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Applebey v. Lenschow





Appeal from the Circuit Court of Kane County; the Hon. James F. Quetsch, Judge, presiding.


Rehearing denied July 18, 1986.

Plaintiffs, Steven and Melode Applebey, appeal from a judgment entered upon a directed verdict in favor of defendant, Willard Lenschow, in plaintiffs' action, wherein they sought damages for trespass by defendant, and also appeal from the judgment entered upon the verdict of a jury on defendant's affirmative defense which found that he was owner of the disputed land by adverse possession. Plaintiffs contend defendant failed to properly plead and prove ownership of the disputed land by adverse possession and did not establish the boundaries of the disputed area. Plaintiffs also contend the trial court erred in its instructions to the jury, in rulings on evidence, and by quashing affidavits of jurors submitted in support of plaintiffs' post-trial motion.

The disputed property is a strip of land lying east of the boundary of the land conveyed to defendant by his grantor and is a part of the property conveyed to plaintiffs by their grantor. The eastern boundary of the disputed area is an old fence line and the area is two feet wide at its south end, six feet wide at its northern point and it is approximately 553 feet in length. The following illustration shows the relative locations of defendant's property (tract A), plaintiffs' property (tract B) and the disputed area between them:

The evidence at trial disclosed that plaintiffs purchased tract B in 1983 from Charles and Mary Spencer intending to build a home on it and breed horses. At the time they took possession, plaintiffs obtained a survey, commenced clearing the property of weeds and debris, and erected a temporary pen in which they placed their stallion. In June 1983, plaintiffs sought to ascertain the west boundary line of their property in order to erect a fence as part of a paddock and requested a neighbor, Marsha Pfingsten, to talk to defendant regarding the location of the southwest property stake. Defendant told Mrs. Pfingsten that plaintiffs should install their fence on the old fence line. The next day, defendant met with plaintiff, Steven Applebey, and showed him remnants of an old fence. Plaintiff remarked that "it didn't look like a fence to him" and suggested that the boundary line was anywhere from 2 to 6 feet further to the west. Plaintiffs thereupon proceeded to erect fence posts along the west boundary line of the property conveyed to them rather than at the fence line indicated by defendant. The following day defendant removed the fence posts and, thereafter, plaintiffs brought this action in trespass against defendant in which he asserted the affirmative defense of adverse possession.

Defendant had acquired tract A from Burt and Mildred Struck by warranty deed dated January 18, 1968. It had originally been a part of the Struck family farm which had been acquired by Struck's grandmother in 1871. The farm was conveyed to Burt Struck in 1948, as part owner, and then as full owner in 1944. Burt Struck testified that he had farmed tract A from 1924 to 1967; he was familiar with the fence along the east boundary of the farm and had maintained it himself until 1960 when he ceased using the property for grazing and began growing crops. He threw rocks from the cultivated fields into the fence line and cut weeds in that area. He recalled that several trees grew along the west side of the fence line and he had cultivated around them with his tractor and rig, but could get no closer than 2 1/2 feet from the fence. Struck stated that with modern farm machinery it was not possible to cultivate any closer than 10 feet from the fence line.

Struck also testified that a few weeks before trial he had walked the fence line and found remnants of steel and wooden posts, as well as barbed wire, which he recalled having nailed to the east side of certain trees years ago. Struck and the defendant both testified that when defendant took title to the property, they considered that it extended to the fence line. Defendant testified that when he bought the property he walked the east boundary and saw the fence at that place.

When defendant acquired tract A in 1968 he leased it to his brother, Glenn, who grew corn for three years. During that time, Glenn considered the fence to be the east boundary of the property; he plowed as close to the fence as his equipment allowed and sprayed weeds along the fence line. From 1971 to the date of trial, Donald Rowlett leased the tract and grew row crops. Rowlett testified that there were several trees and an old fence along the east boundary. His practice was to plow within 3 to 4 feet of a fence post if there were no obstructions. He trimmed trees along the fence line, threw field rocks there, and sprayed weeds.

A survey prepared by John Thornhill in 1967, entered into evidence as a joint exhibit of the parties, depicted a fence line east of the boundary line separating tracts A and B. A survey prepared by Alan Coulson for use in trial also showed the location of remnants of an old fence at that place. Other witnesses testified that along the first hundred feet of this line there was an existing fence which was once part of an old hog pen.

Plaintiff, Steven Applebey, testified that he placed the fence posts about 12 to 16 inches east of the boundary line. At that time, crops were growing on tract A and soybeans had grown there the previous year. The closest his fence posts approached to the crops was 1 1/2 feet and in other areas were 4 to 5 feet away because the line of cultivation was not straight. Plaintiff, Melode Applebey, testified that she walked the west boundary line of tract B in 1979, at which time the line of cultivation was no closer than 20 feet from it. She did not see a fence but saw some fence posts and a pen at the southwest corner.

Mary Spencer testified that she and her husband lived on tract B in 1980-82 and had cleared the property to the west boundary and parked junk cars there. She did not recall seeing any fence, fence posts or trees on the boundary line and testified that the disputed parcel was overgrown with weeds.

We consider first plaintiffs' argument that defendant's claim of adverse possession of the disputed land, asserted in his answer as an affirmative defense to plaintiffs' complaint in trespass, is a nullity as it failed to describe the land to which he claims ownership and, also, that defendant failed to establish the boundaries of the disputed parcel by the evidence.

In his response, defendant contends that the legal description of the disputed parcel was omitted, by inadvertence, from the description of his property as pleaded in his answer and affirmative defense. Defendant did therein describe tract A, which he acquired by purchase, but neglected to also describe the disputed strip of land along its eastern boundary to which he claims title by adverse possession. Defendant seeks leave to amend his answer in this court, pursuant to Supreme Court Rule 362 (87 Ill.2d R. 362), and tenders the answer as amended to describe the disputed parcel. We have taken the motion with the case and now grant it.

• 1 Amendments conforming the pleadings to the proof in trial may be made on review if supported by the record and do not cause prejudice to the adverse party. (Supreme Court Rules 362 and 366(a)(1) (87 Ill.2d Rules 362, 366(a)(1)); Pickett v. First American Savings & Loan Association (1980), 90 Ill. App.3d 245, 250, 412 N.E.2d 1113; Simonson v. Simonson (1970), 128 Ill. App.2d 39, 48, 262 N.E.2d 326, appeal denied (1970), 44 Ill.2d 587.) The trial of this case was conducted by all parties on the basis that defendant claimed title by adverse possession to the disputed parcel of land in issue. Its dimensions and location were shown on joint exhibit 1 which was prepared by registered land surveyor, John Thornhill, who testified in trial. He described the disputed area as a strip of land 553.30 feet long, 2 feet wide at its southern point and 6 feet wide at its northern end. The west boundary of the parcel was shown to be the survey line separating tracts A and B and its east boundary at an old fence line. Other witnesses also testified as to ...

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