Dwyer v. Love

Case Date: 03/02/2004
Court: 2nd District Appellate
Docket No: 2-02-1404 Rel

No. 2--02--1404

______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________________________


JOHAN DWYER,

               Plaintiff-Appellee,

v.

WILLIAM R. LOVE and JODY
ROMANO LOVE,

               Defendants-Appellants.

  Appeal from the Circuit
Court of Winnebago County.

 

No. 00--CH--491

Honorable
Gerald F. Grubb,
Judge, Presiding.

______________________________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Johan Dwyer, filed a complaint in the circuit court of Winnebago County seekingdeclarative and injunctive relief against defendants, William R. Love and Jody Romano Love. Theparties dispute ownership of a strip of land approximately 4 to 11 feet in width on the western edgeof Johan's property and on the eastern edge of the Loves' property. The trial court found that Johanhad acquired the land by adverse possession. On appeal, the Loves contend that the trial court erredby denying their motion for a directed finding and that the court's adverse possession finding is againstthe manifest weight of the evidence. As both of these arguments lack merit, we affirm.

Johan's property is a farm situated in Roscoe. She has lived on the farm since 1956 when shemarried John Dwyer. John is now deceased, but he ran the farm for over 40 years until his death in1996. After his death, John's son, also named John Dwyer (John Jr.), managed the farm. The Dwyersgrow crops such as corn and soybeans and also raise livestock, primarily cattle.

The western boundary line of the farm, at issue in this case, is approximately a half mile longand physically defined by a wire fence and hedgerow. The hedgerow consists of wild shrubs andmany trees that have grown around the fence. The fence runs from the northern to the southern edgeof the adjacent properties and parallels a small ridge for most of the way. Johan testified that thefence existed when she married John, but it probably dates much earlier than 1956. In 1986, a fenceviewing was conducted by Patrick Henderson, a Roscoe Township trustee, to address the Dwyers'complaint that the prior owners of the Loves' property were neglecting to maintain a fair share of thefence. Henderson ordered the Dwyers to maintain the northern half of the fence, while the previousowners of the Loves' property were ordered to maintain the southern half. The Dwyers havemaintained the northern half of the fence in reasonably good condition. However, the southernportion has fallen into disrepair. At various points along the southern portion, the fence can no longersufficiently constrain the Dwyers' livestock.

The Loves purchased their property in 1991. In 1998, William hired a surveyor to survey hisproperty. According to the survey markers, the Loves' property extends about 4 feet past the fenceat the northern end of the property and up to 11 feet at the southern end.

The Dwyers have cultivated the fields along the fence or used them as pasturage every yearsince at least 1956. Primarily, the fields are used to grow corn and soybeans. According to Johanand John Jr., they grow crops all the way to the fence line, impliedly including the disputed area. Thedisputed area has always been under the Dwyers' exclusive control. Besides the Loves, no one hasever challenged their ownership of the property. Contrary to the Dwyers' position, William maintainsthat the crops do not grow up to the fence line. Instead, based on his observations, the crops end 15to 20 feet from the fence.

In the end, the trial court denied the Loves' motion for a directed finding. More important,the trial court found that Johan had established by clear and convincing evidence that she hadacquired all of the property east of the fence line by adverse possession. In the court's view, theDwyers' possession of the disputed area was an "exclusive exercise of control and dominion" sinceat least 1956. The court pointed to the fence viewing, the Dwyers' maintenance of the fence, and thecontinuous cultivation of crops almost to the fence as evidence to support its conclusion.

The trial court further stated that the southern portion of the fence is in disrepair largelybecause the Loves have refused to repair it. Nevertheless, the court found that Johan providedsufficient evidence that the Dwyers exclusively possessed all of the land east of the fence in an openand hostile manner.

Last, the trial court rejected the Loves' argument that the southern fence line cannot form adiscernable boundary line because of its shabby condition and the fact that at various spots there areapparent gaps in the fence line due to fallen fence wire. The court found that the fence line was"clearly capable of discernment" from the northern edge to the southern edge of the westernboundary.

The Loves first argue on appeal that the trial court erred by denying their motion for adirected finding. We find that this issue has been waived.

