Nitterauer v. Pulley

• Decision Date: 18 November 1948
• Docket Number: No. 30848.,30848.
• Citation: 82 N.E.2d 643,401 Ill. 494
• Parties: NITTERAUER et al. v. PULLEY et al.
• Court: Illinois Supreme Court

401 Ill. 494

82 N.E.2d 643

NITTERAUER et al.

v.PULLEY et al.

No. 30848.

Supreme Court of Illinois.

Nov. 18, 1948.

Appeal from Circuit Court, Williamson County; Loyd M. Bradley, judge.

Action by David F. Nitterauer and another against Charles Odell Pulley and others for a mandatory injunction to remove part of a garage building extending from defendants' lot into plaintiffs' adjoining lot. From a decree denying the injunction, plaintiffs appeal.

Reversed and remanded, with directions.Charles D. Winters, and D. L. Duty, both of Marion (Kenneth B. Powless, of Marion, of counsel), for appellants.

R. W. Harris and E. E. Denison, both of Marion, for appellees.

DAILY, Justice.

Appellants, David F. Nitterauer and Pauline Nitterauer, the owners of lot 12, block 3, Parrish Park Place Addition to the city of Marion, filed a complaint in the circuit court of Williamson County against appellees, who are the owners of lot 13 of said block. The complaint prayed that the appellees be compelled by mandatory injunction to remove that part of a double garage building which allegedly extends approximately three feet over the boundary line between said lots into the lot owned by appellants. The cause was referred to a master in chancery who, after a hearing, recommended that appellants have the relief asked for. The chancellor sustained appellees' exceptions to the master's report and entered a decree denying the injunction. Appellants have appealed directly to this court contending that a freehold is involved.

The facts show that lot 13, owned by appellees, is a corner lot, irregular in shape due to the curvature in a street running lengthwise along the south side of the lot. On the north, lot 13 adjoins lot 12, the boundary line between them running from a street to an alley. Lot 12 as platted is rectangular in shape, 50 feet in width. Appellees, Charles O. Pulley and Elizabeth Pulley, own the east 90 feet of lot 13 as joint tenants, and have their residence thereon, the house facing on the same street on which lot 12 fronts. Appellees, George C. Champ and Ethel Champ, are joint owners of the west 54 feet of lot 13 adjoining the alley, and their house faces on the street which runs along the southern boundary of lot 13. On or near the line which divides lot 13 into the two parts described, a double-car garage had been erected some years ago with its rear wall located very near to the line between lots 12 and 13, as the same were platted. In 1943 Pulley and one Ohl, the latter being the predecessor in title of the Champs, extended the garage to the north by building on an extension for a distance of approximately three feet. This was done to accommodate new model automobiles which would not fit in the garage as originally constructed. It is this alleged encroachment on appellants' land which is the basis for this proceeding.

Appellants alleged that the appellees were bound to respect the boundary line between the lots as it was located by a survey made from the measurements and drawings appearing on the recorded plat of the addition. Appellees alleged that the boundary line between the lots was the center line of a depression or ditch running parallel with the platted boundary line about three feet to the north thereof on lot 12, if said lot was established according to the survey made from the plat; that such boundary was fixed by both parol and implied agreement between predecessors in title to both appellees and appellants. Appellees also alleged user and possession of the strip between the center of the ditch or depression and their lot as platted, from and after the alleged parol agreement up to the time of this suit. Appellants denied the existence of a parol or implied agreement; denied any actual or constructive notice to them of such contract, if such contract had been made; and denied the allegations as to possession and use. After contemplating the evidence on the issues thus formed, the trial court entered a decree by which it found that in 1923 or 1925, the then owner of lot 12 constructed the ditch, referred to above, to drain surface water from his land to the street; that the owners of the two lots then, by parol or implied agreement, fixed the dividing line of the two lots, as being along the center line of said ditch; that thereafter owners and successors in title occupied and possessed the land on the respective sides of said ditch; that all such parties acquiesced in said line during the years; and that appellees in good faith built the extension to their garage, relying on said understanding. The decree further found that appellees, ‘under the statute of limitations,’ were ‘entitled’ to the strip of land extending from the south to the center line of said ditch and tile. This latter finding of the decree is the basis upon which appellants predicate their contention that a freehold is involved in this appeal. Appellees resist this contention and urge that the only issue presented is that of determining the proper line of division between the two lots. The rule, many times expressed by this court, is that to give this court jurisdiction of a direct appeal on the ground that a freehold is involved, the necessary result of the judgment or decree must be that one party gains and the other loses a freehold estate. Horner v. County of Winnebago, 396 Ill. 382, 71 N.E.2d 698;Carlson v. Chicago Title & Trust Co., 375 Ill. 125, 30 N.E.2d 632. The decree here goes beyond a mere finding of the location of a boundary line, and in effect gives to appellees the title to a strip of land which the appellants claim is their property. Under said circumstances, we are of the opinion that a freehold is involved.

