Beitner v. Marzahl

Case Date: 12/09/2004
Court: 2nd District Appellate
Docket No: 2-03-1377 Rel

 

No. 2--03--1377


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


OTTO BEITNER and ANN BEITNER,

          Plaintiffs-Appellees,

v.

CHRISTOPHER MARZAHL and LINDA J.
MARZAHL,

          Defendants-Appellants

(Unknown Owners and Nonrecord Claimants,
Defendants).

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Appeal from the Circuit Court
of McHenry County.



No. 01--CH--233




Honorable
Michael T. Caldwell,
Judge, Presiding.

JUSTICE KAPALA delivered the opinion of the court:

Defendants, Christopher Marzahl and Linda J. Marzahl, appeal from an order of the circuitcourt of McHenry County that quieted title to a disputed strip of land on defendants' southernboundary in favor of plaintiffs, Otto Beitner and Ann Beitner, by adverse possession. We affirm inpart, vacate in part, and remand with directions.

FACTS

In 1978, plaintiffs purchased property on Zarnstorff Road in Spring Grove, McHenry County,from James and Patricia Ruemelin. This parcel was part of a larger tract that the Ruemelins owned. The Ruemelins desired to convey to plaintiffs a parcel that measured 330 feet on the west side, 325feet on the east side, and approximately 799 feet east to west. To accomplish this, James Ruemelinhired Charles Mionske, a registered land surveyor, to plat a survey. Ruemelin furnished Mionske withthe legal description of the parcel to the north and Mionske based his survey on that description. Theparcel that Mionske surveyed in 1978, and that plaintiffs purchased, was 6.082 acres.

The property to the north of plaintiffs' parcel was owned by George and Doris Redmann, whotook title in 1973. Mionske's 1978 survey shows a wire fence that runs generally east and west justsouth of the Redmanns' southern boundary and strays slightly onto plaintiffs' property, as the fencewas depicted in the survey. The fence, known as the Redmann fence, commences at the northeastcorner of plaintiffs' property and abruptly ends a short distance before it reaches the westernboundary. At all times during plaintiffs' occupancy of their property and while George Redmann was alive, he owned and maintained the fence.

When plaintiffs bought their property, it was all in pasture. They built a house and drivewayon the western part of the parcel facing Zarnstorff Road and used the remainder for crops and farmanimals. Plaintiffs occupied their property up to the Redmann fence but never occupied any propertynorth of the fence. This "fence line" was observed even in the westernmost area of plaintiffs'property, where no physical fence exists. Plaintiffs planted evergreens and mowed their grass in thisarea along an imaginary extension of the fence line.

In 1994, defendants purchased the parcel north of plaintiffs' property from George Redmann'sestate. Defendants, like the Redmanns, occupied their property south to the fence, and plaintiffscontinued to occupy their property north to the fence. The parties found this situation livable untila developer started surveying the property north of defendants' parcel. Christopher testified that hecame home one day and saw a "white stake with a big red head" in his front yard. It was "obviouswhen I pulled in my driveway like [sic] somebody was surveying and it wasn't me," he testified. Seeing survey stakes in his yard prompted Christopher to commission a resurvey of his property. Land Technology, Inc., performed the resurvey in December 1999. This survey fixed defendants'southern boundary south of the Redmann fence. In response to seeing survey stakes on theirproperty, plaintiffs in turn ordered a resurvey of their property. Mionske resurveyed in July 2000. Mionske's resurvey disclosed a strip of land along the northern boundary of plaintiffs' property thatis 13.24 feet wide at plaintiffs' northwest corner and 16.63 feet wide at plaintiffs' northeast corner. The Redmann fence is situated within this strip. Mionske called this strip a "deed overlap" because,as a result of a discrepancy between the Marzahl and Beitner deeds, there is an overlap of propertydescriptions seemingly granting both parties legal title to this strip. Trouble ensued between plaintiffsand defendants.

On July 19, 2001, plaintiffs filed an amended complaint to quiet title to this overlap strip. On August 6, 2003, after a trial without a jury, the trial court made written findings of fact andconclusions of law. The trial court awarded "the subject 13 feet" to plaintiffs, by adverse possession,finding that plaintiffs have "openly, continuously and hostilely occupied the subject property for aperiod in excess of twenty years." Defendants filed a timely appeal.

DISCUSSION

Before we address defendants' contentions, we must dispose of a preliminary matter. Plaintiffs filed a motion to strike defendants' opening brief or alternatively to strike the statement offacts. We ordered that motion taken with the case. Plaintiffs find fault with defendants'argumentation, lack of citation to the record, and extensive use of footnotes. But plaintiffs alsorecognize that we will strike a brief in whole or in part only where the violation of the rules is soflagrant as to hinder or preclude review. Amcore Bank, N.A. v. Hahnaman-Albrecht, Inc., 326 Ill.App. 3d 126, 134 (2001).