In a bench trial, where the trial court is the trier of fact, a motion for a directed finding isgoverned by section 2--1110 of the Code of Civil Procedure (735 ILCS 5/2--1110 (West 2002)(formally titled a "Motion in non-jury case to find for defendant at close of plaintiff's evidence")). SeeZankle v. Queen Anne Landscaping, 311 Ill. App. 3d 308, 311 (2000). Section 2--1110 providesthat, "[i]f the ruling on the motion is adverse to the defendant, the defendant may proceed to adduceevidence in support of his or her defense, in which event the motion is waived." 735 ILCS 5/2--1110(West 2002). Here, when the Loves moved for a directed finding at the end of Johan's case in chief,the trial court decided to "take it under advisement." The court asked the Loves to proceed with thepresentation of their evidence. The court assured the Loves that it would decide the motion after allof the evidence was presented. The court promised to distinguish and separately consider the factsto be weighed for purposes of the motion for a directed finding before moving on to deliberate on itsfinal judgment. The Loves then agreed to proceed in this manner. Specifically, in response to theLoves' oral motion for a "directed verdict," the trial court and defense counsel had the followingcolloquy:

"THE COURT: Okay. I'm going to take it under advisement. Obviously this issomething that you've already prepared for in terms of some type of brief or something. AndI understand that you would not prefer to go ahead with evidence at this point in time, butI think I can keep the two separate. *** I definitely will rule on your motion before I makeany decision on any other facts that may be elicited subsequent to this point.

THE COURT: Did you want to put on some testimony now?

DEFENSE COUNSEL: Yes, Judge. I would call my client subject to the [sic] - underthe reservation to maintain our motion for directed verdict." We conclude that section 2--1110's waiver provision applies to this situation, notwithstandingthe fact that the court's denial of the motion came after the Loves adduced evidence in support oftheir defense. Once again, section 2--1110 expressly provides that, "[i]f the ruling on the motion isadverse to the defendant, the defendant may proceed to adduce evidence in support of his or herdefense, in which event the motion is waived." 735 ILCS 5/2--1110 (West 2002). Section 2--1110presupposes that a defendant's motion will be denied before the waiver provision is implicated. SeeEvans & Associates, Inc. v. Dyer, 246 Ill. App. 3d 231, 239 (1993) ("a defendant who presentsevidence on its behalf after its motion is denied waives any complaint that the denial of the motionwas error"); see also Arians v. Larkin Bank, 253 Ill. App. 3d 1037, 1047 (1993) ("When a ruling ona motion for directed finding in a nonjury case is adverse to the defendant and the defendant thenproceeds to adduce evidence of its own, as occurred in this case, the defendant waives its motion fora directed finding").

In this case, the Loves agreed with the court to have their motion considered after theyadduced evidence in their behalf. If the court determined that the motion had merit, it would begranted. However, the Loves agreed that, if the court found that their motion lacked merit, the courtwould immediately proceed to deliberate on its final judgment. Thus, the Loves agreed in advancethat their motion would be waived if the court denied it. Accordingly, we deem this issue waived.

However, even if we were to conclude that the trial court's postponement in ruling on theissue precluded waiver, the trial court properly denied the Loves' motion for a directed finding. Section 2--1110 states that, in making its ruling, the court "shall weigh the evidence, considering thecredibility of the witnesses and the weight and quality of the evidence." 735 ILCS 5/2--1110 (West2002). "Thus, the trial court does not view the evidence most favorably to the plaintiff but, rather,(1) determines whether the plaintiff has made out a prima facie case, then (2) weighs the evidence,including that which favors the defendant." Zankle, 311 Ill. App. 3d at 311. "If this weighing processnegates some of the evidence necessary to the plaintiff's prima facie case, the court should grant thedefendant's motion and enter judgment for the defendant." Zankle, 311 Ill. App. 3d at 311. Incontrast, where sufficient evidence establishing the plaintiff's prima facie case remains after theweighing process, the trial court should deny the motion and proceed as if the motion had not beenmade. Pacini v. Regopoulos, 281 Ill. App. 3d 274, 278 (1996). We will not disturb the trial court'sdetermination on the motion unless it is against the manifest weight of the evidence. See Zankle, 311Ill. App. 3d at 311; Pacini, 281 Ill. App. 3d at 278.

