Sass v. State

In Sass v. State (1984), 36 Ill. Ct. Cl. 111, a highway easement was obtained in 1932. Subsequent to 1957, the highway was moved and the easement at issue was no longer used or necessary. In 1974, the plaintiff sought to acquire the State's easement but a negotiated settlement could not be reached. A bill was passed in the legislature to release the State's easement upon payment by plaintiff of the fair appraised value of the State's interest. Plaintiff refused to pay the fair appraised value and he filed suit to have the easement declared abandoned. The Court, citing Respondent's brief with approval, denied the claim because: "Abandonment which may also serve to extinguish a written easement implies an intentional relinquishment of ownership, possession or control of the property without regard to future possession. 1 C.J.S. Abandonment, Section 1. Thus there are two requirements to a finding of abandonment: an intent and an external act. Mere non-use of the property is not in itself sufficient to prove abandonment. The question of abandonment is one of intent to be determined from the evidence and there is no abandonment unless the premises were left with an intention of not again resuming possession. (Burns v. Curran (1916), 275 Ill. 448.) The record clearly indicates that the State of Illinois had no intention to abandon its rights and had not abandoned or released its rights to this easement. Thus one necessary prerequisite to abandonment was lacking." 36 Ill. Ct. Cl. at 118. The Court adopted the Department of Transportation's position that the State had a right of way for the use of the property for highway purposes until that right was released as it was possible that at some future date, it would be used.