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Hasselbring v. Lizzio

July 22, 2002

LELAND H. HASSELBRING, JANE R. HASSELBRING, AND MIKE BALDING, PLAINTIFFS-APPELLEES,
v.
IRENE LIZZIO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 21st Judicial Circuit, Iroquois County, Illinois, No. 97-CH-15 Honorable Gordon L. Lustfeldt, Judge, Presiding.

The opinion of the court was delivered by: Justice Slater

Defendant, Irene Lizzio, appeals from a circuit court judgment granting a permanent injunction in favor of plaintiffs, Leland Hasselbring, Jane Hasselbring, and Mike Balding. The injunction prevents defendant from interfering with plaintiffs' riparian rights in the use of a non-navigable pond. We allowed Irene's motion for substitution of parties whereby she was substituted for Carl Lizzio, her husband who died while the appeal was pending. Defendant claims on appeal that the circuit court erred in granting the injunction and denying defendant's counterclaim to quiet title and enjoin plaintiffs from using the pond. We affirm.

FACTS

The pond in question lies near Del Rey in Iroquois County and sits on land owned by defendant. Defendant bought the property on which the pond sits in 1993. It is bordered on the north by property owned by Mike Balding and on the south by property owned by Leland and Jane Hasselbring. The following diagram, not drawn to scale, indicates the approximate location of each party's property in relation to the pond:

Mike Balding purchased his parcel of land in 1985. He subsequently built a cabin facing the pond, approximately 60 feet from the water's edge, in which he now lives. Balding installed a floating dock onto the water extending away from the shoreline closest to his cabin. He used the dock to fish and at one time had a boat he used to fish on the pond. Balding believed that his property bordered the pond.

Leland and Jane Hasselbring bought their property in 1996. It is a wooded tract with a stream on the north part of the property which must be crossed to access the pond. A bridge exists for that purpose and was in place when the Hasselbrings came onto the property in 1996. The Hasselbrings maintained the southern bank of the pond and used the bridge to access the pond to fish and canoe.

In approximately 1987 Mike Balding drained the pond in order to use a bulldozer to deepen and widen the pond. He testified that he did this to maintain and "improve the pond" because of the top soil and silt that had accumulated over time in the pond, decreasing its size and depth. Balding testified that nobody objected to his actions in bulldozing the pond. Balding also built a wooden dock extending on the pond that Carl Lizzio later objected to being on Lizzio's property. Balding did not use or maintain this dock and let it deteriorate because of Lizzio's objection.

In July 1997 Carl Lizzio began digging a ditch intended to drain the pond for the purpose of creating a wildlife refuge. When Leland Hasselbring and Mike Balding became aware of Lizzio's intentions, they objected and indicated that they didn't think Lizzio had the right to take such action to which Lizzio replied, "Well, I own the water. This is my pond. This is my water." When Hasselbring suggested all of them work together to decide what should be done with the pond and all share the cost, Lizzio declined the offer.

Plaintiffs filed a complaint July 2, 1997, to prevent defendant from draining the pond. Plaintiffs claimed that they owned property riparian to the pond and that defendant intended to interfere with their ability to use the pond. The circuit court issued a temporary restraining order July 2, 1997, and granted a preliminary injunction on July 10, 1997. Defendant filed a two-count counterclaim against plaintiffs on June 26, 1998, seeking to enjoin them from trespassing on defendant's land and to quiet title to the land against plaintiffs' claimed interest. A bench trial was held.

Carl Krause, a licensed surveyor, testified for plaintiffs that he was contacted in 1993 by James Maddin, predecessor in title to Carl Lizzio's property. Maddin gave him the legal description of the land later conveyed to Carl Lizzio, from which he was instructed to make a survey. Krause's survey located the southern line of what is now the Lizzio property based on that legal description. The pond extended significantly beyond that line, which is also the north line of the Hasselbring property. Upon cross examination, Krause indicated that he had not inquired into previous documents in the chain of title because he had not been instructed to do so. Rather, the sole source for his survey had been the legal description he had been given by Devine. He admitted that the southern line of the Lizzio property was not the true southern line but that the line found by surveyors Rex Bradfield and David Tyson was correct. The correct line was south of Krause's line, very close to the edge of the pond. Krause maintained that the rest of his survey was correct.

Testimony varied as to where the edge of the pond was located. Bradfield testified that at the times he had measured its location, it was a foot to a foot and a half from the Hasselbring's property line. He also testified that in his opinion the water level would not rise above that level without extreme circumstances, such as heavy rainfall or overflow from the nearby stream. Contrarily, surveyor Tyson testified that although he had seen the water level in the same place as Bradfield, it was obvious that the bank of the pond was "definitely on Mr. Hasselbring's property." Mike Balding testified that during the time he owned his property he had seen the pond water at higher levels than it was at the time of trial. Carl Lizzio testified that he had never seen it higher than it was at the time of trial. Several photographs were admitted into evidence showing the edge of the pond.

In regard to Balding's property, Krause testified that according to his survey, the pond extended beyond the northern line of the Lizzio property onto the property owned by Mike Balding. Conversely, defendant's witness Rex Bradfield testified that Balding owned less than the 3.5 acres he claimed to own. He based this opinion on an examination of the trail of deeds of Balding's property extending back to 1895. The original 1895 deed, and various later deeds, contain a reference to 1.5 acres in contrast to the more extensive metes and bounds description. Bradfield's opinion was that Balding actually owned only 1.5 acres and the southern border of his property was approximately 120 feet away from the northern edge of the pond.

The trial court issued an opinion on March 13, 2001, and a final judgment on May 4, 2001. The judgment was for a permanent injunction preventing Carl Lizzio from interfering with plaintiffs' use of the pond or altering its water level. The court, according to its written opinion, found that plaintiffs' lands were riparian to the pond. The court indicated that it had carefully weighed the credibility of all witnesses and all the evidence presented in reaching its conclusion. The court found that there was sufficient evidence showing that the southern edge of the pond extended onto Hasselbring's property. The court also accepted the Krause survey over the Bradfield survey with respect to Balding's property. The court also found that defendant's reliance on a deed dating from 1895 was precluded because of sections 13-114 and 13-118 of the Code of Civil Procedure (735 ILCS 5/13-114, 13-118 (West ...


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