Both parties rely upon and have cited numerous decisions wherein this court has considered boundary line disputes in the nature of the present action. We have held that where a boundary line between two estates is indefinite or unascertained, the owners may, by parol agreement, establish a division line, and the line thus defined will afterwards control their deeds notwithstanding the Statute of Frauds. Horn v. Thompson, 389 Ill. 176, 58 N.E.2d 896;La Mont v. Dickinson, 189 Ill. 628, 60 N.E. 40. The principle upon which this conclusion is reached is that the effect of the parol agreement is not to pass real estate from one party to another, but simply to define the boundary line to which their respective deeds extend. Where the boundary line is unascertained, or in dispute, we have held that it may be established, first, by parol agreement and possession pursuant thereto; second, by an agreement implied from unequivocal acts and declarations of the parties and acquiescence for a considerable period of time; and, third, in the absence of any agreement, by undisturbed possession for more than twenty years. Cienki v. Rusnak, 398 Ill. 77, 75 N.E.2d 372;Purtle v. Bell, 225 Ill. 523, 80 N.E. 350;Clayton v. Feig, 179 Ill. 534, 54 N.E. 149. If the line is not in duspute and the intention of the parties is merely to determine the exact or true line, and in so doing an erroneous line is agreed upon by accident or mistake, the agreement will not be binding and the line will not be established merely because of the agreement previously entered into between the parties. Purtle v. Bell, 225 Ill. 523, 80 N.E. 350.

From the record before us it does not appear that there was ever a dispute between the owners of lots 12 and 13 until the appellants acquired title to lot 12. Neither does it appear that any of the previous owners of the property had caused a survey or measurement of the lots to be made. The first survey made after the original platting of the lots was made for the appellants to be sued as evidence in this proceeding. Further, it appears that all the previous owners of both lots did not know the true boundary line between the lots but assumed that the ditch was the dividing line. No fence or monument was ever placed above the ground to so fix the line.

Many of the previous owners of both lots were called as witnesses by appellees to establish their claim that the ditch had been fixed as the boundary line by parol or implied agreement. Hubert C. Coffee owned the east 90 feet of lot 13 from May, 1925, to May, 1934, when he sold it to Arthur B. Aikman, who in turn sold it to the appellees, Charles Odell Pulley and wife. Raymond Perry owned the remaining portion of lot 13 from 1925 until April, 1943, when he conveyed it to Richard Ohl. The latter conveyed it to appellees, Champ and wife, while this proceeding was pending. Ohl and Pulley built the extension to the garage in 1943, and the Champs were made substituted parties herein when Ohl conveyed his portion of lot 13 to them in May, 1946. In 1923 lot 12 was owned by August Weber who sold it to Fred Turner in August, 1937. Turner built a residence thereon in 1937 and sold the premises to Eugene Thompson the same year. In 1943, the year in which the garage was extended, appellants occupied the premises as tenants of Thompson, and later in October, 1944, purchased the premises from him. The dispute as to the boundary arose soon thereafter.

Coffee testified when he owned part of lot 13, lot 12 was owned by Weber; that the ditch between the properties was in existence when he moved there and he considered it to be the boundary line between the two lots; that he mowed his grass up to the ditch, and that while he lived there no question as to the true boundary line ever arose, nor was it discussed. Aikman testified that when he purchased from Coffee he accepted the ditch as the boundary line of his portion of lot 13. Appellee Pulley, who bought from Aikman, testified that when he built the extension on the garage he thought the ditch was the lot boundary, and believed he was ‘in the clear’ when he built up to it. He further stated that at the time he talked with Thompson, who then owned lot 12, and the latter stated that although he did not know...