APPEAL from the Circuit Court of Saline County; the Hon. HARRY
L. McCABE, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Woodrow Wilson Bridges and Marian J. Bridges, brought an action to quiet title and a count for trespass against the defendant, Mary L. Neighbors, the owner of adjoining property, in the Circuit Court for Saline County. The land in dispute was a 42' by 92' strip of land which lies between the residences of the litigants. The trial court found for the plaintiffs and defendant appeals.
Although counsel for the defendant did not clearly frame the issues for this appeal, nor did the appellees attempt to refine the issues presented, it appears that the appeal presents the following issues: (1) whether an action to quiet title was the proper action for plaintiff to institute and whether defendant has waived any grounds for objecting to the style of plaintiffs' action; (2) whether the stipulation entered into by counsel at trial sufficiently established the plaintiffs' legal ownership of the disputed property so as to require the defendant to prove her title in the land by adverse possession; (3) whether the trial court's finding and decree that defendant had failed to prove her claim of adverse possession was against the manifest weight of the evidence; (4) whether the trial court erred in refusing to permit defendant to amend her answer after judgment had been entered; and (5) whether the awarding of damages to the plaintiffs for defendant's trespass was unsupported.
The parties stipulated to many of the relevant facts. The plaintiffs received title by warranty deed on August 11, 1970, to lots one (1), two (2), and three (3) in Block One (1) in Sloan's first addition to Dorrisville, Illinois, now within the corporate limits of Harrisburg, Illinois. They recorded the deed. The defendant owns an adjoining parcel of land, described as the south one-half of the south one-half of Block 37 of Dorris' Third Subdivision of the Northeast Quarter of the Southwest Quarter of Section 21, Township 9 South, Range 6 East of the Third Principal Meridian, which lies immediately west of plaintiffs' tract. Barnett Street, which runs east and west, runs along the south side of both properties.
Dorris' Third Subdivision was platted and recorded in 1904, and Sloan's Subdivision was laid out in 1906. The plat of Dorris' Subdivision reveals that in establishing the east boundary of defendant's lot, the surveyor erred in that he platted 41 or 42 feet more than he actually measured. Thus the original plats of the two subdivisions overlapped. The parties stipulated, however, that the plaintiff's survey, which indicates that the plat of Sloan's first addition to Dorrisville, under which plaintiffs claim legal title to the disputed land, represents the correct boundary line.
Eleven photographs, which the parties agreed depicted the area in question, were admitted into evidence. They also agreed that the issues in the lawsuit were twofold: one, the question of adverse possession by the defendant; and two, damages, if any, for trespass by the defendant. The parties further stipulated to the genuineness of plaintiffs' Exhibit 13, a bill for $405.30 received by the plaintiff for reinstallation of the fence posts that were removed from the disputed property by the defendant shortly before the commencement of this action.
• 1 Defendant first contends that plaintiffs did not have a right to have title quieted and thus their action to quiet title in the disputed property was inappropriate. We need not reach the contention, and express no opinion upon it, because this court cannot consider that issue. An issue not presented to or considered by the trial court cannot be raised for the first time, on appeal. (Kravis v. Smith Marine, Inc., 60 Ill.2d 141.) Here, defendant made no attack upon the sufficiency of plaintiffs' claim, or upon their theory of action. Furthermore, she made no attack upon the plaintiffs' theory of action in her post-trial motion.
The civil practice rule that in a non-jury case, neither the filing of, nor the failure to file, a post-trial motion limits the scope of review (Supreme Court Rule 366(b)(3)(ii), Ill. Rev. Stat. 1973, ch. 110A, par. 366(b)(3)(ii); City of Chicago v. Mid-City Laundry Co., 8 Ill. App.3d 88) is inapposite here. That rule only provides that issues which have been considered by the trial court in a non-jury case need not be included or specified in any post-trial motion to be preserved for appeal. Defendant, having made no attack against the correctness of plaintiffs' action in the trial court at any stage of the proceedings, cannot first raise that issue on appeal.
