APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT A. HAYES, Judge, presiding.
MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:
In this action to quiet title, the Circuit Court of St. Clair County was called upon to determine the legal ownership of a small tract of unoccupied land on the north bank of the Kaskaskia River. Defendants-appellants Orvel J. Kehrer and Sylvia M. Kehrer have appealed from the trial court's judgment ordering that title to the disputed tract be quieted and vested in plaintiffs-appellees Elmer Klingel and Olga M. Klingel.
The Kehrers contend that the Klingels failed to prove title to the disputed land, and that the action was barred by the statute of limitations and by laches. For the first time on appeal, the Kehrers also contend that the owners of the mineral interests reserved in the quitclaim deed by which the Kehrers claim color of title were indispensable parties who should have been joined in this action.
The complaint alleged that the Kehrers had been making claim upon, and interfering with the Klingels' use of, a certain described tract; that the Klingels had title to the tract by reason of warranty deeds recorded in 1953; and that they had paid taxes on, and been in continuous possession of, the tract for more than seven years. In their answer, the Kehrers admitted making claim to the tract in question but denied all the other material allegations of the complaint.
The Klingels' deeds purported to convey to them, along with another tract, the following described real estate:
"Lot Twelve (12) being part of the Northwest fractional Quarter (1/4) of the Southeast fractional Quarter (1/4), all in Section Twenty-seven (27), Township One (1), South, Range Six (6) West, as the same are laid out and platted in Assessor's Plat, appearing of record in the Recorder's Office of St. Clair County, Illinois in Book of Plats `C' on page 129."
The assessor's plat with reference to which the Klingels' land was described was recorded on December 14, 1869. The accompanying sketch reflects the pertinent information shown on the plat. Lot 12, indicated on the sketch by the dark cross-hatching, is bounded on the north by the center section line of section 27 and on all other sides by the Kaskaskia (formerly known as the Okaw) River. All of Lot 1 appears on the other, southerly side of the river. The 1869 plat shows Charles Klingel as the owner of Lot 4, and other persons as owners of Lots 1 and 12.
At the trial to the court sitting without a jury, plaintiff Elmer Klingel, age 74, testified that the land which was the subject of the dispute had been known as Klingel's Bend since he was a little boy. A.S. Klingel, whose name appeared on a plat from the 1930s as the record owner of Lots 12 and 4, was his uncle. The land was deeded to Klingel and his wife by other family members in 1953. He paid taxes on the property for the years 1953 through 1977. His tax receipts showed that Lot 12 contains 15 acres. In August 1972, he purchased an owner's title insurance policy covering the disputed tract. Back in the 1930s, Klingel had made arrangements, on behalf of his father and uncle, to have a sawmill come in and cut timber from Lot 12. Trees were taken within 30 or 40 feet of the river. Five or six years prior to trial, Klingel had contracted to have the pecan trees on the property cut.
The only way to reach Lot 12 by land is by a road passing through land owned by the Kehrers and then through Lot 4, owned by the Klingels. Klingel testified that he had traveled over the road for at least 60 years. Lately it has often been covered by water. Since 1953, he has traveled the road a couple of times a year. He mostly goes down to Lot 12 to hunt pecans and hickory nuts for his family's use. He is not a fisherman, and keeps no boats on the land.
Until recently, when the Kehrers had the land surveyed and created a path, there had never been a fence or any other marking between Lots 12 and 4. Klingel had been aware for 20 to 25 years of a quitclaim deed from C.O. Conley and Lydia E. Conley purporting to convey 1.2 acres north of the river to the Kehrers.
At one point during his cross-examination, Klingel's response to a question appeared to indicate that he had seen Kehrer on the disputed tract with tractors and equipment for many years. Subsequently, however, he testified that the only time he ever saw Kehrer there with any equipment was when Kehrer was making a survey of the center section line in 1976. Klingel was last on the southern tip of Lot 12 about a year prior to trial. He had never seen Kehrer nor anybody else take any logs out. He had never seen any tops or stumps indicating where timber had been cut, nor any other indications that Kehrer had cut any timber or done any work on the land.
Carl Ollendorf, age 65, testified on behalf of the Klingels. The nephew of plaintiff Elmer Klingel, he had known defendant Orvel Kehrer for 40 years. He testified that he was familiar with the land in dispute, which had been known as Klingel's Bend, as long as he could remember. He and his father cut timber from Lot 12 in about 1935 for the Klingels. They cut as close as they could get to the river bank, concentrating on the southernmost point. Their equipment consisted of a tractor with a power saw on it, four horses or mules, and two log wagons. Ollendorf could not remember whether the work was all done in one day or was done over a period of weeks or months. He had never heard of C.O. Conley. He had never seen any boats or fishing equipment belonging to Kehrer on the land in question.
The 1975 St. Clair County plat book showed the plaintiffs as owners of all the land north of the river. A 1960 plat showed Lot 12 north of the river and Lot 1 south of the river.
Defendant Orvel Kehrer testified that he was not claiming the greater portion of Lot 12, but only the 1.2 acres immediately north of the river which had been quitclaimed to him and his wife by the Conleys in 1945. ...