To establish title by adverse possession as provided by section 13--101 of the Limitations Act(735 ILCS 5/13--101 (West 2002)), the asserted adverse possessor must possess the disputed landfor 20 years. 735 ILCS 5/13--101 (West 2002). The 20 years of possession must have been: (1)continuous; (2) hostile or adverse; (3) actual; (4) open, notorious, and exclusive; and (5) under claimof title inconsistent with that of the true owner. Estate of Welliver v. Alberts, 278 Ill. App. 3d 1028,1035 (1996).

Johan presented sufficient evidence on all of the elements of adverse possession to survive theLoves' motion for a directed finding. The Dwyers have continuously cultivated or used the disputedland as pasturage every year since at least 1956. See Applebey v. Lenschow, 144 Ill. App. 3d 208,214 (1986) (cultivation of land year after year is evidence of adverse possession). We accept the trialcourt's conclusion that these activities took place almost up to the physical fence itself. Beyond that,the fact that the Dwyers had a fence viewing conducted and continuously maintained the northernportion of the fence in accordance with the fence viewing further evinces their actual and adversepossession of all of the land east of the fence. See Joiner v. Janssen, 85 Ill. 2d 74, 81 (1981) (statingthat the hostile or adverse nature of the possession simply means that the possession is incompatiblewith that of the true owner and all others). These same facts, along with Johan's and John Jr.'stestimony that they solely managed and controlled all of the land east of the fence, demonstrate thatthe Dwyers exercised "open, notorious, and exclusive" possession. See Welliver, 278 Ill. App. 3dat 1039 (requiring that possession indicate to persons residing in the community who has theexclusive management and control of the land). Moreover, irrespective of the Loves' claims to thecontrary, the fence and the hedgerow created a clearly discernable boundary line from the northernedge to the southern edge of the property. We find that sufficient evidence establishing Johan's primafacie case remained after the trial court conducted the section 2--1110 weighing process (735 ILCS5/2--1110 (West 2002)), and that the trial court properly denied the motion. The trial court's denialof the motion was not against the manifest weight of the evidence.

In their second argument, the Loves contend that the trial court's findings were against themanifest weight of the evidence. Specifically, the Loves argue that they introduced the "mostimportant pieces of evidence in this case." They maintain that the strip of land at issue is "toonegligible" to be adversely possessed by the Dwyers, and that the Dwyers' crops do not extend all theway to the fence. We reject these arguments as well.

First of all, it is the function of the trial court to determine what are the "most importantpieces of evidence." See Chicago Transparent Products, Inc. v. American National Bank & Trust Co.of Chicago, 337 Ill. App. 3d 931, 941 (2002). Nonetheless, all presumptions are drawn in favor ofthe title owner, and the party claiming title by adverse possession bears the burden of proving eachelement by clear and unequivocal evidence. Welliver, 278 Ill. App. 3d at 1036. The "clear andunequivocal" standard of proof is equated with the more common "clear and convincing" standard. See Welliver, 278 Ill. App. 3d at 1036. On review, the trial court's findings will not be disturbedunless they are against the manifest weight of the evidence. Welliver, 278 Ill. App. 3d at 1036.

For essentially the same reasons that the motion for a directed finding was properly denied,we find that Johan met her burden of proof by clear and convincing evidence. The Dwyerscontinuously cultivated or used the disputed strip of land as pasturage for over 40 years. The trialcourt disagreed with the Loves' assertion that the disputed area was too small to be utilized, and alsochose not to accept William's claim that the Dwyers' crops stopped well short of the fence line. Rather, the court appears to have believed the testimony of Johan and John Jr., concluding that thecultivation of the land continued "up to almost the fence line itself." Moreover, the cultivation of theadversely possessed land is not dispositive of the issue. In the past, the strip of land was used aspasturage. Furthermore, whether through the fence viewing or their own maintenance of the northernportion of the fence, the Dwyers have taken substantial steps over the years to enclose the disputedarea within the fold of their own farm. The bottom line is that the Dwyers have continuouslyexercised open and exclusive dominion over the disputed property in a manner consistent withownership for over 40 years. Thus, Johan has satisfied her burden of proof. Accordingly, weconclude that the trial court's findings were not against the manifest weight of the evidence.

For the aforementioned reasons, we affirm the judgment of the circuit court of WinnebagoCounty.

Affirmed.

McLAREN and KAPALA, JJ., concur.