Find Legal Information

JUSTICE KAPALA delivered the opinion of the court:

Claiming title by adverse possession, plaintiffs, Gerald F.Knauf and Jymee N. Knauf, as trustees of the Knauf Family Trust(Trust), sued to quiet title to a strip of land between propertyowned by the Trust and property owned by defendants, John M. Ryan,Geri S. Ryan, Peter Cattaneo, and Kristen Cattaneo, and to ejectdefendants from the strip. After a bench trial, the court entereda judgment for plaintiffs. On appeal, defendants argue that thejudgment is against the manifest weight of the evidence. Weaffirm.

In 1972, Gerald and Jymee Knauf purchased property lying insection 24-37-8 in Oswego. The property has frontage on the northside of Woolley Road. Metal stakes purportedly marked theproperty's boundaries. According to a later survey, the westernboundary actually was several feet east of the line marked by the stakes. The contested strip is 7.96 feet wide at the south end ofthe property and 5.22 feet wide at the north end. Plaintiffsclaimed by adverse possession ownership of the disputed strip.

According to the exhibits introduced during the trial,plaintiffs' property is approximately 895 feet by 150 feet. Thewestern boundary of the parcel is 895 feet long and abutsdefendants' property. During plaintiffs' case in chief, GeraldKnauf testified that he purchased the property from James Wormleyin November 1972. At the time of the purchase, Wormley walked withGerald around the property and showed him the stakes ostensiblymarking the boundaries. Gerald did not have the property surveyed. He tore down a barn on the property and built a new barn. He hada house built on the property in 1975. He and his wife Jymee movedinto the house in 1976 and have lived there continuously sincethen. Sometime after 1976, the Knaufs conveyed the property to theTrust.

In 1972, Paul Krahn owned the property to the west. In 1973,Krahn erected a corner fence along the southeast corner of hisproperty as indicated by the stakes. Later, Krahn kept cattle onhis property and, accordingly, erected another fence running alongpart of the stake line. The southeast part of Krahn's property wasa plowed field. In 1999, defendants erected another fence alongthe boundary. The fences and the plowed field did not encroachupon the property boundary indicated by the stakes.

In 1976, plaintiffs planted 37 crab apple and 12 evergreentrees along the stake line and in 1978 put in a rock garden. According to the exhibits, the trees run along about half of thelength of the stake line. Also near the line is a telephoneutility box that bears plaintiffs' address. The trees, telephonebox, and garden lie in the disputed strip. Plaintiffs' lawncontinues at least up to the stake line, where it is met by aplowed field. Plaintiffs maintained the strip, and no one elseused or claimed to own it.

In 1998, defendants purchased the property. In October 1998,Gerald noticed a new stake, which was several feet east of theoriginal stake line. Gerald talked to a surveyor, James Olsen, whotold Gerald that he surveyed the property and concluded that the boundary actually was at the place marked by the new stake.

Gerald testified that, more than once during 1998, John andGeri Ryan told Gerald that they knew the strip belonged to him andthat they would not challenge his right to it. During the summerof 2000, Gerald asked John "what it would take to get" the strip,and John replied, "don't worry about it. We're not going to fightyou for it."

Gerald acknowledged receiving from defendants a letter datedFebruary 13, 1999. The letter informed the Knaufs that defendantswere planning to erect a fence about eight feet west "of ourdesignated property line." In the letter, defendants granted theKnaufs permission to use the strip between the lot line shown inOlsen's survey and the new fence. They stated, however, that thegrant of permission "in no way constitutes relinquishment of ourownership or rights to this parcel." The letter informed theKnaufs that if they sold their property, the new owner would not beallowed to use the strip without defendants' express writtenpermission.

Jymee Knauf testified that, after she and Gerald saw the newstake, they talked to the Ryans about it. The Ryans said that theyunderstood that the strip was the Knaufs' property and that theywould not try to take it from them.

William Wingstedt, a licenced land surveyor, testified thatplaintiffs hired him to survey their property in July 2000. Whilesurveying the property, Wingstedt encountered the original stakes. They were located in the correct place according to surveysperformed during the 1960s, when the boundary was created. Wingstedt opined that, although Olsen's survey was not inaccurate,the original stakes marked the true western boundary. He explainedthat "Olsen surveyed the entire section and used the rules ofconstruction for subdividing the section, which there's no evidencethat that had previously been done." Wingstedt relied on previoussurveys of the area. Also, Wingstedt explained that he usedStewart Road, which is approximately three-eighths of a mile eastof plaintiffs' property, as a reference point and that the originalstakes marked the proper distance from Stewart Road as stated inthe deed.

Plaintiffs rested. John Ryan testified that he moved next tothe Knaufs in October 1998. The Knaufs asked him and his wife,Geri, to grant them a quitclaim deed to the strip. John and Gerireplied that they wanted to be good neighbors and therefore wouldnot interfere with the Knaufs' use of the strip. Also, the Ryansagreed to build their fence according to where the Knaufs thoughtthe property line was.

