Stoehr v. Saville

2023 IL App (4th) 220751, 218 N.E.3d 556, 467 Ill. Dec. 221
CourtAppellate Court of Illinois
DecidedApril 19, 2023
Docket4-22-0751
StatusPublished

This text of 2023 IL App (4th) 220751 (Stoehr v. Saville) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stoehr v. Saville, 2023 IL App (4th) 220751, 218 N.E.3d 556, 467 Ill. Dec. 221 (Ill. Ct. App. 2023).

Opinion

2023 IL App (4th) 220751 FILED NO. 4-22-0751 April 19, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

EDWARD STOEHR, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Tazewell County JEFFREY SAVILLE, MICHAEL ELLING, and ) No. 20CH112 MACKINAW VALLEY HOMEOWNERS ) ASSOCIATION, ) Honorable ) Paul E. Bauer, Defendants-Appellees. ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Harris and Zenoff concurred in the judgment and opinion.

OPINION ¶1 Plaintiff, Edward Stoehr, and defendant Jeffrey Saville own adjoining lots in the

Mackinaw Valley Park Subdivision, Tazewell County, Illinois. Saville’s driveway overlaps the

northeast corner of Stoehr’s lot. Consequently, Stoehr brought this action against Saville for

trespass, seeking, among other relief, an order that Saville move the driveway off his lot.

¶2 Saville responded with a counterclaim. He asserted that the land on which his

driveway encroached, as well as a strip of land on Stoehr’s northern boundary that he had been

keeping mowed, had become his own property by adverse possession. At the conclusion of a bench

trial, the circuit court of Tazewell County rejected Saville’s claim to the grass strip. The court

decided, however, that, by adverse possession, Saville had become the owner of the triangular

piece of Stoehr’s lot on which the driveway encroached. Stoehr appeals. ¶3 By finding, impliedly, that Saville had hostile possession of this driveway

encroachment for 20 years, the circuit court made a finding that was against the manifest weight

of the evidence. Therefore, we reverse the part of the judgment declaring Saville to be the owner,

by adverse possession, of the driveway encroachment. We otherwise affirm the judgment, and we

remand this case for further proceedings.

¶4 I. BACKGROUND

¶5 In January 2001, James A. Smith bought from Barbara Peters a 34-acre parcel of

land in Tazewell County. When Smith bought the land, people were occupying it, living in cabins.

Since the 1980s, Jeffrey Saville had rented a lot on the land, and he owned a house on the lot

(although he did not own the lot itself). Saville was Peters’s tenant, and he became Smith’s tenant.

¶6 In September 2003, by recording a plat of subdivision, Smith divided the 34 acres

into lots of 0.501 acres apiece. Thus, Mackinaw Valley Park Subdivision came into existence. The

land on which Saville’s house stood became lot 11 of the subdivision, and the land adjoining lot

11 to the south became lot 12. In 2004, Smith sold lot 11 to Saville. In 2017, Smith sold lot 12 to

Stoehr.

¶7 A road runs along the east side of lots 11 and 12. At the southeast corner of lot 11

is a driveway into that lot—a gravel driveway bordered on the sides by railroad ties. This driveway

shears off the northeast corner of lot 12. In other words, there is a triangular encroachment of lot

11 onto the northeast corner of lot 12. The reason for the encroachment is that the driveway comes

off the road at a slant instead of at a right angle. A land surveyor, Daniel Evans, colored in the

encroachment on a plat of survey.

¶8 Several witnesses testified that the driveway, with its gravel and railroad ties, had

been in its present location for as long as they could remember—for decades. Nevertheless,

-2- because of this area of overlap, which we will call the triangle, Stoehr sued Saville in August 2020

for trespass.

¶9 Saville filed a counterclaim, in which he claimed that he had become, by adverse

possession, the owner not only of the triangle but also of a 15- or 30-foot strip of lot 12 that he

allegedly had been mowing. After hearing evidence and arguments in a bench trial, the circuit

court decided that Saville’s adverse possession of the grass strip was unproven but that his adverse

possession of the triangle was proven. Accordingly, the court ruled that Saville was the owner of

the triangle.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 Under the doctrine of adverse possession, a person can become the owner of land

by continually trespassing on it for 20 years. The reason is that the statutory period of limitation

for “commenc[ing] an action for the recovery of lands” or for “mak[ing] an entry thereon” is “20

years after the right to bring such action or make such entry first accrued.” 735 ILCS 5/13-101

(West 2020); see also Mazal v. Arias, 2019 IL App (1st) 190660, ¶ 20 (noting that “[c]auses of

action for adverse possession *** are *** incorporated into section 13-101, which sets a 20-year

statute of limitation on the recovery of lands”). If, because of the passage of 20 years, section

13-101 bars a trespass action or an entry, the trespasser effectively becomes the owner of the land.

