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04/03/96 ESTATE EDWARD WELLIVER v. CHAREL S.

April 3, 1996

ESTATE OF EDWARD WELLIVER, DECEASED, BY BARRY WELLIVER, AS EX'R OF THE ESTATE OF EDWARD WELLIVER, AND DEBORAH SIEBOLD, AS SUCCESSOR-IN-INTEREST, HEIR AND BENEFICIARY OF THE ESTATE OF EDWARD WELLIVER, PLAINTIFFS AND COUNTER-DEFENDANTS-APPELLEES,
v.
CHAREL S. ALBERTS, DEFENDANT AND COUNTER-PLAINTIFF-APPELLANT (UNKNOWN OWNERS AND NONRECORD CLAIMANTS, DEFENDANTS).



Appeal from the Circuit of Winnebago County. No. 93--MR--212. Honorable Alford R. Penniman, Judge, Presiding.

Rehearing Denied May 8, 1996. Released for Publication May 8, 1996.

Presiding Justice McLAREN delivered the opinion of the court: Thomas and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

The plaintiffs, Barry Welliver, as executor of the estate of Edward Welliver, and Deborah Siebold, as the successor-in-interest, heir, and beneficiary of Edward Welliver, brought this action to quiet and confirm title to a parcel of land. The plaintiffs claimed title to the property through adverse possession. See 735 ILCS 5/13--101 (West 1994). The defendant, Charel Alberts, who held record title to the disputed property, filed a countercomplaint to quiet title and for ejectment. After a bench trial, the trial court found the Wellivers had acquired title through adverse possession to the bulk of the disputed area, namely, the "woods." The court set the boundary line at the line set forth in an utility easement granted Central Illinois Electric and Gas Company. Further, the trial court granted the plaintiffs an easement by implication, encompassing an access road which traversed the disputed property. We reverse.

The rough diagram appearing below will assist in an understanding of the facts. [Insert diagram, attached at end of case, here.]

On February 10, 1964, Ed and Pauline Welliver acquired two separate parcels of land. The first, labeled as property A on the diagram, was conveyed by Lowell and Ruth Baxter, consisted of approximately 18 acres, was located on the Kishwaukee River, and was intended to be the site for the Welliver home. The second, labeled as property B, was conveyed by John and Estella Baxter, consisted of a 50-foot strip of property, approximately 2,652 feet long, which connected property A with Rotary Road, to the south of property A and the river, and was intended to be the site for a private road to the Welliver home. However, the record reveals that Ed and Pauline Welliver could not lay the entire road on property B, as they had intended, due to the topographical features of property B.

As a result of the road problem, Ed and Pauline Welliver bought a third parcel, property C, from John and Estella Baxter in June 1964. Property C was approximately 610 feet, east to west, and adjoined property A to the south and property B to the east. The land in dispute lies adjacent to the south boundary of property C and the east boundary of property B and was included in the legal description of the property purchased by the defendant in May 1993. On August 12, 1964, Edward Welliver gave Central Illinois Electric and Gas Company an utility easement over the disputed property.

The defendant's grantors, Troy and Erma Venable and J.B. and Jewell Bowling, acquired their parcel from the Baxter family by an alleged agreement for deed in 1974 and, subsequently, a warranty deed in 1984.

During the summer of 1993, the defendant began erecting a fence on her parcel 5 to 10 feet South of the line of trees which demarcated the "woods." The defendant was informed by Siebold that the defendant was on the Wellivers' land and that the property line was approximately 100 yards south of the edge of the woods. In September 1993, the defendant was barred from using the private road on the Wellivers' access strip. The instant action commenced shortly thereafter.

