{ "id": 520946, "name": "DELORES STANKEWITZ et al., Plaintiffs-Appellees, v. JAMES W. BOHO et al., Defendants-Appellants", "name_abbreviation": "Stankewitz v. Boho", "decision_date": "1997-04-09", "docket_number": "No. 2\u201496\u20140797", "first_page": "515", "last_page": "519", "citations": [ { "type": "official", "cite": "287 Ill. App. 3d 515" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "4 Ill. 2d 488", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2700846 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "493" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0488-01" ] }, { "cite": "278 Ill. App. 3d 1028", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156923 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "1035" }, { "page": "1035-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/1028-01" ] }, { "cite": "85 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470258 ], "year": 1981, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0074-01" ] } ], "analysis": { "cardinality": 495, "char_count": 8201, "ocr_confidence": 0.761, "pagerank": { "raw": 6.136128992864388e-08, "percentile": 0.3819043117957842 }, "sha256": "3b403676de6cb5352bf6bedc10b6e469083fb484c51aaf6dfe067282bd15ef8c", "simhash": "1:eb9f2fbe9ffcfcdb", "word_count": 1314 }, "last_updated": "2023-07-14T19:23:12.186621+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DELORES STANKEWITZ et al., Plaintiffs-Appellees, v. JAMES W. BOHO et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE DOYLE\ndelivered the opinion of the court:\nDefendants, James and Mary Ellen Boho, appeal the circuit court\u2019s order finding that plaintiffs, Delores Stankewitz, Jane Van Hamme, LaVonne Ertmer, and Maxine Buffo, had obtained title by adverse possession to approximately three acres of land of which defendants are the legal titleholders. Defendants\u2019 contentions can be summarized as follows: (1) the evidence was insufficient to support the court\u2019s finding of adverse possession and (2) plaintiffs failed to establish the boundaries of the disputed parcel.\nPlaintiffs and defendants own adjacent parcels of land in Elizabeth Township, Jo Daviess County. Plaintiffs\u2019 parcel borders defendants\u2019 to the east and south. Defendants purchased their parcel in 1993 from William Brown, who had acquired it from his aunt and uncle, William and Gladys Mougin, in 1975. The parcel had been in the Brown-Mougin family since at least the mid-1800s.\nPlaintiffs acquired their parcel from their mother, Orphie Mitchell, in 1991. She and her late husband, Lawrence Mitchell, purchased the tract from Alice Virtue in 1959.\nShortly after acquiring their property, the Mitchells began leasing the adjacent tract from the Mougins and later from Brown. They used both parcels to run cattle.\nWhen the Mitchells purchased their parcel, an irregular, or \"zigzag,\u201d fence existed on the southeast quarter of the adjacent MouginBrown property. This fence ran roughly in a semicircle and approximately followed the crest of a ridge across the property. No posts were used in its construction; the wire was simply strung from tree to tree. In many places, witnesses found wire running through the center of tree trunks, indicating that the wire had simply been nailed to the trees when the trees were young. The trees then grew around the wire.\nThe fence had existed at that location longer than any of the witnesses could remember. No one knew who originally put up the fence or why it was done. While the Mitchells leased the land, the fence was allowed to deteriorate so that cows could graze on both parcels.\nIn 1979, Jerry Ertmer, the husband of plaintiff LaVonne Ertmer, took over the farming operation from his father-in-law, Lawrence Mitchell. Shortly thereafter the Mitchells and Ertmers became embroiled in a dispute with Brown regarding the leasing of the property. In 1983, the parties agreed to terminate the lease.\nDaryl \"Dude\u201d Schemehorn was hired to construct a new fence between the Brown and Mitchell properties. Jerry Ertmer instructed Schemehorn to follow the existing fence line.\nAs noted previously, the Mitchell parcel, now owned by plaintiffs, abuts the Mougin-Brown parcel, now owned by defendants, on the east and south. The Mitchell parcel forms a backward \"L.\u201d The Brown tract fits into the crook of the \"L\u201d at right angles. It is undisputed that the Schemehorn fence approximately followed the line of the old zig-zag fence across the ridge rather than the right-angle line formed by the intersection of the two properties.\nEventually the Schemehorn fence, too, was allowed to deteriorate. When defendant James Boho purchased the property in 1993, the fence had been breached in at least four places. When Boho walked the property, he also saw remnants of an old fence along the legal boundary of the two properties. These remnants of wire and treated boards were above ground and plainly visible.