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Runge v. Dekeyrel

OPINION FILED NOVEMBER 17, 1981.

HAROLD E. RUNGE ET AL., PLAINTIFFS-APPELLANTS,

v.

FRANK DEKEYREL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Rock Island County; the Hon. PAUL E. RINK, Judge, presiding.

MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Appellants and their predecessors in title have owned and occupied land on one side of an old fence, mostly hedge, for more than 20 years. Appellee and his predecessors in title have owned and occupied the land on the other side of the fence. The fence had been considered the boundary line between the two parcels of land for at least 50 years.

Appellants commenced an action to have the division fence between the two properties moved between 14 and 25 feet on the basis that the fence did not represent the true and correct boundary between them as shown by a plat of survey conducted by one D.F. Casey.

Casey testified that he used no governmental monuments as starting reference points in making his survey, but established such points through the process known in surveying as "reconstruction."

In 1966 a township survey plat showed a road on the land in question. However, no road was ever actually created.

The uncontroverted testimony of prior owners of appellants' tract, who have no interest in the outcome of the litigation, established that the fence as it exists today existed in the same place from the time a Mr. Tomlinson bought the property until the present, and that these predecessors in title acknowledged that fence to be the boundary and acquiesced in its location.

Appellant himself testified that he did not question the boundary either until some time after he learned of a survey made by Mr. Casey, and he in fact made repairs to the fence both before and after that date and continues to do so.

No evidence was introduced that the line of the fence has ever varied over the past 25 years. On the contrary, the testimony of both sides was that the fence has not been moved or varied in any manner during that time.

From an adverse ruling declaring that defendant had acquired title to the disputed strip of land by adverse possession, plaintiffs have appealed.

In the present case plaintiffs filed a complaint in which they alleged that a certain plat of survey prepared by D.F. Casey showed the true boundary line between their property and the defendant's property, and that the existing fence was not the true boundary between their respective properties. Therefore, the plaintiffs had the burden of proving that the survey line on which they relied was correct. This they failed to do.

The survey which plaintiffs claim establishes the correct boundary between their property and the defendant's property was prepared by D.F. Casey. Plaintiffs attempted to introduce into evidence as exhibits an 1866 road plat and the field notes made in connection with the preparation of that plat. However, Mr. Casey did not state on direct examination if he used those two exhibits in the preparation of his plat, and in fact did not state specifically what method he did use to establish his reference points to run the section line.

In cross-examination, Mr. Casey testified that not only were the stones from the original government survey no longer in existence, but that he only used the 1866 survey in a general way and not for specific dimensions and did not use the filed notes at all. The only point Mr. Casey testified that he could establish was based upon an old fence running north next to the school house which appeared on the 1866 plat. In fact, at the close of his testimony Mr. Casey had failed to state in even a general way how he determined any reference points for establishing his survey lines.

This testimony falls short of the requirements of a recent third district case for establishing a section line by reconstruction. In Pliske v. Yuskis (1980), 83 Ill. App.3d 89, 403 N.E.2d 710, cited also by plaintiffs, the court stated:

"In the instant case the lines and corners of the quarter sections had become obliterated and no natural or artificial monuments could be found which by their very presence identified the boundary line, so surveyor Harmon resorted to field notes and plats of the original survey in order to locate the disputed division line. Such practice has long been ...


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