Dane v. Burnell Sr
Key Takeaways
- 1 Adverse possession claimants must prove exact boundary location by clear and unequivocal evidence throughout the full 20-year period.
- 2 Surveyor testimony and photographic contradictions sufficiently supported denial of adverse possession despite neighbor testimony favoring claimant.
- 3 Relevant for property and real estate attorneys litigating boundary disputes, fence encroachments, or adverse possession claims in Illinois.
Summary
Plaintiff Adam Dane sued defendant Dorile Burnell Sr. alleging that defendant's fence encroached on plaintiff's Rockford, Illinois property, asserting trespass, permanent injunction, and private nuisance claims. Defendant raised adverse possession as a defense. Following a bench trial, the Winnebago County circuit court found that defendant proved adverse possession as to a back-yard chain-link fence but failed to prove adverse possession as to a front-yard split-rail fence (later replaced by a wooden privacy fence). The court entered judgment for plaintiff on the front-yard fence, ordering its removal. Defendant appealed only the adverse finding regarding the split-rail fence.
The sole issue on appeal was whether the circuit court's finding against defendant on the split-rail fence was against the manifest weight of the evidence. The Fourth District affirmed, identifying multiple evidentiary bases supporting the circuit court: a surveyor who performed a 2022 survey of the property saw no split-rail fence and would have depicted one had it existed; photographs appeared to contradict a neighbor's testimony that the new privacy fence stood in the exact same position as the split-rail fence; and defendant himself admitted a fence post had shifted due to ground movement, with additional testimony that defendant had repositioned it.
For practicing attorneys, this decision reinforces that adverse possession claimants bear a heavy burden — all presumptions favor the title owner, and claimants must establish by clear and unequivocal evidence the exact location of the claimed boundary line for the entire 20-year statutory period. Approximation is insufficient, particularly where inches of land are at issue.
Key Holdings
1. A circuit court's finding against an adverse possession claimant is not against the manifest weight of the evidence where surveyor testimony, photographic evidence, and admissions by the claimant collectively undermine the claim that a fence occupied the disputed location for the required statutory period.
2. An adverse possession claimant must prove by clear and unequivocal evidence the exact location of the boundary line claimed throughout the entire 20-year period under 735 ILCS 5/13-101; approximation does not suffice, especially where inches of land are at issue.
3. In a bench trial, the circuit court is entitled to credit a licensed surveyor's testimony over a lay neighbor's testimony regarding the location of a fence relative to a property boundary.
4. All presumptions favor the title owner in an adverse possession dispute, and the burden rests entirely on the claimant to overcome those presumptions with clear and unequivocal evidence as to each required element.