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03/08/94 RENE SIERENS v. BILLY J. FRANKENREIDER

March 8, 1994

RENE SIERENS, PLAINTIFF-COUNTERDEFENDANT, APPELLANT-COUNTERAPPELLEE
v.
BILLY J. FRANKENREIDER DEFENDANT-COUNTERPLAINTIFF, APPELLEE-COUNTERAPPELLANT



Appeal from the Circuit Court of Henry County. No. 91 CH 34. Honorable Jeffrey W. O'Connor Judge, Presiding.

As Modified on Denial of Rehearing April 19, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Barry

MODIFIED OPINION BASED UPON THE DENIAL OF THE PETITION FOR REHEARING.

JUSTICE BARRY delivered the opinion of the court.

Plaintiff, Rene Sierens, filed suit to quiet title to a strip of land titled in Sierens' name, located in Henry County. Defendant, Billy J. Frankenreider, counterclaimed, contending that he had acquired this portion of land, as well as two additional adjacent strips of land titled in Sierens' by adverse possession. Following a hearing, the circuit court of Henry County found that Frankenreider had acquired a 1/10th acre parcel of property. The court further found that Frankenreider had failed to prove adverse possession of the parcels which constituted the remaining two strips of property. Plaintiff appeals, defendant counter-appeals, and we reverse in part.

Sierens owns a 160-acre parcel of land being the northeast quarter (NE 1/4) of section 26 in Alba Township ("Sierens property"). Frankenreider owns the adjacent 160-acre parcel to the east of Sierens' property, being the northwest quarter (NW 1/4) of section 25 ("Frankenreider property"). Thus, the two properties are separated by the section line between sections 25 and 26. The record indicates that Frankenreider believed that the center of the township road which runs north and south was the section line separating their properties. However, the section line separating the two properties actually runs east of the township road. Engineer Kevin Wallace surveyed the property and testified that the east township right-of-way line was approximately the line of utility poles which run along the east edge of the township road. Consequently, Mr. Wallace testified that the strip of land which lies between the east township right-of-way line and the section line is actually part of the Sierens property to which Frankenreider claims ownership by adverse possession.

We will summarize the testimony at trial which tracked the history of the property at issue. Raymond Taets testified that in the 1930's his family moved onto the homestead parcel of the Frankenreider property ("homestead parcel"), which is a 2.14-acre parcel centered on the west edge of the Frankenreider property. His father, Emil Taets, bought the property in the late 1940's. Raymond testified that when he moved onto the property with his family, there was a driveway from the township road, across the disputed strip of land to the homestead parcel of the Frankenreider property. The Taets family improved the driveway by building it up with "stoker coal" and putting gravel on it. The Taets family also built an equipment shed on the homestead property which encroaches on the disputed strip of property. Raymond testified that his father replaced and maintained the fence that ran along the utility poles through most of the disputed strip. He further testified that the Taets family farmed the Frankenreider property up to the fenceline every year from the 1930's to the early 1950's and dug the ditch that runs length of the Frankenreider property along the east side of the township road.

Raymond testified that in the early 1950's his father sold the Frankenreider property to Carl and Darlene Nelson who are now deceased. Carl and Darlene's son, Donald Nelson, testified that he lived on the Frankenreider property until 1968 or 1969 and that his father always maintained the driveway by re-graveling it. Donald Nelson further testified that his family painted and repaired the equipment shed and mowed the property up to the township road while he lived on the property. Donald Nelson testified that his family maintained the fence during the entire period he lived there and that his family farmed the Frankenreider land up to the fenceline. Mr. Nelson testified that the relationship between the Sierens and the Nelsons was "just like family."

In the early 1970's, Gene Taets purchased the Frankenreider property. Gene Taets testified that he treated the entire disputed strip as his own. He testified that he once re-graveled the driveway, which his family used regularly, and that he re-roofed and re-painted the equipment shed. Gene Taets testified that he fanned as close as possible to the fenceline that ran through most of the disputed strip along the township road until he removed the fence in the early 1970's, and that he subsequently farmed as close to the the utility poles as possible. Gene Taets sold the property to Frankenreider in 1989.

Frankenreider contracted to sell the homestead parcel to James and Janet Strickland while retaining the rest of the farm. Frankenreider had the property surveyed pursuant to this proposed sale. Frankenreider received a letter from the surveyor dated August 29, 1989. At that time, Frankenreider first learned that the disputed strip along the west edge of his property was not actually part of his 160-acre tract in section 25, but was part the Sierens property. Frankenreider was unable to acquire title to the homestead frontage of the disputed strip and his sales contract with the Stricklands was rescinded.

As aforesaid, Sierens filed an action seeking to clear title only to the homestead parcel of the disputed strip. Frankenreider counterclaimed on a theory of adverse possession, requesting an order granting him title to the homestead frontage as well as the remainder of the disputed strip to the north (north strip) and south (south strip) of the homestead frontage. The trial court found that Frankenreider had acquired the homestead frontage in fee by adverse possession. However, the trial court denied Frankenreider's request for an order granting him title to the north and south strips of the disputed property.

Sierens appeals contending that the court's finding that Frankenreider established ownership of the homestead frontage by adverse possession was against the manifest weight of the evidence. Frankenreider counter-appeals claiming that the court's finding that he failed to establish ownership of the north and south strips by adverse possession was against the manifest weight of the evidence.

In Illinois, one claiming title to real property has the burden of establishing by clear and unequivocal evidence that possession of the property was (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious and exclusive, (5) under a claim of title adverse to the true owner, for the 20-year statutory period (735 ILCS 5/13-101 (West 1993)). Presumption of ownership is with the title owner. ( Joiner v. Janssen (1981), 85 Ill. 2d 74, 81, 421 N.E.2d 170, 174, 51 Ill. Dec. 662.) An appellate court will not overturn a trial court's finding regarding the elements of adverse possession unless ...


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