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Pliske v. Yuskis

OPINION FILED APRIL 9, 1980.

SUSAN L. PLISKE, PLAINTIFF-APPELLEE,

v.

ALEX YUSKIS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Hancock County; the Hon. CHARLES H. WILHELM, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendant, Alex Yuskis, from a judgment of the circuit court of Hancock County which enjoined the defendant from entering upon lands of the plaintiffs, Susan L. Pliske.

This appeal stems from a boundary line dispute between the parties. The plaintiff filed a complaint in 1977 in which she alleged that she was the owner of:

"The Southwest Quarter of Section Twenty-nine (29), Township Three (3) North, Range Nine (9) West of the Fourth Principal Meridian, situated in Hancock County, Illinois."

The complaint further alleged that the above-described real estate adjoins real estate being a quarter section in Section 29, lying to the east and which is owned by the defendant. In short, the dispute concerned the correct location of the center line running north and south between the southwest quarter and the southeast quarter of Section 29.

Several issues are raised, however, we first direct our attention to the trial court's determination of the location of the center line.

Both the plaintiff and the defendant employed surveyors who prepared plats which were introduced into evidence in support of their claim as to the correct location of the disputed center line.

Surveyor Harmon testified that plaintiff's exhibit No. 7 set forth the correct location of the center line and prorated or divided equally the southern quarter sections of Section 29. As the result of such proration the north line of each quarter section measured 2,660.66 feet, and the southern line of each measured 2,648.47 feet. It is readily apparent from exhibit No. 7 that the quarter sections are not true squares; however, it was Harmon's testimony that such is not unusual.

Surveyor Greene testified that defendant's exhibit E set forth the correct location of the center line, exhibit E being a plat which established the length of the north line of the southwest quarter to be 2,632.94 feet and the north line of the southeast quarter having a length of 2,654.05 feet. According to the plat prepared by Greene the southeast quarter of Section 29 is 21.11 feet wider than the southwest quarter of Section 29. The record discloses that in the preparation of defendant's exhibit E surveyor Greene relied upon defendant's exhibit D, which is a plat of a roadway prepared by county surveyor J.H. Horney in 1926. The roadway ran east and west on both sides of the half section line of Section 29 and shows the location of a stone which purports to be on the dividing line between the southwest quarter and the southeast quarter of the section. The roadway plat (defendant's exhibit D) establishes that the southeast quarter, being the land ultimately owned by the defendant, is wider than the southwest quarter, the land ultimately owned by the plaintiff.

In order to determine which plat, to-wit, plaintiff's exhibit No. 7 or defendant's exhibit E, correctly establishes the location of the center line which separates the quarter sections, it is necessary that an examination be made as to the research conducted and procedure followed by the surveyors employed by the parties.

Surveyor Harmon's testimony was that he first became involved in a study of the boundary line dispute between the parties to this suit in the year 1974. He had been on the property in question and twice had searched the land records in the Hancock County courthouse. As the result of his directions to subordinates he obtained a certified copy of the original government survey plat of Section 29 (plaintiff's exhibit No. 2) from the National Archives Record Service. This original plat showed that it had been made in the year 1862. This document discloses that when the original survey was made the quarter sections in question were divided equally. It was the testimony of Harmon that if quarter sections were not equal there would be a notation to that effect on the quarter sections set forth on the plat. Such a notation did appear in some of the areas set forth on the plat but not in regard to the quarter section in question.

Harmon's research resulted in the finding of the surveyor's record concerning the original survey of Section 29 which was admitted into evidence as plaintiff's exhibit No. 3. This exhibit shows that as to the quarter sections in question that the south lines of the quarter sections are as to length the same as are the north lines. The witness called attention to the fact that the distances involved as to the north and south lines are not the same as the distances set forth in the plat of the original government survey. This discrepancy was explained by calling attention to the fact that different surveyors were engaged in the surveys and that different instruments of measuring were used, and even though the surveyors used chains different distances would frequently result because the links would expand as the result of wearing and long usage. In further explanation as to the discrepancy of distance shown on exhibit No. 2 and exhibit No. 3, the witness Harmon testified "* * * if two people measure and they have their instruments of measure, their chains are not the same. If they prorate the difference they should come out to the same points even though it says different lengths."

Exhibits Nos. 4 and 5 were admitted into evidence and they, like exhibit No. 3, consisted of surveyor records, said surveys having been made for the years 1862, 1865, 1869 and 1879. The surveyor's record could better be described as surveyor's notes setting forth identifying objects used in making a survey, i.e., trees (in the instant case such as Box Elder, Ash, Pecan, Willow, Redbud, Mulberry and Maple), stones, posts, stakes, stumps, pond, and a river. It was the testimony of Harmon that he considered and utilized all the information he could from these notes in his efforts to determine the exact center line separating the southwest quarter and the southeast quarter of Section 29.

It was testified to by the witness that he discovered another plat of the quarter sections which was dated November 14 and 15, 1917, and which had been made by Mr. Horney, county surveyor, for Charles Walker for the purpose of fixing the boundary lines of the quarter section (defendant's exhibit No. 6). This plat also ...


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