ILLINOIS BOUNDARY LAW

Transcription

1 ILLINOIS BOUNDARY LAW Barry O. Hines Attorney at Law 2016 by Barry O. Hines. All rights reserved.

2 CHAPTER ILLINOIS BOUNDARY LAW Barry O. Hines Attorney at Law Springfield, Illinois I. INTRODUCTION Disputed boundary lines are occurring frequently, in all likelihood, due to the appreciation in farmland values over the past six to eight years. At $13, an acre, a square foot is worth 31. The increased valuations, together with technology innovations such as hand-held global positioning satellite devices and even applications for land measurement for our cell phones, make everyone an amateur surveyor. This, combined with the last factor, that we are tending to place every tillable square yard into crop production, is leading to the eradication of the last remnants of old fences, i.e. the Osage orange hedge posts. Monuments marking quarter section corners are quickly disappearing from Illinois farm fields. The convergence of these factors has led to boundary disputes. This Chapter is a survey of the law of Illinois applicable to boundaries with an emphasis on those which are unascertained or disputed and the litigation which follows. II. BACKGROUND A. Government Surveys The general government survey, in and of the State of Illinois, began in 1806 with

3 the laying out of congressional townships consisting of 36 sections, each 1 mile square. The surveying continued through The government surveys were laid out by government surveyors using rudimentary tools and instruments in the hands of surveyors, some of whom were skilled and others inexperienced. They laid the sections out one-byone using the measurements of a link (7.92"), a chain (100 links), and a rod (25 links or 16.5'). Four rods equaled 100 links which equaled 1 chain, and a chain was 66' long. Keep in mind that a quarter section was a half mile or 2,640' on a side. A section was 5,280' on each side or one square mile. Precision was a goal but not always attained. In completing the rectangular survey of Illinois, boundaries were marked by placing markers, typically stones. These boundary markers are known as monuments. They were set at quarter section corners. Frequently, it is the absence of these monuments or missing monuments that results in a disputed or an unascertained boundary line. B. Government Corners When Ascertained Control As a general rule, the lines and corners of land established by the government surveys, when first surveyed, platted, and recorded, control when they can be ascertained and identified. LaMont v. Dickinson, 189 Ill. 628, 60 N.E. 40 (1901). Because of want of care and attention, the imperfection of instruments, the obliterating effects of time, the disappearance of corner stones, the ability to ascertain with certainty where corners and lines were established by the government, is, at times, a matter of great difficulty leading to uncertainty and dispute. The LaMont court pointed out the well established principle that owners of adjoining tracts of land may, by parol agreement, settle and establish 2

4 permanently a boundary line between their lands which, when followed by possession according to the line so agreed upon, is binding and conclusive upon them and their grantees regardless of the location of the government line. LaMont, 189 Ill. at page 638. C. Government Surveys Unchangeable The lines, corners, and boundaries of the original government surveys are unchangeable. Even where a re-survey shows an error in the location of the original monuments, the latter are still controlling. The Supreme Court has held that the object of the retracement of surveys is the re-establishment of lines according to the original government notes. To properly establish interior lines of sections, it is necessary first to establish the exterior lines and corners of the section according to the original government survey and notes. Irvin v. Rotramel, 68 Ill. 11 (1873); Dorsey v. Ryan, 110 Ill.App.3d 577, 492 N.E.2d 689 (1982). There are three types of corners to government surveys. An existent corner, has a position which can be identified by evidence of a government monument, by reference to the description or field notes, or located by other physical evidence or testimony beyond reasonable doubt. An obliterated corner, is one where there are no remaining traces of the monument but whose location has been perpetuated, or a point which may be recovered beyond reasonable doubt through the acts and testimony of qualified witnesses. Lastly, a lost corner, is a point of survey whose position cannot be determined beyond reasonable doubt either from traces of original marks or testimony and whose location can be restored only by reference to one or more interdependent corners. Establishment of lost corners, by reference to known government corners, 3