See Chicago Title Land Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420, ¶ 42.

¶ 13 For title to be transferred through adverse possession, “the disputed lands must be

in the possession of another for 20 years[,] and that possession must be (1) continuous; (2) hostile

or adverse; (3) actual; (4) open, notorious, and exclusive; and (5) under a claim of title inconsistent

with that of the true owner.” Mazal, 2019 IL App (1st) 190660, ¶ 20. “Hostility” is an “assertion

-3- of ownership incompatible with that of the true owner and all others.” Peters v. Greenmount

Cemetery Ass’n, 259 Ill. App. 3d 566, 569 (1994). The assertion of ownership must be “one of

ownership in fee simple.” 1 Ill. L. and Prac. Adverse Possession § 9 (2023). “[P]ossession which

is not under claim of ownership in its inception cannot ripen into an adverse title.” Town of

Kaneville v. Meredith, 351 Ill. 620, 625 (1933).

¶ 14 “[A]dverse possession may be shown by acts of proprietorship as well as by verbal

claims ***.” Jones v. Scott, 314 Ill. 118, 122 (1924). “[P]roof of oral claims is not essential, and

it is enough that the claimant prove that he so acted that it showed he claimed the title.” Leonard

v. Leonard, 369 Ill. 572, 577 (1938). The acts of proprietorship must give the true owner fair notice,

under the circumstances, that the claimant asserts a fee simple interest in the disputed property.

See Nationwide Financial, LP v. Pobuda, 2014 IL 116717, ¶ 39 (remarking that “the concern for

fair notice to the owner goes to the adversity element”). “All presumptions are in favor of the true

owner.” Jones, 314 Ill. at 123. For land to become someone else’s by adverse possession, “it must

be clearly shown that the use of the land was adverse and not merely permissive, since permissive

use of land, no matter how long, can never ripen into an adverse possessory right.” Mann v.

La Salle National Bank, 205 Ill. App. 3d 304, 310 (1990). In fact, the claimant by adverse

possession has the burden to establish all the elements of adverse possession “by clear, positive

and unequivocal proof.” Thomas v. Durchslag, 404 Ill. 581, 587 (1950).

¶ 15 The circuit court found that Saville had proven part of his counterclaim of adverse

possession. The court decided that, by adverse possession, Saville had become the owner of the

triangle. In Stoehr’s view, that decision is against the manifest weight of the evidence (see Knauf

v. Ryan, 338 Ill. App. 3d 265, 269 (2003)) because, during the decades when Saville was a tenant,

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Related

Peters v. Greenmount Cemetery Ass'n
632 N.E.2d 187 (Appellate Court of Illinois, 1994)
Thomas v. Durchslag
90 N.E.2d 200 (Illinois Supreme Court, 1950)
Mann v. La Salle National Bank
562 N.E.2d 1033 (Appellate Court of Illinois, 1990)
Knauf v. Ryan
788 N.E.2d 805 (Appellate Court of Illinois, 2003)
Nationwide Financial, L.P. v. Pobuda
2014 IL 116717 (Illinois Supreme Court, 2014)
Chicago Title Land Trust Co. v. JS II
2012 IL App (1st) 63420 (Appellate Court of Illinois, 2012)
Town of Kaneville v. Meredith
184 N.E. 883 (Illinois Supreme Court, 1933)
Pullman Car & Manufacturing Corp. v. Stroh
182 N.E. 399 (Illinois Supreme Court, 1932)
Leonard v. Leonard
17 N.E.2d 553 (Illinois Supreme Court, 1938)
Risi v. Interboro Industrial Parks, Inc.
99 A.D.2d 466 (Appellate Division of the Supreme Court of New York, 1984)
Jones v. Scott
145 N.E. 378 (Illinois Supreme Court, 1924)
Ross v. Guentherodt
105 N.W. 1120 (Michigan Supreme Court, 1906)
Mazal v. Arias
2019 IL App (1st) 190660 (Appellate Court of Illinois, 2019)

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Bluebook (online)
2023 IL App (4th) 220751, 218 N.E.3d 556, 467 Ill. Dec. 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stoehr-v-saville-illappct-2023.