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04/09/97 DELORES STANKEWITZ v. JAMES W. BOHO AND

April 9, 1997

DELORES STANKEWITZ, JANE VAN HAMME, LAVONNE ERTMER, AND MAXINE BUFFO, PLAINTIFFS-APPELLEES,
v.
JAMES W. BOHO AND MARY ELLEN BOHO, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Jo Daviess County. No. 93--CH--21. Honorable William A. Kelly, Judge, Presiding.

Released for Publication May 14, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Geiger, P.j., and Rathje, J., concur.

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

Defendants, James and Mary Ellen Boho, appeal the circuit court's order finding that plaintiffs, Delores Stankewitz, Jane Van Hamme, LaVonne Ertmer, and Maxine Buffo, had obtained title by adverse possession to approximately three acres of land of which defendants are the legal titleholders. Defendants' contentions can be summarized as follows: (1) the evidence was insufficient to support the court's finding of adverse possession and (2) plaintiffs failed to establish the boundaries of the disputed parcel.

Plaintiffs and defendants own adjacent parcels of land in Elizabeth Township, Jo Daviess County. Plaintiffs' parcel borders defendants' to the east and south. Defendants purchased their parcel in 1993 from William Brown, who had acquired it from his aunt and uncle, William and Gladys Mougin, in 1975. The parcel had been in the Brown-Mougin family since at least the mid-1800s.

Plaintiffs acquired their parcel from their mother, Orphie Mitchell, in 1991. She and her late husband, Lawrence Mitchell, purchased the tract from Alice Virtue in 1959.

Shortly after acquiring their property, the Mitchells began leasing the adjacent tract from the Mougins and later from Brown. They used both parcels to run cattle.

When the Mitchells purchased their parcel, an irregular, or "zig-zag," fence existed on the southeast quarter of the adjacent Mougin-Brown property. This fence ran roughly in a semicircle and approximately followed the crest of a ridge across the property. No posts were used in its construction; the wire was simply strung from tree to tree. In many places, witnesses found wire running through the center of tree trunks, indicating that the wire had simply been nailed to the trees when the trees were young. The trees then grew around the wire.

The fence had existed at that location longer than any of the witnesses could remember. No one knew who originally put up the fence or why it was done. While the Mitchells leased the land the fence was allowed to deteriorate so that cows could graze on both parcels.

In 1979, Jerry Ertmer, the husband of defendant LaVonne Ertmer, took over the farming operation from his father-in-law Lawrence Mitchell. Shortly thereafter the Mitchells and Ertmers became embroiled in a dispute with Brown regarding the leasing of the property. In 1983, the parties agreed to terminate the lease.

Daryl "Dude" Schemehorn was hired to construct a new fence between the Brown and Mitchell properties. Jerry Ertmer instructed Schemehorn to follow the existing fence line.

As noted previously, the Mitchell parcel, now owned by plaintiffs, abuts the Mougin-Brown parcel, now owned by defendants, on the east and south. The Mitchell parcel forms a backward "L." The Brown tract fits into the crook of the "L" at right angles. It is undisputed that the Schemehorn fence approximately followed the line of the old zig-zag fence across the ridge rather than the right-angle line formed by the intersection of the two properties.

Eventually the Schemehorn fence, too, was allowed to deteriorate. When defendant William Boho purchased the property in 1993, the fence had been breached in at least four places. When Boho walked the property, he also saw remnants of an old fence along the legal boundary of the two properties. ...


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