5 requires reference to an existent corner or obliterated corner. If one cannot, at a minimum, establish the lost corner by reference to an obliterated corner, then you have an unascertained boundary. Under a statute (Permanent Survey Act described in greater detail in part VI), a circuit court can appoint a commission of surveyors to establish new interior boundary lines and corners if they can be determined by reference to boundaries and corners established by voluntary agreement in writing or by original survey of the United States. 765 ILCS 215/2. This requires a suit filed pursuant to the Act alleging the corners or boundary are lost, destroyed, or disputed, and the adjacent owners are unable to reach agreement. D. Unascertained or Disputed Line The Illinois Supreme Court has found that owners of adjoining lands who are not aware of the actual position of a boundary line may establish that boundary line in one of five different ways, including by written agreement, by conveyance, or by parol agreement coupled with possession. Additionally, where there is a dispute and the boundary line is unascertained then a boundary line can be established by an agreement implied from the unequivocal acts and declarations of the parties and acquiescence for a considerable period of time. Lastly, in the absence of any agreement, written or oral, title can be determined by undisputed adverse possession for the statutory period. Ginther v. Duginger, 6 Ill.2d 474, 129 N.E.2d 147 (1955) E. Written Boundary Agreement or Deeds Boundaries between adjacent landowners can be established by written 4

6 agreement. The written agreement takes the contract out of the statute of frauds. If the parties know the location of the true boundary, they cannot use an agreement to change the boundary. They must use deeds. Hartzler v. Uftring, 114 Ill.App.3d 427, 450 N.E.2d 1208 (4 th Dist. 1983). The agreement is enforceable subject to the statute of limitations. Agreements, unless for a license, are followed by deeds conveying fee simple or an easement. Descriptions in deeds must reference the government legal even if by new survey or in lieu of survey by conveyance of a part of a government Quarter Section, i.e. the West 50 feet of the Northwest Quarter of Section 7. Legal descriptions are subject to the requirements of the Plat Act, local land use regulations and platting restrictions, and to zoning ordinances. Absent a written agreement and a deed between adjoining landowners, Illinois law does provide for boundaries to be relocated by operation of law. These alternatives are addressed in the following paragraphs. III. PAROL AGREEMENTS A. Two Conditions Precedent As suggested by the Supreme Court, if the boundary is known to the adjacent property owners then they cannot transfer the land by an agreement charging such location. Jones v. Scott, 314 Ill. 118, 145 N.E. 378 (1924). Instead they must use deeds. There are only two conditions under which the rule in relation to establishment of a boundary line by agreement applies. One is where a line is in dispute, and the other is when it has not been ascertained. In either case, the agreement is for the purpose of establishing the disputed or unascertained line. The dispute must precede the agreement, 5

7 and the purpose of the agreement must be to resolve the dispute. Hartzler v. Uftring, 114 Ill.App.3d 427, 450 N.E.2d 1208 (4 th Dist. 1983). The Illinois Supreme Court case of McLeod v. Lambodin clearly illustrates the rule. McLeod v. Lambodin, 22 Ill. 2d 232, 174 N.E. 2d 869 (1961). In McLeod, two property owners held quarter quarter sections adjoining each other. Since 1912 and prior thereto, a hedge fence consisting of trees up to 2' thick ran north and south between the two tracts about 20' - 25' east of the true government survey line. The hedge fence line was recognized, utilized, and respected by the respective owners as a line between their two tracts for more than 20 years prior to the commencement of their lawsuit. The hedge fence was removed in For the next 6 years following removal of the hedge, the owners followed an arrangement whereby in the fall of each year they would erect an electric fence along the line of the former hedge row for the purpose of grazing and pasturing cattle. The electric fence ran from a 2' hedge stump which remained at the south end to a wooden stob placed at the north end of the former hedge row. During the spring, the electric fence line would be taken down to facilitate row crops. In 1955, the defendants purchased one of the tracts and then asserted ownership, not to the fence line but over to the government survey line and twice tore down the plaintiff s electric fence. The plaintiff initiated an action to establish a line and enjoin the defendants from removing or destroying his fence. There was parol evidence that the tenant farmer went by the old hedge fence as a dividing line. The McLeod court stated the general rule that 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 from the unequivocal acts and 6

8 declarations of the parties in acquiescence for a considerable period of time and, third, in the absence of any agreement, by undisturbed possession for more than 20 years. When an unascertained or disputed boundary is actually established under either or all of these alternative methods, it will be binding on the parties and their privies in estate and may be enforced or protected in an appropriate action in equity. McLeod, 22 Ill.2d 232 at 235. The boundary once established will control the parties deeds notwithstanding the statute of frauds. The principle upon which this conclusion is reached is that the affect of the agreement is not to pass real estate one to another but simply to define the boundary line to which their respective deeds extend. Hartzler v. Uftring, 114 Ill.App.3d 427, 450 N.E.2d 1208 (4 th Dist. 1983). B. Certainty of Line Location A question presented by the facts in McLeod was whether the boundary line claimed by the plaintiff (the electric fence) is the same as the line of the old hedge fence. At the south end, there remained the old 2' stump. At the north end, there was a stob about 2" in diameter that was buried in the ground 2'. The Supreme Court observed, at the hearing on the matter that there was parol evidence from the men who cleared the hedge fence that they knew its location and that the stob and the electric fence were on the exact line. One of the men who testified was a tenant for some 23 years, and his testimony was in accord. The Supreme Court found that the uncontroverted evidence of the plaintiff sustained the burden of proving the certainty of the boundary line and, accordingly, the Court found that the many years during which the respective owners farmed up to the hedge row and utilized it as a fence to contain their cattle, implied their 7

