Morris v. Humphrey

• Decision Date: 12 August 1986
• Docket Number: No. 3-85-0746,3-85-0746
• Citation: 100 Ill.Dec. 144,496 N.E.2d 1209,146 Ill.App.3d 612
• Parties: , 100 Ill.Dec. 144 John L. MORRIS, Plaintiff-Appellant, v. Frank Z. HUMPHREY, Edythe L. Humphrey, Charles J. Pollack, and Mildred L. Pollack, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1209

496 N.E.2d 1209

146 Ill.App.3d 612, 100 Ill.Dec. 144

John L. MORRIS, Plaintiff-Appellant, v. Frank Z. HUMPHREY, Edythe L. Humphrey, Charles J. Pollack and Mildred L. Pollack, Defendants-Appellees.

No. 3-85-0746.

Appellate Court of Illinois Third District.

Aug. 12, 1986.

Thomas E. Leiter (argued), Leiter, Leiter & Sahn, Peoria, for plaintiff-appellant.

Thomas W. Kehr, Kehr, Cassidy & Mueller, Timothy J. Cassidy (argued), Kehr, Cassidy & Mueller, Chillicothe, for defendants-appellees.

Justice WOMBACHER delivered the opinion of the court:

This appeal arises from a suit to quiet title to a disputed tract of unimproved real estate located in Peoria County. By affirmative defense, the defendants claimed to have acquired rights to the property through adverse possession. The case was tried without a jury, after which the trial court entered judgment for the defendants, from which order the plaintiff takes this appeal. We find that the decision of the trial court is against the manifest weight of the evidence and should be reversed.

The plaintiff and defendants ("the Humphreys") are the owners of adjoining parcels of land. The dispute centers on the location of a boundary line between the two parcels. The history of the disagreement dates back to 1938, and it is necessary to relate the background in some detail in order to give meaning to the relevant facts of the case.

The disputed area is part of a larger tract to which the plaintiff claims fee simple title under an agreement for warranty deed dated January 21, 1980, and a subsequent deed of conveyance executed pursuant to such agreement.

The Humphreys acquired title to their land in 1938 by deed from Mrs. Humphrey's mother. Prior to that, Mrs. Humphrey's family had lived on or near the disputed tract since 1916. The boundary line, which the defendants claim marks the disputed edge of their property, is located along a fence line which Mrs. Humphrey testified was in place from at least 1916 to 1955.

In 1955, Edwin Dunbar, a predecessor in title to the plaintiff whose interest dated back to 1947, removed the fence. The Humphreys neither demanded an explanation nor replaced the fence until 1973. No conversation concerning Dunbar's reason for removing the fence ever took place. In the meantime, the Humphreys continued farming the disputed tract as they had since 1939 or 1940 (by arrangement with tenant farmers), except that in the absence of the fence they farmed up to the "crop line" which had developed along the former fence line. The plaintiff's land to the east of that line was uncultivated, both before and since 1955.

In September, 1973, the defendants erected a new fence on the original fence line. Edwin Dunbar, through his attorney, sent the Humphreys a letter dated April 3, 1974, demanding the removal of the fence. When the defendants failed to take any action in response to the letter, Dunbar removed the fence, sold the fence poles, and destroyed the Humphreys' crop by mowing it at midnight. Around the same time, he placed his own stakes along his claimed boundary line, approximately 80 feet west of the former fence line.

Mrs. Humphrey confronted Dunbar and asked him why he was doing this and Mr. Dunbar replied, "Because this property belongs to me." The Humphreys did not again erect a fence until about 1980, after the plaintiff took title to the property. On erection of the new fence the present litigation commenced.

Initially, we note that it is uncontroverted that the plaintiff is the record titleholder of the disputed property. The defendants, claiming title under the doctrine of adverse possession, have the burden of proof, and all presumptions are in favor of the record titleholder. [Cagle v. Valter (1960), 20 Ill.2d 589, 170 N.E.2d 593.] Proof, in order to overcome such presumptions, must be clear and unequivocal, and cannot be made by implication or inference. Tapley v. Peterson (1986), 141 Ill.App.3d 401, 95 Ill.Dec. 442, 489 N.E.2d 1170.

The trial court found that the defendants had, since October 1, 1938 (the date on which they acquired title from Mrs. Humphrey's mother), "continuously and uninterruptedly" maintained adverse possession of the disputed premises.

The plaintiff argues that the defendants failed to meet their burden of proof as to their affirmative defense by establishing the concurrence of the requisite five elements over a period of twenty years (Ill.Rev.Stat.1984, ch. 110, par. 13-101). To establish title, the possession must be (1) continuous; (2) hostile or adverse; (3) actual; (4) open, notorious and exclusive; and (5) under claim of title inconsistent with that of the true owner. Joiner v. Janssen (1980), 84 Ill.App.3d 462, 39 Ill.Dec. 856, 405 N.E.2d 835, rev'd. on other grounds, 85 Ill.2d 74, 51 Ill.Dec. 662, 421 N.E.2d 170.

The plaintiff challenges the trial court's findings that the defendants' possession was continuous and uninterrupted for the full statutory period of twenty years, that the possession was hostile and that it was exclusive. A review of the evidence reveals that the trial court erred.

The single most significant incident in the entire chain of events occurred in 1955, when Dunbar removed the fence. Since this event took place less than 20 years after the Humphreys' claim of possession began in 1938, the plaintiff asserts that it interrupted the limitation period. We agree.

The defendants contend that notwithstanding the absence of the fence from 1955 to 1973, their continued farming activity was sufficient to establish their possessory claim. Evidently, the trial judge agreed with them. We find, however, that this conclusion is contrary to the manifest weight of the evidence.

The determinative issue is whether the proof of farming activity alone, after the removal of the fence in 1955, was sufficient to sustain the defendants' claim. We find that it was not. The use of vacant and unenclosed land is presumed to be permissive and not adverse. [Light v. Steward (1984), 128 Ill.App.3d 587, 83 Ill.Dec. 760, 470 N.E.2d 1180.] Mere permission to use land cannot ripen into a prescriptive or adverse possessory right regardless of the time such permissive use is enjoyed. See, O'Hara v. Chicago Title and Trust Company (1983), 115 Ill.App.3d 309, 71 Ill.Dec. 304, 450 N.E.2d 1183.

The defendants cite cases from other jurisdictions, urging us to adopt the position that Dunbar's failure to object to the Humphreys' farming operation was not the same as granting permission, but should instead be construed as "implied acquiescence", which is insufficient to defeat a claim of adverse possession. Monaco v. Bennion (S.Ct. 1978), 99 Idaho 529, 585 P.2d 608; Ehle v. Prosser (S.Ct. 1972), 293 Minn. 183, 197 N.W.2d 458; Cremer v Cremer Rodeo Land & Stock Co. (Mont.S.Ct. 1981), 627 P.2d 1199.

The defendants further submit that this interpretation coincides with the rule of law in Illinois that the focus in determining whether or not possession is adverse is the state of mind of the possessor. [Schertz v. Rundles (1977), 48 Ill.App.3d 672, 6 Ill.Dec. 674, 363 N.E.2d 203.] They argue that the defendants believed that they owned the disputed property, and since Dunbar's silence with respect to their farming gave them no reason to doubt that belief, Dunbar's failure to object should not be construed in the plaintiff's favor.

We cannot agree that the evidence of defendants' state of mind is strong...