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-foot 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.
Both defendants’ predecessor (Ryan) and Dee grazed horses on their property. In the 1950s, Ryan planted multiflora rose, a vigorous thorny rose, on his side of the fence. Plaintiff 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. Defendants’ 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 plaintiffs’ 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 [plaintiff’s predecessor” and “all evidence presented *** reflects that nothing changed after the 1977 survey.”
The purpose of summary judgment is not to try a question 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 sworn as a witness, can testify competently thereto. 210 Ill. 2d R. 191(a). Affidavits in support of a motion for summary judgment 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’ predecessors 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. Weiszmann, 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 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 presumption 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.