9 agreement to establish and recognize the hedge row as a boundary line. Absent an agreement, the Plaintiff and his predecessors in title had held undisturbed possession over to the hedge row line for more than 20 years prior to the defendants purchase and plaintiff had been in possession under claim of title at all times. The Supreme Court has also held in an adverse possession case that, while it is not necessary that the land claimed should be marked by a fence, nevertheless the boundaries must be susceptible to a specific and definite location, and the claim must be to a visible or ascertainable boundary line. The only definitive location of the boundary had been a fence constructed about 1903, marking the line the plaintiffs claimed, but the fence was removed more than 30 years before the filing of plaintiff s suit. The Court found, in Schwartz v. Piper, 4 Ill.2d 488, 122 N.E.2d 535 (1955), that the plaintiff had the burden of proving, by clear and convincing evidence, the exact location of the boundary line which they claimed. The testimony as to the exact location of the old fence, a boundary to which they and their predecessors claimed title, was vague and indefinite so as to make it impossible for the court to ascertain the location of the line with reasonable certainty. Under such circumstances, it was too vague, indefinite, and conflicting to establish an ascertainable boundary. Accordingly, the suit to establish title to a strip of land by adverse possession failed, by reason of insufficient evidence to sustain the burden of proof. The rule, as set forth in McLeod and Ginther, concerning the three alternative methods of establishing a boundary line was further defined in Ginther v. Duginger, 6 Ill.2d 474 at 482, 129 N.E.2d 147 (1955). The Ginther court stated: 8

10 (This) rule also applies only where there is a dispute as to the line or where the line is unascertained. If the line is not in dispute and the intention of the parties is merely to determine the exact or true line, and in so doing an erroneous line is agreed upon by accident or mistake, the agreement will not be binding and the line will not be established merely because of the agreement previously entered into between the parties. In such a case there is a failure to find the true line through accident or mistake and not an agreement to adopt an unascertained or disputed line;... In both McLeod and Ginther, there was a clear and unequivocal basis for establishing a boundary line and both cases involved clear and unequivocal possession or acquiescence. If there is no evidence that a boundary line is truly in dispute or unascertained, or there is no evidence that previous owners of the properties agreed, explicitly or inexplicitly, by unequivocal acts upon the boundary line, and there is no evidence of possession or acquiescence, then there is no boundary line agreement. C. Summary of Boundary by Parol Agreement The law of establishment of boundary lines by parol agreement was summed up by the Court in Hartzler v. Uftring, 114 Ill.App.3d 427, 490 N.E.2d 1208 (4 th Dist. 1983). There, the Court recited the law in a nutshell, stating that if the location of a boundary line is known to the owners, they cannot transfer the land from one to the other by an agreement changing the location. They must use deeds. As a prerequisite to the boundary being established by parol agreement, the boundary line must be unascertained or in dispute, and the same is a necessary prerequisite to any agreement between the landowners. 9

