Davidson v. Perry

Filed 11/26/08 NO. 4-08-0188
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
SUZANNE ELLIOTT DAVIDSON and JANALEE ) Appeal from
STORM, Coexecutors of the Estate of L. ) Circuit Court of
Dee Vanderhoof; JANALEE STORM, ) Coles County
Individually; and SUZANNE ELLIOTT ) No. 06CH42
DAVIDSON, Individually, )
Plaintiffs-Appellees, )
v. )
THURL S. PERRY and TRACY I. PERRY, ) Honorable
Husband and Wife, ) Teresa K. Righter,
Defendants-Appellants. ) Judge Presiding.
_________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
Plaintiffs, Suzanne Elliott Davidson and Janalee Storm,
are the daughters and heirs of L. Dee Vanderhoof (Dee), deceased.
During his lifetime, Dee owned property that was adjacent to
property owned by defendants, Thurl S. and Tracy I. Perry. In
April 2006, Davidson and Storm, as coexecutors of Dee's estate
and as individuals, filed a complaint for equitable relief
against defendants, asserting Dee had acquired by adverse posses-
sion a tract of land that was titled to defendants. In May 2007,
plaintiffs filed a motion for summary judgment, which the trial
court denied. In November 2007, plaintiffs filed a second motion
for summary judgment. In February 2008, the court granted
summary judgment in plaintiffs' favor, finding plaintiffs had
established all of the elements of adverse possession.
Defendants appeal, contending the trial court erred by
granting summary judgment because genuine issues of material fact
still exist. We affirm.
I. BACKGROUND
In a warranty deed dated May 12, 1950, Dee and his
wife, Helen Vanderhoof, received title to a tract of land in
rural Coles County from Russell L. and Faye C. Fuller (Fullers).
In June 1950, the Fullers executed a quitclaim deed to Dee and
Helen to more accurately describe the premises sought to be
conveyed in the May 12, 1950, warranty deed. Dee died in January
2005, and the record does not indicate when Helen died. As
stated, plaintiffs are Dee's daughters, heirs, and coexecutors of
his estate. Janalee is married to Perley Storm. The tract of
land purchased by Dee and Helen is hereinafter referred to as the
Vanderhoof tract.
Adjacent to the Vanderhoof tract's northern border are
two tracts. The easterly tract of the two is currently owned by
Dr. James Williams. Dr. Williams purchased his property in
February 1996. The westerly tract is currently owned by defen-
dants and is hereinafter referred to as the Perry tract. Defen-
dants purchased their tract in November 2001 from a trust.
In 1977, a prior owner of the Perry tract had a survey
done, which indicated the southern border of the Perry tract was
54 feet south of an existing fence line. That fence remained in
existence until Dee's death. Shortly after Dee's death, defen-
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dants removed that fence and built a new fence on what was the
southern border of their property according to the 1977 survey.
The piece of land now in dispute is the southern 54 feet of the
Perry tract and is hereinafter referred to as the disputed tract.
The original fence ran along the northern border of the disputed
tract.
In April 2006, plaintiffs filed their complaint for
equitable relief, asserting Dee obtained ownership of the dis-
puted property by adverse possession. That same month, defen-
dants filed a motion to dismiss plaintiffs' complaint, contending
plaintiffs failed to state a cause of action. The trial court
granted defendants' motion to dismiss and allowed plaintiffs to
file an amended complaint. In July 2006, plaintiffs filed an
amended complaint, asserting ownership by adverse possession and
seeking to quiet title to the disputed tract.
Defendants again filed a motion to dismiss, contending
they and their predecessors had paid real-estate taxes on the
disputed property since 1977 and neither plaintiffs nor their
predecessors had adversely possessed the disputed tract. Defen-
dants also noted the 1977 survey and asserted they and their
predecessors had possessed the disputed property for the past 29
years. Additionally, defendants attached seven affidavits to
their motion, one of which was later stricken by the trial court.
All of the affidavits addressed the disputed tract during the
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time period during which defendants owned the Perry tract.