Plaintiffs first contend that the statement of facts is "replete" with argument and commentary,in violation of Supreme Court Rule 341(e)(6) (Official Reports Advance Sheet No. 21 (October 17,2001), R. 341(e)(6), eff. October 1, 2001). That rule requires in part that the statement of factscontain "the facts necessary to an understanding of the case, stated accurately and fairly withoutargument or comment, and with appropriate reference to the pages of the record on appeal." OfficialReports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(6), eff. October 1, 2001. Theappellate court has held that argumentative language is inappropriate for a statement of facts andagainst the mandate of the rule. Cottrill v. Russell, 253 Ill. App. 3d 934, 938 (1993). We findplaintiffs to be overly technical about the argumentative nature of the statement of facts, except forone objection they raise. Defendants' discussion of the trial court's order is blatantly argumentative. Any statement that is argumentative or made without reference to the record need not be consideredby this court. Bank of Chicago v. Park National Bank, 277 Ill. App. 3d 167, 168 (1996).Accordingly, we will ignore any argument made by defendants in their reference to the trial court'sorder.

Plaintiffs next complain that a summary descriptive passage that begins the statement of factscontains no references to the appropriate pages of the record. This is true, and defendantsacknowledge that this technically violates the rule. However, this passage is approximately one pagelong and merely orients the reader to the geographical location of the property in dispute, and theremainder of the statement of facts is sufficiently compliant with the rule with respect to recordreferences. While defendants are not free to indulge in stylistic flourishes at the expense of supremecourt rules, we believe that it would be unduly harsh for us to strike the brief or portions of it for thisminor transgression.

Plaintiffs' last contention in their motion is that defendants violated Supreme Court Rule341(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(a), eff. October 1, 2001), which provides in part that "[f]ootnotes, if any, shall be used sparingly." This objection deservescomment. There are 17 single-spaced footnotes in the statement of facts alone that are used toannotate the statement of facts. The facts of this case are not so complex that these footnotes areneeded or desirable. Ideally, any information defendants consider important enough to convey to thiscourt should be included in the body of the brief. We echo our comment in Terrill v. OakbrookHilton Suites & Garden Inn, L.L.C., 338 Ill. App. 3d 631, 638 (2003), that this excessive use offootnotes in violation of the rule is "inexcusable." However, because we are able to glean thenecessary facts from the record, we elect to consider this appeal on the merits and, accordingly, denythe motion to strike defendants' brief or the statement of facts.

We turn now to the merits of this appeal. Defendants' first contention is that plaintiffs'amended complaint did not invoke the trial court's jurisdiction. Defendants argue that the amendedcomplaint sought to quiet title to their entire parcel and not specifically to the overlap strip. Defendants cite Zygmuntowicz v. Pepper Construction Co., 306 Ill. App. 3d 182, 185 (1999), forthe proposition that where a formal pleading does not present an issue for adjudication, the trial courtlacks subject matter jurisdiction to decide that issue. This is a misinterpretation of Zygmuntowicz. In Zygmuntowicz, the trial court in a negligence case was held not to have jurisdiction to apportiondamages between the defendant Pepper and the codefendant Merchandise Mart, where Pepper neverfiled a cross-claim against Merchandise Mart requesting such relief. Zygmuntowicz, 306 Ill. App.3d at 183-84. The appellate court held that a party cannot be afforded relief, despite the admissionof evidence supporting that relief, absent a corresponding pleading, such as a cross-complaint. Zygmuntowicz, 306 Ill. App. 3d at 184. In our case, plaintiffs filed a pleading in the trial courtrequesting the relief of quiet title to land that included the overlap strip and, therefore, the pleadingwas sufficient to invoke the trial court's jurisdiction.

