The Disappearing Oak and the 1994 Fence
An Illinois surveyor is retained to retrace the east 20 acres of the northwest quarter of Section 8, T. 38 N., R. 5 E., in a rural county. The 1968 deed to the west owner describes the east 20 acres by government aliquot parts. The 1975 deed to the east owner begins at the northwest corner of that 20-acre tract and runs easterly 'to a 24-inch white oak marked X,' then southerly 660 feet, then westerly to the quarter-quarter line. The white oak is gone; no stump or bearing trees are visible. A woven-wire fence has enclosed the east owner's pasture since 1994, and the east owner has paid taxes on the full fenced area. The fence lies about 38 feet west of the line produced by the deed's 660-foot call. The current west owner wants the survey to show the deed line and has told the surveyor not to 'worry about the fence.' The county assessor's map shows the fence as the parcel line.
1. What evidence controls the location of the east line of the 20-acre tract, and in what order should the surveyor evaluate it?
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Use the deed-construction hierarchy, but do not stop at the missing tree. Natural monuments, artificial monuments, courses, distances, and quantity are the usual order, with the parties' intent as the controlling principle. A call to a 24-inch white oak marked X is a monument call. If the oak can be located by extrinsic evidence-GLO field notes and bearing trees, old aerial photos, stump holes, fence corners, or testimony-it controls the 660-foot call and the acreage. If it cannot be located with reasonable certainty, the call fails. Then the surveyor must apply senior/junior rights: the 1968 deed created the 20-acre senior tract, and the 1975 deed is junior. A junior deed cannot take land from the senior tract because of an uncertain monument call. The east line is therefore the senior aliquot line unless the evidence shows the parties intended a different line. The assessor's map is not title evidence.
2. The fence has been in place since 1994 and the east owner has paid taxes on the fenced area. Does that make the fence the boundary?
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The fence is occupation evidence, not an automatic boundary. Illinois adverse possession requires 20 years of actual, open, notorious, exclusive, hostile, and continuous possession under 735 ILCS 5/13-101. Payment of taxes is not an element of the 20-year claim; it matters for the 7-year color-of-title claim. A boundary by acquiescence or practical location may also be argued, but it requires mutual recognition and acquiescence, not just a fence built for livestock. The east owner's tax payments on the fenced area support a claim but do not prove hostile intent. Because the fence has existed since 1994, a court could find title by adverse possession, but that is a judicial question. The surveyor should not declare the fence the boundary; the surveyor should show the fence and the deed line and explain the discrepancy.
3. How should the survey plat depict the boundary and the occupation line?
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Show two lines. The boundary of record should be the senior deed line, labeled as such, with the fence shown as a separate occupation line about 38 feet west. Label the fence 'occupation line-not a boundary of record' and note the east owner's possible adverse possession claim and tax payments. Do not omit the fence at the west owner's request; that would misrepresent visible evidence and could mislead a buyer. Under the Illinois minimum standards, the survey should show monuments, occupations, and discrepancies, and the surveyor should provide a written explanation. If the survey is recorded, include a note that title and adverse possession are legal questions for the parties and their attorneys. The surveyor can opine on the location of evidence but cannot quiet title.