APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The defendant, Bernard Heerey, appeals from orders of the circuit court of Cook County which granted summary judgment in favor of the plaintiff, Timm Reynolds and directed Heerey to remove a fence and guardrail from Reynolds' property. On appeal, Heerey argues the trial court erred in granting summary judgment because genuine issues of fact exist concerning (1) the location of the boundary between the parties' properties; (2) the defense of adverse possession; and (3) whether the alleged encroachments were unintentional and minimal.
Reynolds and Heerey are abutting landowners along a 53-foot boundary running north/south between their properties. East Walton Street is the northern boundary of both properties. Heerey's property is bounded by North State Street to the west, by real estate to the south, and by Reynolds' property to the east. Reynolds' property is bounded by Heerey's property to the west, by real estate to the south, and by an alley to the east.
On July 28, 1978, Reynolds filed a complaint for injunctive relief alleging that in February 1978, Heerey erected a fence and guardrail which encroached upon Reynolds' property. In his August 11, 1978, answer, Heerey admitted that the fence and the guardrail were erected but denied that they encroached onto Reynolds' property.
Reynolds filed two surveys which showed that Heerey's fence and guardrail encroached upon Reynolds' property. One of these surveys, prepared by Chicago Guarantee Survey Company (Guarantee), was commissioned by Heerey. The other survey, prepared by National Survey Service, Inc. (National), was commissioned by Reynolds. The Guarantee survey shows the northern boundary of Heerey's property as 95.92 feet and the northern boundary of Reynolds' property as 25.00 feet. Heerey's southern boundary is 95.82 feet, and Reynolds' is 25.01 feet. According to the National survey Heerey's northern boundary is 96.04 feet and Reynolds' is 25.00 feet. This survey shows Heerey's southern boundary as 95.983 feet. It does not indicate the length of Reynolds' southern boundary. Reynolds filed the affidavit of his surveyor which stated that Heerey's fence and guardrail encroached onto Reynolds' property. Deposition testimony of both surveyors was introduced.
The only evidence introduced by Heerey to refute Reynolds' evidence were certified copies of two recorded plats of subdivisions concerning the subject property. The earlier plat is dated 1836 and subdivided a one-half mile strip of property into 23 blocks. The plat shows the dimensions of each block. The blocks are not subdivided into lots. Reynolds' lot and Heerey's lot would be located on block 12. The later plat is dated 1886. This plat subdivided the east two-thirds of block 12 into 11 lots. It shows the dimensions of block 12 and of each of the 11 lots on the east two-thirds of block 12. Reynolds' property is lot 7. Its northern boundary is shown as 25.00 feet. Heerey's lot is not shown as it presently exists but would be located in the unsubdivided west one-third of block 12.
The northern boundary of block 12 is shown as 262.68 feet on the 1836 plat. The 1886 plat shows this boundary to be 259.20 feet. According to a surveyor's exhibit prepared for Heerey, the actual ground measurement of the northern boundary of block 12 was 259.17 feet at the time of the proceedings below.
Heerey's first contention is that the trial court erred in granting summary judgment against him because the 1836 plat shows the northern boundary of block 12 as 3.48 feet longer than does the 1886 plat. He argues that this discrepancy raised an issue of material fact as to the location of the boundary between his and Reynolds' property and therefore as to whether his fence and guardrail encroach onto Reynolds' property.
Heerey introduced no evidence below concerning how the 3.48-foot discrepancy would affect the location of the boundary between his and Reynolds' properties. While the 1886 plat shows a 3.48-foot shortage along the northern line of block 12 as compared with the 1836 plat, Heerey introduced nothing to indicate where this shortage existed. Conversely, Reynolds introduced strong evidence that the 3.48-foot discrepancy had no effect on the size of his or Heerey's lot or upon the location of the boundary between the lots. Further, he introduced two surveys, an affidavit, and deposition testimony which clearly described the location of the two properties and their dimensions, and the fact of and location of the encroachment by Heerey onto Reynolds' land.
• 1 We conclude that the evidence presented in support of and in opposition to the motion for summary judgment when construed strictly against Reynolds and liberally in favor of Heerey reveal no genuine issue as to any fact material to the issue of whether Heerey's fence and guardrail encroach onto Reynolds' property.
On appeal Heerey argues that under the so-called "apportionment rule" it can reasonably be inferred that the 3.48-foot discrepancy negates Reynolds' claim of encroachment. He relies on the following language in May v. Nyman (1972), 3 Ill. App.3d 580, 585, 278 N.E.2d 97, 101:
"We are not unaware of the fact that our court can in certain cases follow the apportionment rule which provides that where a tract of land is subdivided into parts or lots, title to which becomes vested in different persons, none of the grantees is entitled to any preference over the others on discovery of an excess or deficiency in the quantity of land contained in the original tract; and the excess must be divided among or the deficiency must be borne by all of the parts or lots in proportion to their areas."
In May a plat showed that the frontage line of 12 lots numbered 1 through 12 measured 1213.2 feet. The line actually measured 1200.0 feet. It was held that this discrepancy did not in and of itself establish that there was any shortage in the subject property because there was no showing as to where along the frontage line the shortage existed. Therefore, the court declined to apply the apportionment rule.
• 2 The May decision does not set forth the circumstances under which the apportionment technique will be applied and does not describe how any excess or deficiency will be added or subtracted. There is nothing in May to indicate that the apportionment technique is appropriate here or that its application would have any effect on the location of the boundary between Heerey's and Reynolds' properties. Therefore, Heerey's citation of May does not alter our conclusion that he did not raise a genuine issue of material fact concerning the ...