Defendants' second contention is that the trial court's finding that plaintiffs acquired title tothe overlap strip by adverse possession is against the manifest weight of the evidence. Defendantsmaintain that plaintiffs did not establish the location of the boundary of the land that they wereclaiming and that the evidence was clear that plaintiffs did not occupy the entire overlap strip, butonly that portion of it up to the Redmann fence. As an alternative, defendants ask us to fix the fenceas the boundary pursuant to the doctrine of boundary by acquiescence. Plaintiffs contend thatdefendants waived consideration of the doctrine of boundary by acquiescence because that issue wasnot presented to the trial court. Generally, issues raised for the first time on appeal are waived. Daley v. License Appeal Comm'n, 311 Ill. App. 3d 194, 200 (1999). However, this rule is not rigidand inflexible. Daley, 311 Ill. App. 3d at 200. The rule of waiver is an admonition to the litigants,not a limitation upon the jurisdiction of the reviewing court. Daley, 311 Ill. App. 3d at 200. Therefore, we recognize that the responsibility of a reviewing court for a just result and for themaintenance of a sound and uniform body of precedent may sometimes override the considerationsof waiver pursuant to Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)). Daley, 311 Ill. App.3d at 200. We believe that this is such a case, and, as both parties have briefed the issue, we willentertain defendants' argument that the legal principle of boundary by acquiescence applies here andthat the Redmann fence was accepted by the parties as the boundary. Because we find this issue tobe dispositive, we will not address whether the evidence supports the trial court's finding thatplaintiffs own the overlap strip by adverse possession.

In McLeod v. Lambdin, 22 Ill. 2d 232, 235 (1961), our supreme court stated:

"Where a boundary between two tracts is unascertained or in dispute, the line may be established, first by parol agreement and possession; second, by an agreement implied fromunequivocal acts and declarations of the parties and acquiescence for a considerable periodof time; and third, in the absence of any agreement, by undisturbed possession for more thantwenty years. When an unascertained or disputed boundary is actually established undereither or all of these alternative methods, it will be binding on the parties and their privies inestate and may be enforced or protected in an appropriate action in equity." (Emphasisadded.)

In that case, for more than 20 years before litigation began, the occupants of adjoining parcels of land"recognized, utilized and accepted" a hedge fence as the line between the two tracts. McLeod, 22Ill. 2d at 234. After the hedge fence was removed, the landowners followed an arrangement wherebythey would erect an electric fence along the line of the former hedgerow in the fall and remove it inthe spring to facilitate planting. McLeod, 22 Ill. 2d at 234-35. Each owner cultivated his side up tothe old hedgerow line. McLeod, 22 Ill. 2d at 235. However, after the defendants acquired one ofthe tracts, they asserted ownership, not to the fence line, but beyond it to a government survey line. McLeod, 22 Ill. 2d at 235. Our supreme court declared, "We believe that the many years duringwhich the respective owners farmed up to the hedgerow and utilized it as a fence to contain theircattle fairly implies their agreement to establish and recognize the hedgerow as the boundary line." McLeod, 22 Ill. 2d at 235-36.

We believe that McLeod governs the case before us. The Mionske resurvey of plaintiffs'property done in July 2000 was introduced into evidence as plaintiffs' exhibit No. 9. This documentclearly delineates the dimensions of the overlap strip. Mionske testified that this overlap occurredas a result of a discrepancy in the legal descriptions in both parties' deeds. Thus, the boundarybetween the Marzahl parcel and the Beitner parcel was unascertained. The legal description in theRedmann deed is the same as the legal description in the Marzahl deed, which means that theboundary was also unascertained during the Redmanns' occupancy.

All of the evidence established that plaintiffs occupied the land only up to the Redmann fenceand that the Redmanns (George after Doris's death) and then defendants occupied everything northof the fence. Plaintiffs admitted that their use and possession never expanded north of the fence. Theparties observed this fence line even in the area where the physical fence was nonexistent. Plaintiffsplanted evergreens in spaces where, when they grew large, they would not intrude over the imaginaryfence line, and a photograph in evidence shows that plaintiffs mowed up to this line. All of theevidence demonstrated that plaintiffs never exercised any dominion or control over the property northof the fence. Likewise, the Redmanns and defendants treated the fence as their southern boundary. James Ruemelin testified that George Redmann erected the fence. Ann testified that the Redmannsalways occupied their property to the fence and that George Redmann was "emphatic" about thefence being his boundary. Photographs in evidence from the late 1970s show that plaintiffs grewcrops up to the fence line and that the Redmanns had livestock and housing for livestock just northof the fence. Ann testified that after defendants purchased the Redmann parcel, they occupied it tothe fence line and not beyond. Thus, McLeod's requirement of an agreement implied fromunequivocal acts is satisfied.

