEIGMANN, dissenting:
    I respectfully dissent.   The easement in this case
    should not be restricted to its "actual use," as that phrase is
    defined by the Trusts.    However, even if the easement were re-
    stricted to its actual use, the State, as the servient landowner,
    gave Verizon its "consent" to relocate the easement.
    The Trusts argue that the trial court improperly
    granted Verizon's motion for summary judgment because Verizon was
    not entitled to maintain its cables on the 6.883-acre tract based
    on the express easement the Trusts' predecessors in interest
    granted GTE in 1965.    Specifically, the Trusts contend that (1)
    while the 1965 easement was a "floating" easement--that is, an
    easement granting GTE authority to install telecommunication
    cables on any part of section 26--once GTE installed the cables,
    its easement should have been limited by GTE's--and later
    Verizon's--"actual use" and, having no authority to relocate the
    cables GTE had installed, (2) the utility permit and agreement
    with the State did not amount to sufficient consent to allow
    Verizon to relocate its original easement.     I disagree.
    A. The Trusts' Claim That Verizon's Easement Should
    Have Been Limited to Its Actual Use
    In support of its argument that the easement should
    have been limited to its actual use, the Trusts rely on Vallas,
    
    72 Ill. App. 3d 281
    , 
    390 N.E.2d 939
    , and Peters, 
    243 Ill. App. 3d 14
    , 
    610 N.E.2d 1385
    .
    In Vallas, the easement at issue lacked a defined
    width.    Vallas, 
    72 Ill. App. 3d at 282
    , 
    390 N.E.2d at 941
    .      The
    - 21 -
    court concluded that the width of the easement should be confined
    to the dimensions that were reasonably necessary to achieve the
    purpose for which the easement was created, as established by its
    actual use.   Vallas, 
    72 Ill. App. 3d at 284
    , 
    390 N.E.2d at 942
    .
    Similarly, in Peters, the language granting the ease-
    ment at issue was not available to the parties or the court.
    Peters, 
    243 Ill. App. 3d at 18
    , 
    610 N.E.2d at 1388
    .   As a result,
    the court followed the rationale in Vallas, concluding that the
    easement's width--which was the subject of controversy--should be
    restricted to the extent of its actual use.    Peters, 
    243 Ill. App. 3d at 18-19
    , 
    610 N.E.2d at 1388-89
    .
    Unlike Vallas and Peters, however, the easement in this
    case was definite.   "Actual use" is only an issue when the param-
    eters of an easement are in question because those parameters put
    the parties and subsequent purchasers on notice of its existence,
    size, and location (see Peters, 
    243 Ill. App. 3d at 18-19
    , 
    610 N.E.2d at 1389
     ("where an easement granted by deed is undefined
    as to its location and width, the dimensions depend upon the
    intent of the parties, which can be shown by the extent of the
    actual use" (emphasis added))).   The original 1965 easement in
    this case--which was recorded--specifically delineated that it
    encompassed all of section 26.    Thus, subsequent bona fide pur-
    chasers would have been on notice that Verizon's cables could
    have been buried on any part of section 26.   The fact that the
    Trusts and the Perbix family had some general knowledge of the
    cables' original location is of no moment, as they should be
    - 22 -
    treated as any other bona fide purchaser.
    B. The Trusts' Claim That the Utility Permit Was Insufficient To
    Demonstrate Its Intent To Allow Verizon To Relocate Its Easement
    The Trusts further contend that, having no authority to
    relocate the cables GTE had installed, the utility permit was
    insufficient to demonstrate the State's intent to allow Verizon
    to relocate its easement.     The majority agrees with the Trusts,
    citing the following excerpt from Peters:
    "'[W]here an easement granted by deed is
    undefined as to its location and width, the
    dimensions depend upon the intent of the
    parties, which can be shown by the extent of
    the actual use.   Consequently, '"[w]hen the
    character of [the] easement is once fixed, no
    material alterations can be made by either
    the servient or easement owner without the
    other's consent.'"'    [Citations.]" (Emphasis
    added.)   Slip op. at 10.
    Accordingly, consent was the only requirement necessary
    to effectuate the reallocation of the cables.      To be clear, the
    law requires "consent" to relocate, not the granting of a new
    easement.    Here, the State, through IDOT--the then-servient
    landowner--gave such consent.      The utility permit--like the
    documents in this record that show that the cables were moved
    with the financial assistance of the State--was merely evidence
    of such consent.
    In support of its conclusion that Verizon was not
    - 23 -
    granted permission to move its easement, the majority notes that
    "although GTE tried to acquire an easement from the Perbix family
    in order to relocate its lines, it never sought an easement from
    the State.   It requested and received only a permit."     Slip op.
    at 11.   Of course it did.   GTE never sought an easement from the
    State because it already had one.    It was merely seeking consent
    to relocate its lines within an easement it already had on land
    owned by the State.
    The majority also points to the language of (1) the
    utility permit and (2) section 530.40(b) of Title 92 of the
    Administrative Code to demonstrate that the permit should not be
    construed to grant the permit's holder an easement or any other
    property interest for that matter.      This language would be
    significant if the State had granted Verizon an interest in land.
    However, as previously stated, it did not.      Instead, the State
    granted Verizon--in part, by way of permit--consent to relocate a
    property interest it already had in land owned by the State.
    - 24 -