• 2 Defendant next contends that the trial court erroneously imposed upon her the burden of going forward with evidence to prove her right to the disputed land by adverse possession. We disagree. Counsel for defendant at trial entered into various stipulations, among which were: that plaintiffs' Exhibit 1 was a true and correct plat, and an accurate and correct survey, showing the legal description of the plaintiffs' property; that the surveyor who laid out the plat under which the defendant claimed title to the disputed land had measured out 1389 feet, but had platted 1430 feet; that plaintiffs' Exhibit 1 showed the true and accurate survey line of plaintiffs' property; and that the only issues in the case were defendant's adverse possession and plaintiffs' damages. From these stipulations, it is evident that counsel at trial agreed that the plaintiffs were the legal owners of the disputed property, subject only to defendant's claim of adverse possession.
Defendant claims that this interpretation of counsels' stipulation is contrary to the stipulation that defendant owned the South half of the South half of Block 37 of Dorris' Third Subdivision. She argues that since it was stipulated that she was the owner of that property in Dorris' Third Subdivision, she too is the legal owner of the disputed property, it being included on the plat of the subdivision. This contention though is plainly contrary to the obvious understanding of the parties at trial when it was stipulated that the plat of the Dorris Subdivision was in error. The defendant, having stipulated to the plaintiffs' legal ownership of the disputed land, had the burden of proving her adverse possession.
• 3 The parties clearly stipulated that the only real issue to be determined by the court was the defendant's adverse possession, which would also determine the issue of plaintiffs' damages. By doing so, they bound themselves, and the court, to decide the case only upon that issue. "Where the parties by stipulation prescribe the issues on which the case is to be tried this amounts to a binding waiver or elimination of all issues not included in the stipulation." (Western National Bank v. Village of Kildeer, 19 Ill.2d 342, 346.) In addition, since the trial proceeded upon the stipulation and defendant made no objection to that procedure, she cannot now complain. A party on appeal cannot urge that the trial court erred where any error committed was made pursuant to his stipulations and acquiescence in the proceedings. Alan Drey Co. v. Generation, Inc., 22 Ill. App.3d 611.
• 4 To bar the plaintiffs' assertion of their legal title to the disputed land and to establish her right in the land by adverse possession, the defendant had to establish clearly and unequivocally that her possession had been (1) hostile or adverse, (2) actual, (3) visible, notorious, and exclusive, (4) continuous and (5) under claim of ownership. (Cagle v. Valter, 20 Ill.2d 589.) Defendant failed to carry her burden of proof as to the disputed tract in that her adverse possession was not continuous for a period of 20 years, as required by statute. Ill. Rev. Stat. 1973, ch. 83, par. 1.
Apparently at the time of trial, defendant owned both the north and the south halves of the south half of Block 37 of Dorris' Third Subdivision. She called nine witnesses to testify and testified herself. Plaintiffs called two witnesses to rebut defendant's case. From this testimony, defendant's claim of adverse possession was uncontradicted from 1935 to 1946, and 1953 to 1968 as to the disputed land east of the north half of the south half of Block 37, and from 1937 to 1946 and 1956 to 1968 as to the disputed land east of the south half of the south half of Block 37. Defendant's proof of adverse possession was contradicted by defendant's own witness, Paul York, who owned the south quarter of Block 37 from 1946 to 1949; by plaintiffs' witness Stella Stimpson, a nearby resident since 1948; and by plaintiffs' immediate predecessor in title, Donald Wallace, who owned the property from 1968 to 1970.
Paul York testified that the land east of his property, that is part of the disputed land here, was overgrown and unkept, and that the defendant and her mother only cut the grass and weeds in that area twice in that 3-year period. Stella Stimpson, who had lived east of the plaintiffs' property since 1948, also testified that at least the eastern part of the disputed land was overgrown, unkept, and had to be cleaned off by the nearby residents in the early 1950's. She also testified, however, that after the disputed area was cleaned up, she saw defendant mowing it on several occasions. Donald Wallace, who in 1968 purchased the ...