For the doctrine of boundary by acquiescence to apply, McLeod also requires that the partiesacquiesce for a considerable period of time. George and Doris Redmann acquired what is now theMarzahl tract in 1973. Doris died and then George died. George Redmann's estate conveyed thetract to defendants in 1994. Plaintiffs obtained title to their tract from the Ruemelins in 1978. From1978 until this dispute arose in 2000, plaintiffs accepted the Redmann fence as their northernboundary. While defendants recognized the fence as their southern boundary for a period of six yearsbefore this dispute arose, the Redmanns' prior recognition of the fence as the boundary is tacked ontothe time defendants utilized the fence as the boundary. See McLeod, 22 Ill. 2d at 234-35 (tackingperiods from 1912 to 1955). Thus, the fence was recognized and utilized as the boundary for at least22 years. We believe this fulfills the requirement that the parties acquiesce for a considerable periodof time.

Plaintiffs draw our attention to Hartzler v. Uftring, 114 Ill. App. 3d 427, 431 (1983), wherethe Fourth District Appellate Court held that the parties must have disputed the true boundary linebefore coming to an agreement to resolve the dispute by recognizing a boundary line. Hartzler heldthat a current dispute between the parties in court will not suffice to invoke the application of thedoctrine of boundary by acquiescence. Hartzler, 114 Ill. App. 3d at 431. However, Hartzler reliedon Jones v. Scott, 314 Ill. 118 (1924). Jones was decided long prior to McLeod, and our supremecourt in McLeod required no such evidence of a prior dispute. The evidence in McLeod was that the landowners for many years amicably used the hedgerow and later the electric fence as the boundary. McLeod, 22 Ill. 2d at 234-35. We agree with the Third District's opinion in Boyer v. Noirot, 97 Ill.App. 3d 636, 639 (1981), that the fact that the line is now in dispute is sufficient to bring the casewithin the scope of the doctrine of boundary by acquiescence. Moreover, we note that McLeodrequires that the boundary be either unascertained or disputed, but not both. McLeod, 22 Ill. 2d at235.

In the alternative, defendants assert that they should be awarded the entire overlap strip. Their theory is that the Redmanns, from whom defendants received their deed, preceded theRuemelins, from whom plaintiffs received their deed, in title and, therefore, defendants' claim to thedisputed property has priority. Defendants cite Rohde v. Rohn, 232 Ill. 180 (1907) and Chicago &Northwestern Ry. Co. v. Kennedy, 344 Ill. 309 (1931). These cases are distinguishable. Rohdedecided the priority of two equitable mortgagees and did not involve boundary by acquiescence. Rohde, 232 Ill. at 190. Kennedy involved a suit to quiet title where neither party could show a papertitle to the disputed strip and the location of the boundary had never been definitely established. Kennedy, 344 Ill. at 314. The supreme court awarded the disputed strip to the railroad because therailroad's predecessors in title first occupied it. Kennedy, 344 Ill. at 316. However, in so ruling, the court pointed out that this rule applies only where the line is left doubtful by the evidence of title andwhere neither party can claim under any higher title than possession. Kennedy, 344 Ill. at 315-16. In our case, both sides can claim a higher title than possession because both sides have deeds to thedisputed property.

Defendants' last contention is that plaintiffs should be denied equitable relief because ofunclean hands. The clean hands doctrine prohibits one seeking equity from taking advantage of hisown wrong. Brown v. Ryan, 338 Ill. App. 3d 864, 875 (2003). The party making the contentionmust prove that the other party is, in fact, guilty of fraud or bad faith toward the party making thecontention. Brown, 338 Ill. App. 3d at 875. It is within the sound discretion of the trial courtwhether to apply the doctrine, and its application is not favored. Brown, 338 Ill. App. 3d at 875. The evidence showed that when defendants hired Land Technology, Inc. to resurvey their property,the surveyor planted survey stakes in what plaintiff Otto Beitner considered his yard. Otto pulled thestakes out of the ground. Defendants claim that by declining to invoke the doctrine of clean hands,the trial court trivialized Otto's misconduct. We reject this contention. Pulling up the stakes did notdefraud defendants, nor did that act constitute bad faith in the sense that defendants were prejudicedby the conduct. Otto acted under the belief that whoever placed the stakes was trespassing on hisproperty. Under these circumstances, we believe that the trial court did not abuse its discretion inrefusing to apply the clean hands doctrine.

Accordingly, we hold that the Redmann fence is the boundary between plaintiffs' anddefendants' properties. We affirm that part of the trial court's order that awards plaintiffs the overlapstrip up to the fence. We vacate the remainder of the trial court's order and remand this cause withdirections to enter a decree awarding plaintiffs that portion of the overlap strip, as represented on theJuly 2000 Mionske survey, that is south of the Redmann fence and south of the extended fence linewest of where the physical fence ends, and awarding that portion north of the Redmann fence andextended fence line to defendants.

Affirmed in part and vacated in part; cause remanded with directions.

GROMETER and GILLERAN JOHNSON, JJ., concur.