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Dwyer v. Love

March 02, 2004

JOHAN DWYER, PLAINTIFF-APPELLEE,
v.
WILLIAM R. LOVE AND JODY ROMANO LOVE, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Winnebago County. No. 00-CH-491 Honorable Gerald F. Grubb, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

PUBLISHED

Plaintiff, Johan Dwyer, filed a complaint in the circuit court of Winnebago County seeking declarative and injunctive relief against defendants, William R. Love and Jody Romano Love. The parties dispute ownership of a strip of land approximately 4 to 11 feet in width on the western edge of Johan's property and on the eastern edge of the Loves' property. The trial court found that Johan had acquired the land by adverse possession. On appeal, the Loves contend that the trial court erred by denying their motion for a directed finding and that the court's adverse possession finding is against the manifest weight of the evidence. As both of these arguments lack merit, we affirm.

Johan's property is a farm situated in Roscoe. She has lived on the farm since 1956 when she married John Dwyer. John is now deceased, but he ran the farm for over 40 years until his death in 1996. After his death, John's son, also named John Dwyer (John Jr.), managed the farm. The Dwyers grow crops such as corn and soybeans and also raise livestock, primarily cattle.

The western boundary line of the farm, at issue in this case, is approximately a half mile long and physically defined by a wire fence and hedgerow. The hedgerow consists of wild shrubs and many trees that have grown around the fence. The fence runs from the northern to the southern edge of the adjacent properties and parallels a small ridge for most of the way. Johan testified that the fence existed when she married John, but it probably dates much earlier than 1956. In 1986, a fence viewing was conducted by Patrick Henderson, a Roscoe Township trustee, to address the Dwyers' complaint that the prior owners of the Loves' property were neglecting to maintain a fair share of the fence. Henderson ordered the Dwyers to maintain the northern half of the fence, while the previous owners of the Loves' property were ordered to maintain the southern half. The Dwyers have maintained the northern half of the fence in reasonably good condition. However, the southern portion has fallen into disrepair. At various points along the southern portion, the fence can no longer sufficiently constrain the Dwyers' livestock.

The Loves purchased their property in 1991. In 1998, William hired a surveyor to survey his property. According to the survey markers, the Loves' property extends about 4 feet past the fence at the northern end of the property and up to 11 feet at the southern end.

The Dwyers have cultivated the fields along the fence or used them as pasturage every year since at least 1956. Primarily, the fields are used to grow corn and soybeans. According to Johan and John Jr., they grow crops all the way to the fence line, impliedly including the disputed area. The disputed area has always been under the Dwyers' exclusive control. Besides the Loves, no one has ever challenged their ownership of the property. Contrary to the Dwyers' position, William maintains that the crops do not grow up to the fence line. Instead, based on his observations, the crops end 15 to 20 feet from the fence.

In the end, the trial court denied the Loves' motion for a directed finding. More important, the trial court found that Johan had established by clear and convincing evidence that she had acquired all of the property east of the fence line by adverse possession. In the court's view, the Dwyers' possession of the disputed area was an "exclusive exercise of control and dominion" since at least 1956. The court pointed to the fence viewing, the Dwyers' maintenance of the fence, and the continuous cultivation of crops almost to the fence as evidence to support its conclusion.

The trial court further stated that the southern portion of the fence is in disrepair largely because the Loves have refused to repair it. Nevertheless, the court found that Johan provided sufficient evidence that the Dwyers exclusively possessed all of the land east of the fence in an open and hostile manner.

Last, the trial court rejected the Loves' argument that the southern fence line cannot form a discernable boundary line because of its shabby condition and the fact that at various spots there are apparent gaps in the fence line due to fallen fence wire. The court found that the fence line was "clearly capable of discernment" from the northern edge to the southern edge of the western boundary.

The Loves first argue on appeal that the trial court erred by denying their motion for a directed finding. We find that this issue has been waived.

In a bench trial, where the trial court is the trier of fact, a motion for a directed finding is governed by section 2--1110 of the Code of Civil Procedure (735 ILCS 5/2--1110 (West 2002) (formally titled a "Motion in non-jury case to find for defendant at close of plaintiff's evidence")). See Zankle v. Queen Anne Landscaping, 311 Ill. App. 3d 308, 311 (2000). Section 2--1110 provides that, "[i]f the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived." 735 ILCS 5/2--1110 (West 2002). Here, when the Loves moved for a directed finding at the end of Johan's case in chief, the trial court decided to "take it under advisement." The court asked the Loves to proceed with the presentation of their evidence. The court assured the Loves that it would decide the motion after all of the evidence was presented. The court promised to distinguish and separately consider the facts to be weighed for purposes of the motion for a directed finding before moving on to deliberate on its final judgment. The Loves then agreed to proceed in this manner. Specifically, in response to the Loves' oral motion for a "directed verdict," the trial court and defense counsel had the following colloquy:

"THE COURT: Okay. I'm going to take it under advisement. Obviously this is something that you've already prepared for in terms of some type of brief or something. And I understand that you would not prefer to go ahead with evidence at this point in time, but I think I can keep the two separate. *** I definitely will rule on your motion ...


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