Genevieve M. Daniels, Genevieve M. Daniels, P.C.
800-470-8661 | Email Genevieve Daniels
When Neighbor Disputes Cross the Line: Illinois Courts Reject Neighbor Encroachment Claims Where Adverse Possession Elements Are Not Strictly Proven
This month provides an opportunity to discuss another perennial favorite: property line disputes between unneighborly neighbors involving strategic gardening, moving fence posts, and purloining monument pins. The First and Fourth Districts, in Penn v. Fill & Novak, 2026 IL App (1st) 250920-U, and Dane v. Burnell, 2026 IL App (4th) 251384-U, respectively, weigh in on claims of adverse possession, trespass, nuisance, and more.
Penn v. Fill & Novak
William F.A. Penn and Julie A. Penn were neighbors with Charles Fill and Darlene Novak. 2026 IL App (1st) 250920-U at ¶¶4 – 5. The residence was located on a lot set back several hundred feet from the street, with three separate, additional vacant wooded parcels intervening between the street and the residence. Id. The University of Chicago purchased the three parcels in 2021. Id. The three parcels were also adjacent to the Fill and Novak residence, and a long asphalt driveway on the eastern-most edge of the three parcels gave street access to the Penns. Id.
At some point, the Penns purchased the three parcels from the University of Chicago. 2026 IL App (1st) 250920-U at ¶16. Once Fill became aware that the Penns were purchasing the three parcels, Fill requested to buy a portion of the land. Id. When the Penns declined, the Penns received a letter from Fill and Novak’s attorney asserting their ownership rights by adverse possession or prescriptive easement, primarily relating to one of the parcels, which was the first time that Fill and Novak had claimed any interest in the three parcels. Id.
The Penns then went on the offense, filing their complaint against Fill and Novak, alleging, in part, claims of trespass, private nuisance, and quiet title regarding the three parcels. 2026 IL App (1st) 250920-U at ¶¶2, 4. In response, Fill and Novak claimed rights to use or own portions of the three parcels through adverse possession and prescriptive easement, based on their long use of a driveway, parking area, paths, and gardens on the parcels. 2026 IL App (1st) 250920-U at ¶5.
During the bench trial, Fill testified that since 1985, he had maintained and added to the gardens that existed on one of the three parcels, mostly by weeding and removing invasive plants. 2026 IL App (1st) 250920-U at ¶10. Fill characterized the gardens as “a simple, beautiful, natural, not overly manicured space.” 2026 IL App (1st) 250920-U at ¶13. Fill also testified that a gravel driveway ran from a concrete pad on their land through the three parcels and connected to the asphalt driveway the Penns used to access the street. 2026 IL App (1st) 250920-U at ¶9. The concrete pad was regularly used by Fill and Novak, their family, and guests to park on their property. Id.
However, on cross examination, Fill acknowledged that he had his own separate paved driveway that gave him access to the street. 2026 IL App (1st) 250920-U at ¶11. Fill also acknowledged that when he moved into his residence in 1985, he knew that the three parcels were owned by the university, as the university had approached him about buying the parcels at that time. Id.
In 2016, after learning that the University was contemplating a sale of the three parcels to a developer, Fill drafted a letter addressed to the university, in which he indicated that he lived on a parcel adjacent to the lots owned by the university, which he sent to the Penns to review. 2026 IL App (1st) 250920-U at ¶¶12 – 13. In the letter, Fill described the Penns as “terrific neighbors” with whom they had jointly maintained the three parcels and proposed that the two couples jointly purchase the properties from the university. 2026 IL App (1st) 250920-U at ¶13. During cross examination, Fill acknowledged that nothing in the draft letter claimed that he had an ownership in any of the three parcels or a right to use the driveway on it and that he had asked the Penns if he could buy a portion of the parcels after they purchased them from the university. Id.
In contrast, the Penns testified that they had never seen either Fill or Novak maintaining the trees or plants in the three parcels except on two occasions after they had made their claim of adverse possession. 2026 IL App (1st) 250920-U at ¶17. The Penns also disputed Fill’s characterization of the three parcels as a “garden” but, rather, described it as merely “an overgrown, dense mess, essentially what looks like a jungle sort of wooded, forested area.” 2026 IL App (1st) 250920-U at ¶18. The Penns also testified that the area that they were claiming to be a “gravel” driveway was not actually gravel but rather merely a rutted and muddy area. 2026 IL App (1st) 250920-U at ¶17.