11 Where a boundary line between two tracts is unascertained or in dispute, the line may be established by parol agreement and possession or by an agreement implied from the unequivocal acts and declarations of the parties and acquiescence for a considerable period of time. (McLeod v. Lambdin (1961), 22 Ill.2d 232, 174 N.E.2d 869; Ginther v. Duginger (1955), 6 Ill.2d 474, 129 N.E.2d 147; Jones v. Scott (1924), 314 Ill. 118, 145 N.E. 378.) When an unascertained or disputed boundary is established by either of these methods it will be binding on the parties to the agreement and their privies in estate. (McLeod.) The boundary, once established, will control the parties deeds notwithstanding the statute of frauds. (See Ginther.) The principle upon which this conclusion is reached is that the effect of the agreement is not to pass real estate from one party to another but simply to define the boundary line to which their respective deeds extend. (See Ginther; Jones; 11 C.J.S. Boundaries sec. 67, at 639 (1938).) The requirement that the boundary be unascertained or in dispute is therefore a necessary prerequisite to any agreement since, [i]f the location of the true boundary line is known to the owners they cannot transfer the land from one to the other by an agreement changing such location. See Jones, 314 Ill. 118, 121, 145 N.E. 378, 380; see also Loverkamp v. Loverkamp (1942), 381 Ill. 467, 45 N.E.2d 871. Hartzler v. Uftring, 114 Ill.App.3d 427 at 429. If landowners could agree to change a boundary which is a true boundary, then the agreement would, in part, be an agreement to say something is false when the parties know it in fact to be true. The remedy is for one to convey by recordable deed the land in issue to the other. Also, the parol agreement must be accompanied by possession. One without the other is unenforceable. Alternatively, one can prove an agreement implied from the unequivocal acts and declarations of the parties together with acquiescence for a considerable period of time or prove by clear and irrefutable evidence the five elements necessary for adverse possession. 10

12 IV. IMPLIED AGREEMENT A. Agreement and Acquiescence Where there is a dispute between adjoining landowners as to the true boundary line between their respective lands, or if the boundary line between them is unascertained, then an agreement to establish a line when so disputed or unascertained may be implied from the unequivocal acts and declarations of the parties, either express or implied, and such an agreement may be enforced either in law or in equity. Ginther v. Duginger, 6 Ill.2d 474, 129 N.E.2d 147 (1955). For an implied agreement, there must be a dispute as to the line or the line must be unascertained. Both prerequisites are not required. It may be adequate if there is a current dispute between the parties to bring the case within the doctrine of boundary by acquiescence. Beitner v. Marzahl, 354 Ill.App.3d 142, 619 N.E.2d 826 (2004). If the line is not in dispute, and the intention of the parties is merely to determine the exact or true line and in so doing an erroneous line is agreed upon by mistake, then the agreement is not binding and the line will not be established merely because of the agreement. In such a case, there is a failure to find the true line and not an agreement to adopt an unascertained or disputed line. McLeod, 22 Ill.2d at 2. For a case contrary to Beitner on the issue of a current dispute see Hartzler v. Uftring, 114 Ill.App.3d 427, 429, 450 N.E.2d 1208 (4 th Dist. 1983). In Hartzler, the court stated that a current dispute between the parties in court litigating the location of a boundary line by acquiescence would not suffice to invoke the application of the doctrine of boundary by acquiescence. 11

13 ... the Supreme Court said There are but two conditions under which the rule in relation to establishment of boundary lines by agreement applies: One is where a line is in dispute, and the other is where it has not been ascertained. In either case the agreement is for the purpose of establishing the disputed or unascertained line. (Emphasis added) (314 Ill. 118, 121, 145 N.E. 378, 380) This language clearly requires that the dispute precede the agreement and that the purpose of the agreement be to resolve the dispute... Hartzler at 429. In Ginther, beginning in the year 1921, after the establishment of the line that was in question in the case by a survey procured by the parties predecessors, the plaintiff improved a lane located immediately on the north side or the plaintiff s side of the 1921 boundary line, leading to an east/west public road. This lane was used in going to and coming from the buildings of plaintiff. From 1921 to 1948, the lane was improved by gravel and rock, so that it became an all-weather, year-round road. Ditches were trenched, and a grass strip 2' to 3' wide on either side of the gravel portion of the lane was established and maintained. In 1949, the evidence clearly showed that from 1921 to 1934, Duginger, an owner of land to the south of the thus established boundary, honored it and his successor in title, the defendant, until The requirement for boundary by acquiescence was proved by these facts. In Beitner v. Marzahl, the evidence established that the plaintiff occupied certain lands only up to a fence line and that the defendants occupied everything north of that fence. Plaintiffs admitted that their use and possession never expanded north of the fence. The parties observed the fence line even in areas where the physical fence no longer existed. There was evidence that the plaintiff mowed up to this line and the evidence demonstrated that the plaintiff never exercised any dominion or control over the property line north of the fence. Likewise, the defendants treated the fence as their southern 12

