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12/21/95 MATTER ESTATE RONALD L. WALLIS v. JULIA A.

December 21, 1995

IN THE MATTER OF THE ESTATE OF RONALD L. WALLIS, SR., DECEASED, MARY-ELLEN WHITLING, INDEPENDENT EXECUTOR, PLAINTIFF-APPELLANT,
v.
JULIA A. SNYDER AND HAZEL F. GARD, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Clark County. No. 94MR3. Honorable Tracy W. Resch, Judge Presiding.

Released for Publication December 21, 1995. As Corrected July 30, 1996.

The Honorable Justice Knecht delivered the opinion of the court: McCULLOUGH and Garman, JJ., concur.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Plaintiff Mary-Ellen Whitling, as independent executor of the estate of Ronald Wallis, decedent, appeals the circuit court's denial of Wallis' request for declaratory and injunctive relief under the Fence Act (Act) (765 ILCS 130/1 et seq. (1992)). We affirm.

In 1947, Wallis purchased a parcel of land in Casey Township, Clark County, Illinois. The parcel shared a common boundary with land then owned by defendant Hazel Gard. Wallis and Gard soon entered an oral agreement whereby Gard would maintain the fence along the north 40 rods of the common boundary, and Wallis would maintain the fence along the south 40 rods of the common boundary.

In 1955, Wallis purchased another parcel of land which was also adjacent to Gard's land. Wallis and Gard entered an oral agreement whereby Gard would maintain the fence along the south 20 rods of this common boundary, and Wall is would maintain the fence along the north 20 rods of this common boundary.

In 1987, Gard conveyed the remainder interest of her land to defendant Julia Snyder but reserved a life estate for herself. In 1994, Wallis decided to pasture cattle on his land. The fence on the boundary between his and Gard's land, however, was in disrepair and was overgrown with brush. Gard was residing in a nursing home by this time, and Wallis was unable to resolve with Snyder the allocation of the fence maintenance. Wallis and Snyder decided to submit their dispute to two "fence viewers" pursuant to sections 1, 4 and 5 of the Act. (765 ILCS 130/1, 4, 5 (West 1992).) Both Wallis and Snyder each chose a different member of the Casey Township Board of Trustees to act as a fence viewer, in compliance with section 8 of the Act. (765 ILCS 130/8 (West 1992).) The two fence viewers read the Act, walked the length of the fences in question, and spoke with both the parties as well as farmers in the area. The fence viewers' decision was typed, reviewed, amended, and then signed and mailed to the parties. The fence viewers declared:

"We both conclude that the present fence, with the brush removed and only a very few repairs made, would be suitable for grazing cattle. Since the rightful owner of the Gard property is presently in a nursing home and on public aid, and because her property is not completely fenced in, any new fence would be of no value to her.

It only makes sense to us that if Mr. Wallis wishes to upgrade the fence that he must be allowed to do so but at his own expense."

The fence viewers directed Snyder, however, to remove brush away from the fence to a distance of three feet, and to keep it removed on a yearly basis. Also, the fence viewers declared if Snyder decided to enclose her property for livestock in the future, she would then need to reimburse Wallis for one-half the expenses of repairing and maintaining the fence at issue.

Wallis filed a complaint in the circuit court of Clark County seeking declaratory and injunctive relief. His complaint alleged the decision of the fence viewers was contrary to the requirements of the Act in several respects, and asked the court to allocate a share of maintaining the fence to Gard and Snyder. The circuit court denied the relief sought in Wallis' complaint and affirmed the decision of the fence viewers in all respects. Wallis filed an appeal, but died during the pendency of the appeal. Upon request by the independent executor of his estate, Mary-Ellen Whitling, she has been substituted as the plaintiff in this appeal.

A court of review should not set aside the decision of fence viewers unless the record clearly and unequivocally shows the decision was arbitrary or inequitable. ( Swanson v. Wolstenholm (1973), 10 Ill. App. 3d 69, 73, 293 N.E.2d 461, 464.) Whitling first contends the agreement between Wallis and Gard to divide maintenance of the fence equally should be enforceable against Snyder as well. Essentially, she is arguing the agreement between Wallis and Gard that each of them would maintain one-half the division fence is a covenant running with the land. In order for a covenant to run with the land, the contracting parties must have intended it at the time of the contracting, the covenant must touch and concern the land, and there must be privity of estate between the party claiming the benefit of the covenant and the party resting under its burden. ( Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345, 362, 559 N.E.2d 986, 996, 147 Ill. Dec. 646.) Here, Wallis at no time asserted he and Gard intended their agreement to run with the land. There has never been privity of estate between Wallis and Gard. They have not had a grantor-grantee, lessor-lessee, or any other relationship which would create privity of estate between them. Their covenant could not run with the land, so the covenant is unenforceable against Snyder.

Moreover, Wallis' agreement with Gard can no longer be enforced even against Gard herself. Throughout these proceedings, Wallis never stated he and Gard agreed on a specific duration of their agreement. We have been unable to locate a case in Illinois which discusses the issue of a real covenant of indefinite duration. However, Professors Cunningham, Stoebuck, and Whitman, in their treatise on the ...


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