At the trial’s conclusion, the court found that Fill and Novak had failed to meet their burden of establishing the elements of adverse possession by clear and unequivocal evidence. 2026 IL App (1st) 250920-U at ¶19. Specifically, it found that the land was vacant and unenclosed and that, therefore, Fill and Novak’s use of the dirt or gravel driveway on it was presumed to be permissive rather than adverse. Id. The trial court also noted that Fill had acknowledged on several occasions that the university owned the three parcels and never asserted that he was the owner of it. Id. Their activities — driving over a dirt or gravel path, parking near their home, maintaining vegetation, and using walkways — did not clearly show a hostile claim of ownership. Id. Ultimately, the trial court ruled that the Penns had established their claims for trespass, private nuisance (due to the dumping of soil onto the Penns’ property when Fill and Novak excavated for their swimming pool), and quiet title. 2026 IL App (1st) 250920-U at ¶20. Apparently, the Penns were not the “terrific neighbors” Fill had been hoping for, and a timely appeal was filed.
The appellate court, in reviewing the lower court’s decision under a manifest weight of the evidence standard, upheld the trial court’s ruling. 2026 IL App (1st) 250920-U at ¶¶29. With respect to Fill and Novak’s claim of a prescriptive easement over the gravel driveway and the paved driveway utilized by the Penns, the appellate court held, as a matter of law, that use of vacant and unenclosed land is premised to be with permission of the owner and not adverse and that, therefore, there can be no prescriptive easement established. 2026 IL App (1st) 250920-U at ¶¶34, citing Parker v. Rosenberg, 317 Ill. 511, 148 N.E. 269, 272 (1925), and Dobrinsky v. Waddell, 233 Ill.App.3d 443, 599 N.E.2d 188, 190 – 191, 174 Ill.Dec. 642 (4th Dist. 1992). The fact that these driveways had been in use for decades and without a clear origin as to the use was irrelevant to Fill and Novak’s claim. 2026 IL App (1st) 250920-U at ¶¶30 – 34. Similarly, their claim that the parcels in question were improved by a “lush yard” of trees and gardens (and therefore were not vacant) was not borne out by the evidence. 2026 IL App (1st) 250920-U at ¶¶35 – 37.
As Fill and Novak’s use of the three parcels was not adverse, they also could not establish the “hostile or adverse” element required for their adverse possession claim. 2026 IL App (1st) 250920-U at ¶¶37 – 38, citing Miller v. Metropolitan Water Reclamation District of Greater Chicago, 374 Ill.App.3d 188, 870 N.E.2d 1040, 1041 – 1042, 312 Ill.Dec. 596 (1st Dist. 2007). “Where property is used with the permission of its owner, possession is not hostile or adverse.” 2026 IL App (1st) 250920-U at ¶39, citing 527 S. Clinton, LLC v. Westloop Equities, LLC, 403 Ill.App.3d 42,932 N.E.2d 1127, 1134, 342 Ill.Dec. 666 (1st Dist. 2010). “Thus, in cases involving vacant and unenclosed land wherein the presumption of permissive use arises, ‘it must be clearly shown that the use of the land was adverse and not merely permissive.’ ” 2026 IL App (1st) 250920-U at ¶39, quoting Mann v. LaSalle National Bank, 205 Ill.App.3d 304, 562 N.E.2d 1033, 1037, 150 Ill.Dec. 230 (1st Dist. 1990). For the reasons described above, the appellate court agreed with the lower court that Fill and Novak had failed in their burden to establish their adverse possession claims. 2026 IL App (1st) 250920-U at ¶¶41 – 42.
Dane v. Burnell
Adam Dane and Dorile Burnell Sr. lived next to each other.2026 IL App (4th) 251384-U, ¶12. Dane had a concrete driveway that ran on the eastern part of his property and was well within his property lines, according to a 2022 survey. 2026 IL App (4th) 251384-U at ¶¶12, 22. Burnell, Dane’s neighbor to his east, had a split-rail fence in disrepair that traversed halfway down the border between their two properties. 2026 IL App (4th) 251384-U at ¶13. This fence was not in a straight line; it swerved in towards Burnell’s house. 2026 IL App (4th) 251384-U at ¶15. Traversing the other half of the border between the two properties was a chain-link fence that was more or less a continuation of the split-rail fence, and, like the split-rail fence, it was there when Dane bought the property. 2026 IL App (4th) 251384-U at ¶17.
In 2022, when Dane decided to build a fence, he ordered a survey to confirm boundaries. 2026 IL App (4th) 251384-U at ¶16. During his fieldwork, the surveyor planted iron monument pins in all four corners of Dane’s lot. 2026 IL App (4th) 251384-U at ¶20. Dane’s 2022 survey did not show any encroachment by the split-rail fence but did show that the chain-link fence encroached onto Dane’s property. 2026 IL App (4th) 251384-U at ¶17.