14 boundary, and that the defendants successors in title occupied it to the fence line and not beyond. The fence was recognized and utilized for a boundary for at least 22 years. The requirement of an agreement implied from unequivocal acts and acquiescence for a considerable period of time was satisfied by these facts. B. Considerable Time For an implied agreement by acquiescence, there must be proof that a party acquiesced for a considerable time. McLeod v. Lambodin, 22 Ill.2d 232, 174 N.E.2d 869 (1961). A considerable time means a reasonable period of time. The Court, in Ginther, found that the evidence established that the boundaries between the lands were unascertained prior to 1921, established by survey in 1921, and that the defendant and his predecessor in title, Duginger, acquiesced in the line thus established in the survey for a sufficient time thereafter. Duginger respected the line during his lifetime and until his death in 1934, and his successors thereafter until Duginger was found to have acquiesced in the line. Improvements or acts of dominion over the land are sufficient to constitute possession combined with acquiescence. In Beitner, the defendants acquired title in Plaintiffs obtained their title in From 1978 until the dispute arose in 2000, plaintiffs accepted the fence as their northern boundary. The defendants recognized the fence for a period of six years before the plaintiffs came into title. The fence was, accordingly, recognized as the boundary for at least 22 years, and the Court found that this fulfilled the requirement that the parties acquiesced for a considerable period of time. C. Estoppel 13

15 Early Illinois cases occasionally mentioned boundary by estoppel. Suffice it to say that all of those cases were published in the 19 th Century. Estoppel may still have significance but it is doubtful that it is an acceptable remedy for establishing a boundary line. A noteworthy case is Francois v. Maloney, 56 Ill. 399 (1870). The facts in Francois involved a block of eight lots in the City of Chicago. Seven of the lots were platted as 50' frontages and one 65' frontage. After the subdivision was recorded, an actual measurement three years later showed that there were only 406' in the block instead of the 415' platted. Accordingly, there needed to be an adjustment in lot boundary lines to account for the deficiency. The doctrine of boundary by estoppel is applicable if one party makes representations that induce another property owner to accept a particular boundary line. The party making representations would be estopped from claiming subsequently contrary to those representations. The facts in Francois indicated that one property owner, at the time the plaintiff s house was built, pointed out the line between the lots and assisted in taking down a fence. This was three years before commencement of the suit by Francois. Both parties had good record title to their respective lots. The question arose whether the property owner who made the location representations was estopped from now claiming that Francois home was over the adjusted property line. The Supreme Court held that there was no express agreement proved in the case, that the mere acquiescence was for too short a time to bar a party from maintaining an ejectment action, and, in short, the appellee was not estopped from recovery to the adjusted lot line notwithstanding the mistake that he induced the appellant to build to a wrong line in the first place. Accordingly, the burden of proving a boundary 14

16 by estoppel would appear to be very high. More likely, estoppel will be used as an affirmative defense where adjacent landowners recognize a division line as the boundary for a considerable time, and the parties are therefore estopped from asserting that it is not the true boundary line. Accordingly, if there is no underlying agreement, estoppel might be equitably argued in order to enforce a mutually recognized division line, as opposed to the doctrine of acquiescence which requires a parol agreement. In Kandlik v. Hudek, 365 Ill. 292, 6 N.E. 2d 196 (1936) where a division line had been acquiesced in by the owners, which was different from the government survey, the acquiesced line, which was a division fence and had been established, maintained, recognized, and acquiesced in as a boundary line for more than 20 years, was found to control. The court, in McLeod, cited Kandlik with approval and stated that the use by plaintiff of the term quarter quarter section did not necessarily mean exactly 40 acres if the location of the boundary was other than the true government survey line and that the plaintiff would not be precluded from proving that the recognized and acquiesced boundary line was other than the government survey line. The Supreme Court, in Fisher v. Bennehoff, 121 Ill. 426, 13 N.E. 150 (1887), when considering a boundary line established by acquiescence, found that where adjoining owners by a parol agreement established the boundary between their farms, followed by possession for 35 years of uninterrupted acquiescence to the line, the parties were estopped from asserting that it was not the true line. The facts, in Fisher, involved a disputed strip. The evidence showed that the adjoining property owners, in 1845, had a 15

17 division line run between their respective parcels and established monuments to witness the line. Thereafter, all parties acquiesced in the same line until some time in The parties built and maintained fences, cut timber on the faith of the line, and there was abundant evidence that certain of the parties, on frequent occasions, pointed out the monument trees. After the lapse of 35 years of uninterrupted acquiescence in the line under these circumstances, the parties were estopped from asserting that it was not the true division line, as opposed to the original government line. V. ADVERSE POSSESSION A. Elements The Illinois Supreme Court has set forth what is essential in order to establish title under the 20-Year Adverse Possession Doctrine. In Joiner v. Janssen, 85 Ill.2d 74, 81, 421 N.E.2d 170 (1981), the Supreme Court stated... there must be 20 years concurrent existence of five elements, which are: (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious and exclusive possession of the premises, (5) under claim of title inconsistent with that of the true owner. These requirements are codified at 735 ILCS 5/ The party claiming title by adverse possession must prove each element by clear and unequivocal evidence. There is first a presumption that exists in favor of the owner of title, and the burden of proof of adverse possession is on the adverse possessor. In a case where adverse possession is being claimed on a boundary line which is disputed, the location of the boundary line must be established by clear and convincing evidence. Martin v. My Farm, Inc., 111 Ill.App.3d 1097, 445 N.E.2d 44 (5 th Dist. 1983). Martin 16