Defendants also filed a counterclaim, asserting they had suffered
damages due to plaintiffs' claim, which clouded title to their
property. In response, plaintiffs filed a motion to dismiss the
counterclaim and a response to defendants' motion to dismiss
plaintiffs' amended complaint. Defendants later filed an addi-
tional affidavit that again addressed the period of their owner-
ship. After a hearing, the trial court denied defendants' motion
to dismiss plaintiffs' amended complaint, granted plaintiffs'
motion to dismiss defendants' counterclaim, and allowed defen-
dants to file a new counterclaim.
In May 2007, plaintiffs filed a motion for summary
judgment, noting defendants had failed to file a response to
their amended complaint and asserting they had established all of
the elements of adverse possession. Attached to plaintiffs'
motion was an affidavit by Perley, Perley's deposition, and Dr.
Williams's deposition. In June 2007, defendants filed a response
to the summary-judgment motion, attaching pictures of the dis-
puted tract. Defendants also filed a response to plaintiffs'
amended complaint, denying the allegations and asserting a
statute-of-limitations defense. Moreover, in their response,
defendants raised adverse-possession and civil-conspiracy coun-
terclaims. After a June 2007 hearing on the summary-judgment
motion, the trial court denied it, finding questions of fact
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existed.
In November 2007, plaintiffs filed a second motion for
summary judgment, again contending no questions of material fact
existed disputing all five elements of adverse possession had
existed for more than 20 years. In support of the motion,
plaintiffs attached Davidson's affidavit, Perley's affidavit and
deposition, and Dr. Williams's deposition.
On the day of the January 31, 2008, hearing on the
second summary-judgment motion, defendants filed their response
to the motion and attached an affidavit by Thurl. Defendants
also filed a motion to strike portions of Davidson's affidavit.
At the hearing, plaintiffs made a motion to strike defendants'
response and motion to strike because of their late filing. The
trial court granted the motion as to defendants' response but did
not specifically address defendants' motion to strike. Defen-
dants never obtained a ruling on their motion to strike. After
hearing the parties' arguments, the court took the matter under
advisement.
On February 29, 2008, the trial court filed its written
order, granting plaintiffs' second summary-judgment motion. On
March 12, 2008, defendants filed a notice of appeal from that
judgment in compliance with Supreme Court Rule 303 (210 Ill. 2d
R. 303).
II. ANALYSIS
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On appeal, defendants challenge the trial court's grant
of summary judgment in favor of plaintiffs on their adverse-
possession claim.
A. Standard of Review
A grant of summary judgment is only appropriate when
the pleadings, depositions, admissions, and affidavits demon-
strate no genuine issue of material fact exists and the movant is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)
(West 2006); Williams v. Manchester, 228 Ill. 2d 404, 417, 888
N.E.2d 1, 8-9 (2008). With regard to analyzing summary-judgment
motions, our supreme court has stated the following:
"In determining whether a genuine issue
as to any material fact exists, a court must
construe the pleadings, depositions, admis-
sions, and affidavits strictly against the
movant and liberally in favor of the oppo-
nent. A triable issue precluding summary
judgment exists where the material facts are
disputed or where, the material facts being
undisputed, reasonable persons might draw
different inferences from the undisputed
facts. Although summary judgment can aid in
the expeditious disposition of a lawsuit, it
remains a drastic means of disposing of liti-
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gation and, therefore, should be allowed only
where the right of the moving party is clear
and free from doubt." Williams, 228 Ill. 2d
at 417, 888 N.E.2d at 9.
We further note the nonmovant cannot rely simply on his or her
complaint or answer to raise an issue of fact when the movant has
supplied facts that, if not contradicted, would entitle him or
her to judgment as a matter of law. Jackson Jordan, Inc. v.
Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627, 630
(1994). We review de novo the trial court's grant of a motion
for summary judgment. See Williams, 228 Ill. 2d at 417, 888
N.E.2d at 9.
B. Adverse Possession
To establish title by adverse possession under the 20-
year statute (735 ILCS 5/13-101 (West 2006)), the party asserting
adverse possession must establish possession of the property for
the entire statutory period, and that possession must have been
"(1) continuous; (2) hostile or adverse; (3) actual; (4) open,
notorious, and exclusive; and (5) under claim of title inconsis-
tent with that of the true owner." Gacki v. Bartels, 369 Ill.
