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06/30/89 the People of the State of v. Fred Weiszmann Et Al.

June 30, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

FRED WEISZMANN ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

541 N.E.2d 205, 185 Ill. App. 3d 273, 133 Ill. Dec. 368 1989.IL.1070

Appeal from the Circuit Court of Lake County; the Hon. Robert A. Nolan, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, the State of Illinois, filed suit in the circuit court of Lake County, seeking to quiet title to three parcels of real estate and naming as defendants Fred Weiszmann, William W. Janssen, and Malissa Vander Goten. Defendants, Weiszmann and Janssen, filed an answer and counterclaim seeking to quiet title against the State's claim in the subject parcels. Defendant Vander Goten never filed an appearance or any response to the State's complaint and is not a party to this appeal. Defendants moved for class certification which was denied. The State and defendants filed cross-motions for summary judgment. The circuit court granted defendants' motion, and the State appeals. Defendants cross-appeal from the denial of their motion for class certification.

The issues raised are: (1) whether laches bars the State from seeking to quiet title; (2) whether the Illinois marketable title act bars the State's claim; (3) whether the State has title to the subject property superior to that of defendants; (4) whether the amended judgment should be reversed as containing legal Conclusions and inaccurate statements of fact which infer that there are no factual issues in this case; and (5) whether the circuit court erred in denying defendants' motion for class certification.

The parties submitted a stipulation of facts for the purpose of ruling on their respective motions for summary judgment. According to the stipulation, in 1839 the Federal government surveyed the Fox River, which runs through the bodies of water known as Nippersink and Pistakee Lakes, and established a meander line known as the "Government Meander Line of 1839." In 1890, the Federal government surveyed three bodies of land located between the 1839 meander lines, known as Watt's Island, Nett's Island and Riverside Island. In 1891, the Federal government issued a patent to Watt's Island to Mr. Edwin M. Hale.

The subject property of this lawsuit also lies between the 1839 meander lines and has been above water since 1890. The subject property consists of three parcels. Parcel one consists of approximately 11.6 acres and is connected to Watt's Island. Parcel two is comprised of approximately 13.8 acres and is also connected to Watt's Island. Parcel three is an approximately 1.1-acre island adjacent to Watt's Island. (See Appendix.) Title to Watt's Island as it existed in 1890 is not at issue in this case.

Since 1928, defendant Janssen and his predecessors in title claimed the subject property under claim or color of title and paid all taxes and assessments on the three parcels until 1972. In November 1973 defendant Weiszmann purchased the subject property for nonpayment of taxes, and tax deeds were issued to Weiszmann in 1976. Weiszmann paid all taxes and assessments on the property up to the filing of the stipulation.

Defendant Janssen, in 1965, filed suit in the circuit court of Lake County to quiet title to the subject property. The suit named the State as a party, but the State, upon its own motion, was dismissed from the case. In April 1974, the circuit court of Lake County declared Janssen to be fee simple owner of the three subject parcels subject to the rights, if any, of the State. The stipulations further provide that since 1839 the State has not attempted to establish title in or contested title to the subject property prior to the filing of this lawsuit.

We initially address the State's contention that the written judgment as amended must be reversed because it contains legal Conclusions and inaccurate statements of fact which create an inference that there are no factual issues regarding certain findings contained in the written judgment. This contention is without merit, however, as all but one of those findings is a legal Conclusion based upon the stipulated facts. As to the finding that master's deeds had been issued to Janssen in 1928, while we find no basis in the stipulations for such a finding, any discrepancy between the finding and the stipulations in that regard is non-prejudicial as that finding is not critical to the outcome of this appeal.

We next address the issue of whether laches bars the State's claim in this case. The State contends that laches does not apply to the State under usual circumstances, and, even if it does apply in this case, the elements have not been met.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188.) While summary judgment may be an expeditious method of disposing of a lawsuit, it is also a drastic means and therefore should be allowed only when the right ...


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