18 also stands for the proposition that the period of possession may be tacked between the landowner and his farm tenant. Possession for much of the time in the case was not actually in the adverse possessor but in the tenant who farmed the land. The possession of the tenant, however, was in the interests of the landlord and the landlord may be said to have been in possession through the tenant. Further, receipt of rents by the adverse possessor from the tenant was the exercise of an act of ownership and control of the property consistent with an adverse claim to ownership of it. Accordingly, the tenant s possession is attributed to the owner. Another interesting aspect of the Martin case was that the boundary, which was adversely possessed to, was, by the testimony of the plaintiff, mistakenly thought to be a fence line until 1980, when the line was surveyed. The court found that occupancy to a visible and ascertained boundary for the statutory period is what is of tantamount importance, and the title description in a deed held by the adverse possessor is irrelevant to the issues of adverse possession. Accordingly, in Illinois, one can adversely possess a parcel and succeed to ownership of the same even though the boundary is a mistaken boundary and not the true boundary line. Martin v. My Farm, Inc., 111 Ill.App.3d 1097 at B. Visible Boundary The occupancy to a visible and ascertained boundary for the statutory period is deemed the controlling feature in determining hostility in a mistaken boundary case. Of course, the other five elements of adverse possession must be applied and extend to the tract claimed by adverse possession. It is not necessary that the land should be enclosed 17

19 by a fence but that the boundary is susceptible of specific and definite location. In Martin, the northern-most point of the fence line was a wooden post described as a corner post. The evidence indicated that the boundary line was mistakenly thought to be a true boundary line. Plaintiff s tenant testified that the only mark being the wooden post, he would farm to that assumed line. One other witness testified as to driving his tractor as straight as you could from one post at the north line of the property and a second post at the other end of the boundary line that remains from another old fence. The evidence was sufficient to establish the boundary. In Schwartz v. Piper, 4 Ill.2d 488, 122 N.E.2d 535 (1955), the Illinois Supreme Court held that, while it is not necessary that land claimed should be enclosed by a fence, the boundaries must be susceptible of specific and definite location, and the claim must be to a visible or ascertainable boundary line. The burden of proving, by clear and convincing evidence, the exact location of the boundary line is on the plaintiff. In Schwartz, the fence was removed more than 30 years before filing suit, and the only evidence of the original location of the fence was testimony, including that of neighbors fixing the site of the fence by reference to a concrete sidewalk. The court found the plaintiffs had the burden of proving, by clear and convincing evidence, the exact location of the boundary line to which they claimed, and they failed to do so. The Court noted that the evidence of witnesses attempting to locate the fence was so vague and indefinite as to make it impossible for the court to ascertain the location of the line with a reasonable certainty. In Bakutis v. Schramm, 114 Ill.App.3d 237, 448 N.E.2d 982 (4 th Dist. 1983), the 18

20 Court found that location of a boundary line fence was established through the testimony of plaintiffs predecessor in title as well as physical evidence of a concrete right-of-way marker on one side of the property and a hedge post on the other end. Although a fence no longer existed between the two markers, the proof was sufficient to show the former location with reasonable certainty. Based on the foregoing cases, it is reasonable to conclude that an unascertained boundary line that is anchored at one end by an existent corner but with no visible corner or obliterated corner on the other end will not be susceptible to being proved as a visible and ascertainable boundary line. C. Hostile and Continuous Obtaining ownership of land through adverse possession means that the original owner has been divested of his title. Mere permission to use land cannot ripen into a prescriptive right, no matter how long the permissive use is enjoyed. Nation Wide Financial, L.P. v. Pobuda, 214 IL , 21 N.E.3d 381 (2014 IL). Adverse possession must have a hostile nature. The hostile nature of adverse possession does not, however, imply actual ill will, but only the assertion of ownership incompatible with that of the true owner. Where there has been actual, visible, and exclusive possession for 20 years, it is not essential to the statute of limitations that there should have been any title documents or specific oral declaration of claim of title. All that is needed is that the party in possession clearly indicate a claim of title and that includes acts of ownership over the property. Joiner v. Janssen, 85 Ill.2d 74, 421 N.E.2d 170 (1981). 19