In 2023, Burnell decided to remove the split-rail fence and replace it with a wooden privacy fence that came right up to the driveway. 2026 IL App (4th) 251384-U at ¶18. According to a second survey ordered by Dane in 2024, both the privacy fence and chain-link fence encroached on his property. Id. Dane’s brother, who lived at the property, tried to stop the construction because of the encroachment but Burnell insisted that the fence company continue its work. 2026 IL App (4th) 251384-U at ¶¶24 – 28.
Given this impasse, Dane filed a complaint, alleging trespass and nuisance and seeking a permanent injunction, removal of the fence, and damages against Burnell. 2026 IL App (4th) 251384-U at ¶¶5 – 9. Burnell defended himself by arguing that he had acquired any disputed land through adverse possession. 2026 IL App (4th) 251384-U at ¶¶1, 29 – 33.
During the bench trial, Dane’s surveyor testified about both his 2022 and 2024 surveys. 2026 IL App (4th) 251384-U, ¶¶19 – 23. Both surveys confirmed an encroachment of the chain-link fence but did not indicate any encroachment in the area of the split-rail fence until it was replaced by the privacy fence. Id. The surveyor also testified that the deeply buried monument pin near the southernmost post of the new privacy fence had been removed by 2024 and was not recovered. Id. Similarly, Dane’s brother testified that the privacy fence was not in the exact location of the split-rail fence, claiming Burnell had removed the surveyor’s prior pin and intentionally altered the fence line onto Dane’s property. 2026 IL App (4th) 251384-U at ¶¶24 – 28.
In his defense, Burnell testified that the chain-link fence had been in place when he moved into the property in 1989 but that he erected the split-rail fence in 1993 after the concrete driveway on Dane’s property had been poured. 2026 IL App (4th) 251384-U at ¶30. Claiming that the split-rail fence had been constructed to follow a straight line from the chain-link fence, Burnell also acknowledged that because its posts had rotted and the ground had shifted, some of the rails leaned away from Dane’s property and towards his. 2026 IL App (4th) 251384-U at ¶¶30 – 31. Although Burnell admitted to removing the surveyor’s pin, he denied that, before replacing the split-rail fence with the new privacy fence, he moved the southernmost post of the split-rail fence closer to Dane’s property. Id. A long-standing neighbor also testified on behalf of Burnell, stating that the privacy fence was in the exact same place as the prior fencing. 2026 IL App (4th) 251384-U at ¶¶32 – 33.
While the trial court found that Burnell had adversely possessed the land beneath that portion of Dane’s property by the chain-link fence, it rejected his argument as to the privacy fence and ordered that front fence removed. 2026 IL App (4th) 251384-U at ¶¶35 – 36. Burnell filed a timely appeal, challenging the ruling on the privacy fence. 2026 IL App (4th) 251384-U at ¶¶37 – 38.
The appellate court, in reviewing the lower court’s decision under a manifest weight of the evidence standard, upheld the trial court’s ruling. 2026 IL App (4th) 251384-U at ¶¶46 – 48. It is well settled in Illinois that in order to establish title over a property by adverse possession, a claimant must prove possession of the disputed property was “(1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive . . . , [and] (5) under claim of title inconsistent with that of the true owner” for a period of at least 20 years. 2026 IL App (4th) 251384-U at ¶40, quoting Joiner v. Janssen, 85 Ill.2d 74, 421 N.E.2d 170, 174, 51 Ill.Dec. 662 (1981). Additionally, “the claimant must also prove ‘by clear and convincing evidence the exact location of the boundary line to which [the claimant] claim[s].’ ” 2026 IL App (4th) 251384-U at ¶40, quoting Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶37, 12 N.E.3d 198, 382 Ill.Dec. 198 (Brandhorst court quoting Schwartz v. Piper, 4 Ill.2d 488, 122 N.E.2d 535, 539 (1954)).
While Burnell rested his claim solely on the undisputed fact that the split-rail fence had been in existence for over 20 years, it was not clear that all of the split-rail fence, or even some of it, had been on Dane’s property for 20 years. 2026 IL App (4th) 251384-U, ¶¶41 – 45. Indeed, photographs admitted at trial contradicted testimony that the privacy fence stood in the same exact location as the split-rail fence. Id. The appellate court concluded that “[b]ecause the claim of adverse possession is for inches of land, exactitude matters, and approximation will not suffice.” 2026 IL App (4th) 251384-U at ¶45. As a result, trial court’s view of the evidence was reasonable and, therefore, its ruling was not against the manifest weight of the evidence. Id.
For more information about real estate law, see CAUSES OF ACTION: REAL PROPERTY ACTIONS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.