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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