THE ILLINOIS PERMANENT SURVEY ACT

Introduction

The Illinois Permanent Survey Act, 765 ILCS 215/1-4, provides a means to clarify or re-establish ambiguous boundaries and resolve boundary disputes. If boundary lines or corners are unknown or disputed, the owners of the affected adjacent properties can, according to the Act, either agree to be bound by a survey performed by a designated surveyor, or give notice to owners of adjacent property and apply to the circuit court to have a survey done. Following are some of the more crucial details.

Mutual Agreement to Be Bound by a Survey

Section 1 provides that owners of adjacent tracts of land may bind themselves in writing to hire a particular surveyor and abide by the resulting survey. A plat with all necessary descriptions is completed based on the survey, and it is recorded in the county recorder's office along with the written agreement of the parties. The survey's descriptions then are binding upon the parties to the agreement as well as to their heirs, successors, and assigns.

Application for a Survey in Lieu of a Mutual Agreement

Sometimes, however, a pre-survey agreement may not be acceptable to all the interested landowners, or may not be possible. If, for whatever reason, a binding agreement cannot be reached among the owners, one or more owners can still attempt to have a binding survey done by following the procedures established in the remaining sections of the Act.

Notice

First, the owner or owners desiring the survey must give notice of the proceedings. Following are the notice requirements, as established in § 2. Written personal notice must be served on each owner of an adjacent tract at least ten days before the day of application to the circuit court, if that owner is known and resides in Illinois. Since such notice is official process, it must be served by a non-party to the suit. Lee v Fox, 89 Ill 226 (1878).

If the owner is not known or does not reside in Illinois, notice must be publicized in a public newspaper in the county where the boundaries are situated. Such notice must appear at least once per week for three consecutive weeks, and the first such publication must be made at least four weeks prior to the day of application to the circuit court.

In the rare instance in which there is no public newspaper in that county, notice to an unknown or out-of-state owner must be posted at least four weeks before application to the circuit court is made. The posting must be in four different public places in the county, including once in the precinct or township in which the boundaries are located. If posted, the notice must include language "to the effect that, on a return day named therein, which shall not be later than sixty days from the date of such notice, he, she or they will make application to the circuit court of the county … for the appointment of a commission of surveyors to make survey of and to permanently establish said corners and boundaries." § 215/2.

Court Appointment of Commission of Surveyors

After the petitioning landowner files proof of proper notice, the court appoints a commission of three disinterested surveyors. The surveyors are authorized to administer oaths and collect evidence from anyone who has relevant knowledge of a line or corner monument. Of course, the surveyors are authorized only to reestablish lines that have already been established, not to establish new lines or corners. Krause v Nolte, 217 Ill 298, 75 NE 362 (1905). The surveyors must establish the lines and corners by a preponderance of the evidence. Vinyard v Vaught, 138 Ill App 3d 641, 485 NE2d 1131 (5th D 1985). After the commission survey is complete, the resultant plat and survey notes are passed on to the court.

Objections to, and Approval of, the Survey Report

Anyone who has an interest that is affected by the survey may object to the surveyor's report. After hearing the objection, the court enters an order approving, rejecting, or modifying the report, or sends the report back to the surveyors for correction. If there is good reason, the judge can remove the commission of surveyors and appoint a new one. If not appealed under Supreme Court Rules, the judgment of the court is final and the boundaries established in the surveyors' report are permanently established. The expenses and costs of the proceedings and the survey are apportioned among the parties, in accordance with their respective interests. (For a recent example of such apportionment of survey expenses and costs, see Gvillo v Stutz, 306 Ill App 3d 766, 715 NE2d 285 (5th D 1999).)

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