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Joiner v. Janssen

OPINION FILED MAY 21, 1980.

HOBART R. JOINER ET AL., PLAINTIFFS-APPELLEES,

v.

ALFRED R. JANSSEN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Bureau County; the Hon. JAMES J. WIMBISCUS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 1, 1980.

This decision determines issues raised in an appeal from a judgment of the circuit court of Bureau County. That judgment affirmed the plaintiffs' claim of title by adverse possession to land for which the defendants have record title. The defendants have prosecuted this appeal. The plaintiffs are Hobart R. and Catherine Joiner; the defendants are Alfred R. and Blanche Janssen.

Lots 205, 206 and 207 of the Stevens Addition to the village of Tiskilwa are adjacent to one another in an easterly progression. Each is 66 feet wide, i.e., from east to west, and are bordered on the south by Main Street. Lot 11 of the East Addition to the village of Tiskilwa lies adjacent to and immediately north of Lots 206 and 207, Lot 11 being 132 feet wide, again, i.e., from east to west. It is a narrow strip of land off the east side of Lot 206 which provides the substance of this dispute.

In 1924 Edward Lundeen was named as the grantee in a deed to the following real estate:

"Lot number Eleven (11) East Addition of the Village of Tiskilwa, Illinois; also Lot number Two Hundred Six (206) and the east side of Lot number Two Hundred Five (205) and eleven (11) feet off of the West side of Lot number Two Hundred Seven (207) all in `Stevens Addition' to the Village of Tiskilwa, formerly Windsor."

The interest of Lundeen was later splintered with Henry Eckhoff receiving a deed in 1937 to "Lot number Two Hundred Six (206) except Eleven (11) feet off of the East side; also the East side of Lot number Two Hundred Five (205), all in Stevens Addition to the Village of Tiskilwa," and with James and Pearl Sterling receiving a deed in 1940 to "Lot 11 in East Addition to the Village of Tiskilwa; Also 11 feet off the east side of Lot 206 in Stevens Addition to the Village to Tiskilwa, all in Bureau County, Illinois." In an essentially contemporaneous transaction with the Lundeen/Sterling deed, Elsie Eckhoff, Henry's widow, conveyed 14 feet off the east side of Lot 206 to the Sterlings.

The defendants obtained title to the property owned by the Sterlings with a warranty deed dated February 10, 1945. The plaintiffs purchased the property owned by Elsie Eckhoff by contract on August 26, 1951, and by conveyance of deed on August 20, 1958. In 1978 the defendants acquired title to the 11 feet off the west side of Lot 207 by quitclaim deeds from all of the surviving heirs of the Lundeen estate.

Both the 11 feet off the west side of Lot 207 and the 14 feet off the east side of Lot 206 provided driveways which could have been used by the owners of Lot 11 to gain access to Main Street, but because of Mrs. Eckhoff's health, the Janssens and their predecessors in title, the Sterlings, used the driveway on Lot 207, the most remote from Mrs. Eckhoff's residence on Lots 205 and 206. In a similar gesture of accommodation the Sterlings and then the Janssens permitted the Eckhoffs and then the Joiners to use the driveway on Lot 206. The Joiners now contend that they have always treated the westernmost driveway, the driveway on Lot 206, as their own. Indeed, they claim that their acts of dominion have ripened into a perfected claim of adverse possession. With that position the circuit court apparently agreed. The defendants, the Janssens, believe the circuit court was in error.

We are reminded that to perfect a claim to title by adverse possession, that possession must be:

"(1) hostile or adverse, (2) actual, (3) visible, notorious and exclusive, (4) continuous, and (5) under claim of ownership." (Cagle v. Valter (1960), 20 Ill.2d 589, 591-92, 179 N.E.2d 593, 594.)

Each and every element must be proved to successfully establish title by adverse possession. (Cagle v. Valter.) On this appeal the defendants allege that none of the elements were proved, but we find it unnecessary to consider the quantum of proof as to each of the five elements, as the case law supports the Janssens' legal position with regard to the very first of the enumerated criteria.

In a recent case the appellate court discussed the nature of hostile or adverse possession with regard to a similar factual setting.

"When plaintiff purchased his farm in 1967, the deed conveying the land to him specifically excluded parcel 7. That specific exclusion put the plaintiff on notice that he was not the record title holder of parcel 7 when he came into possession of his farm and began his use of parcel 7. When an adverse claimant comes into possession of land thinking that he is not the record title holder, such possession lacks the requisite hostility for obtaining ...


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