In Herren v. Beshears, 2025 IL App (4th) 250219, the Illinois Appellate Court affirmed a trial court’s grant of a preliminary injunction recognizing a prescriptive easement over a private roadway. The decision reaffirms longstanding Illinois precedent: where a private road has been used openly, continuously, and exclusively for over 20 years and the origin of the road’s use is not known, a presumption of adverse use arises.
Background
Plaintiffs Patricia and Mary Ann Herren own 440 acres of landlocked property in rural Illinois. The only access to their property is a private road which runs across Defendant Brent Beshears’s adjacent 70-acre parcel. For more than 60 years, the Herrens and their invitees exclusively used the road to reach their land—sometimes intensively, such as during farming operations, and other times less frequently, such as for hunting or part-time residence.
After purchasing the burdened parcel in January 2023, Beshears sent a letter asserting his control over the road and requiring his permission for continued use. The Herrens filed suit claiming a prescriptive easement over the road and obtained a temporary restraining order, later converted to a preliminary injunction after an evidentiary hearing.
Presumption of Adverse Use: Key Takeaways
The trial court found the Plaintiffs had raised a fair question on all four injunction elements, placing particular weight on their likelihood of success in proving a prescriptive easement. The 4th District affirmed, emphasizing that:
- A prescriptive easement requires 20 years of adverse, uninterrupted, exclusive, continuous use under a claim of right.
- A presumption of adverse use arises when a roadway’s origin is unknown and the use has been open and exclusive for 20+ years.
- Plaintiffs’ consistent, long-term use—paired with acquiescence from previous owners—supported this presumption.
Beshears argued that the Herren’s use of the road was “neighborly” and thus permissive. Beshears sought to prove neighborly use of the road through evidence of a friendly relationship between Plaintiff’s family and prior owners of his property. Although Plaintiff denied ever seeking permission to use the road, Defendant sought to introduce evidence of the granddaughter of one of the prior owners of Beshear’s property, who later became the owner of the property and sold it to Beshears. The grandaughter wrote a statement that her grandfather gave Plaintiff permission to use the road. Because the granddaughter died prior to trial, the trial court treated the statement as hearsay and did not allow its introduction for the truth of the matter asserted therein. Defendant introduced other evidence from persons familiar with relationship of the Plaintiff’s family members and prior owners of the his property, but the trial court found such evidence did not prove the that the “neighborly relationship” supported the idea that the “origin of the way *** arose from the neighborly relationship.” The 4th District emphasized that unlike the facts in Piper v. Warren, 61 Ill. App. 2d 460, 463-66 (1965), Deboe v. Flick, 172 Ill. App. 3d 673, 675-76 (1988), and Nationwide Financial v. Pobuda, 2014 IL 116717, Defendant presented no direct testimony from the prior owners establishing that Plaintiff’s use of the road stemmed from either express permission or friendly accommodation. Without evidence pinpointing the “origin of the way” as permissive, the Court held that a presumption of adverse use favored the Plaintiffs.
Preliminary Injunction Standards
To obtain a preliminary injunction in Illinois, a party must show:
- A clearly ascertained right needing protection,
- Irreparable harm without relief,
- No adequate remedy at law,
- A likelihood of success on the merits.
Alms v. Peoria County Election Comm’n, 2022 IL App (4th) 220976.
Once these elements are met, courts balance the equities. Here, having held that the evidence supported the presumption of Plaintiff’s adverse use of the roadway, the 4th District found no abuse of discretion in the trial court’s application of this standard and granting Plaintiff the requested preliminary injunction.
Rule 23 and Unpublished Decisions
The Court commented that the trial court had cited an unpublished decision in its ruling—noting that unpublished opinions may be cited for persuasive purposes only if issued after January 1, 2021 (see Illinois Supreme Court Rule 23(e). The Court clarified that while reliance on older unpublished cases may be error, such reliance may be harmless if the trial court’s judgment is otherwise sound. The Court found the trial court’s reliance on a pre-2021 unpublished opinion to be harmless error. While cautioning against the reliance on unpublished opinion predating January 1, 2021, the Court recognized the existence of other recent authority Habdab, LLC v. County of Lake, 2023 IL App (2d) 230006, ¶ 38 n.5) suggesting courts may “adopt the reasoning” of such older unpublished orders.
Final Word
The Fourth District reaffirmed that the longstanding, exclusive, and unexplained use of a private way—particularly when access is necessary due to landlocked conditions—gives rise to a presumed prescriptive easement, barring compelling proof of permissive origin. This case offers an instructive roadmap for evaluating these property disputes and the shifting presumptions that guide judicial analysis.