App. 3d 284, 292, 859 N.E.2d 1178, 1186 (2006). "All presump-
tions are in favor of the title owner, and the party claiming
title by adverse possession must prove each element by clear and
unequivocal evidence." Knauf v. Ryan, 338 Ill. App. 3d 265, 269,
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788 N.E.2d 805, 808 (2003).
1. Exclusivity
Defendants first assert plaintiffs failed to show
exclusivity because of the 1977 survey and the setting of mark-
ers.
As noted above, to prove title by adverse possession,
plaintiffs' possession of the disputed tract had to be exclusive.
See Gacki, 369 Ill. App. 3d at 292, 859 N.E.2d at 1186. Under
adverse possession, "[e]xclusivity means the claimant's rights do
not depend on the rights of others." Peters v. Greenmount
Cemetery Ass'n, 259 Ill. App. 3d 566, 570, 632 N.E.2d 187, 190
(1994). Here, defendants do not contest plaintiffs' assertion
their predecessor's possession of the disputed property did not
depend on anyone else.
Exclusivity also demands the adverse possessor deprive
the rightful owner of all possession. City of Des Plaines v.
Redella, 365 Ill. App. 3d 68, 76, 847 N.E.2d 732, 738 (2006);
Towle v. Quante, 246 Ill. 568, 576, 92 N.E. 967, 970 (1910).
Defendants assert a claim of possession and not actual possession
of the disputed tract is sufficient to defeat plaintiffs' estab-
lishment of exclusivity. However, in violation of Supreme Court
Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)), defendants fail to
cite any authority in support of that contention.
In his affidavit, Perley stated he had been on the
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Vanderhoof tract on a weekly, and sometimes daily, basis since
1969 and had never observed anyone else in possession of the
disputed tract until 2005 when defendants erected the new fence.
In his deposition, Perley testified the disputed tract was used
as pasture for horses and other livestock until 1979. Hay was
also baled on the property until 2004. Perley had hunted rabbits
on the land as well. In her affidavit, Davidson (born in Novem-
ber 1946) stated her family moved onto the Vanderhoof tract in
July 1950 and no one besides her father had been in possession of
the disputed tract until defendants erected the new fence.
Defendants contend the 1977 survey and setting of
markers shows their predecessors possessed the disputed tract.
However, the survey plat indicates survey pins were placed only
on the southwest and southeast corner of the disputed tract.
Moreover, Perley described the survey pins as located "right at
the top of the ground." Defendants cite no authority holding the
placement by a surveyor of two survey pins at ground level alone
shows possession by the true owner. We fail to see how two pins
at ground level in a rural area is in itself indicative of
possession. We further note that, in asserting a claim of
adverse possession, the claimant's mere survey of land is insuf-
ficient to establish possession. Klingel v. Kehrer, 81 Ill. App.
3d 431, 438, 401 N.E.2d 560, 566 (1980); see also White v.
Harris, 206 Ill. 584, 587, 591, 69 N.E. 519, 521 (1903) (survey
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with stones placed at the corners of the quarter sections).
Moreover, defendants' allegation plaintiffs' predeces-
sor was notified of the survey and its results in 1977 is unsup-
ported. In their brief, defendants cite as support for the
contention their response to the motion for summary judgment,
which only contains the assertion the facts are undisputed
defendants' predecessor notified plaintiffs' predecessor of the
survey and the location of the Perry tract's actual boundaries.
However, Perley, who was at the Vanderhoof tract regularly and
was present for discussions about the boundary lines, stated in
his deposition he was not aware of the pins until 1996 when one
of defendants' predecessors informed Dee he was going to move the
fence. Moreover, plaintiffs' materials in support of their
motion show their predecessor's continued use of the disputed
tract and defendants' predecessors continued lack of use of the
property. That evidence also suggests plaintiffs' predecessor
was unaware of the survey results. Thus, defendants' unsupported
assertion in their response to summary-judgment motion does not
create a question of material fact.