Olsen, a licenced land surveyor, testified that in 1976 his firm purchased DeGraff Loos and Associates (DeGraff), the firm thatsurveyed the properties in 1971. Olsen was asked to surveydefendants' property because it was for sale. Olsen opined thatthe 1971 survey was inaccurate. Olsen believed that DeGraff didnot actually determine the center, or "quarter corners," of section24-37-8 but merely accepted a fence along the eastern boundary ofdefendants' property. The center of the section is locatedapproximately at the center of the intersection of Woolley andStewart Roads. To plot the quarters of the section, Olsen usedlaser equipment that was not available to DeGraff in 1971. Olsenexplained that the fence along the eastern boundary of defendants'property is several feet west of the actual boundary.

The trial court found that plaintiffs established title byadverse possession and ruled in their favor. Defendants timelyappealed.

Property is not taken by adverse possession unless thefollowing elements exist concurrently for the statutory period of20 years: (1) continuous, (2) hostile or adverse, (3) actual, (4)open, notorious, and exclusive possession of the premises, (5)under a claim of title inconsistent with that of the true owner. Illinois District of American Turners, Inc. v. Rieger, 329 Ill.App. 3d 1063, 1073 (2002); see also 735 ILCS 5/13--101 (West 2000). All presumptions are in favor of the title owner, and the partyclaiming title by adverse possession must prove each element byclear and unequivocal evidence. American Turners, 329 Ill. App. 3dat 1073. We will not disturb the trial court's findings, however,unless they are against the manifest weight of the evidence. Estate of Welliver v. Alberts, 278 Ill. App. 3d 1028, 1036 (1996).

We cannot say that the trial court's ruling was against themanifest weight of the evidence. Defendants do not dispute thatplaintiffs have used the strip continuously for over 20 years. In1976, plaintiffs planted trees and in 1978 they built a rock gardenon the strip and have maintained the strip continuously since thattime. Plaintiffs' possession of the strip was hostile or adverse,which means the assertion of ownership incompatible with that ofthe true owner and all others. Peters v. Greenmount CemeteryAss'n, 259 Ill. App. 3d 566, 569 (1994). By adding and maintaininglandscaping on the strip without the true owners' permission and byusing the strip to the exclusion of all others, plaintiffs assertedownership inconsistent with that of the true owner and all others. See, e.g., Joiner v. Janssen, 85 Ill. 2d 74, 79 (1981) (on disputedstrip, plaintiffs mowed grass, raked leaves, planted trees, bushesand flowers, buried pet dog, and shoveled walk). "In essence,plaintiffs used the property as their own, thus satisfying thehostility requirement for adverse possession." Peters, 259 Ill.App. 3d at 570.

We note that plaintiffs' mistaken belief that they owned theproperty up to the original stake line does not defeat the elementof hostility. Sparling v. Fon du Lac Township, 319 Ill. App. 3d560, 563 (2001). Instead, occupancy to a visible and ascertainedboundary is the controlling feature for determining hostility. Joiner, 85 Ill. 2d at 83.

Defendants argue that plaintiffs' use of the strip was merelypermissive. They rely on the rule that the use of vacant andunenclosed land is presumed to be permissive and not adverse. Dobrinski v. Waddell, 233 Ill. App. 3d 443, 447 (1992). Thepresumption does not apply here because there was no evidence thateither property was vacant during the relevant period. See Sierensv. Frankenreider, 259 Ill. App. 3d 293, 298 (1994). The strip sitsbetween two occupied parcels, and for part of the relevant period,there were fences running along sections of the purported boundary. In the cases defendants cite, the properties were described asuncultivated land (Morris v. Humprey, 146 Ill. App. 3d 612, 614(1986)) and a vacant lot adjacent to the claimant's property (Mannv. La Salle National Bank, 205 Ill. App. 3d 304, 309 (1990)). Seealso Dobrinski, 233 Ill. App. 3d at 448 (vacant lot).

Moreover, a review of the decisions defendants citedemonstrates why plaintiffs' use of the strip was not merelypermissive. In Nitterauer v. Pulley, 401 Ill. 494 (1948), aprevious owner of a parcel designated as lot 12 constructed, eitherin 1923 or 1925, a drainage ditch along the boundary of hisproperty. Different owners of lot 12 and the adjoining lot 13testified that they believed the ditch marked the boundary and,accordingly, mowed their lawns up to the ditch. In 1943, theowners of lot 13 constructed an addition to their garage. Theaddition extended the garage to the drainage ditch. Surveysrevealed that the addition extended three feet beyond the actualboundary.

In holding that the owners of lot 13 failed to establishownership by adverse possession, the court explained:

"None of the witnesses who had owned lot 13 *** testified thathe claimed or possessed the strip. They said only that theyconsidered the ditch to be the line. This constituted but athought in the mind of each such owner which he did notexpress or divulge to others. Under such circumstances, wemust hold that the mowing of the grass on the strip was but anact coinciding with such thought, and not such an act ofadverse possession as could ripen into a prescriptive right. Such use was at most only permissive and any acquiescence bythe owners of lot 12 in such grass mowing could not assist inestablishing a prescriptive right." Nitterauer, 401 Ill. at503.

