Appeal from the Circuit Court of Kendall County. No. 00--CH--0051 Honorable Leonard J. Wojtecki, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Claiming title by adverse possession, plaintiffs, Gerald F. Knauf and Jymee N. Knauf, as trustees of the Knauf Family Trust (Trust), sued to quiet title to a strip of land between property owned by the Trust and property owned by defendants, John M. Ryan, Geri S. Ryan, Peter Cattaneo, and Kristen Cattaneo, and to eject defendants from the strip. After a bench trial, the court entered a judgment for plaintiffs. On appeal, defendants argue that the judgment is against the manifest weight of the evidence. We affirm.
In 1972, Gerald and Jymee Knauf purchased property lying in section 24-37-8 in Oswego. The property has frontage on the north side of Woolley Road. Metal stakes purportedly marked the property's boundaries. According to a later survey, the western boundary actually was several feet east of the line marked by the stakes. The contested strip is 7.96 feet wide at the south end of the property and 5.22 feet wide at the north end. Plaintiffs claimed by adverse possession ownership of the disputed strip.
According to the exhibits introduced during the trial, plaintiffs' property is approximately 895 feet by 150 feet. The western boundary of the parcel is 895 feet long and abuts defendants' property. During plaintiffs' case in chief, Gerald Knauf testified that he purchased the property from James Wormley in November 1972. At the time of the purchase, Wormley walked with Gerald around the property and showed him the stakes ostensibly marking the boundaries. Gerald did not have the property surveyed. He tore down a barn on the property and built a new barn. He had a house built on the property in 1975. He and his wife Jymee moved into the house in 1976 and have lived there continuously since then. Sometime after 1976, the Knaufs conveyed the property to the Trust.
In 1972, Paul Krahn owned the property to the west. In 1973, Krahn erected a corner fence along the southeast corner of his property as indicated by the stakes. Later, Krahn kept cattle on his property and, accordingly, erected another fence running along part of the stake line. The southeast part of Krahn's property was a plowed field. In 1999, defendants erected another fence along the boundary. The fences and the plowed field did not encroach upon the property boundary indicated by the stakes.
In 1976, plaintiffs planted 37 crab apple and 12 evergreen trees along the stake line and in 1978 put in a rock garden. According to the exhibits, the trees run along about half of the length of the stake line. Also near the line is a telephone utility box that bears plaintiffs' address. The trees, telephone box, and garden lie in the disputed strip. Plaintiffs' lawn continues at least up to the stake line, where it is met by a plowed field. Plaintiffs maintained the strip, and no one else used or claimed to own it.
In 1998, defendants purchased the property. In October 1998, Gerald noticed a new stake, which was several feet east of the original stake line. Gerald talked to a surveyor, James Olsen, who told Gerald that he surveyed the property and concluded that the boundary actually was at the place marked by the new stake.
Gerald testified that, more than once during 1998, John and Geri Ryan told Gerald that they knew the strip belonged to him and that they would not challenge his right to it. During the summer of 2000, Gerald asked John "what it would take to get" the strip, and John replied, "don't worry about it. We're not going to fight you for it."
Gerald acknowledged receiving from defendants a letter dated February 13, 1999. The letter informed the Knaufs that defendants were planning to erect a fence about eight feet west "of our designated property line." In the letter, defendants granted the Knaufs permission to use the strip between the lot line shown in Olsen's survey and the new fence. They stated, however, that the grant of permission "in no way constitutes relinquishment of our ownership or rights to this parcel." The letter informed the Knaufs that if they sold their property, the new owner would not be allowed to use the strip without defendants' express written permission.
Jymee Knauf testified that, after she and Gerald saw the new stake, they talked to the Ryans about it. The Ryans said that they understood that the strip was the Knaufs' property and that they would not try to take it from them.
William Wingstedt, a licenced land surveyor, testified that plaintiffs hired him to survey their property in July 2000. While surveying the property, Wingstedt encountered the original stakes. They were located in the correct place according to surveys performed during the 1960s, when the boundary was created. Wingstedt opined that, although Olsen's survey was not inaccurate, the original stakes marked the true western boundary. He explained that "Olsen surveyed the entire section and used the rules of construction for subdividing the section, which there's no evidence that that had previously been done." Wingstedt relied on previous surveys of the area. Also, Wingstedt explained that he used Stewart Road, which is approximately three-eighths of a mile east of plaintiffs' property, as a reference point and that the original stakes marked the proper distance from Stewart Road as stated in the deed.
Plaintiffs rested. John Ryan testified that he moved next to the Knaufs in October 1998. The Knaufs asked him and his wife, Geri, to grant them a quitclaim deed to the strip. John and Geri replied that they wanted to be good neighbors and therefore would not interfere with the Knaufs' use of the strip. Also, the Ryans agreed to build their fence according to where the Knaufs thought the property line was.
Olsen, a licenced land surveyor, testified that in 1976 his firm purchased DeGraff Loos and Associates (DeGraff), the firm that surveyed the properties in 1971. Olsen was asked to survey defendants' property because it was for sale. Olsen opined that the 1971 survey was inaccurate. Olsen believed that DeGraff did not actually determine the center, or "quarter corners," of section 24-37-8 but merely accepted a fence along the eastern boundary of defendants' property. The center of the section is located approximately at the center of the intersection of Woolley and Stewart Roads. To plot the quarters of the section, Olsen used laser equipment that ...