In any event, a prior case has found notice of a survey
and its results are not considered possession. In Cobb v.
Nagele, 242 Ill. App. 3d 975, 977, 611 N.E.2d 599, 601 (1993),
the defendant had a survey done in 1982 showing the disputed
property belonged to him but did not enter the disputed strip of
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land until 1987. The defendant asserted the plaintiffs' use was
permissive. Cobb, 242 Ill. App. 3d at 979, 611 N.E.2d at 602.
While the defendant testified he knew even before the 1982 survey
that he owned the disputed land, the Cobb court found his testi-
mony "unworthy of belief." Cobb, 242 Ill. App. 3d at 979, 611
N.E.2d at 602. Specifically, the Cobb court pointed out "[t]he
defendant did not explain why, if he always knew that he had more
land, he did not give the plaintiffs notice until 1982 and why he
did not attempt possession until 1987." (Emphasis added.) Cobb,
242 Ill. App. 3d at 979-80, 611 N.E.2d at 602. The Cobb court
concluded the trial court correctly determined plaintiffs had
proved title by adverse possession. Cobb, 242 Ill. App. 3d at
980, 611 N.E.2d at 602.
Additionally, the fact defendants were able to tear
down the old fence and install a new one right after Dee's death
in 2005 is irrelevant as to the condition of the fence during an
earlier time period. Plaintiffs' affidavits and depositions show
their predecessor was the only one in possession of the disputed
tract until 2005 when defendants built the new fence. Thus, the
fence was sufficient notice to keep others out.
Further, this case is distinguishable from Hankey v.
VanScyoc, 338 Ill. 533, 536, 170 N.E. 749, 750 (1930), where the
supreme court found the claimants did not prove title by adverse
possession. There, the owner by title testified about using the
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disputed lane and fencing off the north end of the lane when he
was done using it. Hankey, 338 Ill. at 535-36, 170 N.E. at 750.
Thus, the claimants could not show the titleholder was deprived
of possession of the lane. Moreover, a person who had lived on
the claimants' property testified he told the claimants the lane
belonged to the titleholders. Hankey, 338 Ill. at 535-36, 170
N.E. at 750. In this case, such evidence was not presented.
Accordingly, we find no questions of material fact
exist as to exclusivity, and plaintiffs' materials in support of
their second summary-judgment motion were sufficient to prove
exclusivity clearly and unequivocally.
2. Hostile or Adverse
Defendants also assert plaintiffs failed to show their
predecessor's possession was hostile or adverse. If a claimant's
possession of the land is permissive, that possession cannot be
hostile or adverse. See Ryan, 338 Ill. App. 3d at 269-70, 788
N.E.2d at 809; Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458,
474, 575 N.E.2d 548, 555 (1991).
In contending plaintiffs' predecessor's use was permis-
sive, they again point to the 1977 survey. We again note defen-
dants' allegation plaintiffs' predecessor was informed of the
1977 survey results is unsupported. Moreover, we also point out
the Cobb case, where the Third District rejected the defendant's
argument the plaintiffs' use of the disputed land was permissive
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where the defendant had notified the plaintiffs of the survey
results. Cobb, 242 Ill. App. 3d at 979-80, 611 N.E.2d at 602.
For possession to be "hostile," the claimant's "owner-
ship [must be] incompatible with that of the true owner and all
others." Joiner v. Janssen, 85 Ill. 2d 74, 81, 421 N.E.2d 170,
174 (1981). Here, Perley's deposition shows plaintiffs' prede-
cessor used the disputed tract as pasture for his livestock and
to harvest hay. Plaintiffs' predecessor made money from the hay.
Moreover, Perley stated that, in 1996, defendants' predecessor
informed plaintiffs' predecessor he was going to move the fence.
Plaintiffs' predecessor responded defendants' predecessor was not
going to move the fence, and the fence remained in place until
2005. Such use of the land by plaintiffs' predecessor was
clearly incompatible with that of defendants' predecessor and
others. Accordingly, plaintiffs sufficiently showed their
predecessors use was hostile and no question of material fact
existed.
