APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
512 N.E.2d 382, 159 Ill. App. 3d 604, 111 Ill. Dec. 266 1987.IL.1172
Appeal from the Circuit Court of Jackson County; the Hon. Bill F. Green, Judge, presiding.
JUSTICE LEWIS* delivered the opinion of the court. HARRISON and WELCH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
The plaintiffs, Howard and Ruby Crowell, brought this action seeking a declaration that certain specifically described property was owned by them by virtue of the doctrine of adverse possession. Following a jury trial, a verdict was returned for the plaintiffs on their adverse possession claim, and the trial court entered judgment on the verdict, setting forth the specific legal description of the property in question. On appeal the defendants, Wiley and Shirley Parrish, contend that the court erred in including the legal description of the property in its written judgment where no evidence pertaining to this description was introduced at trial. The defendants additionally contend that the court erred in denying their motion for judgment notwithstanding the verdict in that the plaintiffs failed to prove the location of the fence line that allegedly formed the boundary between the parties' respective properties. We reverse and remand with directions.
In 1980 the defendants purchased a tract of rural land in Jackson County, Illinois, which adjoined property owned by the plaintiffs on the north. An old fence running through the woods on the southern border of the plaintiffs' property had formed the boundary between the two tracts for several years. From 1919 through 1979 the plaintiffs and their predecessors-in-title had used the property up to the fence line to pasture cattle, hogs and horses.
In 1981 the defendants hired a surveyor to determine the quarter quarter section line between the parties' property. From the summer of 1981 to the fall of 1982, the defendants removed the underbrush along the disputed border and constructed a new fence north of the old fence line along or near the quarter quarter section line located by the defendants' survey. The plaintiffs subsequently filed suit claiming that they had acquired the strip of property south of the quarter quarter section line and north of the old fence line by virtue of adverse possession for the statutory period. Counts I and III of the plaintiffs' third amended complaint contained the adverse possession claims and included a detailed legal description of the property in issue.
At trial various witnesses testified regarding the location of the old fence, which had consisted of wire strung from tree to tree with some posts in between for a distance of approximately 1,000 feet. The plaintiffs' witnesses, who were familiar with the fence from having lived in the area, testified that there had always been just one fence between the two adjoining properties and that the old fence had run in a zig-zag line through the woods along the plaintiffs' southern boundary. As the fence had needed repair from time to time, it had been nailed to a nearby tree or new posts had been set within the existing fence line and wire added.
When the plaintiffs had stopped pasturing animals on their property in 1979, the fence had been in disrepair, with parts of it down. In 1981, when defendant Wiley Parrish had cleared out the underbrush in order to erect a new fence, he had found wire from the old fence that was broken and covered with underbrush. The defendant testified that "very little" of the old fence was standing and that the underbrush was so grown up in places that it was impossible to tell where the old fence had run. The defendant had seen nails in the trees and wire "hanging down on the ground" between the trees where the fence had been nailed. The defendant had also found trees with wire embedded in them that did not have any part of the fence attached to them.
Jack Bass, a registered land surveyor, testified that in August 1985 he had, at the plaintiffs' request, gone to the subject property in the company of the plaintiffs' attorney and three of the plaintiffs' neighbors to search for evidence of the old fence line in the remaining trees. After locating as many trees and stumps as possible of the old fence line, Bass had determined the distance from the individual trees over to the new fence in order to prepare a drawing showing the location of the old fence line in relation to the new fence. These distances, varying from 2 feet to 31.8 feet, were indicated on a scale drawing introduced into evidence as plaintiffs' exhibit No. 19. The drawing showed in graphic form the area claimed by the plaintiffs and included 13 points marking the old fence line. The drawing also contained a red line showing the location of the old fence line and indicated the specific trees used to locate the fence as well as the distances between those trees. Bass testified that it was his opinion that there had been
"a fence or fences that substantially followed the red line with, of course, deviations that may have occurred because of trees that are not there or possible posts that were there and have been removed."
The trial court admitted plaintiffs' exhibit No. 19 into evidence
"for the limited purpose of being a graphic drawing of what this witness [Bass] observed in the way of trees and where an ...