Here, plaintiffs' acts went beyond merely mowing the grass andclearly revealed their intent to claim the strip. Also, Mann andMorris are distinguishable because they were not mistaken boundarycases. The claimants in those cases used land they knew or shouldhave known did not belong to them. In Morris, the court concludedthat the claimants' belief that they owned the property was notsufficient to overcome the presumption of permissive use. Thecourt explained that "[c]ontrary to their professed state of mind,[the claimants'] behavior strikes us to be that of people whosuspected that they were in the wrong and wanted to keep quiet sothey could continue to farm the disputed land." Morris, 146 Ill.App. 3d at 617. Here, plaintiffs acted in accordance with theirbelief that they owned the property up to the original stakes. They made semipermanent landscaping changes that were inconsistentwith mere permissive use. Thus, defendants and their predecessorin interest were sufficiently placed on notice of plaintiffs' claimto the strip.

Defendants argue that plaintiffs failed to prove that theirpossession of the strip was open and notorious. Defendants stressthat no one from the community testified that they were aware thatplaintiffs claimed title to the strip. Such evidence is notnecessary, however. As defendants recognize, the test for open andnotorious possession is whether the community is or could beapprised of the claimant's possession and exclusive use andenjoyment. Beverly Trust Co. v. Dekowski, 216 Ill. App. 3d 732,739 (1991). Here, contrary to defendants' assertion, the boundaryline plaintiffs claim marks a stark visible contrast in thecharacter of the properties. Plaintiffs' property is residential,and defendants' property is farmland. The tree line lies in themiddle of the strip, and plaintiffs' lawn continues at least up tothe stake line, where it is met by a plowed field. Anyone passingby on Woolley Road most likely would assume that the landscapedstrip east of the stake line is a part of plaintiffs' residentialproperty.

The evidence established a claim of title inconsistent withthat of the true owner. Plaintiffs made changes to the strip thatwere plainly inconsistent with their neighbors' use of theirproperty. Defendants argue that plaintiffs' request for aquitclaim deed is inconsistent with their adverse possession claim. See Mann, 205 Ill. App. 3d at 309. Plaintiffs made the requestafter defendants took actions indicating their intent to assertownership of the disputed strip. These events occurred well afterthe 20-year period was completed, however. Once the statutoryperiod has run, the record owner is divested of title. Brinner v.Huckaba, 957 S.W.2d 491, 495 (Mo. App. 1997). The holder byadverse possession obtains title which can be divested only by theconveyance of the land to another or by a subsequent disseisin forthe statutory period. Applebey v. Lenschow, 144 Ill. App. 3d 208,213 (1986). Moreover, the requisite period of adverse possessionneed not occur immediately before the claimant files suit. Harwickv. Black, 217 Wis. 2d 691, 699, 580 N.W.2d 354, 358 (App. 1998). Accordingly, the events upon which defendants rely are irrelevant. Bakutis v. Schramm, 114 Ill. App. 3d 237, 239 (1983).

Defendants argue that plaintiffs failed to prove the boundaryof the tract they claim by adverse possession. Because thepossession must be of a defined tract, plaintiffs had the burden ofestablishing by clear and convincing evidence the location of theboundary. Stankewitz v. Boho, 287 Ill. App. 3d 515, 518 (1997). The original stakes were in place since plaintiffs purchased theproperty and clearly marked the boundary of the disputed tract.

The cases defendants cite involved boundary lines that weredifficult to ascertain. Stankewitz, 287 Ill. App. 3d at 518(fences had been placed in different locations and were eventuallyremoved; no one testified about precise location of boundary);Estate of Welliver, 278 Ill. App. 3d at 1040 (no visible markers,and testimony about location of boundary varied greatly). Aclearly visible boundary marker can be adequate, however. Joiner,85 Ill. 2d at 79 (tree and bush line formed a "definitelyascertainable boundary"); Peters, 259 Ill. App. 3d at 570 (fence);Wanless v. Wraight, 202 Ill. App. 3d 750, 754 (1990) (fence);Bakutis, 114 Ill. App. 3d at 241-42 (two markers showing formerlocation of fence).

Finally, defendants argue that Joiner is distinguishable. Wedisagree. They stress that in Joiner the claimants did notrecognize the owners' superior title by attempting to obtain titlefrom them. As we concluded above, plaintiffs' attempt to obtain aquitclaim deed from defendants is irrelevant. Also, defendantshighlight the evidence in Joiner that the claimants gave awaytrees, bushes, and flowers grown on the disputed strip. Theyassert that the evidence here did not similarly establish open andnotorious possession sufficient to apprise the community ofplaintiffs' claim. Again, we have already disposed of thiscontention. There is nothing in Joiner indicating that the courtconsidered dispositive the fact that the claimants gave away plantsfrom the disputed strip. Like the plaintiffs in Joiner, plaintiffshere added landscaping on the disputed strip and maintained itcontinuously during the statutory period.

Because we agree with plaintiffs that the trial court's rulingwas not against the manifest weight of the evidence, we need notaddress their alternative argument that the DeGraff survey wascorrect.

The judgment of the circuit court of Kendall County isaffirmed.

Affirmed.

HUTCHINSON, P.J., and BYRNE, J., concur.