3. 20 years
Defendants further challenge plaintiffs' assertion the
20-year period began to run in 1950, asserting any statements
about that year are unsupported and would be inadmissible at
trial. However, defendants again fail to cite to any authority
that Davidson's statements in her affidavit would have been
inadmissible at trial. Regardless, like the trial court, we have
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addressed the 1977 survey and found it did not destroy exclusiv-
ity or hostility, and thus the 20-year period did not need to
start in 1950 for plaintiffs to establish adverse possession.
4. Color of Title
Defendants last assert a material question of fact
exists as to whether they regained title to the disputed tract by
adverse possession under the seven-year statute for adverse
possession.
The seven-year statute is contained in section 13-109
of the Code of Civil Procedure (735 ILCS 5/13-109 (West 2006))
and requires actual possession. Cobb, 242 Ill. App. 3d at 980,
611 N.E.2d at 602. We again note the Cobb case, where the
defendant had a survey done in 1982, which showed the disputed
property belonged to him, but, he did not enter that land until
1987. Cobb, 242 Ill. App. 3d at 977, 611 N.E.2d at 601. The
Third District concluded the defendant had not attempted actual
possession of the disputed land until 1987 and thus was not in
possession for the requisite seven years. Cobb, 242 Ill. App. 3d
at 980, 611 N.E.2d at 602.
Here, none of the affidavits or depositions indicate
defendants or their predecessors entered the disputed tract until
2005. Thus, defendants have not shown actual possession and
cannot establish adverse possession of the disputed tract under
the seven-year statute.
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III. CONCLUSION
For the reasons stated, we affirm the trial court's
grant of summary judgment in plaintiffs' favor.
Affirmed.
STEIGMANN, J., concurs.
COOK, J., dissents.
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JUSTICE COOK, dissenting:
I respectfully dissent and would reverse and remand.
Defendants are the current owners of the "Perry Tract,"
which adjoins plaintiffs’ tract on the north. Prior owners were
J.F. Ryan (1950s), Bob Perry, and Mr. Singer (1996). A fence was
built near the south line of the Perry Tract in 1950. Plaintiff
Davidson’s affidavit states that "[i]n July of 1950 [the parties’
predecessors] together agreed to construct a fence to separate
their respective properties." Plaintiff Davidson, however, was
three years old in July 1950, and her affidavit does not explain
how she reached that conclusion. A survey was done of the Perry
Tract on April 18, 1977. That recorded survey showed the 1950
fence to be 54 feet north of the actual south line of the Perry
Tract. As a part of the survey, survey pins were placed on the
southwest and southeast corners of the Perry Tract. Plaintiff
Storm’s husband, Perley, stated in an affidavit that he was not
aware of the survey pins until 1996, when one of defendants’
predecessors informed plaintiffs’ predecessor (Dee Vanderhoof) he
was going to move the fence. The affidavits fail to indicate
whether Vanderhoof was aware of the survey pins or whether
Vanderhoof’s entry onto the 54 feet tract was with the permission
of defendants’ predecessors. Perley concedes in his affidavit,
however, that the disputed tract was not used as a pasture for
horses and livestock after 1979, shortly after the survey.
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Both defendants’ predecessor (Ryan) and Dee grazed
horses on their property. In the 1950's, Ryan planted multiflora
rose, a vigorous thorny rose, on his side of the fence. Plain-
tiff Davidson’s affidavit states that subsequent to 1985, the
multiflora rose began to grow on the south side of the fence and
"was not cut down by L. Dee Vanderhoof as there was no longer any
livestock to graze in that area." Defendants presented the
affidavits of several neighbors that no updates or improvements
were made to the 1950 fence or property in question and the area
was filled with unattended brush.
Defendants purchased the Perry Tract in 2001. Defen-
dants’ predecessors are apparently deceased. Dee died in 2005.
Shortly thereafter, defendants removed the old fence, removed the
multiflora rose, and built a new fence on the surveyed south
line. In April 2006, plaintiffs brought this action, asserting
Dee obtained ownership of the disputed property by adverse
possession. On February 29, 2008, the circuit court granted
plaintiff’s motion for summary judgment, finding that
"[p]laintiffs have established all necessary elements for adverse
possession." The court found further that the survey "did not
disrupt the possession of [p]laintiff’s predecessor" and "all
evidence presented *** reflects that nothing changed after the
1977 survey."