At trial, the plaintiffs argued that they had gained title, through adverse possession, to the "woods," as well as property up to 40 feet south of the "woods." The daughter of John and Estella Baxter testified for the plaintiffs that, despite the legal description of the deeds, there was never any dispute between her parents and the Wellivers that the boundary line between the properties was "about 3 feet south of the wood line." Further, the plaintiffs presented testimony and evidence that in 1964 and 1965, Ed Welliver ran his tractor through the "woods" to create trails on the property at issue. The Wellivers presented testimony regarding their maintenance of the trails, which involved snipping away encroaching vegetation. The plaintiffs also testified as to their use of the trails for walking, horseback riding, cycling, and snowmobiling, and the "woods" for camping. In addition, the plaintiffs presented testimony that a motorcycle group obtained the Wellivers' permission to hold a motorcycle endurance race on the trails one day a year. The plaintiffs also presented testimony that Ed Welliver posted a "No Hunting" sign at the edge of the "woods" on the disputed property, but the defendant presented testimony that the "No Hunting" sign was not erected until after the present dispute over the boundary line had commenced. Further, the plaintiffs presented testimony that, following Ed Welliver's death, they spread his ashes throughout the woodland trails.

With regard to the portion of the road which traversed the northwest corner of the defendant's deeded property, the plaintiffs presented testimony that the road was "put in" in 1964 and that the reason a portion of it juts across the defendant's land is because in 1964, the Wellivers could not put a road from Rotary Drive the entire length of their access strip to their residence, going straight north, because of the existence of a gully. Thus, they had to curve the road to the east at that point.

Testimony supporting the defendant's arguments was also heard in the trial. J.B. Bowling, the defendant's grantor, testified for the defendant that he farmed the field "all of the way up to the woods." Also, J.B. Bowling testified that the motorcycle group approached him twice about the endurance race to obtain his permission and that he had no knowledge that they had staged the race more than those two occasions. J.B. Bowling stated that he had granted permission to two other individuals to use the "woods" for motorcycling. Further, J.B. Bowling testified that, in the spring of 1976, Ed Welliver asserted a claim of ownership to a substantial portion, perhaps as much as 339 feet, of the northern part of the land which Bowling was then farming. Bowling testified that he responded by threatening to bulldoze the portion of the Welliver access road which lay within the disputed parcel of land and rip out the power line from the same area. After Bowling went back to his residence to recharge the battery on his "Caterpillar," Bowling testified that Ed Welliver, driving his lawn tractor, approached Bowling and the two of them had another discussion. Bowling stated that he and Ed Welliver came to a resolution to their heated argument, whereby Ed Welliver was allowed to continue use of Bowling land for the roadway and power line in return for the Bowlings' use of the Welliver roadway on the Welliver family's access strip. J.B. Bowling testified that he agreed to Welliver using, but not owning, the Bowling land on which the roadway and power lines were located. J.B. Bowling and Ed Welliver then shared a bottle of wine to celebrate their agreement. Jackie Bowling and Larry Bowling, J.B. Bowling's sons, were present during the conversation between their father and Ed Welliver and testified as to similar recollections of the event during their evidence depositions. Joel Bowling, another of J.B. Bowling's sons, also confirmed, by testifying at trial, the discussion and agreement between his father and Ed Welliver. Also, Joel Bowling testified that he used the "woods" for hunting, camping, motorcycling, and snowmobiling while his family owned the property. On one occasion in 1981, Joel testified that Ed Welliver, who was opposed to hunting, encountered Joel in the "woods" on the disputed property while Joel was hunting. Welliver advised Joel that Welliver did not want Joel hunting on Welliver property. Joel Bowling informed Welliver that they were not on Welliver land. Ed Welliver then retorted that they could call the police if they had to sort it out. Joel did not leave his hunting perch, but Ed Welliver left the premises.

In addition to the Bowling family's testimony, the defendant herself, along with her fiance, testified with regard to her actions after buying the property from J.B. Bowling. The defendant testified that, after she had bought the property, she noticed the woodland trails but did not believe that their presence signified that one of her neighbors would assert ownership rights to that portion of her property which included the "woods." In addition, Arthur Johnson, the defendant's fiance, testified that, after Alberts had purchased the property, he had a conversation with Steve and Deborah Siebold, in which he stated that he and Alberts "understood there was an agreement on the road," and the Siebolds agreed that "they would be willing to continue that agreement." Johnson also testified that he met with the Siebolds a second time, this time with Barry Welliver present. Johnson testified that Barry Welliver knew that the road came across Alberts' property and ...


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