21 D. Continuous and Uninterrupted Lastly, to claim an adverse possession, the possession must be continuous and uninterrupted. For a claim to be continuous, it must be shown that the claimant adversely possessed the property for the statutory period of 20 years. There must be no act by the servient owner which succeeded in causing an abandonment of the use. For a claim to be uninterrupted, there must be no acts on the part of the potential servient owner that succeeded in discontinuing the use. The terms Continuous and Uninterrupted are not synonymous, but the latter concerns the conduct of the potential servient owner, whereas the former deals with the behavior of the claimant. For a use to be Continuous, it is critical that there be no break in the claimant s or the claimant s predecessor s attitude of mind which would amount to a recognition of subordination to the servient owner s consent or an abandonment of the use in response to the servient owner s demand...when the courts of this jurisdiction speak of the period of time during which the use is Uninterrupted they are referring to that period of time in which there are no acts on the part of the potential servient owner that succeed in causing a discontinuance of the use. When a discontinuance is effected, the running of the prescriptive period is stopped. Roller v. Logan Landfill, Inc., 16 Ill.App.3d 1046, 1052, 307 N.E.2d 424 (4 th Dist. 1974); Tom Geise Plumbing, Inc. v. Taylor, 396 Ill.App.3d 289, 917 N.E.2d 1209 (4 th Dist. 2009). E. Summary In adverse possession cases, all presumptions are in favor of the title owner, and the party claiming title by adverse possession must prove each element by clear and 20

22 unequivocal evidence. The adverse claimant s possession of the land at issue must be of such open and visible character as to apprise the world that the property has been appropriated and is occupied. The claimant seeking to prove ownership of property by adverse possession must prove, by clear and convincing evidence, that for 20 successive years the possession was continuous, uninterrupted, hostile or adverse, actual, open, notorious, and exclusive possession of the property under claim of title inconsistent with that of the true owner, and that all these elements existed concurrently. In addition, to establish adverse possession, the possession must be of a definitely defined tract established by clear and convincing evidence as to the location of the boundary claimed. The boundary must be established at the inception, during the continuance, and at the completion of the period of adverse possession. The proof must be such as to establish, with a reasonable certainty, the location of the boundaries of the tract, to which the five elements of adverse possession are applied. The boundary must be a susceptible, specific, and a definite location and, accordingly, the claim of title by adverse possession must be to a visible or ascertainable boundary line. Usually such lines are marked by monuments. When such monuments are lost, the location of the boundary or the marking boundary must be of susceptible and definite proof, in any action in which the benefits of adverse possession are claimed. Schwartz v. Piper, 4 Ill.2d 488, 122 N.E.2d 535 (1955). VI. PERMANENT SURVEY ACT A. Purpose 21

23 Experience and case law teach us that what appears to be a boundary because of a monument such as a fence may only be somewhat in the vicinity of the true boundary. We have reviewed cases that either under the Doctrine of Parol Agreement, of Acquiescence, or of Adverse Possession would establish that fence as the boundary. The Illinois Permanent Survey Act, 765 ILCS 215/1-4 provides an alternate statutory procedure for determining the boundary. If adjacent owners agree to be bound by the survey of an agreed upon surveyor, or if one of the owners petitions the Circuit Court for a commission of surveyors to establish by judgment the boundary line, then the Act provides the adjoining owners and their heirs and assigns are barred by the agreement or the judgment from claiming other than the survey as the boundary line. B. Mutual Agreement Adjacent owners can enter into a written agreement to abide by a designated surveyor s survey of the properties. A plat of the survey showing all corners and lines and the written agreement of the parties are to be recorded pursuant to Section 1 of the Act. The corners and lines so recorded shall be binding on the parties and their heirs and assigns, and shall never be changed. 765 ILCS 215/1 C. Commission of Surveyors If the corners and boundaries of land are lost, destroyed, or in dispute, or if one party is just desirous of re-establishing boundaries, and there is no mutual agreement pursuant to Section 1, an owner may cause notice to be published that within sixty (60) days such owner will apply to the Circuit Court for appointment of a commission of 22