\nAfter the purchase, Boho had a new survey done of the property. He then hired Darrell Hulscher to remove the remnants of the Schemehorn fence and install a new fence along the legal boundary line as defined by the survey. Shortly thereafter, plaintiffs initiated this lawsuit.\nPlaintiffs\u2019 primary contention at trial was that all the relevant parties mistakenly believed that the zig-zag fence formed the boundary between the parcels. Thus, plaintiffs contended that the lease of the adjacent tract did not cover the disputed area because the parties mistakenly thought that the Mitchells already owned it. In response, defendants contended that the zig-zag fence was merely a \"convenience fence,\u201d installed at that location because the rugged terrain rendered the legal boundary between the parcels nearly inaccessible. Defendants argued that the lease covered the entire Mougin-Brown parcel, including the disputed area, rendering the use of that area permissive rather than adverse.\nThe trial court found that this was a mistaken boundary case. The court found that plaintiffs had established their continuous adverse use of the disputed parcel bordered by the \"Schemehorn fence line\u201d for the requisite 20-year period. Defendants perfected this appeal.\nOn appeal, defendants raise three arguments questioning the sufficiency of the evidence to establish plaintiffs\u2019 adverse use of the disputed parcel. However, our resolution of this case makes consideration of this issue unnecessary. Instead, we consider defendants\u2019 final issue: whether plaintiffs adequately established the boundaries of the disputed parcel.\nTo establish title by adverse possession under the 20-year limitations statute (735 ILCS 5/13\u2014101 (West 1994)), a party must prove that his possession was (1) continuous; (2) hostile or adverse; (3) actual; (4) open, notorious, and exclusive; and (5) under a claim of title inconsistent with that of the true owner. Joiner v. Janssen, 85 Ill. 2d 74, 81 (1981); Estate of Welliver v. Alberts, 278 Ill. App. 3d 1028, 1035 (1996). Further, because the possession must be of a definitely defined tract, an adverse possessor bears the burden of establishing by clear and convincing evidence the location of the boundary. Schwartz v. Piper, 4 Ill. 2d 488, 493 (1954); Welliver, 278 Ill. App. 3d at 1035-36.\nIn Schwartz, the only visible monument marking the boundary of the disputed parcel was an iron fence erected in 1903 and torn down more than 30 years before the suit was filed. The only testimony regarding the location of the fence was \"so vague and indefinite as to make it impossible for the court to ascertain the location of the line with reasonable certainty.\u201d Schwartz, 4 Ill. 2d at 494. Therefore, plaintiffs\u2019 case failed.\nSimilarly, in this case, the only visible markers of the boundaries of the disputed area were fences that had been removed prior to trial. No evidence established the precise line of the Schemehorn fence that was removed in 1993. The Schemehorn fence replaced an older fence that formed an extremely irregular arc from tree to tree across the southeastern tip of the property.\nEven if it were possible to reconstruct the Schemehorn fence line from the record, plaintiffs would not be able to meet their burden of establishing the boundary of the disputed parcel. There was testimony that the Schemehorn fence ran as much as 30 to 40 feet away from the older fence at some points. Again, no one testified to the precise line formed by the older, zig-zag fence.\nPlaintiffs\u2019 argument on this point consists of distinguishing a case defendants cite on the ground that in that case no fence was involved. Plaintiffs maintain that in this case \"there was sufficient physical evidence to define the original property line fence prior to 1983 and the second fence put in by Daryl Schemehorn in 1983.\u201d However, they fail to cite to such evidence in the record, and our review of the record discloses none. As in Schwartz, the witnesses\u2019 testimony concerning the location of the old fence was vague and inconclusive. Even plaintiffs\u2019 brief demonstrates uncertainty regarding the precise parameters of the disputed parcel, defining it as approximately 2.5 acres to 3.5 acres.\nBecause it is impossible to determine the precise boundaries of the parcel claimed, plaintiffs failed to establish an element of their case. Thus, the judgment in favor of plaintiffs must be reversed.\nThe judgment of the circuit court of Jo Daviess County is reversed.\nReversed.\nGEIGER, P.J., and RATHJE, J., concur.", "type": "majority", "author": "JUSTICE DOYLE" } ], "attorneys": [ "Philip A. Jackman, of Galena, for appellants.", "Robert A. Bush, of Bush & Bush, P.C., of Elizabeth, for appellees." ], "corrections": "", "head_matter": "DELORES STANKEWITZ et al., Plaintiffs-Appellees, v. JAMES W. BOHO et al., Defendants-Appellants.\nSecond District\nNo. 2\u201496\u20140797\nOpinion filed April 9, 1997.\nPhilip A. Jackman, of Galena, for appellants.\nRobert A. Bush, of Bush & Bush, P.C., of Elizabeth, for appellees." }, "file_name": "0515-01", "first_page_order": 533, "last_page_order": 537 }