Appeal from the Circuit Court of Woodford County; the Hon.
Richard M. Baner, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Plaintiffs, John and Donna Hartzler, filed a complaint in the circuit court of Woodford County seeking declarative and injunctive relief against defendants, Herbert and Irene Uftring.
The parties dispute ownership of a strip of land five feet in width on the west edge of plaintiffs' property and the east edge of defendants' property. Plaintiffs' complaint sought a declaratory judgment that plaintiffs owned the disputed strip and a permanent injunction ordering defendants not to enter onto the strip. Defendants answered that the disputed strip was part of their property as a result of an implied agreement between the parties' predecessors in interest, or, in the alternative, that they had acquired the disputed strip by adverse possession.
The property owned by the parties had originally been part of a single tract of land owned by Clara Barth. Barth died in 1956 and her executor sold the property in two parcels on July 11, 1956. One parcel was sold to Frank Oldenburg, defendants' predecessor in interest, and the other was sold to Robert and Inez Oldenburg, plaintiff's predecessor in interest. The deeds from Barth's executor to Frank and to Robert and Inez Oldenburg, identified the boundary between the two properties as a north-south line commencing at a point on the north line of Outlot 51 in the city of Minonk 194 feet east of the northwest corner of Outlot 51. The deeds of plaintiffs and defendants also identify this line as the boundary line between the two properties.
Defendants moved onto Frank Oldenburg's property as tenants in May 1963. Mr. Uftring testified that there was a fence about 35 or 40 feet east of the house and about 20 trees along the fence on either side of it. The edge of a concrete floor, all that remained of a chicken house, ran along the fence line. Mr. Uftring testified that since his family moved onto the property in 1963, they had mowed the grass up to the fence. Defendants acquired title to their property from Frank Oldenburg on October 4, 1972.
Plaintiffs acquired title to their parcel from Robert, Phyllis and Delores Oldenburg on April 17, 1975. Mr. Hartzler testified that when plaintiffs moved on to their property there were fence posts, but no fence, and trees along the west side of the property. Shortly after moving onto the property, Mr. Hartzler pulled up the fence posts and cut down trees along the fence line. As a result of these acts, heated arguments arose between the parties over the ownership of the trees. Mr. Hartzler had a survey made in 1975 which showed that the trees along the fence line were on plaintiffs' property and plaintiffs' boundary line was approximately five feet west of the fence line. Plaintiffs moved off the property in 1976 and rented it to two elderly women. However, the old dispute over the trees was renewed in 1979 when plaintiffs returned to their property and Mr. Hartzler continued spraying and trimming the remaining trees along the fence line.
The trial court found that plaintiffs established they had legal title to the land described in their deed and entered a declaratory judgment to that effect. The court also found that defendants failed to establish any of their affirmative defenses.
Defendants first argue that the trial court erred in failing to recognize their defense based on the doctrine of the establishment of boundary lines by agreement.
• 1 Where a boundary line between two tracts is unascertained or in dispute, the line may be established by parol agreement and possession or by an agreement implied from the unequivocal acts and declarations of the parties and acquiescence for a considerable period of time. (McLeod v. Lambdin (1961), 22 Ill.2d 232, 174 N.E.2d 869; Ginther v. Duginger (1955), 6 Ill.2d 474, 129 N.E.2d 147; Jones v. Scott (1924), 314 Ill. 118, 145 N.E. 378.) When an unascertained or disputed boundary is established by either of these methods it will be binding on the parties to the agreement and their privies in estate. (McLeod.) The boundary, once established, will control the parties' deeds notwithstanding the statute of frauds. (See Ginther.) The principle upon which this conclusion is reached is that the effect of the agreement is not to pass real estate from one party to another but simply to define the boundary line to which their respective deeds extend. (See Ginther; Jones; 11 C.J.S. Boundaries sec. 67, at 639 (1938).) The requirement that the boundary be unascertained or in dispute is therefore a necessary prerequisite to any agreement, since "[i]f the location of the true boundary line is known to the owners they cannot transfer the land from one to the other by an agreement changing such location." See Jones v. Scott (1924), 314 Ill. 118, 121, 145 N.E. 378, 380; see also Loverkamp v. Loverkamp (1942), 381 Ill. 467, 45 N.E.2d 871.
Defendants do not assert that there was a parol agreement to establish the boundary line, but maintain that an implied agreement existed which established the fence line as the boundary line. Obviously, there has been no implied agreement between the parties as to a boundary line. Since plaintiffs and defendants acquired their respective parcels from the Oldenburgs, with no intervening owners, and the parcels were part of a single tract prior to the Oldenburgs' ownership, defendants would have had to prove that Frank Oldenburg had agreed with Robert and Inez Oldenburg to establish an unascertained or disputed boundary line by their unequivocal acts and declarations and by their acquiescence for a long period of time.
• 2 The boundary line between the properties was described in the deeds in which Barth's executor conveyed the property to Frank Oldenburg and to Robert and Inez Oldenburg. The deeds clearly and consistently show the boundary line between the two properties to be a line running due south from a point on the north line of Outlot 51 194 feet east of the northwest corner of Outlot 51. There is no evidence whatsoever in the ...