2015 IL App (2d) 141175
Ill. App. Ct.2015Background
- Henry and Vernette Sullivan own lakefront property on McGreal Lake; Peggy, Ken, and Jan Kanable own the adjacent parcel to the west and occupy it. Plaintiffs sued to determine the boundary (count I) and to enjoin defendants’ wastewater discharge (count II); summary judgment for defendants on count II was previously affirmed.
- Plaintiffs’ surveyor, Brian Lee, retraced government section and quarter-section monuments and located plaintiffs’ boundaries according to the legal descriptions, concluding the Kanables’ stakes intruded ~19 feet into the Sullivans’ property.
- Defendants’ surveyor, Ed Peklay, placed corners consistent with long-standing occupation lines and an old survey, setting the water‑edge corner about 19 feet into plaintiffs’ parcel; he testified occupation lines can control over pure measurements.
- The trial court preferred Lee’s “measurement methodology” based on government monuments and the legal descriptions, rather than Peklay’s occupation-based adjustment that shifted the place of beginning to fit occupation lines.
- The court entered declaratory judgment for plaintiffs establishing the boundary per Lee’s survey; defendants appealed arguing the judgment was against the manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper boundary location between parcels | Lee’s retracement using government monuments and legal description establishes the correct boundary | Peklay’s retracement honors occupation lines and an original/old survey; occupation controls over measurements | Court upheld Lee’s survey; measurement method preferred where it follows monuments and legal description |
| Whether occupation lines can override written dimensions/place of beginning | Place of beginning and dimensions in deed control; retracement to monuments is reliable | Occupation lines and improvements may control and should prevail over conflicting measurements | Court rejected occupation-based relocation of place of beginning here as arbitrary and inferior |
| Standard of review on appeal | N/A (plaintiffs defend trial result) | Trial court’s factual finding is against manifest weight | Appellate court affirmed because trial court’s factual findings were not against manifest weight |
| Surveyor methodology choice | Retracement to original government monuments is proper | Following occupation and prior occupation surveys is an acceptable retracement method | Court held retracement to monuments/measurements was more appropriate given the record and potential effect on other lines |
Key Cases Cited
- City of Marseilles v. Radtke, 307 Ill. App. 3d 972 (1999) (standard that trial-court factual findings will not be overturned unless against manifest weight)
- Best v. Best, 223 Ill. 2d 342 (2006) (appellate deference to trial court on witness credibility and weight of evidence)
- Rivers v. Lozeau, 539 So. 2d 1147 (Fla. Dist. Ct. App. 1989) (distinguishes original surveyor establishing lines from following surveyor’s duty to retrace existing boundaries)