24 surveyors to make a survey and permanently establish corners and boundaries. The commission consists of three (3) surveyors to both survey and hear testimony to identify government corners and lines. Their report is to be filed with the Court. The surveyors who make up the commission are not free to find disputed corners or lines as permanent. The purpose of the Act is to ascertain the old original lines and corners and not to establish new ones. It is the duty of the commissioners to ascertain lines and corners in dispute as nearly as possible according to the government survey as actually made without regard to any mistakes they believe may have been made in the original survey. Irvin v. Rotramel, 68 Ill. 11 (1873). Upon filing of the commissioner s report, any owner may file objections thereto. After hearing, the Court may enter judgment approving or modifying the report. The judgment order may be appealed. If not appealed or if affirmed on appeal, the commission corners and lines become the permanent boundaries. Costs of the survey are apportioned among the parties, according to their respective interests. VII. FENCE ACT Illinois has a fence statute: 765 ILCS 130, which is currently referred to as the Fence Act. The Fence Act includes division fences. Specifically of interest to boundary disputes are the provisions of the Fence Act, which concern removal of a division fence. They can be found at 765 ILCS 130/14, which provides, in part: If any person has disposed or removed a division fence, or part thereof, owned by him or her, and allow his or her lands to be uncultivated and not used for pasture purposes, 23

25 after having first given the adjoining owner one year s notice, in writing, of his or her intention so to do and having received such adjoining owner s permission, he or she may, at any time thereafter, remove the same unless adjoining owner shall previously cause the value of the fence to be ascertained by fence viewers... The Act also places limitations on the removal of a fence. Section 17 of the Fence Act provides: But such fence shall not be removed if it was made of material taken from the land on which it is built, until the party pays or tenders to the owner of the land the value of such material, to be ascertained by the fence viewers; nor shall a fence be removed at a time when the removal will throw open or expose the crops of either party, but it may be removed within a reasonable time after the crops are secured... However, the primary purpose of the Fence Act is to provide a mechanism for two or more persons having land adjoining to maintain between them, in just proportions, the cost of erecting and maintaining a division fence between their lands. 765 ILCS Section 3. The Act does not provide any meaningful way to resolve or settle disputed boundaries. It is concentrated on allocating the costs of erecting, maintaining and placement of boundary or what the statute labels division fences. VIII. ACTIONS IN EQUITY The causes of action employed in boundary dispute cases include declaratory judgment, injunction, quiet title, action in ejectment, trespass, and actions for money damages. Equity jurisdiction is typically required for the remedy because there is no adequate remedy at law. One need look no further than the Ginther v. Duginger and the McLeod v. Lambodin cases. The plaintiff in Ginther employed quiet title and ejectment. Quiet title 24

26 is an action to remove a cloud on title. Generally, the plaintiff is in possession of the land. If the plaintiff is not in possession, he has an adequate remedy at law either under the ejectment statute, 735 ILCS 5/6-104, or a forcible entry and detainer action under 735 ILCS 5/ The McLeod case involved a declaratory judgment action alleging trespass and asking for an injunction from destroying or further interfering with the existing boundary line. The defendant countered in ejectment and a second count for appointment of a commission to survey and establish the boundary. A declaratory judgment action coupled with an injunction count will often provide a remedy. 735 ILCS 5/ A declaratory judgment action, in effect, quiets title, and an injunction suit for mandatory relief directing the original owner to not interfere with the plaintiff s possession enforces it. A preliminary injunction will seldom afford relief because courts are to maintain the status quo as of the last peaceable time. To establish the right to a preliminary injunction, a plaintiff must demonstrate that: (1) there is a clearly ascertainable right that needs protection; (2) he will suffer irreparable harm without the protection of an injunction; (3) there is no adequate remedy at law for his injury; and (4) there is a substantial likelihood of success on the merits in the underlying action. Board of Education of Dolton School District 149 v. Miller, 349 Ill.App.3d 806, 812 N.E.2d 688, 486 (1 st Dist. 2004). A preliminary injunction should not be granted where damages caused by the alteration of the status quo pending a final decision on the merits can be compensated adequately by monetary damages calculable with a reasonable degree of certainty. Board of Education of Dolton School District 149, 349 Ill.App.3d 806. On the other hand, courts have found real estate interests to be unique and therefore there is no adequate remedy at law. That, taken with the fact that the purpose of a preliminary injunction often is to maintain the status quo, does not rule preliminary injunction out as a remedy. In Re Marriage of Schmidt, 321 Ill.App.3d 360, 747 N.E.2d 524 (2 nd Dist. 2001) 25