The purpose of summary judgment is not to try a ques-
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tion of fact but rather to determine whether a genuine question
of material fact exists. Bagent v. Blessing Care Corp., 224
Ill.2d 154, 162, 862 N.E.2d 985, 991 (2007). Summary judgment is
not a way to conduct a trial by affidavit. Equilease Corp. v.
Cattlemen’s Freezer Meats, Inc., 13 Ill. App. 3d 1, 3, 299 N.E.2d
419, 420 (1973). Summary judgment is appropriate only where "the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." 735 ILCS 5/2-1005(c) (West 2004). "The
trial court cannot make credibility determinations or weigh the
evidence at the summary judgment stage." AYH Holdings, Inc. v.
Avreco, Inc., 357 Ill. App. 3d 17, 31, 826 N.E.2d 1111, 1124
(2005).
The party moving for summary judgment bears the initial
burden of production. Welton v. Ambrose, 351 Ill. App. 3d 627,
633, 814 N.E.2d 970, 976 (2004). Until that burden is met, the
opposing party is under no obligation to submit affidavits and
may rely solely on the pleadings to create a question of material
fact. Kleiss v. Bozdech, 349 Ill. App. 3d 336, 350, 811 N.E.2d
330, 340-41 (2004). Affidavits in support of a motion for
summary judgment shall be made on the personal knowledge of the
affiant; shall not consist of conclusions but of facts admissible
in evidence; and shall affirmatively show that the affiant, if
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sworn as a witness, can testify competently thereto. 210 Ill. 2d
R. 191(a). Affidavits in support of a motion for summary judg-
ment should be strictly construed and must leave no question as
to the movant’s right to judgment. Equilease, 13 Ill. App. 3d at
3, 299 N.E.2d at 420.
This case presents a number of factual issues. Was the
1950 fence intended to establish the boundary line, or was it
just intended to separate Ryan’s show horses from Dee’s horses?
Did Dee know about the survey in 1977, and is that why Dee
stopped using the disputed tract as a pasture for horses and
livestock after 1979? Is that why Dee did not object when
multiflora rose overran the disputed tract in 1985? How could
Dee have harvested hay on the disputed tract if the tract was
overrun by multiflora rose? Was any use by Dee permissive? It
is well established that use of vacant or wild, undeveloped, and
unoccupied land is presumed to be permissive and not adverse.
Estate of Welliver v. Alberts, 278 Ill. App. 3d 1028, 1037, 663
N.E.2d 1094, 1099 (1996). If Dee thought the property was his,
why did Dee not file suit in 1996 when one of defendants’ prede-
cessors told Dee he was going to move the fence? Where a party
is not diligent in seeking to quiet title to a disputed piece of
property, the action may be barred by laches. People v. Weiszma-
nn, 185 Ill. App. 3d 273, 277, 541 N.E.2d 205, 207 (1989). It is
unfair to allow the record titleholder to pay taxes for many
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years and then assert the property belongs to someone else.
Plaintiffs’ attorney argued that no evidence showed that the
taxes had in fact been paid, but again it was plaintiffs’ burden
to establish their right to summary judgment, not defendants’
burden to disprove such a right.
In addition to shouldering the burden in their motion
for summary judgment, plaintiffs also must work against a pre-
sumption that favors the true titleholder in proving their claim
of adverse possession. Knauf, 338 Ill. App. 3d at 269, 788
N.E.2d at 808. The burden of proof for an adverse possession
claim is demanding, and the evidence must be unequivocal. Malone
v. Smith, 355 Ill. App. 3d 812, 816, 823 N.E.2d 1158, 1161
(2005). The establishment of adverse possession is almost always
a question of fact. City of Des Plaines v. Redella, 365 Ill.
App. 3d 68, 75-76, 847 N.E.2d 732, 738 (2006) (easement by
prescription).
The trial court erred when it decided this case by
summary judgment. We should reverse and remand.
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